JUDGMENT OF THE GENERAL COURT (Sixth Chamber)
21 February 2013 (*)
(Public service contracts – Tender procedure – Supply of external services relating to the provision of electronic publications – Rejection of a tenderer’s bid – Award of the contract to another tenderer – Selection and award criteria – Obligation to state reasons – Manifest error of assessment)
In Case T‑9/10,
Evropaïki Dynamiki – Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE, established in Athens (Greece), represented by N. Korogiannakis and M. Dermitzakis, lawyers,
applicant,
v
European Commission, represented initially by E. Manhaeve and N. Bambara, acting as Agents, assisted initially by E. Petritsi, lawyer, and subsequently by E. Petritsi and O. Graber-Soudry, Solicitor, and subsequently represented by E. Manhaeve, assisted by O. Graber-Soudry,
defendant,
APPLICATION for annulment of the decision of the Publications Office of the European Union of 29 October 2009 in that it rejects the tender submitted by the applicant for Lot 2, entitled ‘Electronic publishing based on Microsoft SharePoint Server’, and, inter alia, awards the contracts to the successful tenderers, and in that it awards two contracts from Lot 3, entitled ‘Electronic publishing based on open-source platforms’, to an undertaking belonging to two different consortia, within the framework of the call for tenders AO 10224 for the provision of electronic publications (OJ 2009/S 109-156511), and a claim for damages pursuant to Articles 268 TFEU and 340 TFEU,
THE GENERAL COURT (Sixth Chamber),
composed of H. Kanninen, President, M. Prek and S. Soldevila Fragoso (Rapporteur), Judges,
Registrar: J. Plingers, Administrator,
having regard to the written procedure and further to the hearing on 20 September 2012,
gives the following
Judgment
Facts
1 The applicant, Evropaïki Dynamiki – Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE, is a company governed by Greek law, operating in the field of information technology and communications.
2 By a contract notice of 10 June 2009, published in the Supplement to the Official Journal of the European Union (OJ 2009/S 109‑156511), the Publications Office of the European Union (‘the OP’), under the reference AO 10224, launched a call for tenders for the award of a framework contract for the provision of electronic publications subdivided into six different lots. The purpose of the call for tenders was to select up to eight framework contractors for each lot, which would then be invited to participate in ‘mini competitions’ for the award of specific contracts.
3 On 20 July 2009 the applicant submitted tenders to the OP for Lots 1, 2, 3, 4 and 6.
4 The tenders presented by the applicant were successful, with the exception of that concerning Lot 2, relating to the provision of services of electronic publishing based on Microsoft SharePoint Server (‘SharePoint’).
5 For the selection phase, the tenderers were requested to provide a set of Project/Activity Reference Forms (‘PARFs’) in respect of projects or activities already completed during the period 2006-2009, in this case at least three and at most eight per lot. For Lot 2, the accepted PARFs had to represent, inter alia, ‘at least EUR 500 000 for tasks related to [SharePoint]’ and ‘at least one of the accepted PARFs [had to be] related to activities with a multilingual coverage (at least three languages).’
6 By letter of 15 September 2009, the OP gave the applicant the option of providing additional information or submitting a new set of three to eight PARFs, as the PARFs initially submitted did not fulfil the conditions set for Lot 2.
7 By fax of 21 September 2009, the applicant provided additional information concerning the PARFs, following which the Evaluation Committee found that, for PARF No 1, which fulfilled the other criteria, evidence of the capacity to carry out multilingual projects was still missing.
8 By decision of 29 October 2009, the authorising officer by subdelegation of the OP signed the decision awarding the contract.
9 By letter of the same day, the OP informed the applicant that a framework contract had been awarded to it under Lots 1, 3, 4 and 6 and that its tender for Lot 2 had not successfully passed the selection phase (‘the contested decision’).
