ORDER OF THE GENERAL COURT (Third Chamber)
3 September 2014 (*)
(Actions for damages — Public service contract — Tender procedure — Strengthening the institutional capacity of the Commission for protection of competition in Serbia — Rejection of a tender — Action manifestly lacking any foundation in law)
In Case T‑261/12,
Diadikasia Symvouloi Epicheiriseon AE, established in Chalandri (Greece), represented by A. Krystallidis, lawyer,
applicant,
v
European Commission, represented by F. Erlbacher and P. van Nuffel, acting as Agents,
defendant,
ACTION for damages seeking compensation for the harm allegedly suffered by the applicant as a result of the decision of the Delegation of the European Union in the Republic of Serbia to annul the decision to award the contract to the applicant in tender procedure EuropeAid/131427/C/SER/RS, concerning the strengthening of the institutional capacity of the Commission for protection of competition in Serbia (OJ 2011/S 147-243259),
THE GENERAL COURT (Third Chamber),
composed of S. Papasavvas, President, N.J. Forwood and E. Bieliūnas (Rapporteur), Judges,
Registrar: E. Coulon,
makes the following
Order
Background to the dispute
1 The applicant, Diadikasia Symvouloi Epicheiriseon AE, is a limited company governed by Greek law that provides specialised services to businesses and bodies in the private and public sectors.
2 By a contract notice published in the supplement to the Official Journal of the European Union of 3 August 2011 (OJ 2011/S 147-243259), the European Union, represented by its delegation in the Republic of Serbia (‘the delegation’), launched call for tenders EuropeAid/131427/C/SER/RS, concerning the strengthening of the institutional capacity of the Commission for protection of competition in Serbia (‘the call for tenders’).
3 That call for tenders was launched in order to facilitate the implementation of a project consisting in strengthening the institutional capacities of the Commission for protection of competition in Serbia, through capacity building and IT assistance, in order to ensure more efficient enforcement of competition policy, which would provide economic benefits to consumers and market participants (‘the project’). That project was to be carried out through a services contract awarded to a consultant, assisted by three key experts, and formed part of the National Programme for Serbia under the component ‘Transition Assistance and Institution Building’ of the Instrument for Pre-Accession Assistance, adopted by the Commission on 8 July 2011.
4 For the preparation of that programme, a services contract had been awarded, following a public procurement procedure (EuropeAid/128499/C/SER/RS), to a consortium led by company P which included, inter alia, company E. That consortium had, in particular, been involved in drafting the terms of reference for the call for tenders.
5 The terms of reference for the call for tenders gave an insight into, inter alia, the personnel requirements, particularly in respect of the required qualifications and expertise of the key experts that the tenderers had to propose in their tenders.
6 On 8 December 2011, the consortium Diadikasia (‘the consortium’), formed by the applicant, which was the leader of that consortium, and five other companies, including company C, responded to the call for tenders.
7 By letter of 29 February 2012 (‘the award decision’), the delegation informed the consortium that it had been awarded the contract, subject to the submission of certain documents regarding the exclusion criteria, referred to in section 2.3.3 of the Practical Guide to Contract Procedures for EU External Actions (‘PRAG’), and the selection criteria, referred to in section 2.4.11 PRAG.
8 In reply to the letter of 29 February 2012, the consortium sent, by letter of 9 March 2012, the requested documents.
9 By letter of 15 March 2012, the delegation declared that the award decision was null and void (‘the annulment decision’). In that letter, the delegation indicated that, after the notification of the award decision, but before signature of the contract with the consortium, it had gathered evidence of a link between the consortium and company E. It stated that company E had participated in the preparation of the terms of reference relating to the call for tenders, which could have given the consortium an undue advantage and led to a conflict of interest. In accordance with section 2.3.3 PRAG, the award decision was therefore annulled.
10 In a fax sent to the delegation on 28 March 2012, the applicant first stated that the content of the letter of 15 March 2012 — of which it had been notified only on 23 March 2012 — did not enable it to know the reasons for the delegation’s decision to declare the award decision null and void. It then stated that there was no conflict of interest and indicated that, in any event, the delegation had not asked it to submit its observations on the existence of any conflict of interest, in breach of its right to be heard before the Commission. It concluded by asking the delegation to examine the case in detail, to reverse its decision and to suspend the entire procedure until the issue had been dealt with.
11 By letter of 4 April 2012 sent to the Commission, the applicant requested that the Commission intervene in relation to that issue since the delegation had not responded to its fax of 28 March 2012.
