ORDER OF THE GENERAL COURT (Seventh Chamber)
7 January 2013(*)
(Actions for failure to act – Action devoid of purpose – No need to adjudicate – Actions for damages – Action manifestly lacking any foundation in law)
In Case T‑274/12,
Alfastar Benelux SA, established in Ixelles (Belgium), represented by N. Keramidas and N. Korogiannakis, lawyers,
applicant,
v
Council of the European Union, represented by M. Vitsentzatos and E. Chatziioakeimidou, acting as Agents,
defendant,
APPLICATION for a declaration that the Council has failed to fulfil its obligations under Article 266 TFEU in failing to take the measures necessary to comply with the judgment of the General Court of the European Union of 20 October 2011 in Case T‑57/09 Alfastar Benelux v Council, not published in the ECR, and, in addition, a claim for damages under Article 340 TFEU,
THE GENERAL COURT (Seventh Chamber),
composed of A. Dittrich, President, I. Wiszniewska-Białecka and M. Prek (Rapporteur), Judges,
Registrar: E. Coulon,
makes the following
Order
Facts, procedure and forms of order sought
1 By the judgment of 20 October 2011 in Case T‑57/09 Alfastar Benelux v Council, judgment, not published in the ECR, the General Court annulled the decision of the Council of the European Union of 1 December 2008 to reject the tender submitted by the Alfastar-Siemens consortium, composed of the applicant Alfastar Benelux SA and Siemens IT Solutions and Services SA, in response to Call for Tenders UCA/218/07 for the provision of technical maintenance – help desk and on-site intervention services for the PCs, printers and peripherals of the General Secretariat of the Council and to award the contract to another tenderer.
2 The Court held in paragraph 36 of its judgment in Case T‑57/09 Alfastar Benelux v Council that the Council had not correctly complied with its obligation to state reasons, since its letter of 10 December 2008, giving the Alfastar-Siemens consortium information on the scores obtained by it and by the successful tenderer, did not meet the requirements laid down in Article 100(2) 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) and Article 149(3) of Commission Regulation (EC, Euratom) No 2342/2002 of 23 December 2002 laying down detailed rules for the implementation of the Financial Regulation (OJ 2002 L 357, p. 1).
3 By letter of 14 February 2012, the applicant reminded the Council that it was under an obligation to take the measures necessary to comply with the judgment in Case T‑57/09 Alfastar Benelux v Council, and asked the Council to inform it of the steps and measures it had taken or intended to take pursuant to Articles 266 TFEU et 340 TFEU.
4 By application lodged at the Registry of the General Court on 15 June 2012, the applicant brought the present action pursuant to Article 265 TFEU and Article 340 TFEU.
5 In its application, the applicant claims that the Court should:
– declare and rule that the Council has failed to fulfil its obligation under Article 266 TFEU in failing to take the measures necessary to comply with the judgment in Case T‑57/09 Alfastar Benelux v Council, and in failing to define its position in that regard within the time-limit given;
– order the Council to take all measures necessary to comply with the judgment in Case T‑57/09 Alfastar Benelux v Council;
– order the Council to pay the applicant EUR 20 000 in damages pursuant to Article 340 TFEU;
– order the Council to pay the costs incurred by the applicant in connection with this application, even if it is rejected.
6 On 18 June 2012, the Council notified the applicant and the other tenderers of a new decision to award the contract in connection with Call for Tenders UCA/218/07, adopted by it on 13 June 2012.
7 On 25 September 2012, the Council lodged a statement in defence in which it stated, first of all, that the action is inadmissible inasmuch as the applicant did not put it on formal notice to act. It considers that the applicant’s letter of 14 February 2012 does not call on it to act within the meaning of Article 265 TFEU. It argues, next, that since a new decision has been adopted in Call for Tenders UCA/218/07, the action has become devoid of purpose and there is no longer any need to adjudicate.
8 The Council contends that the Court should:
– dismiss the application as inadmissible;
– in the alternative, declare that the subject-matter of the application has ceased to exist and close the proceedings;
– in any event, order the applicant to pay the costs.
9 By a letter of 10 October 2012, the applicant submitted observations on the Council’s position and agreed that, in the light of the aforementioned new award decision, there was no longer any need to adjudicate. It did, however, ask for the Council to be ordered to pay the costs.
10 By decision of 30 October 2012, the President of the Seventh Chamber of the General Court granted leave for that letter to be placed in the case-file of the present proceedings.
11 By letter of 30 October 2012, the Court called on the Council to submit its observations on the points put forward in the applicant’s letter of 10 October 2012.
12 On 12 November 2012, the Council sent the Court a letter, setting out its observations.
Law
13 Under Article 113 of the Rules of Procedure, the General Court may at any time, of its own motion, after hearing the parties, declare that the action has become devoid of purpose and that there is no longer any need to adjudicate on it.
14 Similarly, under Article 111 of the Rules of Procedure, where an action is manifestly inadmissible or manifestly lacking any foundation in law, the General Court may, by reasoned order and without taking further steps in the proceedings, give a decision on the action.
15 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.
The application for a declaration of failure to act
16 It must be remembered first of all that, according to settled case-law, where the act whose absence constitutes the subject-matter of the proceedings was adopted after the action was brought but before judgment, a declaration by the EU Court to the effect that the initial failure to act is unlawful can no longer bring about the consequences prescribed by Article 266 TFEU. It follows that in such a case, as in cases where the defendant institution has responded within a period of two months after being called upon to act, the subject-matter of the action has ceased to exist, with the result that there is no longer any need to adjudicate on it (see, to that effect, order of the Court of Justice in Case C‑44/00 P Sodima v Commission [2000] ECR I‑11231, paragraph 83 and the case-law cited; see also, to that effect, order of the General Court in Case T‑291/01 Dessauer Versorgungs- und Verkehrsgesellschaft and Others v Commission [2002] ECR II‑5033, paragraph 11).