10 By fax of 2 November 2009, the applicant requested the OP to provide it with additional information on the reasons for the rejection of its tender for Lot 2 and on the presence of the same undertaking in two separate tendering consortia to which framework contracts had been awarded under Lot 3.
11 By letter of 24 November 2009, the OP responded to the applicant by providing additional information.
12 By letter of 26 November 2009, the applicant contested the result of the OP’s procedure.
13 By letter of 3 December 2009, the OP responded to the applicant, indicating that it had analysed the arguments put forward by the applicant and confirming the result of its evaluation.
14 On 23 January 2010, the contract award notice was published in the Supplement to the Official Journal (OJ 2010/S 16‑020106).
Procedure and forms of order sought by the parties
15 By application lodged at the Registry of the General Court on 8 January 2010, the applicant brought the present action.
16 Following changes in the composition of the Chambers of the Court, the Judge-Rapporteur was assigned to the Sixth Chamber, to which the present case was, consequently, attributed.
17 The General Court elected a new President of the Sixth Chamber, designated, pursuant to Article 32(3) of the Court’s Rules of Procedure, to complete the Chamber.
18 Upon hearing the report of the Judge-Rapporteur, the General Court (Sixth Chamber) decided to open the oral procedure.
19 The parties presented oral argument and gave their replies to the questions put by the Court at the hearing on 20 September 2012.
20 The applicant claims that the Court should:
– annul the contested decision, in that it rejected the tender submitted by the applicant in response to the open call for tenders AO 10224 for the ‘provision of electronic publications’ (OJ 2009/S 109‑156511), Lot 2, as well as all subsequent decisions, including the decision to award the contracts to the successful tenderers;
– annul the contested decision, in that it awarded two contracts to Siveco/Intrasoft and to Engineering/Intrasoft within the framework of the call for tenders AO 10224 for the ‘provision of electronic publications’ (OJ 2009/S 109‑156511), Lot 3;
– order the European Commission to compensate the applicant for the damage which it claims to have suffered in the context of the call for tenders AO 10224 for the ‘provision of electronic publications’, in the amount of EUR 260 760;
– order the Commission to pay the costs, even if the action is dismissed.
21 The Commission contends that the Court should:
– declare the action for annulment unfounded;
– declare the claim for damages unfounded;
– order the applicant to pay the costs.
Law
1. The application for annulment
Lot 2
22 In essence, the applicant raises two pleas in law, alleging breach of the obligation to state reasons and manifest errors of assessment on the part of the Evaluation Committee.
The first plea in law, alleging breach of the obligation to state reasons
23 The applicant alleges, essentially, that the OP did not set out adequate reasons for the rejection of the PARFs presented for Lot 2, as Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (OJ 2004 L 134, p. 114) requires the contracting authority to inform the unsuccessful tenderer, should the latter so request, of the characteristics and relative advantages of the tender selected, as well as the name of the successful tenderer or the parties to the framework agreement. The applicant cites several judgments of the Court in support of its contention.
24 The Commission rejects the applicant’s arguments and takes the view that, since its tender was rejected as inadmissible at the selection stage, the provisions and judgments cited do not apply in this case. Moreover, the Commission considers that it provided a statement of reasons exceeding that 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) (the ‘Financial Regulation’) by informing the applicant of the reasons why its tender had been rejected as well as providing the scores obtained by the tenderers at the award stage, even though the applicant had not passed the selection phase.
25 In accordance with the obligation to state reasons laid down in Article 296 TFEU, the reasoning followed by the authority which adopted the measure must be disclosed in a clear and unequivocal fashion so as, on the one hand, to make the persons concerned aware of the reasons for the measure and thereby enable them to defend their rights and, on the other, to enable the Court to exercise its power of review (see judgments of 10 September 2008 in Case T‑465/04 Evropaïki Dynamiki v Commission, not published in the ECR, paragraph 48 and the case-law cited, and of 9 September 2010 in Case T‑63/06 Evropaïki Dynamiki v EMCDDA, not published in the ECR, paragraph 112).