12 By letter of 6 April 2012, the delegation informed the applicant that the information available to it showed that a member of the consortium, namely company C, had cooperated with company E in the preparation of the consortium’s tender. Company E’s involvement in the preparation of the terms of reference relating to the call for tenders had given an undue advantage to the consortium and had constituted a conflict of interest. Those circumstances led the delegation to declare the award decision null and void, in accordance with section 2.3.3 PRAG.
13 By letter of 12 April 2012, the applicant lodged a complaint with the delegation, in accordance with section 2.4.15.1 PRAG, in which it claimed, in essence, that the delegation had failed to respect the rules of the PRAG in declaring the award decision null and void.
14 In a letter of 23 April 2012, the delegation repeated that it was in possession of strong evidence that company E had been involved in the preparation of the consortium’s tender, even though it was not a member and could not be a member as a result of its participation in the consortium that drafted the terms of reference relating to call for tenders. It added that it had collected written evidence showing that company E had acted as a de facto member of the consortium since, according to that evidence, the experts’ contracts were entered into with company C, but those experts were paid by company E. The fact that company E had acted in the name of the consortium in the recruitment of those experts had given rise to a conflict of interest. Consequently, the delegation decided to annul the award decision. Lastly, it stated that the evidence in question could not be shared with the applicant without the written agreement of the third parties concerned.
15 On 17 May 2012, the applicant responded to the letter of 23 April 2012 by lodging a complaint with the Commission, whereby it asked it, first, to suspend the procurement procedure, secondly, to reverse the decision to declare the award decision null and void and, thirdly, to sign the contract with the consortium.
16 By letter of 8 June 2012, the delegation informed the applicant that it had decided to sign the contract with the second-placed tenderer.
Procedure and forms of order sought
17 The applicant brought the present action by application lodged at the Registry of the Court on 13 June 2012.
18 The applicant claims that the Court should:
– repair the damage caused to it by the annulment decision;
– order the Commission to pay the applicant’s costs.
19 The Commission contends that the Court should:
– reject the action as inadmissible with regard to the claim for material losses;
– in any event, reject the action as unfounded;
– order the applicant to pay the costs.
20 In its reply, the applicant claims that the Court should:
– accept the pleas set out in the application;
– repair the damage caused to the applicant by the annulment decision;
– reject any contrary argument of the Commission as being unlawful and constituting an abuse of the applicant’s rights.
Law
21 Under Article 111 of the Rules of Procedure of the General Court, where an action is manifestly inadmissible or manifestly lacking any foundation in law, the Court may, by reasoned order and without taking further steps in the proceedings, give a decision on the action.
22 In the present case, the Court considers itself sufficiently informed by the documents in the file to give a decision without taking further steps in the proceedings.
23 As a preliminary, it must be noted that the public services contract at issue, the legal basis of which is Council Regulation (EC) No 1085/2006 of 17 July 2006 establishing an Instrument for Pre-Accession Assistance (OJ 2006 L 210, p. 82), comes within the scope of external actions financed from the budget of the European Union, referred to in Title IV of the second part of Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 248, p. 1), as amended by Council Regulation (EC, Euratom) No 1995/2006 of 13 December 2006 (OJ 2006 L 390, p. 1) (‘the financial regulation’).
24 Article 167(1) of the Financial Regulation, in Title IV of the second part thereof, provides:
‘The provisions of Article 56 and of Chapter 1 of Title V of part one relating to the general provisions on procurement shall be applicable to contracts covered by this Title subject to the special provisions relating to thresholds and the arrangements for awarding external contracts laid down in the implementing rules. The contracting authorities for the purposes of this Chapter shall be:
(a) the Commission on behalf of and for the account of one or more beneficiaries;
…’
25 The applicant claims, in essence, that the Court should order the Commission to pay damages to it under Article 340 TFEU on the ground that the annulment decision caused it material and non-material damage.
26 According to the applicant, all the conditions for the European Union to incur non-contractual liability are satisfied in the present case.
27 In that respect, it must be borne in mind that, according to settled case-law, in order for the European Union to incur non-contractual liability, a number of conditions must be satisfied, namely that the alleged conduct of the institutions is unlawful, that the damage is actual and certain and that there is a direct causal link between the conduct of the institution concerned and the damage relied upon (Case 26/81 Oleifici Mediterranei v EEC [1982] ECR 3057, paragraph 16, and Case T‑231/97 New Europe Consulting and Brown v Commission [1999] ECR II‑2403, paragraph 29).
