| | ECT-288 & 235Liability in damages    
| ECT | Article 288 | The contractual liability of the Community shall be governed by the law applicable to the contract in question.
In the case of non-contractual liability, the Community shall, in accordance with the general principles common to the laws of the Member States, make good any damage caused by its institutions or by its servants in the performance of their duties.
The preceding paragraph shall apply under the same conditions to damage caused by the ECB or by its servants in the performance of their duties.
The personal liability of its servants towards the Community shall be governed by the provisions laid down in their Staff Regulations or in the Conditions of employment applicable to them. | | ECT | Article 235 | | The Court of Justice shall have jurisdiction in disputes relating to compensation for damage provided for in the second paragraph of Article 288. |
| General regulations - Phare & Tacis - GR | Article 24 | | In the event of closure or annulment of a tendering procedure, the tenderers are not entitled to compensation. [As restated in Case T-160/03 AFCON]. |
| Case | Pte | Ref | Text | T-411/06
Sogelma | 146-151 | ECT-288 | 146 It is settled case-law that, for the Community to incur non-contractual liability within the meaning of the second paragraph of Article 288 EC, a series of conditions must be met, namely the conduct of which the institutions are accused must have been unlawful, the damage must be real and a causal connection must exist between that conduct and the damage in question (Case 153/73 Holtz & Willemsen v Council and Commission [1974] ECR 675, paragraph 7, and Case T-19/01 Chiquita Brands and Others v Commission [2005] ECR II-315, paragraph 76).
147 In so far as those three conditions governing liability must be satisfied cumulatively, the fact that one of them has not been satisfied is a sufficient basis on which to dismiss an action for damages (Case C-257/98 P Lucaccioni v Commission [1999] ECR I-5251, paragraph 14).
148 In the present case, all the arguments which the applicant has presented in order to establish that the decision to cancel the tender procedure was unlawful have been examined and rejected (see paragraphs 122 to 143 above). The applicant therefore cannot claim damages on the basis of the alleged unlawfulness of the decision.
149 As regards the applicant’s argument that the EAR took an unreasonably long time to take the decision to cancel the tender procedure and to inform the applicant, it is clear that the mere fact that more than six months elapsed between the sending of the last request for clarification to the tenderers and the notification of the decision to cancel the tender procedure cannot be characterised as unlawful conduct on the part of the EAR.
150 It is moreover clear that there can be no causal link between the time taken by the EAR to take and give notice of the decision to cancel the tender procedure and the expenses incurred by the applicant in order to frame its tender.
151 It follows from the foregoing that the application for compensation for damage allegedly suffered must be rejected. | T-406/06
Evropaïki Dinamiki | 131-135 | ECT-288
CFIR-44.1 | 131 Article 44(1)(c) of the Rules of Procedure provides that the application must state the subject-matter of the proceedings and a summary of the pleas in law on which it is based. It is settled case-law that the information given must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to give a ruling, if necessary without other supporting information. In order to ensure legal certainty and the sound administration of justice, if an action is to be admissible, the essential facts and law on which it is based must be apparent from the text of the application itself, at the very least summarily, provided that the statement is coherent and comprehensible (Case T-387/94 Asia Motor Finance and Others v Commission [1996] ECR II-961, paragraph 106).
132 The Court considers however that, in the circumstances in the present case, there is no need to rule on the Commission’s argument founded on the inadmissibility of the application for damages, since the forms of order sought by the applicant must, in any event, be rejected on their merits (see, to that effect, Case C-23/00 P Council v Boehringer [2002] ECR I-1873, paragraph 52; Case C-233/02 France v Commission [2004] ECR I-2759, paragraph 26; and Case T-415/03 Cofradía de pescadores ‘San Pedro’ de Bermeo and Others v Council [2005] ECR II-4355, paragraph 32, confirmed on appeal by judgment of 22 November 2007 in Case C-6/06 P Cofradía de pescadores ‘San Pedro’ de Bermeo and Others v Council, not published in the ECR, paragraph 21).
133 In accordance with settled case-law, for the Community to incur liability, the applicant must prove the unlawfulness of the conduct alleged against the institution concerned, the fact of damage and the existence of a causal link between that conduct and the damage complained of (Case T-175/94 International Procurement Services v Commission [1996] ECR II-729, paragraph 44; see also to that effect Case T-336/94 Efisol v Commission [1996] ECR II-1343, paragraph 30; and Case T- 267/94 Oleifici Italiani v Commission [1997] ECR II-1239, paragraph 20). Where one of those conditions is not fulfilled, the action must therefore be dismissed in its entirety and it is not necessary to examine the other conditions for that liability (Case C-146/91 KYDEP v Council and Commission [1994] ECR I-4199, paragraph 19, and Strabag Benelux v Commission, cited in paragraph 50 above, paragraph 83).
134 It is apparent from the Court’s findings on the application for annulment that the applicant has not proved unlawful conduct on the part of the Commission.
135 Accordingly, the application for damages must be dismissed. | T-91/06-A
Theofilopoulos | 21-22 | ECT-288 | 21 En second lieu, pour autant que le recours soit fondé sur la responsabilité non contractuelle de la Communauté, il y a lieu de rappeler, d’abord, que le juge communautaire ne saurait, sans empiéter sur les prérogatives de l’autorité administrative, adresser des injonctions à une institution communautaire. Ce principe ne rend pas seulement irrecevables, dans le cadre d’un recours en annulation, des conclusions visant à ordonner à l’institution défenderesse de prendre les mesures qu’implique l’exécution d’un arrêt d’annulation, mais il s’applique, en principe, également dans le cadre d’un recours de pleine juridiction, tel que celui de l’article 288, paragraphe 2, CE (ordonnance du Tribunal du 14 janvier 2004, Makedoniko Metro et Michaniki/Commission, T-202/02, Rec. p. II-181, point 53).
22 Il s’ensuit que le premier chef de conclusions du requérant, visant à ordonner à la Commission de restituer physiquement les lettres de garantie en question, est irrecevable. | T-91/06-A
Theofilopoulos | 23-27 | ECT-288 | 23 Ensuite, pour ce qui est des autres conclusions de la requête visant la condamnation de la Commission au paiement d’une indemnité, le Tribunal rappelle la jurisprudence constante selon laquelle, en matière de responsabilité non contractuelle de la Communauté pour comportement illicite de ses organes, un droit à réparation est reconnu dès lors que trois conditions sont réunies, à savoir que la règle de droit violée ait pour objet de conférer des droits aux particuliers et que sa violation soit suffisamment caractérisée, que la réalité du dommage soit établie et, enfin, qu’il existe un lien de causalité direct entre la violation imputable à la Communauté et le dommage subi par les personnes lésées (arrêts du Tribunal du 14 novembre 2002, Rica Foods et Free Trade Foods/Commission, T-332/00 et T-350/00, Rec. p. II-4755, point 222, et du 10 avril 2003, Travelex Global and Financial Services et Interpayment Services/Commission, T-195/00, Rec. p. II-1677, point 54 ; voir également, en ce sens, arrêts de la Cour du 4 juillet 2000, Bergaderm et Goupil/Commission, C-352/98 P, Rec. p. I-5291, point 42 ; du 10 décembre 2002, Commission/Camar et Tico, C-312/00 P, Rec. p. I-11355, point 53, et du 10 juillet 2003, Commission/Fresh Marine, C-472/00 P, Rec. p. I-7541, point 25).
24 Dès lors que l’une de ces conditions n’est pas remplie, le recours doit être rejeté dans son ensemble sans qu’il soit nécessaire d’examiner les autres conditions (arrêt de la Cour du 15 septembre 1994, KYDEP/Conseil et Commission, C-146/91, Rec. p. I-4199, points 19 et 81, et arrêt du Tribunal du 20 février 2002, Förde-Reederei/Conseil et Commission, T-170/00, Rec. p. II-515, point 37).
25 En l’espèce, la Commission expose dans ses mémoires qu’elle n’a pas restitué les lettres de garantie en question, qu’elle a émis un certain nombre de notes de débit à l’encontre d’Impetus EPE et d’Impetus AEBE au motif que celles-ci ne se seraient pas conformées à leurs obligations découlant des quatre contrats en question et qu’elle a même demandé à la TSMEDE le paiement du montant de la lettre de garantie n° 830671. Or, un tel comportement de la Commission ne fait apparaître aucune violation d’une quelconque règle du droit communautaire, sans préjudice de l’appréciation de la conformité dudit comportement avec les termes des contrats conclus entre la Commission et lesdites sociétés, pour laquelle le Tribunal n’est pas compétent dans le cadre du présent recours.