26 It should also be borne in mind that the requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations (see Case C‑367/95 P Commission v Sytraval and Brink’s France [1998] ECR I‑1719, paragraph 63 and case-law cited, and Case T‑465/04 Evropaïki Dynamiki v Commission, paragraph 49).
27 Furthermore, according to the case-law, if the institution or agency concerned sends a letter in response to a request seeking additional explanations about a decision before proceedings are brought but after the date laid down in 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) (‘the implementing rules’), that letter may also be taken into account when examining whether the statement of reasons in the case in question was adequate. The requirement to state reasons must be assessed in the light of the information which the applicant possessed at the time when proceedings were brought, it being understood, however, that the institution is not permitted to replace the original statement of reasons by an entirely new statement (see Case T‑89/07 VIP Car Solutions v Parliament [2009] ECR II‑1403, paragraph 73 and case-law cited). It is in the light of those considerations that the applicant’s arguments must be examined.
28 Article 100(2) of the Financial Regulation requires the administration to provide additional reasoning to tenderers who have presented an admissible tender and who make an express request in that regard (see, to that effect and by analogy, Case T‑19/95 Adia Interim v Commission [1996] ECR II‑321, paragraph 31; Case T‑183/00 Strabag Benelux v Council [2003] ECR II‑135, paragraph 54, and Case T‑465/04 Evropaïki Dynamiki v Commission, paragraph 47).
29 However, it is apparent from the facts of the present case, and it is not disputed by the applicant, that the applicant was rejected at the selection level as none of the PARFs that it had presented in relation to Lot 2 fulfilled the OP’s preconditions.
30 In order to determine whether, in the present case, the OP satisfied its obligation to state reasons, it is appropriate to examine the contested decision and the letter of 24 November 2009.
31 By the contested decision, the OP informed the applicant that framework contracts had been awarded to it under Lots 1, 3, 4 and 6 and that its tender for Lot 2 had not passed the selection phase. In that regard, it should be noted that the OP, at page 2 of the contested decision, informed the applicant that the eight PARFs presented for Lot 2 had not been successful because none of them demonstrated both the technical and professional capacity of the applicant in the Lot 2 domain and a multilingual coverage in at least three languages. In the contested decision, the OP noted, first, that, of the eight PARFs supplied by the applicant as proof of its professional capacity, only PARF No 1 had been accepted by the OP as demonstrating its technical and professional capacity in the Lot 2 domain and, secondly, that the tenderers had been informed that, in order ‘to pass selection phase, at least one from the accepted PARFs [must] be related to activities with a multilingual coverage (at least three languages)’.
32 In the contested decision, the OP also stated that, in spite of the additional information presented by the applicant, PARF No 1 could not be considered multilingual. As the corresponding selection criteria had not been fulfilled, the applicant could not pass the selection phase in accordance with the predefined criteria. The OP also supplied, as an annex to the contested decision, an extract from the Report of Work of the Evaluation Committee concerning the evaluation of the applicant’s tender which explained the reasons for rejecting the eight PARFs proposed by the applicant. Furthermore, even though not required at the selection phase, the OP also indicated, in the contested decision, the names, scores and total of the financial offer for each of the successful tenderers for all of the framework contracts falling within the six lots.
33 Moreover, by letter of 24 November 2009, in response to the applicant’s fax of 2 November 2009, the OP supplemented the statement of reasons for its decision to reject the applicant’s tender relating to Lot 2. The OP stated that the scope of Lot 2 was electronic publishing based on SharePoint and that the tender specifications, as set out at page 13 of that call for tenders, stated that the technical and professional capacity of the tenderers would be judged on the basis of their expertise relevant to the required services. Furthermore, those specifications, as set out at page 61 of the call for tenders, required the tenderers to prove their experience with the delivery of services comparable to those defined in the technical specifications of the call for tenders. Thus, according to those specifications, the submitted PARFs should be relevant to the subject and demonstrate expertise in electronic publishing for the specific lot referred to. Projects or activities not conforming to those requirements would be eliminated. The OP stated that the PARFs submitted by the applicant for Lot 2 had been evaluated in the light of those criteria, which had been defined clearly in advance.
