CJEU - C-439/13 P / Opinion

Elitaliana SpA v Eulex Kosovo
Policy area
Institutional affairs
Deciding body type
Court of Justice of the European Union
Deciding body
Advocate General
Decision date
ECLI (European case law identifier)
  • CJEU - C-439/13 P / Opinion

    Key facts of the case:

    1. On 4 February 2008, the Council of the European Union adopted Joint Action 2008/124/CFSP on the European Union Rule of Law Mission in Kosovo, Eulex Kosovo.
    2. As part of that mission, by a restricted procedure, an invitation for tenders was published which concerned a project entitled ‘Helicopter support to the Eulex mission in Kosovo’, and contemplated the making of a service contract. Elitaliana SpA (‘Elitaliana’) participated in the tender process. Its tender was placed second. The Eulex Kosovo Head of Mission awarded the contract at issue to the tenderer which had been placed first.
    3. Elitaliana brought an action against Eulex Kosovo before the General Court of the European Union.
    4. During the proceedings before the General Court, Eulex Kosovo raised an objection of inadmissibility on the basis, first, that Eulex Kosovo did not have legal capacity to be a defendant, and, secondly, that the General Court had no jurisdiction in respect of measures relating to the common foreign and security policy (CFSP).
    5. By order of the General Court in Elitaliana v Eulex Kosovo (the ‘order under appeal’), the action was dismissed as inadmissible.
    6. By the present appeal, Elitaliana asks the Court of Justice to set aside the order under appeal.
    7. In this appeal, the Court is called on to consider the question of whether Eulex Kosovo is legally responsible for the decisions taken by the head of that mission, and more specifically whether an action for annulment pursuant to Article 263 TFEU may be brought against Eulex Kosovo, an issue which does not seem to have arisen previously. The Court must also make a determination on Elitaliana’s arguments concerning infringement of the fundamental right to an effective remedy, and the existence of an excusable error on Elitaliana’s part in relation to the identification of the defendant in the proceedings before the General Court.

    Results (sanctions) and key consequences of the case:

    ...I suggest that the Court should dismiss the action and order Elitaliana SpA to pay the costs.

  • Paragraphs referring to EU Charter (original language)


    38. It should first be pointed out that the principles set out in Articles 6 and 13 of the ECHR correspond to those which now appear in Article 47 of the Charter of Fundamental Rights of the European Union (the ‘Charter’), which, in principle, was applicable in this case. However, an infringement of Article 47 of the Charter can be relied on in the present case only if the actions brought against the institutions which might reasonably be regarded as competent are held to be inadmissible for non-procedural reasons, and the claimant, in such circumstances, has no effective legal remedy.

    39. The action brought before the General Court was brought against a party which the General Court found not to be the proper defendant. It is apparent from the appeal that Elitaliana considers that this finding amounts to an infringement of its fundamental rights, as protected by Article 47 of the Charter.

    40. I note that the finding that Eulex Kosovo is not the proper defendant, either because it does not have the capacity to be a party to proceedings, or for other reasons, does not lead to the conclusion that there was a lack of judicial protection.

    41. Indeed, the argument concerning Article 47 of the Charter is clearly premature. If the action has been brought against a party who is not the proper defendant, there cannot be, on that basis, an infringement of Article 47. Elitaliana’s situation can be analysed by reference to this provision only where an action against the proper defendant has been brought before the court or tribunal with jurisdiction and the latter finds that is no remedy.