26 Il s’ensuit que le recours, en ce qu’il vise la responsabilité non contractuelle de la Communauté, doit être rejeté comme étant partiellement manifestement irrecevable et pour le surplus comme étant dépourvu de tout fondement en droit.
27 Compte tenu de tout ce qui précède, le présent recours doit être rejeté dans son intégralité. | T-195/05-R
Deloitte | 126-128 | ECT-233
ECT-243-impl
ECT-288 | 126. First of all, the applicant claims that its exclusion from the tendering procedure harms its reputation. In that regard, the Commission rightly points out that participation in a public tender procedure, by nature highly competitive, involves risks for all the participants and the elimination of a tenderer under the tender rules is not in itself in any way prejudicial (orders in CMC v Commission , cited in paragraph 71 above, paragraph 51, and in European Dynamics v Commission , cited in paragraph 67 above, paragraph 82). Furthermore, the applicant's argument that this case-law does not apply where the tenderer has been unlawfully eliminated cannot be accepted. The case-law in question concerns cases where, like the applicant in the present case, the applicants were contesting the lawfulness of the act(s) contested in the main proceedings. In addition, where an undertaking has been unlawfully eliminated from a tendering procedure, there is even less reason to believe that it is liable to suffer serious and irreparable harm to its reputation, since its exclusion is unconnected with its competences and the subsequent annulling judgment will in principle allow any harm to its reputation to be made good.
127. Second, the applicant claims that, if the contested decisions are annulled and interim measures are not adopted, it will no longer be possible for it to be awarded the contract covered by the tendering procedure and then to perform the contract and, as a result, to derive certain benefits in terms of prestige, experience and revenue.
128. It should be noted in that regard that if the contested decisions were annulled by the Court, it would be for the Commission, under the first paragraph of Article 233 EC, to take the necessary measures to comply with the judgment, without prejudice to the obligations stemming from the application of the second paragraph of Article 288 EC. | T-195/05-R
Deloitte | 141-148 | ECT-243-impl
ECT-288 | 141. However, as was held above (paragraph 135), account should also be taken of the possibility that, if the contested decisions are annulled in the main proceedings, the Commission could compensate the applicant for any damage suffered and that, if the Commission chose not to award such compensation, the applicant could bring an action for damages on the basis of Article 288 EC. If any damage suffered by the applicant can subsequently be compensated, it cannot be regarded as irreparable (see, to that effect, the orders in Esedra v Commission , cited in paragraph 67 above, paragraph 44, and in TQ3 Travel Solutions Belgium v Commission , cited in paragraph 67 above, paragraph 43).
142. In the present case, the Commission claims in its observations that, if the contested decisions are annulled, the applicant's interests could be adequately protected inter alia through the payment of compensation. However, the file does not contain anything to guarantee, with a sufficient degree of certainty, that, if the contested decisions were annulled, the Commission would compensate the applicant without an action for damages being brought.
143. Account must therefore be taken of the possibility of the applicant bringing an action under Article 288 EC.
144. According to settled case-law, the damage for which compensation is sought in an action under Article 288 EC must be real and certain (see, to that effect, Case T-54/96 Oleifici Italiani and Fratelli Rubino v Commission [1998] ECR II3377, paragraph 66, and Case T-231/97 New Europe Consulting and Brown v Commission [1999] ECR II2403, paragraph 29).
145. In the present case, as has already been held (paragraph 134 above), it must be regarded as established that Euphet had an opportunity to be awarded and to perform the contract covered by the tendering procedure. Therefore, the damage suffered by the applicant, consisting in the loss of that opportunity, must, at this stage and in the light of the evidence and arguments submitted in the interlocutory proceedings, be regarded as real and certain within the meaning of the case-law mentioned in the preceding paragraph.
146. However, it must be stated that that opportunity is very difficult to quantify. On the one hand, Euphet's tender was excluded at a very early stage in the procedure and the evaluation committee did not deliver an opinion regarding its economic value. On the other hand, even if that tender had been evaluated by the evaluation committee, the contracting authority would not be bound by its proposal and would have a broad discretion in assessing the factors to be taken into account for the purpose of deciding to award a contract (see, to that effect, Case T-13/96 TEAM v Commission [1998] ECR II4073, paragraph 76, and AFCon Management Consultants and Others v Commission , cited in paragraph 35 above, paragraph 113).
147. It is therefore very difficult, or even impossible, to quantify that opportunity and therefore to evaluate the damage resulting from its loss. According to settled case-law, damage, which once it has been suffered cannot be quantified, may be regarded as irreparable (see, to that effect, the order of the President of the Court of Justice in Joined Cases C51/90 R and C59/90 R Comos Tank and Others v Commission [1990] ECR I2167, paragraph 31; orders of the President of the Court of First Instance in Case T41/97 R Antillean Rice Mills v Council [1997] ECR II447, paragraph 47, and in Case T-65/98 R Van den Bergh Foods v Commission [1998] ECR II2641, paragraph 65).
148. The loss of that opportunity may therefore be regarded as constituting irreparable damage. | T-495/05
Belfass | 119-121 | ECT-288 | 119 It is settled case-law that, in order for the Community to incur non-contractual liability under the second paragraph of Article 288 EC for unlawful conduct of its institutions, a number of conditions must be satisfied: the institution’s conduct must be unlawful, actual damage must have been suffered and there must be a causal link between the conduct and the damage pleaded (Case 26/81 Oleifici Mediterranei v EEC [1982] ECR 3057, paragraph 16; Case T-175/94 International Procurement Services v Commission [1996] ECR II-729, paragraph 44; Case T-336/94 Efisol v Commission [1996] ECR II-1343, paragraph 30; and Case T-267/94 Oleifici Italiani v Commission [1997] ECR II-1239, paragraph 20).
120 Where one of those conditions is not satisfied, the action must be dismissed in its entirety and it is unnecessary to examine the other conditions (Case C-146/91 KYDEP v Council and Commission [1994] ECR I-4199, paragraphs 19 and 81, and Case T-170/00 Förde-Reederei v Council and Commission [2002] ECR II-515, paragraph 37).
121 Although the applicant invokes a right to damages on the basis of the loss it claims to have suffered by reason of the rejection of each of its tenders, taken together, it is necessary to consider its claims for damages by distinguishing between that part of the decision of 13 October 2004 which relates to Lot No 1 and that part of the decision which relates to Lot No 2. | T-495/05
Belfass | 122-123 | ECT-288 | 122 It is settled case-law that an application for compensation for damage must be dismissed where there is a close connection between it and an application for annulment which has itself been dismissed (see Case T-340/99 Arne Mathisen v Council [2002] ECR II-2905, paragraph 134 and the case-law cited).
123 Since the claims for damages in respect of Lot No 1 were rejected, on the basis that the applicant’s allegations of unlawfulness were unfounded, and since the application for damages is closely connected with those claims, the latter must be rejected as regards Lot No 1. | T-495/05
Belfass | 124-129 | ECT-288 | 124 The applicant seeks damages in the amount which it would have invoiced to the Council had the contract, and thus inter alia Lot No 2, been awarded to it. That claim must therefore be understood as being based not on the loss of an opportunity to enter into the contract but on the loss of the contract itself.
125 However, the applicant puts forward no evidence to show that, had the unlawful conduct established in relation to Lot No 2 not taken place, it would have been certain that it would have been awarded that lot of the contract. Put at its highest, it submits that since the Council did not annex its original evaluation report to its pleadings it is impossible to verify on what basis the applicant’s tenders could have been excluded from the disputed tender procedure, even if the Council had not acted wrongfully.
126 In that last regard, since the Council has, in reply to a written question put by the Court, produced the original evaluation report and that report has been notified to the applicant, the only finding the Court can make is that the latter would in any event not have been awarded the contract in respect of Lot No 2, even in the absence of the unlawful conduct established in paragraph 106 above. The applicant’s tender is ranked in the original evaluation report produced by the Council in eighth and last place.
127 It follows that the damage alleged by the applicant with respect to Lot No 2, that is to say, the loss of the contract itself, is not actual and certain, but hypothetical, with the result that it cannot give rise to compensation. That, of itself, is sufficient to reject the claim for damages. In addition and for the avoidance of doubt, there is nothing to suggest, nor does the applicant put forward anything to show, that by reason of the unlawful conduct that has been established it lost even an opportunity to obtain the contract.
128 Consequently, the applicant’s claim for damages in respect of Lot No 2 must be rejected.
129 It follows from all of the above that the claims for damages must be rejected in their entirety. | T-447/04-R
Capgemini | 98-100 | ECT-288
CFIR-104.2 | 98. It must be noted, second, that even if the Commission decided to make a payment of damages in reparation of the loss suffered by the applicant, such manner of compliance with any annulment judgment could, under settled case-law, be regarded as constituting adequate reparation. Consequently, the potential loss suffered by the applicant cannot be regarded as irreparable once it can be the subject of subsequent financial compensation (see order in Esedra v Commission , paragraph 44 and case-law cited; and order in TQ3 Travel Solutions Belgium v Commission , paragraph 43).