34 In its letter of 24 November 2009, the OP also set out in detail the reasons why the various PARFs submitted by the applicant had been rejected, in spite of the fact that those reasons were already apparent from the Report of Work of the Evaluation Committee annexed to the contested decision.
35 Thus, according to the OP, PARFs Nos 2 to 4 did not show expertise in ‘building and updating websites, collaboration sites and document management sites’, as required by the specifications set out at page 39 of the tender specifications, with use of SharePoint technology, expertise in which was required for Lot 2. Furthermore, PARFs Nos 5 to 8 were rejected as they did not show that SharePoint was being used.
36 Finally, with regard to PARF No 1, the OP stated that, following the supplementary response of the applicant, the Evaluation Committee verified the webpage in question and was unable to find the multilingual functionalities claimed by the applicant. The OP stated that the portal in question was in English and that the mere fact that some of the documents available for download were available in other languages did not allow PARF No 1 to be classified as fulfilling the condition of multilingual functionality.
37 In the context of the present call for tenders, it must be concluded that the statement of reasons put forward by the OP enabled both the applicant to assert its rights before the Court and the Court to exercise its power of review.
38 The first plea must therefore be rejected.
The second plea, alleging manifest errors of assessment
39 In the context of the present plea in law, the applicant relies, essentially, on three heads of claim, alleging manifest errors of assessment by the Commission, first, in the application of the selection criteria established by the tender specifications, secondly, in the rejection of PARFs Nos 2 to 8 and, thirdly, in the rejection of PARF No 1.
– The application of the selection criteria established by the tender specifications
40 The applicant claims, essentially, that the tender specifications did not require that the PARFs should show the tenderer’s capacity to create internet sites which use SharePoint technology and which are multilingual.
41 The Commission, by contrast, takes the view that, having regard to sections 2.6.2.2 and 4.5.3 of the tender specifications, entitled ‘Specific tasks for Lot 2 – Electronic publishing based on [the SharePoint] platform’, those two conditions were clearly established as being cumulative.
42 Section 2.6.2.2 of the tender specifications provides that the technical and professional capacity of the tenderers will be judged on the basis of their expertise relevant to the required services. Lot 2 concerns electronic publishing services based on SharePoint. Furthermore, that section provides that, to pass the selection phase for Lot 2, the tenderers must satisfy two criteria, namely that the tasks related to SharePoint for all the accepted PARFs represent at least EUR 500 000 and that at least one of the accepted PARFs is related to an activity with multilingual coverage (at least three languages). Accordingly, it cannot be disputed that the PARFs, in order to be relevant, were required to show expertise in the technology required by Lot 2, as set out in section 4.5.3 of the tender specifications, which requires in clear terms expertise in SharePoint technology at all levels.
43 Furthermore, the second condition indicates clearly its cumulative nature, since at least one of the accepted PARFs had to demonstrate the capacity to implement a multilingual project. Finally, the document in the tender specifications entitled ‘Annex 9 PARF’, at paragraph 2 of its general rules, required the PARFs to be relevant to the subject and required electronic publishing expertise for the relevant lot of that call for tender. Given that Lot 2 concerned electronic publishing based on SharePoint, the PARFs presented for that lot, therefore, in order to be relevant, were under a binding obligation to demonstrate that expertise.
44 It is thus apparent from the call for tenders that the criteria relating to Lot 2 required, in order to pass the selection phase, proof of the capacity to implement a project requiring SharePoint technology in a multilingual environment.