28 Where 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 81, and Case T‑195/08 Antwerpse Bouwwerken v Commission [2009] ECR II‑4439, paragraph 91). Furthermore, the EU judicature is not obliged to examine those conditions in any particular order (Case C‑257/9 P Lucaccioni v Commission [1999] ECR I‑5251, paragraph 13).
29 Moreover, it is for the applicant to prove that the condition that the damage be actual and certain is satisfied (see, to that effect, Case C‑243/05 P Agraz and Others v Commission [2006] ECR I‑10833, paragraph 27 and the case-law cited) and, in particular, to adduce conclusive proof as to the existence and extent of that damage (see Case C‑362/95 P Blackspur DIY and Others v Council and Commission [1997] ECR I‑4775, paragraph 31 and the case-law cited).
30 First of all, the question whether the condition that the damage be actual and certain is satisfied in the present case should be examined in the light of those considerations.
31 In that respect, the applicant argues that it suffered both material and non-material damage as a result of the adoption of the annulment decision.
Concerning the material damage
32 The applicant submits that it suffered material losses as a result of the overall expenses incurred in the preparation of its tender (‘the first material damage’) and the loss of profit resulting from the cancellation of the project (‘the second material damage’).
33 The Commission contends that, as regards the alleged material damage, the applicant fails to put forward any argument as to the existence of the two types of damage mentioned and, as regards the extent of that damage, merely indicates the amount claimed. Moreover, the applicant has not adduced any evidence that would enable the reality of the figures presented in the tables annexed to the application to be verified with the requisite accuracy or even the amount of that damage to be assessed, albeit only approximately.
34 The Commission submits that, in those circumstances, that part of the application is not sufficiently clear and precise to enable it to prepare adequately its defence and to enable the Court to give a ruling. Accordingly, the Commission submits that, in view of Article 21(1) of the Statute of the Court of Justice of the European Union and of Article 44(1) of the Rules of Procedure of the General Court, the application should be declared inadmissible with regard to the request for compensation for material damage.
35 As a preliminary, it should be noted that, as regards the second material damage, the applicant must be understood as referring to the loss of profit resulting from the loss of the contract rather than that generated by the cancellation of the contract, since the project has not been cancelled in the present case.
36 In the present case, although the applicant refers in the application to two amounts — EUR 74 730, corresponding to the first material damage, and EUR 888 675, corresponding to the second material damage — and refers, in order to justify those two amounts, to two tables annexed to the application — Table 1 concerning the first material damage and Table 2 concerning the second material damage — it must be noted that there is no evidence supporting the information set out in those tables and that the applicant has not put forward any argument or evidence to demonstrate that the material damage it allegedly suffered is actual and certain.
37 In that respect, only the information in the left column of Table 2, entitled ‘Submitted financial offer’, was confirmed by the Commission in the defence as indeed corresponding to the financial offer submitted by the consortium in the procurement procedure.
38 However, Tables 1 and 2 are documents drafted by the applicant and are not accompanied by any offer of evidence, with the result that their probative value is weak. Thus, the Court cannot use them in order to conclude that the material damage alleged by the applicant is actual and certain.
39 The absence, at the application stage, of evidence capable of confirming the existence of the material damage allegedly suffered by the applicant cannot be compensated by the late offer of evidence made by the applicant in its reply. In order to demonstrate and explain the alleged material damage, the applicant proposes, in the reply, the testimony of its chief executive officer. It argues, in order to justify the delay in submitting the offer of evidence, that it had not found the most appropriate person to verify and prove the material and non-material damage allegedly suffered until after it had drafted and lodged the application and after carrying out intensive research in order to collect all the necessary evidence.
40 Under Article 44(1) and Article 48(1) of the Rules of Procedure, the application must, in principle, contain the offers of evidence, but the parties may offer further evidence in support of their arguments in reply or rejoinder, provided that they give reasons for the delay in offering it. In the absence of such reasons or if those reasons are held to be inadequate, the evidence or the offers of evidence submitted are to be excluded as out of time (Case C‑185/95 P Baustahlgewebe v Commission [1998] ECR I‑8417, paragraph 72, and Case C‑243/04 P Gaki-Kakouri v Court of Justice [2005], not published in the ECR, paragraph 33).