99. In any event, even in the absence of voluntary reparation on the part of the Commission, it cannot but be noted that the applicant could, in the absence of indications to the contrary, bring an action for damages before the Court of First Instance, given that loss of a contract is a loss in respect of which financial reparation may be afforded by way of an action under Article 288 EC (order in Esedra v C ommission, paragraph 47; order of the President of the Court of First Instance in Case T-132/01 R Euroalliages and Others v Commission [2002] ECR II-777, paragraphs 51 to 53; and order in TQ3 Travel Solutions Belgium v Commission, cited above, paragraph 45).
100. In light of those considerations it cannot but be noted that the situation giving rise to the present dispute is fundamentally different to that in Commission v Belgium on which the applicant places reliance. Contrary to the finding in that case, it cannot be concluded in this case that a decision on the substance, even if made during the course of performance of the contract, would be unable to afford reparation of the damage to both the Community legal order and the applicant. | T-104/04
Adviesbureau Ehcon | 39-45 | ECT-288
ECS-46 | 39. According to the case-law, it is apparent from the second paragraph of Article 288 EC that the existence of the non-contractual liability of the Community and the enforceability of the right to compensation for damage suffered depend on the satisfaction of a number of requirements: the conduct of the institution must be unlawful, there must be actual damage and there must be a causal relationship between the conduct of the institution and the damage alleged (Joined Cases 256/80, European Court reports 2005 Page II-03287 8 257/80, 265/80, 267/80 and 5/81 Birra Wührer v Council and Commission [1982] ECR 85, paragraph 9, and order in Case T-106/98 Fratelli Murri v Commission [1999] ECR II-2553, paragraph 25), and that the five-year limitation period which applies to proceedings alleging Community liability therefore cannot begin before all the requirements governing the obligation to provide compensation are satisfied and in particular before the damage to be made good has materialised (see, to that effect, Birra Wührer v Council and Commission , paragraphs 9 and 10).
40. In the present case, it should be pointed out that the applicant seeks compensation for damage of a different kind.
41. In essence, it seeks compensation for: - the loss suffered as a result of not being awarded the initial contract, equal to the net profit which that contract would have generated, estimated at EUR 158 400 (the loss suffered as a result of not being awarded the contract in question'); - the loss suffered as a result of the damage caused to its reputation as an expert in the field of water research, of the reduction in its workload, of its inability to extend its expertise in water-related research and of the need to develop its expertise in a new area, estimated at EUR 60 000 at least (the loss suffered as a result of the damage caused to its reputation, of the reduction in its workload, of its inability to extend its expertise in water-related research and the development of its expertise in a new area'); - the loss of the chance of securing a later contract, awarded on 30 November 2000 to Haskoning, estimated at 10% of the net profits received by that company on that occasion, that is EUR 25 500 (the damage suffered as a result of the loss of the chance of securing the next contract').
42. In the alternative, the applicant seeks compensation for: - the loss of the chance of securing the contract in question, estimated, having regard to the fact that six companies were selected at the end of the first selection stage, at 1/6 of the net profits generated by the contract, that is EUR 26 400 (the loss suffered as a result of the loss of the chance of securing the contract in question'); - the costs incurred in participating in the initial tendering procedure, estimated at EUR 10 000 (the costs of the tendering procedure'); - the costs incurred in bringing the various complaints before the Ombudsman and in obtaining evidence against the Commission, estimated at EUR 4 000 (the costs incurred in bringing the matter before the Ombudsman and in obtaining evidence'). | T-104/04
Adviesbureau Ehcon | 43-45 | ECT-288
ECS-46 | 43. It must be held that the loss suffered as a result of not being awarded the contract in question, the damage suffered as a result of the loss of the chance of securing the contract in question, the costs of the tendering procedure and the loss suffered as a result of the damage to its reputation, of the reduction in its workload, of its inability to extend its expertise in water-related research and of the development of its expertise in a new area materialised on the day on which the Commission rejected the applicant's tender. That rejection also constitutes the event giving rise to these proceedings to establish liability, within the meaning of Article 46 of the Statute of the Court of Justice.
44. Furthermore, it is common ground that the rejection occurred on the date of the Commission's decision, 7 January 1997, and that, at the applicant's request, the Commission set out the reasons for its decision in a letter of 13 March 1997. It must also be stated that the applicant knew those reasons by, at the latest, 20 March 1997, the date on which it wrote to the Commission referring to the Commission's letter of 13 March 1997.
45. It follows that, in respect of those losses, all the conditions for the applicant to assert its right to compensation were satisfied on 20 March 1997 at the latest and that, therefore, the five-year limitation period expired on 20 March 2002 at the latest. | T-104/04
Adviesbureau Ehcon | 46-48 | ECT-230
ECT-232
ECT-288
ECS-46 | 46. The fact that the applicant submitted two claims to the Commission, on 20 September 1999 and 12 November 2001, for compensation for the loss it claims to have suffered does not lead to a different result, since it is not disputed that those claims were not followed by proceedings under Article 230 EC or 232 EC.
47. In accordance with Article 46 of the Statute of the Court of Justice, the period of limitation is interrupted only if proceedings are instituted before the Court or if prior to the proceedings an application is made to the relevant institution of the Community; however, in the latter case, interruption only occurs if the application is followed by proceedings within the time-limit determined by reference to Article 230 EC or 232 EC (Giordano v Commission , paragraph 28 above, paragraph 6; Case T-222/97 Steffens v Council and Commission [1998] ECR II4175, paragraphs 35 and 42; and order in Jestädt v Council and Commission , paragraph 28 above, paragraph 47).
48. Consequently, since the application was lodged on 8 April 2004, that is, more than seven years after 20 March 1997, the point from which the five-year limitation period started to run, this action, in so far as it seeks compensation for those losses, must be declared time-barred and therefore inadmissible. | T-104/04
Adviesbureau Ehcon | 49-61 | ECT-288
ECS-46 | 49. None of the applicant's arguments can affect that conclusion.
50. In the first place, the applicant claims that it could not have known of the alleged illegality committed by the Commission until 2000, that is to say, when it managed to obtain another tenderer's tender, which was accepted at the end of the selection stage and which shows that that tenderer did not have experience in the design of water treatment facilities. Without specifying the day on which it actually managed to obtain that document, the applicant considers that logic and fairness call for the point from which the limitation period started to run to be set at 22 October 2001, the day on which the Ombudsman gave his decision on the basis of that document and of the inquiries made at the Commission, because before that date the applicant had no evidence and its action would therefore have failed.
51. It should be pointed out that the unlawfulness of the conduct for which the applicant criticises the Commission and of which it became aware only belatedly, consists essentially in the alleged application of a selection criterion, namely experience in the design of water treatment facilities, which was not included among the criteria contained in the invitation to tender and which was applied to the applicant in a discriminatory manner.
52. As regards the unlawfulness resulting from the application of the criterion at issue, a study of the documents before the Court shows that the applicant knew that its tender had been rejected on the basis of that criterion since the Commission's letter of 13 March 1997. It must further be stated that, in its letter of 20 March 1997, the applicant challenged the Commission's arguments, saying that it had extensive experience in water-related research and that experience in the design of water treatment facilities was not one of the selection criteria. The applicant therefore concluded that it had been wrongly excluded from the award procedure, reported a case of improper administration and threatened to bring proceedings if it had not received a reply by 10 April 1997. The applicant repeated those arguments in its claim for compensation sent to the President of the Commission on 20 September 1999, in which it stated that, if that claim were rejected, it would bring the matter before the Court of First Instance.
53. As regards the claim that the criterion in question was also applied in a discriminatory manner, the applicant submits that it was not aware of that fact until 2000, when it managed to obtain, through its own efforts, the tender of another tenderer, namely the company EDC, whose tender was selected at the end of the first stage even though that tenderer likewise did not satisfy that criterion.
54. Apart from the fact that the applicant does not adduce proof of that fact, it should first be pointed out again that, in its letter of 20 September 1999, it was already complaining that the criterion in question was not applied to the other tenderers, as is apparent from the report of the Advisory Committee on Procurement and Contracts (the ACPC'), and that the Commission had thus infringed the principle of non-discrimination laid down in Article 3(2) of Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts (OJ 1992 L 209, p. 1). It should also be pointed out that, in its letter to the Ombudsman of 30 March 1998, to which it refers in its letter of 12 January 1999, the applicant already complained of fraud, favouritism and improper administration on the part of the Commission. Therefore, the applicant's assertion that it had not been aware until 2000 of the discriminatory application by the Commission of the criterion in question is incorrect.
