Report 2011 - EFTA Court

that the Commission alone is
competent to decide whether it is
appropriate to bring proceedings
under Article 258 TFEU for failure
to fulfil obligation. Furthermore, the
choice between that procedure and
the special procedure in matters
of public procurement is within its
discretion.
5. Article 31 SCA corresponds in
substance to Article 258 TFEU. it is
clear from settled case-law of the
Courts of the European Union, that
private applicants do not have the
right to challenge a refusal by the
Commission to initiate proceedings
against a Member State for failure
to fulfil its obligations under the EU
Treaties.
6. The findings contained in ESA’s
decision to close the case do not
have the effect of resolving the
dispute between Aleris Ungplan
and the Norwegian authorities as
to the legality of the procurement
procedures undertaken by the
latter. The opinion notified in that
decision is a factual element which
a national court called upon to
rule on the dispute may certainly
take into account in the course
of its examination of the case.
However, findings resulting from an
examination under Article 31 SCA
are not binding on national courts.
Based on these considerations, the
Court finds that the application is
manifestly inadmissible.
Case E-13/10 Aleris Ungplan AS v xxxxxxxxxxxxxxxxxxxxxxxxxxx EFTA Surveillance Authority
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