41 In that respect, the reasons given by the applicant in order to explain its delay in offering the testimony of the chief executive officer cannot be held to be adequate to justify such a delay.
42 The applicant cannot maintain that it found the most appropriate person to attest to its alleged material losses — its chief executive officer — only after the application had been lodged, when it was precisely the latter who had been the main addressee of the correspondence exchanged with the delegation and the Commission, which demonstrates his involvement in the present procurement procedure.
43 Accordingly, the applicant’s offer of evidence at the reply stage must be rejected as out of time.
44 Consequently, the material damage has not been established and must be declared manifestly lacking any foundation in law, without it being necessary, therefore, to examine the Commission’s arguments relating to the admissibility of the action as regards that material damage.
The non-material damage
45 The applicant claims to have suffered non-material loss, in particular, non-pecuniary losses, as a result of the damage to its goodwill and credibility, estimated at EUR 300 000. In that respect, the Commission’s declaration that there was a conflict of interest between company E and the consortium created a negative image for the applicant’s business. Moreover, the annulment decision was broadly known to a considerable number of individuals within the market concerned, which caused the applicant significant non-material losses. Lastly, it also suffered non-material damage because, as a result of the damage to its reputation and its good name, it is impossible for it to establish its credibility as a tenderer in European projects.
46 The Commission states, first, that the information relating to the existence of a conflict of interest was communicated only to the applicant. Secondly, it states that neither the fact that, in the course of the procurement procedure, two tenders were eliminated because they did not meet the technical requirements, nor the fact that the consortium’s tender was initially considered to be the best, nor the fact that it was then decided not to proceed with the award of the contract to the consortium, nor a fortiori the reasons for which that decision was taken were made public in any way. Accordingly, in the Commission’s view, the claim for damages for non-material damage is unfounded.
47 It must be pointed out that not only did the applicant fail to present, in its application, any specific evidence in support of its allegations relating to the public disclosure of the existence of a conflict of interest between company E and the consortium, but, moreover, it did not seek to contest, in its reply, the Commission’s assertions that the information relating to the existence of a conflict of interest was communicated to the applicant alone.
48 It can be seen from the file, in particular annexes 1, 2 and 7 to 11, that the documents referring to the existence of a conflict of interest and its consequences as regards the award of the contract to the consortium were the correspondence between the applicant and the delegation (the letters of 15 March and 6 April 2012) and between the applicant, the delegation and the Commission (the letters of 28 March, 4, 12 and 23 April 2012). Consequently, the applicant has not adduced any evidence to show that the information relating to the existence of a conflict of interest that led the delegation to annul the award decision was made public. Thus, without evidence of the public disclosure of that information, the damage to the applicant’s reputation is merely hypothetical.
49 In any event, as the Commission emphasised, a conflict of interest was found between company E and company C, as, moreover, can be seen from the letter of 6 April 2012. That indeed led the delegation to consider that it was the consortium as a whole that had thus been able to enjoy an undue advantage. However, it is not apparent from the delegation’s various letters that it suspected that the applicant was aware of that link. Accordingly, contrary to what is claimed by the applicant, the delegation did not accuse it of any criminal offence.
50 Since the applicant has not adduced any evidence capable of proving that its reputation or credibility was damaged, it must be concluded that the non-material damage is unfounded.
51 The applicant also claims that, if it is deprived of the opportunity of participating in future EU procurement procedures, the non-material damage caused due to the harm to its reputation and credibility can be reasonably estimated at EUR 300 000.
52 However, the applicant does not explain why, following the present case, it would no longer be able to participate equally with the other tenderers in future procurement procedures. In any event, it is sufficient to note in that respect that such damage could not give rise to compensation since it constitutes future and hypothetical damage.
53 Thus, without it even being necessary to assess the evidence put forward by the applicant in order to quantify the amount of the non-material damage it claims to have suffered, it must be held that it has not demonstrated that the damage in question was actual and certain.
54 Having regard to all the foregoing, the action must be rejected as manifestly lacking any foundation in law, without it being necessary, as follows from the case-law cited in paragraph 28 above, to examine the other conditions that must be satisfied in order for the European Union to incur non-contractual liability, or to examine the admissibility of the first and third heads of claim set out in the application.
Costs
55 Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the Commission.
On those grounds,
THE GENERAL COURT (Third Chamber)
hereby orders:
1. The action is dismissed.
2. Diadikasia Symvouloi Epicheiriseon AE shall pay the costs.
Luxembourg, 3 September 2014.