55. In any event, it is apparent from paragraph 52 above that the applicant had known since 1997 the fundamental reason for the rejection of its tender, namely, its lack of experience in the design of water treatment facilities, a reason which it has always disputed, both before the Commission and the Ombudsman as well as in these proceedings, inasmuch as that criterion was not included in the invitation to tender.
56. Therefore, even if the applicant could not have known until 2000, or even 22 October 2001, that the criterion in question was allegedly applied in a discriminatory manner, that fact cannot postpone until that date the point from which the limitation period for the action for compensation started to run.
57. It should be pointed out that the function of the limitation period is to reconcile protection of the rights of the aggrieved person and the principle of legal certainty. The length of the limitation period was thus determined by taking into account, in particular, the time that the party who has allegedly suffered harm needs to gather the appropriate information for the purpose of a possible action and to verify the facts likely to provide the basis of that action (order in Autosalone Ispra dei Fratelli Rossi v Commission , paragraph 28 above, paragraph 28).
58. Thus, it has been held that the argument that the limitation period cannot begin until the victim has specific and detailed knowledge of the facts of the case is misconceived, since knowledge of the facts is not one of the conditions which must be met in order for the limitation period to run (order in Autosalone Ispra dei Fratelli Rossi v Commission , paragraph 28 above, paragraph 31).
59. Similarly, in the present case, the fact that the applicant allegedly became aware of additional information in support of its action after the rejection - for which the Commission stated its reasons on 13 March and 10 April 1997 - of its offer, even though it had since the beginning disputed the fundamental reason for that rejection, which also constitutes the event giving rise to the damage, cannot place the point from which the limitation period started to run at the date on which the applicant became aware of that information.
60. This applies a fortiori because in 2000, on the day on which the applicant claims to have received the tender documents of one of the tenderers accepted at the end of the selection stage, and even on the day on which the applicant itself considers that it had enough evidence to bring proceedings for compensation, that is, when the Ombudsman adopted his decision of 22 October 2001 which was critical of the Commission, the five-year limitation period had not yet expired.
61. It follows that, in this case, unlike the situation in which an applicant is prevented from bringing proceedings within a reasonable time because he only belatedly became aware of the event giving rise to the damage, expiry of the limitation period cannot be fixed at a date later than the normal date of expiry of that period (see, to that effect, Case 145/83 Adams v Commission [1985] ECR 3539, paragraphs 50 and 51, and the order in Autosalone Ispra dei Fratelli Rossi v Commission , paragraph 28 above, paragraph 32). | T-104/04
Adviesbureau Ehcon | 62-66 | ECT-288
ECS-46 | 62. In the second place, the applicant's argument that the Commission is responsible for the limitation of the action inasmuch as it provided the applicant with incorrect information in order to conceal the alleged unlawfulness of the tendering procedure likewise cannot be accepted.
63. It is true that the Court of Justice has already held, in connection with the implementation of Council Directive 75/117/EEC of 10 February 1975 on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women (OJ 1975 L 45, p. 19) that Community law precludes the application of a rule of national law which time-bars an action brought by an employee for arrears of remuneration or damages for breach of the principle of equal pay, there being no possibility of extending that period, where the delay in bringing a claim is attributable to the fact that the employer deliberately supplied the employee with incorrect information (Levez , paragraph 34 above, paragraph 34).
64. However, even assuming that the Court of Justice has thus laid down a general rule, the rule is not applicable in the present case.
65. Indeed, contrary to the situation in the above case, the fact that, in the present case, the Commission may have deliberately misled the applicant by informing it that the main reason that its tender had been rejected was that it did not have experience in the design of water treatment facilities, if proved, was not such as to prevent the applicant from bringing proceedings in good time.
66. First, it is clear from the foregoing that the applicant knew, from the time the Commission gave the reasons for its decision on 13 March 1997, that its tender had been rejected on the ground that it did not satisfy the criterion relating to experience in the design of water treatment facilities and that it has from the beginning disputed the lawfulness of the application of that criterion, a complaint which it maintains in these proceedings. Second, even if it were conceded that the Commission's conduct might have prevented the applicant from being fully aware that the Commission had allegedly treated it differently, it must be stated that the applicant was already making that complaint, on the basis of the ACPC report, in its letter to the Commission of 20 September1999, and itself acknowledges that it became aware of the fact in 2000 after obtaining EDC's tender. By that time at the latest, the applicant therefore had the evidence it claims it needed in order to bring its action. It therefore cannot be accepted that the delay in bringing this action is solely, or even largely, due to the Commission's attitude, because the applicant still had an opportunity to bring its action, within the time-limit, after the Ombudsman's decision. | T-104/04
Adviesbureau Ehcon | 67 | ECT-288
ECS-46 | 67. In the third place, contrary to what the applicant claims, it cannot be considered that the loss allegedly suffered as a result of the damage caused to its reputation, of the reduction in its workload, of its inability to extend its expertise in water-related research and of the development of its expertise in a new area was suffered continuously. Although, according to settled case-law, the time bar applies only to the period preceding by more than five years the date of the act stopping time from running and does not affect rights which arose during subsequent periods (see, to that effect, Case T-20/94 Hartmann v Council and Commission [1997] ECR II-595, paragraph 132, and Case T-201/94 Kustermann v Council and Commission [2002] ECR II-415, paragraph 64), this is only in the exceptional situation in which it is established that the damage in question was repeated on a daily basis after the occurrence of the event which caused it. That is not the position in the present case, in which the loss described above, if proved, even though its full extent may not have been appreciated until after the rejection of the applicant's tender for the contract in question, was nevertheless caused instantly by that rejection. | T-104/04
Adviesbureau Ehcon | 68-70 | ECT-288
ECS-46 | 68. Finally and in the fourth place, the applicant's argument that it was not in a financial position to bring an action against the Commission before it initiated these proceedings obviously does not support the conclusion that this action is admissible.
69. Indeed, it should be pointed out that, under Article 94(1) of the Rules of Procedure, a party who is wholly or in part unable to meet the costs of the proceedings may at any time apply for legal aid. The applicant's alleged poverty cannot therefore be a reason justifying the late submission of the application.
70. It should also be noted that the applicant was familiar with that procedure and that it has not established that it is entitled to legal aid, since, on 25 March 2002, it submitted an application for legal aid which the Court of First Instance dismissed by order of 13 December 2002. | T-104/04
Adviesbureau Ehcon | 71 | ECT-288
ECS-46 | 71. It follows that, in accordance with paragraphs 43 and 48 above, the action is time-barred and therefore inadmissible, in so far as it seeks compensation for the loss suffered as a result of the applicant's not being awarded the contract in question, the damage suffered as a result of the loss of the chance of securing the contract in question, the costs of the tendering procedure and the loss suffered as a result of the damage to its reputation, of the reduction in its workload, of its inability to extend its expertise in water-related research and of the development of its expertise in a new area. | T-104/04
Adviesbureau Ehcon | 72-74 | ECT-288 | 72. As regards the damage suffered as a result of the loss of the chance of securing the next contract and the costs incurred in bringing the matter before the Ombudsman and in obtaining evidence, the Court considers that it is first necessary to examine the substance of the applicant's claim (see, to that effect, Case C-23/00 P Council v Boehringer [2002] ECR I-1873, paragraphs 51 and 52, and Case C-233/02 France v Commission [2004] ECR I-2759, paragraph 26).
73. In the first place, the applicant claims that the allegedly unlawful rejection of its tender for the contract in question caused it damage owing to the fact that it lost the chance, during the tendering procedure in which it participated, to secure a subsequent contract, which was awarded on 30 November 2000 to the company Haskoning (the renewal contract'). It maintains that that contract followed on from the contract which was the subject of the invitation to tender of 10 August 1996 (the first contract') and that it was therefore at an unfair disadvantage in relation to Haskoning, which had already been awarded the first contract.
74. In the second place, the applicant claims that it also suffered loss as a result of the costs incurred in obtaining evidence against the Commission, inter alia the tender submitted by EDC, and in presenting the complaints to the Ombudsman. | T-104/04
Adviesbureau Ehcon | 75-78 | ECT-288 | 75. It is settled case-law that in order for the Community to incur non-contractual liability, a number of conditions must be met: the conduct of the Community institutions in question must be unlawful; there must be real and certain damage; and a direct causal link must exist between the conduct of the institution concerned and the alleged damage (see, inter alia, Case T-231/97 New Europe Consulting and Brown v Commission [1999] ECR II-2403, paragraph 29). If any one of those conditions is not satisfied, the application must be dismissed in its entirety without it being necessary to examine the other preconditions for such liability (Case C-146/91 KYDEP v Council and Commission [1994] ECR I-4199, paragraph 81, and Case C-104/97 P Atlanta v European Community [1999] ECR I-6983, paragraph 65).