17 In the present case it is clear that the Council has taken the measures necessary to comply with the judgment in Case T‑57/09 Alfastar Benelux v Council, in accordance with the first paragraph of Article 266 TFEU.
18 On 18 June 2012, that is, after the present application for a declaration of failure to act was lodged, the Council notified the applicant of a new award decision in Call for Tenders UCA/218/07 for the provision of technical maintenance – help desk and on-site intervention services for the PCs, printers and peripherals of the General Secretariat of the Council, adopted on 13 June 2012. That decision makes the application made for a declaration of the alleged failure to act devoid of purpose.
19 It should be noted that, in its observations in the letter of 10 October 2012 to the Court, the applicant acknowledged that the adoption of the new award decision in connection with Call for Tenders UCA/218/07 had meant that the subject-matter of the application for a declaration of failure to act had ceased to exist and that there was accordingly no longer any need to adjudicate on it.
20 The Court accordingly finds that there is no longer any need to adjudicate on the application for a declaration of failure to act, without its being necessary to examine the issue of admissibility of the application.
The claim for damages
21 The applicant argues that the Council’s failure to comply with the judgment in Case T‑57/09 Alfastar Benelux v Council has prevented it from seeking any form of legal redress and has exacerbated the adverse consequences for it arising from the initial unlawfulness. It asks that the Council be ordered to pay it EUR 20 000 in damages.
22 In accordance with settled case-law, for the Community to incur non-contractual liability under the second paragraph of Article 340 TFEU for unlawful conduct on the part of its institutions, a set of conditions must be fulfilled, namely the unlawfulness of the acts alleged against the institutions, the fact of damage and the existence of a causal link between that conduct and the damage complained of (see 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). Where one of those conditions is not satisfied the application must be dismissed in its entirety without its being necessary to examine the other preconditions (see, to that effect, Case C‑146/91 KYDEP v Council and Commission [1994] ECR I‑4199, paragraph 81).
23 It is in the light of those considerations that it should be examined whether the conditions giving rise to non-contractual liability on the part of the European Union have been satisfied.
24 In the present case, the applicant is attempting to base the loss it alleges on the fact that the Council’s failure to comply with the judgment in Case T‑57/09 Alfastar Benelux v Council and the ensuing impossibility for the applicant to seek redress has the consequence of exacerbating the harm caused by the initial unlawfulness.
25 There is, however, firstly, nothing in the judgment in Case T‑57/09 Alfastar Benelux v Council to indicate that the initial unlawfulness of the decision annulled by the Court caused harm such as to justify ordering the Council to pay damages.
26 On the contrary, in paragraph 49 of the judgment in Case T‑57/09 Alfastar Benelux v Council, the Court stated that, even though the Council had not given adequate reasons for the contested decision, that did not mean that the award of the contract to the successful tenderer constituted wrongful conduct or that there was a causal link between that fact and the loss alleged by the applicant. It held that there were no grounds for concluding that the Council would have awarded the contract in question to the applicant if that decision had been adequately reasoned.
27 Therefore, the Council’s alleged failure to comply with the judgment in Case T‑57/09 Alfastar Benelux v Council cannot have exacerbated the harm arising from a failure the possible existence of which the Court was not able to verify in the proceedings leading to that judgment and which, in the absence of any probative evidence adduced by the applicant, has not been established in the present proceedings either.
28 Secondly, if the applicant’s line of argument is to be construed as meaning that the applicant suffered harm solely because the Council failed to comply with the judgment in Case T‑57/09 Alfastar Benelux v Council, and that that failure and the resulting impossibility to defend its interests justify damages in the amount of EUR 20 000 euros, it must also be rejected.
29 The applicant has not adduced any probative evidence showing that it suffered harm as a result of the allegedly late compliance by the Council with the judgment in Case T‑57/09 Alfastar Benelux v Council.
30 In the light of the foregoing considerations, the claim for damages must be dismissed as manifestly lacking any foundation in law.
Costs
31 Article 87(6) of the Rules of Procedure provides that, where a case does not proceed to judgment, the costs are to be in the discretion of the General Court. The Court considers that, in the circumstances of the case, there are sufficient grounds to order the Council to bear its own costs and to pay those incurred by the applicant in connection with the application for a declaration of failure to act.
32 Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been asked for in the successful party’s pleadings. Since the applicant has been unsuccessful in its claim for damages, it should be ordered to pay the costs, in accordance with the forms of order sought by the Council.
33 In those circumstances, the Court considers that it has made a fair assessment of the circumstances of the case in holding that the applicant should bear half of its own costs and pay half of the costs incurred by the Council, whilst the Council should bear the other half of its own costs and pay half of the costs incurred by the applicant.
On those grounds,
THE GENERAL COURT (Seventh Chamber)
hereby orders:
1. There is no longer any need to adjudicate on the application for a declaration of failure to act, brought by Alfastar Benelux SA.
2. The claim for damages brought by Alfastar Benelux is dismissed as manifestly lacking any foundation in law.
3. Alfastar Benelux shall bear 50% of its own costs and pay 50% of the costs incurred by the Council of the European Union. The Council shall bear 50% of its own costs and pay 50% of the costs incurred by Alfastar Benelux.
Luxembourg, 7 January 2013.