76. With regard, first, to the loss allegedly suffered owing to the loss of the chance of securing the renewal contract, it should be pointed out that the applicant furnishes no information regarding the subject of the invitation to tender which it claims followed, in 2000, the invitation to tender of 10 August 1996, or regarding the connection between those two invitations to tender. It is therefore impossible to establish the existence of any causal link between the allegedly unlawful rejection of the applicant's tender during the first tendering procedure and the loss which the applicant suffered owing to the loss of the chance of securing the renewal contract.
77. In any event, the loss of the chance of securing the renewal contract can be regarded as real and certain damage only if, in the absence of the allegedly improper conduct by the Commission, there would be no doubt that the applicant would have been awarded the first contract. However, it should be pointed out that, in a public tendering system such as the one in this case, the awarding authority has a broad discretion in deciding to award a contract. Consequently, the applicant could not be sure of securing the first contract even if it had been selected to participate in the second stage of the tendering procedure (see, to that effect, New Europe Consulting and Brown v Commission , paragraph 75 above, paragraph 51), and that is so even without it being necessary to ascertain whether it satisfied the conditions laid down by the invitation to tender.
78. It follows that even if the applicant might have lost the chance of securing the first contract owing to the fact that it did not participate in the second stage of the first tendering procedure, damage which is in any event time-barred, that single loss of a chance could not be regarded as sufficient to cause the applicant real and certain damage as a result of the loss of the chance of securing the renewal contract, if it were accepted that there was a sufficient link between that contract and the first one. | T-104/04
Adviesbureau Ehcon | 79-80 | ECT-288 | 79. As regards, next, the loss suffered as a result of the costs incurred in gathering evidence, inter alia the tender submitted by EDC, it should be noted that the costs incurred by the parties for the purpose of the judicial proceedings cannot as such be regarded as constituting damage distinct from the burden of costs (see, to that effect, Case C-334/97 Commission v Montorio [1999] ECR I-3387, paragraph 54). Furthermore, the Court of First Instance has held that, even though, as a rule, substantial legal work is carried out in the course of the proceedings prior to the judicial phase, it must be pointed out that by proceedings' Article 91 of the Rules of Procedure refers only to proceedings before the Court of First Instance, to the exclusion of the prior stage. That follows in particular from Article 90 of the Rules of Procedure, which refers to proceedings before the Court of First Instance' (see, to that effect, the order in Case T-38/95 DEP Groupe Origny v Commission [2002] ECR II-217, paragraph 29 and the case-law cited). Therefore, to regard such costs as a loss for which compensation may be claimed in an action for damages would be inconsistent with the fact that costs incurred during the phase before the judicial proceedings are not recoverable, as is evident from the case-law cited above.
80. It follows that the applicant is not entitled to claim, in an action for damages, compensation for loss suffered as a result of costs allegedly incurred in obtaining evidence prior to these proceedings. | T-104/04
Adviesbureau Ehcon | 81-82 | S2-16.1
S2-17.2.1
ECT-288 | 81. Similarly, if it were to be understood that what the applicant is in fact claiming is that the costs incurred in obtaining sufficient evidence were caused by the Commission's alleged unlawful failure to send a notice concerning the outcome of the tendering procedure to the Office for Official Publications of the European Communities, under Articles 16, 17(2) et seq. of Directive 92/50, the fact remains that the applicant does not show in what respect sending the notice to the Publications Office would have saved it from incurring the costs in question.
82. Furthermore, as has already been stated, the applicant was under no obligation to acquire the tender submitted by EDC in order properly to bring an action for compensation before the Court of First Instance. | T-104/04
Adviesbureau Ehcon | 83-86 | ECT-195
ECT-288 | 83. Finally, with regard to the loss as a result of the costs allegedly incurred in bringing the matter before the Ombudsman, it should be pointed out that, in the institution of the Ombudsman, the Treaty has given citizens of the Union an alternative remedy to that of an action before the Community judicature in order to protect their interests. That alternative non-judicial remedy meets specific criteria and does not necessarily have the same objective as judicial proceedings (Case T209/00 Lamberts v Ombudsman [2002] ECR II-2203, paragraph 65).
84. Moreover, as is clear from Article 195(1) EC and Article 2(6) and (7) of Decision 94/262/ECSC, EC, Euratom of the European Parliament of 9 March 1994 on the regulations and general conditions governing the performance of the Ombudsman's duties (OJ 1994 L 113, p. 15), the two remedies cannot be pursued at the same time. Indeed, although complaints submitted to the Ombudsman do not affect time-limits for bringing actions before the Community judicature, the Ombudsman must none the less cease consideration of a complaint and declare it inadmissible if the citizen simultaneously brings an action before the Community judicature based on the same facts. It is therefore for the citizen to decide which of the two available remedies is likely to serve his interests best (Lamberts v Ombudsman , paragraph 83 above, paragraph 66).
85. It follows that the applicant's decision to bring the complaints in question before the Ombudsman was its own independent choice and that it was under no obligation to proceed in that way before properly bringing its action before the Court of First Instance.
86. Consequently, the applicant has not managed to establish the existence of a direct causal relationship between the alleged costs incurred before the Ombudsman and the alleged illegalities. A citizen's free choice to refer a matter to the Ombudsman cannot appear to be the direct and necessary consequence of cases of improper administration which may be attributable to Community institutions or bodies. | T-104/04
Adviesbureau Ehcon | 87 | ECT-288 | 87. It is apparent from the above that the applicant's claim for compensation for damage suffered as a result of the loss of the chance to secure the renewal contract and of the costs incurred before the Ombudsman and in obtaining evidence must be dismissed as manifestly unfounded, without there being any need to give a ruling on its admissibility. | T-160/03
AFCon | 93 | ECT-288 | 93. As regards whether the illegality found is such as to cause the Community to incur liability, it is necessary to bear in mind that the decisive test for finding that a breach of Community law is sufficiently serious is whether the Community institution concerned manifestly and gravely disregarded the limits on its discretion (see Brasserie du Pêcheur and Factortame , cited above, paragraph 55, and Bergaderm and Goupil v Commission , cited above, paragraph 43). The Court therefore holds that, on account of the abovementioned circumstances of the conflict of interests and of the risk of fraud which it entails, the Commission's omission is of a manifest and serious nature and is thus such as to cause the Community to incur liability. | T-160/03
AFCon | 97-109 | ECT-288, GR-24 | 97. A distinction must be drawn between the loss represented by the costs and expenses incurred, on the one hand, in taking part in the tender procedure and, on the other, in challenging the legality of that procedure.
- Costs relating to the submission of AFCon's tender
98. It must be borne in mind that economic operators must bear the economic risks inherent in their activities, regard being had to the circumstances of each particular case. As regards a tendering procedure, those economic risks include, in particular, the costs relating to preparation of the tender. The expenses thus incurred therefore remain the responsibility of the undertaking which chose to take part in the procedure, since the opportunity to compete for a contract does not involve any certainty as to the outcome of the procedure. In accordance with that principle, Article 24 of the General Regulations for Tenders and the Award of Service Contracts financed from Phare/Tacis Funds provides that in the event of closure or annulment of a tendering procedure, the tenderers are not entitled to compensation. It follows that the charges and expenses incurred by a tenderer in connection with his participation in a tendering procedure cannot in principle constitute damage which is capable of being remedied by an award of damages. However, the provision in question cannot, without potentially undermining the principles of legal certainty and of protection of legitimate expectations, apply in cases where an infringement of Community law in the conduct of the tendering procedure has affected a tenderer's chances of being awarded the contract (Case T203/96 Embassy Limousines & Services v Parliament [1998] ECR II4239, paragraphs 75 and 97, and Case T13/96 TEAM v Commission [1998] ECR II4073, paragraphs 70 to 72).
99. In this instance, the applicants have established that there was a breach of Community law in the way the tendering procedure was conducted. That breach fundamentally undermined the tendering procedure and affected AFCon's chances of securing the tender at issue.
100. If the Commission had conducted an inquiry into the links between GFA and Mr A, it is possible that it would have concluded that there was collusion such as to warrant the exclusion of GFA from the remainder of the tendering procedure. In that regard, it is noteworthy that the Commission actually acknowledged, at the hearing, that if an inquiry had produced such a result, it would have then been obliged to penalise GFA by excluding it from the procedure.
101. In taking the decision to proceed with the tendering procedure without holding an inquiry, the Commission evaluated GFA's tender and awarded the contract to it even though there were a number of signs all of which suggested that there might have been collusion with a member of the evaluation committee. In acting in that way and failing to satisfy itself that GFA's participation entailed no irregularities, the Commission allowed GFA to remain in contention and accordingly undermined AFCon's chances of being awarded the contract.
102. It is true that any tenderer who participates in a tendering procedure must, as a general rule, accept the risk that he will remain liable for the costs associated with submission of his tender in the event of the contract being awarded to one of his competitors. However, that risk is accepted on the presumption inherent in any call for tenders that the Commission will act impartially in accordance with the principles set out at paragraph 90 above in order to ensure equal treatment as between the tenderers. By allowing GFA to take part in spite of the signs mentioned above and by failing to open an inquiry, the Commission disregarded that presumption and directly prejudiced AFCon's chances. Consequently, AFCon must be compensated for the loss relating to the costs incurred in participating in the procedure.
103. As regards quantum, the applicants assess their loss at EUR 31 070: in respect of costs incurred in a reconnaissance trip to south Russia (EUR 8 800), the time and costs entailed in preparing the tender (EUR 14 950) as well travel costs to Brussels in order to attend the two evaluation interviews (EUR 7 320). Since that estimate is not excessive, the loss sustained by AFCon in respect of costs relating to submission of its tender must be set at EUR 31 070.
- Costs incurred in challenging the legality of the tendering procedure
104. It must be held that this loss is present, real and certain and flows directly from the unlawfulness of the conduct for which the Commission is criticised. The applicants have maintained that this head of damages amounts to EUR 51 500, an amount made up of the following elements: - resources allocated to the various complaints and proceedings other than this action instigated by AFCon following the award of the tender at issue to GFA (EUR 26 500); - expenses for travel and meetings in Russia, Ireland and Belgium with contacts, politicians and lawyers (EUR 25 000).
105. In relation to the expenses connected with travelling, meetings and lawyers, the applicants have adduced neither any material allowing the Court to verify that those expenses constitute loss for which reparation may be granted nor any evidence capable of substantiating their estimate. In the absence of proof, these expenses therefore cannot be taken into account when quantifying the loss sustained. 106. There are two aspects to the estimate of the resources employed in the various complaints AFCon made to the Commission and the Ombudsman.
107. The first concerns the number of fee days which AFCon spent defending its interests in order to challenge the legality of the tendering procedure. For the period between AFCon being notified of the award of the contract on 17 August 2000 and the final occasion on which Irish Minister of State for European Affairs contacted a member of the Commission to express support for AFCon in February 2003 that number is calculated at 28 fee-days. The daily rate of fees is set at EUR 500 by reference to the rate applied by AFCon in its financial proposal. That estimate does not appear excessive. Consequently, the loss sustained by AFCon and attributable to the time thus spent in defending its interests must be set at EUR 14 000.
108. The second aspect concerns research costs amounting to EUR 12 500. However, the applicants have not produced any material showing exactly what those costs covered or any documentation substantiating the amount claimed. Therefore, the claim in respect of the research allegedly carried out cannot be allowed.
109. Consequently, the Commission must be ordered to pay AFCon EUR 14 000 as compensation for the loss sustained on account of costs incurred by AFCon in defending its interests. | T-160/03
AFCon | 110-114 | ECT-288 | 112. The damage claimed in respect of loss of profit presupposes that AFCon was entitled to be awarded the contract. Even if the Commission had investigated the links between Mr A and GFA and had concluded that there was collusion such as to warrant GFA's exclusion from the procedure, AFCon would not have been certain of securing the contract.
113. The contracting authority is not bound by the evaluation committee's proposal but has a broad discretion in assessing the factors to be taken into account for the purpose of deciding to award a contract (TEAM v Commission , cited above, paragraph 76). It is true that the applicants have cited in this regard the Court of Auditors' Special Report No 16/2000 on tendering procedures for service contracts under the Phare and Tacis programmes, together with the Commission's responses (OJ 2000 C 350, p. 1), from which it appears that out of 120 contracts entered into under those programmes the Commission followed the evaluation committee's recommendation on 117 occasions. However, it cannot be concluded from those statistics that in this case the contract would definitely have been awarded to AFCon if GFA had been excluded from the procedure.
114. Therefore, the damage represented by AFCon's loss of profit is not real and certain but conjectural. Therefore it cannot be the subject of compensation. | T-160/03
AFCon | 119-120 | ECT-288 | 119. The harm in respect of which reparation is sought is founded on the contention that the award of the tender at issue to GFA subsequently brought about a reduction in AFCon's activity to the point that it was, de facto , excluded from tendering for projects comparable to the one at issue in this case. That contention is not substantiated.
120. Consequently, the Commission cannot incur liability for that head of damage. | T-160/03
AFCon | 126-127 | ECT-288 | 126. It must be stated that the applicants have not proved that a blacklist exists or that any comments or practices detrimental to AFCon's reputation may be attributed to the Commission. Therefore, the harm alleged cannot be regarded as present, real and certain.
127. The claims relating to the harm which was allegedly caused to the reputations of Mr Mc Mullin and Mr O'Grady must be rejected on the same grounds. | T-160/03
AFCon | 130-133 | ECT-288 | 130. As regards the calculation of compensatory interest, such interest should start to run from the first day of the month following the month in which AFCon last took steps prior to commencing proceedings. Since that was during February 2003, the starting point must be fixed at 1 March 2003.
131. It is clear from the annexes to the application that, in their assessment of the harm they claim to have suffered, the applicants did not ask for compound interest. Therefore, in order to establish the amount which the Commission is to pay, simple interest must be applied.
132. The rate of compensatory interest must be calculated on the basis of the rate fixed by the European Central Bank for its principal refinancing operations, in force during the period concerned, increased by two percentage points, namely an annual rate of 4%. As at the date of delivery of this judgment, the Commission's debt to AFCon amounts to EUR 48 605, including interest.
133. To that sum must be added default interest from delivery of this judgment until full payment. The rate of default interest to be applied is calculated on the basis of the rate fixed by the European Central Bank for its principal refinancing operations, in force during the period concerned, increased by two percentage points. The amount of interest is to be calculated on the basis of compound interest. | T-40/01
Scan Office | 18 | ECT-288 | 18 It has been consistently held that, in order for the Community to incur non-contractual liability, the applicant must prove the unlawfulness of the conduct alleged against the institution concerned, actual damage and the existence of a causal link between that conduct and the damage pleaded (Case 26/81 Oleifici Mediterranei v EEC [1982] ECR 3057, paragraph 16; Case T-175/94 International Procurement Services v Commission [1996] ECR II-729, paragraph 44; Case T-336/94 Efisol v Commission [1996] ECR II-1343, paragraph 30; Case T-267/94 Oleifici Italiani v Commission [1997] ECR II-1239, paragraph 20). If one of those conditions is not satisfied, the action must be dismissed in its entirety without its being necessary to examine the other conditions of non-contractual liability (Case C-146/91 KYDEP v Council and Commission [1994] ECR I-4199, paragraph 19; Case T-170/00 Förde-Reederei v Council and Commission [2002] ECR II-515, paragraph 37).
.....
| T-40/01
Scan Office | 109+114-122 | ECT-288 | 109 In that regard it should be noted that, according to the case-law, in order to be successful the applicant must show that its tender met all of the tender specifications (see, by analogy, Case T-478/93 Wafer Zoo v Commission [1995] ECR II-1479, paragraph 49; and Case T-230/94 Farrugia v Commission [1996] ECR II-195, paragraph 46). Accordingly, it is appropriate to examine compliance by the applicant's tender with the terms and conditions of the tender specifications.
.....
114 First, as regards the dimensions of the meeting tables, the specifications provided for dimensions of between 180 and 240 cm long, 90 and 120 cm wide and 75 cm high. The Court points out that it is not disputed that the table displayed by the applicant was 180 cm long, 80 cm wide and 72 cm high, and that the alternative table proposed in the tender was 210 cm long, 120 cm wide and 72 cm high. Accordingly, as the Commission correctly points out, the Court finds that the two tables proposed did not meet the height specifications and that, in addition, the first table did not meet the width specifications.
115 Likewise, the Court finds, secondly, that the Commission correctly considered that the dimensions of the desk table did not comply with the terms and conditions of the tender specifications. The tender specifications required dimensions of between 160 and 200 cm long, 80 and 100 cm wide and 72 and 75 cm high, with a minimum of two different dimensions. The desk displayed by the applicant was 160 cm long, 80 cm wide and 72 cm high, whilst the alternative table proposed was 210 cm long, 120 cm wide and 72 cm high. Accordingly, as the Commission correctly observed, the alternative table proposed did not meet the length or width specifications, and the documentation submitted with the bid did not offer any alternative solution.
116 In these circumstances, it cannot be concluded that the tables proposed by the applicant did not comply with the mandatory conditions of the tender specifications.
117 Moreover, as regards the absence of adjustment jacks, the applicant merely expresses surprise that the jacks were not located on the furniture displayed and adds that the furniture was equipped with metallic inserts intended for installation of jacks. In response to a question from the Court, the applicant added that the presence of the metallic insert, to which only the jack may be fitted, confirms that the jacks indeed formed part of its bid.
118 It is none the less the case, however, that the applicant's furniture did not contain the adjustment jacks which were required to comply with specifications. Therefore, the furniture displayed did not comply with the terms and conditions of the tender specifications.
119 In those circumstances, the Court finds that the applicant has not established to the requisite legal standard that its tender satisfied all the conditions of tender specifications deemed to be mandatory.
120 Moreover, as paragraph 105 above makes clear, even when the sheets which could not be taken into account are eliminated and Frezza's tender price is increased by the additional cost connected with the desk drawers, the applicant's tender still appears less advantageous than Frezza's.
121 It follows that, although the Commission committed serious faults in the course of the tender procedure, the applicant has not, however, succeeded in showing that the Commission should have awarded it the contract and, therefore, has not established a causal link between the faults established and the loss alleged.
122 Consequently, and without its being necessary to examine whether the loss which the applicant claims to have suffered owing to the award of the contract to Frezza was actually sustained, the application must be dismissed. | T-04/01
Renco | 59-63 | ECT-288 | 59 The second paragraph of Article 288 EC provides that, in the case of non-contractual liability, the Community shall, in accordance with the general principles common to the Member States, make good any damage caused by its institutions or by its servants in the performance of their duties.
60 In order for the Community to incur non-contractual liability, a number of conditions must be met: the conduct alleged against the institutions must be unlawful, the existence of damage must be shown, and there must be a causal link between the alleged conduct and the damage. With regard to the first of these conditions, case-law requires it to be shown that there has been a sufficiently serious breach of a rule of law intended to protect individuals (see to this effect Bergaderm and Goupil v Commission, cited above, paragraph 42, and Case T-210/00 Biret and Cie v Council [2002] ECR II-47, paragraph 52). If any one of those conditions is not satisfied, the action must be dismissed in its entirety and it is unnecessary to consider the other conditions for non-contractual liability (Case C-146/91 KYDEP v Council and Commission [1994] ECR I-4199, paragraph 19).
61 In the present case, as regards the condition relating to the unlawfulness of the Community's conduct, the applicant complains that the Council has infringed the provisions of Directive 93/37 by disregarding the limits of its power and manifestly failing to administer with diligence the procedure to award the contract, on account of the infringements stated in paragraph 35 above.
62 In that regard, it should be remembered that, according to settled case-law, the Council has a broad discretion in assessing the factors to be taken into account for the purpose of deciding to award a contract following an invitation to tender (Agence européenne d'interims v Commission, paragraph 20, Adia interim v Commission, paragraph 49, and Embassy Limousines & Services v Parliament, paragraph 56).
63 When the institution has a discretion, the decisive test for finding that a breach of Community law is sufficiently serious is whether the institution concerned manifestly and gravely disregarded the limits on its discretion (see to this effect Joined Cases C-46/93 and C-48/93 Brasserie du pêcheur and Others [1996] ECR I-1029, paragraph 55; Joined Cases C-178/94, C-179/94 and C-188/94 to C-190/94 Dillenkofer and Others [1996] ECR I-4845, paragraph 25, and Bergaderm and Goupil v Commission, cited above, paragraph 43). It follows that the first condition for the Community to incur non-contractual liability is fulfilled only if it is established that the Council has committed the errors and infringements stated in paragraph 35 above and that they constitute a manifest and serious infringement of the limits on its discretion with regard to tendering procedures. | T-04/01
Renco | 89 | ECT-288 | 89 As regards the alleged infringement of the duty to state reasons in this case, the Court points out that the claim for damages in the amount of EUR 26 063 000 lodged by the applicant (see paragraph 33 above) includes inter alia a claim for EUR 24 000 000 by way of compensation for the harm resulting from the loss of the chance of being awarded the contract in issue. It must be observed that, even if it were to be considered that the Council did not give adequate reasons for rejecting the applicant's tender, that does not mean that the award of the contract to De Waele constituted an error or that there is a causal link between that fact and the loss alleged by the applicant. | T-183/00
Strabag | 82-84 | ECT-288 | 82 The applicant requests payment of the sum of BEF 153 421 286 or EUR 3 803 214, subject to increase, together with interest thereon at the rate of 6% from 12 April 2000, by way of damages for the harm which it has suffered owing to the unlawful conduct of the Council during the procedure for the award of the contract in question.
83 In accordance with settled case-law, for the Community to incur non-contractual liability, the applicant must prove the unlawfulness of the conduct alleged against the institution concerned, the fact of damage and the existence of a causal link between that conduct and the damage complained of (Case T-175/94 International Procurement Services v Commission [1996] ECR II-729, paragraph 44; Case T-336/94 Efisol v Commission [1996] ECR II-1343, paragraph 30, or Case T-267/94 Oleifici Italiani v Commission [1997] ECR II-1239, paragraph 20). Where one of those conditions is not fulfilled, the action must therefore be dismissed in its entirety and it is not necessary to examine the other conditions for that liability (Case C-146/91 KYDEP v Council and Commission [1994] ECR I-4199, paragraph 19).
84 It follows from the Court's conclusions relating to the application for annulment that the applicant has not adduced proof of unlawful conduct on the part of the Council. | T-139/99
Alsace | 68-69 | ECT-288 | 68 Under the second paragraph of Article 288 EC and the general principles to which that provision refers, Community liability depends on fulfilment of a set of conditions as regards the unlawfulness of the conduct alleged against the institution, the fact of damage and the existence of a causal link between the conduct in question and the damage complained of (see judgment in Case T-336/94 Efisol v Commission [1996] ECR II-1343, paragraph 30).
69 Since in its pleas and arguments set out above the applicant has not shown that the Parliament's conduct was unlawful, its claim for damages must be dismissed. | T-203/96
Embassy Limousines | 54-56 + 60-61 | S2-12.2
GT-4
ECT-288 [ex 178] | 54 It is necessary, first, to point out that the contracting authority is not bound to follow through to its end a procedure for awarding a contract. It is clear from Article 12(2) of Directive 92/50 that, if the procedure is annulled, the contracting authority is simply bound to inform candidates or tenderers who so request in writing of the grounds on which it decided not to award a contract in respect of which a prior call for competition was made, or to recommence the procedure.
55 Moreover, Article 4 of the General Terms and Conditions states, first, that fulfilment of an adjudication or invitation-to-tender procedure does not involve the institution in any obligation to award the contract and, secondly, that it is not liable for any compensation with respect to tenderers whose tenders have not been accepted.
56 In addition, it must be recalled that the Parliament has a broad discretion in assessing the factors to be taken into account for the purpose of deciding to award a contract following an invitation to tender and the Court's review should be limited to checking that there has been no serious and manifest error (see Case 56/77 Agence Européenne d'Intérims v Commission [1978] ECR 2215, paragraph 20, and Case T-19/95 Adia Intérim v Commission [1996] ECR II-321, paragraph 49).
60 Furthermore, the applicant has put forward no evidence to show that the Parliament, in considering that none of the tenders received was totally satisfactory, has committed a grave and manifest error. Although the doubts about the competence of the drivers recruited by Embassy constituted a decisive ground of the Parliament's decision not to accept its bid, the applicant has not shown that the Parliament went beyond the proper bounds given the broad discretion it enjoys in that regard.
61 Since the annulment of the contested invitation to tender was not unlawful, the non-contractual liability of the Community cannot consequently be incurred on that account. | T-203/96
Embassy Limousines | 62-63 | ECT-288 [ex 178] | 62 It is also necessary to reject the applicant's argument that the Parliament unlawfully awarded the contract, on a provisional basis, to Company A. In these proceedings the applicant is seeking, in substance, to obtain compensation for the damage caused to it on account of the allegedly wrongful conduct of the Parliament in connection with the contested invitation to tender. However, the provisional award of the contract at issue to Company A was made at the end of a negotiated procedure without prior publication, which is different from the open procedure disputed in this case. It follows that, even if the applicant succeeded in proving the unlawfulness of the negotiated procedure followed by the Parliament to compensate for the suspension of the contested invitation to tender, it could not be the cause of the damage allegedly suffered by the applicant in connection with the contested invitation to tender.
63 It follows from the foregoing that the liability of the Community cannot be incurred on account of an infringement of Directive 92/50 by the Parliament. | T-203/96
Embassy Limousines | 86-88 | ECT-288 [ex 178]
ECT-LegExp | 86 It follows from the foregoing that the Parliament, first, induced on the part of the applicant a legitimate expectation by encouraging it to take a risk which went beyond that normally run by tenderers in a tendering procedure and, secondly, failed to inform the applicant of an important change in the conduct of the tendering procedure.
87 In that regard it is not necessary to determine whether the officials of the Parliament acted in a way that was excusable. As the contracting body in the procedure for the award of contracts, the Parliament is obliged to show a coherent and consistent attitude towards its tenderers. The interventions of various administrative and political bodies within the Parliament cannot therefore justify the failure to comply with its obligations to the applicant.
88 It follows that the Parliament has committed a fault which gives rise to non-contractual liability on the part of the Community. | T-203/96
Embassy Limousines | 96-98 + 108-109 | ECT-288 [ex 178] | 96 In this case, it has been established that the fault committed by the Parliament gives rise to non-contractual liability on the part of the Community. On the other hand, no contractual liability has been incurred. In the circumstances the applicant is not justified in claiming compensation for its loss of profit, since that would result in giving effect to a contract which never existed.
97 Next, it is clear from Article 4 of the General Terms and Conditions that the contracting institution is not liable for any compensation with respect to tenderers whose tenders have not been accepted. It follows that the charges and expenses incurred by a tenderer in connection with his participation in a tendering procedure cannot in principle constitute damage which is capable of being remedied by an award of damages (see Case T-13/96 TEAM v Commission [1998] ECR I-4073, paragraph 71). In this case the applicant has provided no evidence that would permit a derogation from that principle. The applicant is therefore not justified in claiming reimbursement of the expenses relating to the preparation of the tender.
98 It remains, therefore, to determine the damage which is connected with the investments made by Embassy by reason of the information received on 4 December 1995 showing that the ACPC had delivered an opinion in its favour.
108 Given the circumstances of this case it is also necessary to compensate the applicant for the non-material damage it has suffered. It has certainly neither shown that its reputation has been damaged nor proved that the Parliament was responsible for causing such damage. However, it is clear from the file that, although, from December 1995, Embassy took preparatory measures in order to respond to the urgency of the situation outlined by the Parliament officials, it did not know until 19 June 1996 that the contract would not be awarded to it (see paragraph 19 above). In those circumstances, by sending it no information - which had however been requested on many occasions - concerning the outcome of the tendering procedure, the Parliament placed Embassy in a position of uncertainty and forced it to make useless efforts with a view to responding to the urgency of the situation.
109 Consequently, the Court considers it equitable to quantify the damage, both material and non-material, suffered by the applicant at a total sum of BEF 5 000 000. | T-175/94
International | 44 | ECT-288 [ex 178] | 44 Furthermore, Community liability depends on proof by the applicant of the unlawfulness of the alleged conduct of the Community institution concerned, the reality of the damage and the existence of a causal link between that conduct and the alleged damage (Joined Cases 197/80, 198/80, 199/80, 200/80, 243/80, 245/80 and 247/80 Ludwigshafener Walzmuehle and Others v Council and Commission [1981] ECR 3211, paragraph 18, Italsolar, cited above, paragraph 33, Joined Cases T-481/93 and T-484/93 Exporteurs in Levende Varkens and Others v Commission [1995] ECR II-0000, paragraph 80). | 118/83
CMC | 31+43-49 | ECT-288 [ex 215] | 31 However, the objection of inadmissibility raised by the Commission must be rejected in so far as it refers to the action for damages brought pursuant to article 178 and the second paragraph of article 215 of the treaty. It would be wrong to dismiss the possibility that acts or conduct of the Commission or its officials and agents in connexion with projects financed by the European development fund might cause damage to third parties. Any person who claims to have been injured by such acts or conduct must therefore have the possibility of bringing an action, if he is able to establish liability, that is, the existence of damage caused by an illegal act or by illegal conduct on the part of the community. The action for damages
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43 The arguments submitted by the parties call for the following observations.
44 As the court emphasized in its judgment of 10 July 1984, referred to above, the Commission is responsible for preparing and adopting financing decisions on projects and programmes. The satisfactory implementation of such decisions requires that the competent agents of the Commission ensure, before any payments are made out of community funds, that the conditions for such payments are in fact fulfilled. In that connection, it should be noted in particular that article 121 (2) of the convention confers on both the chief authorizing officer and the Commission ' s delegate the task of ensuring equality of conditions for participations in invitations to tender, that there is no discrimination and that the tender selected is economically the most advantageous. For that reason articles 122 and 123 of the convention lay down a procedure for the placing of contracts which enables the Commission ' s representatives to ensure that those conditions are fulfilled.
45 It follows from the foregoing that the decision of the tender committee established by the Ethiopian government, recorded in the minutes of the meeting of 24 February 1983, did not bind the chief authorizing officer. The fact that the local delegate signed those minutes could not have that effect. According to subparagraphs (b), (c) and (e) of article 123 (2) of the convention, the European development fund can only become bound at the end of a procedure consisting of a proposal for the placing of the contract made by the national authorizing officer, followed by the agreement of the chief authorizing officer, which may be given through the agency of the local delegate, after an examination by the Commission of the question whether the tender complies with the criteria laid down in article 123 (2) (c) and article 130 (1), that is, whether the tender selected is the lowest, it is economically the most advantageous and does not exceed the sum earmarked for the contract. It is clear that at the time of the tender committee ' s discussion those conditions were not yet met. At no time, therefore, were the applicants designated as ' lowest qualified tenderer ' in circumstances such as to commit the European development fund.
46 As a result the employer ' s invitation to the applicants and its subsequently expressed preference for them could in no way have the effect of binding the chief authorizing officer. In particular, the communications of the Ethiopian authorities and the criticisms of the Commission contained therein do not constitute evidence of conduct on the part of the Commission for which the community might incur liability.
47 With regard to the clarifications which the officers of the European development fund sought to obtain on the points initially disputed by the consultants and by the tender committee regarding the technical and financial qualification of the lowest tenderer, it must be stated that the Commission was not only entitled but was in fact under a duty to obtain that information in fulfilment of the responsibilities conferred on it in the interest of the community by articles 121 and 123 of the convention, in order to ensure the economical administration of the resources of the European development fund. Contrary to the applicants ' assertions, the requests for clarifications, which led to the submission by Rush & Tompkins bv of a guarantee furnished by the Rush & Tompkins group plc, did not have the effect of substituting the parent company for its subsidiary or of altering a posteriori the conditions of the tender procedure. Irrespective of the conclusions which the Commission could draw from the tender documents themselves, the purpose of the guarantee provided by the group was only to make explicit a legal situation which already existed objectively when Rush & Tompkins bv submitted its tender, by reason of its relationship with the group of which it was a member. It should be added that the clarifications sought did not prejudice the equality of the tenderers, since, by eliminating doubts which had arisen as to its qualifications, they served only to re-establish the lowest tenderer in the position to which it was entitled by reason of the amount of its tender.
48 It may therefore be held, on the basis of the case as it stands and without seeking further documentary evidence, that the action of the Commission and its officers cannot be considered illegal and that there is no legal basis for the action for damages. The question of the assessment of the damage alleged to have been suffered by the applicants therefore becomes irrelevant.
49 It follows from the foregoing that the application must be dismissed as unfounded in so far as it is based on article 178 and the second paragraph of article 215 of the treaty. | 56/77
Agence | 41-46 | ECT-288 [ex 178] | 49 Since it has not been established that the choice of Randstad’s tender was unjustified, the applicant’s claim for damages for the loss of the contract must be dismissed.
50 As regards the damage which the applicant suffered by the loss of its temporary staff , it appears from the file that the contractual ties between the applicant and such staff did not continue beyond the duration of a contract between the applicant and the person who used the services of the temporary staff.
51 Accordingly the applicant cannot claim any legally protected interest in retaining its temporary staff after its contractual ties with such a person have been terminated.
52 Further it appears that the applicant did not have any important customers other than the Commission so that it could not offer employment prospects to the temporary staff which had previously been on its books.
53 In these circumstances even assuming that certain officials of the Commission had acted in such a way as to bring to the notice of the temporary staff in question the decision of the Commission to terminate the contract with the applicant and the possibility of continuing to work for the Commission as temporary employees of Randstad, such conduct , motivated by considerations of the interests of the service or social considerations is not an act giving rise to liability on the part of the Commission towards the applicant.
54 It follows from the premises that the claim for damages in respect of the applicant’s loss of temporary staff must also be dismissed. |
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