45 The alleged contradiction, advanced by the applicant, between the tender specifications and the response provided by the OP during the tendering phase to Question No 7 of the fourth series of clarifications has not been established. In its response, the OP, in essence, indicated that it would verify the experience of the tenderer with regard to the services requested in the call for tenders in question, which did not rule out the possibility that, in line with the call for tenders, the OP would examine the expertise of the tenderers according to the technology required by each lot.
46 The applicant’s argument claiming that it is impossible to fulfil the cumulative conditions imposed by the OP, namely a PARF that uses the SharePoint technology and that is multilingual, must be rejected, since, with regard to Lot 2, only two tenderers out of eleven failed to pass the selection phase, a fact which tends to demonstrate that the cumulative criteria chosen were reasonable.
47 It follows from the foregoing that the OP did not commit a manifest error of assessment in the application of the selection criteria established by the call for tenders and relating to the selection phase.
– PARFs Nos 2 to 8
48 With regard to PARFs Nos 2 and 3, the applicant claims to have demonstrated the use of SharePoint technology. It should be pointed out that PARFs Nos 2 and 3 concern two portals based on technologies that differ from that required by Lot 2 and that the applicant itself acknowledges that SharePoint was used as a supporting technology only. It cannot be held, therefore, that the OP committed a manifest error by finding that PARFs Nos 2 and 3 did not demonstrate expertise in the technology required for Lot 2. In the context of setting up the portals in question, SharePoint was not the technology on which those were based, whereas it did constitute the specific character of Lot 2, as its title emphasises.
49 With regard to PARF No 4, the applicant essentially submitted the ‘Cybernews’ project, within the framework of which it had analysed the possible migration to SharePoint (version 2007) technology, which cannot be regarded as constituting evidence of its expertise in the technology required for Lot 2. The applicant did not provide evidence that, in the context of that project, it had been required to set up the site in question, in the event a website for internal use based on SharePoint, an activity which is, nevertheless, a central feature of Lot 2. The fact that a migration study was not treated as evidence of setting up a website based on a defined technology does not, therefore, constitute a manifest error.
50 With regard to PARFs Nos 5 to 8, the applicant’s arguments are in fact joined with the first complaint of the present plea, since it takes the view that it was not under an obligation specifically to demonstrate experience of the technology required for Lot 2. It has, however, already been established that the OP had clearly and legitimately laid down, as a selection condition, experience of that technology in the context of Lot 2. As the applicant has acknowledged that PARFs Nos 5 to 8 did not relate to SharePoint technology, the OP did not, therefore, commit a manifest error in taking the view that those PARFs did not demonstrate the applicant’s capacity to carry out a project related specifically to that technology.
– PARF No 1
51 The applicant takes the view that PARF No 1 demonstrated its ability to carry out a multilingual project. It claims that it indicated, moreover, in the supplementary information, the existence of a webpage demonstrating the multilingual nature of that PARF.
52 The Commission, however, states that the Evaluation Committee visited the webpage in question and was unable to find such evidence. The portal in question, it argues, was solely in English and only certain documents were available for downloading in other languages. Accordingly, the OP took the view that PARF No 1 did not satisfy the multilingual coverage condition.
53 In the present case, this call for tenders was addressed to undertakings that have specialised, in-depth technical expertise in the domain of supplying electronic publishing. With regard to Lot 2, the contracting authority had defined two cumulative conditions, one of which specified that ‘at least one of the accepted PARFs [had to be] related to activities with a multilingual coverage (at least three languages)’.
54 Although the wording used seems fairly general, that condition must be read in the light of section 4.4 of the tender specifications, which provides in its second and third paragraphs:
‘The Contractor must have the technical capacity to manage data in all the languages of the European Union …
The multilingual requirements of each project will be specified at the beginning of the project …’.
55 Moreover, section 4.5.3 of the tender specifications sets out in detail the specific tasks relating to Lot 2, which are focused on the creation and updating of websites using SharePoint technology.
56 While it is appropriate to point out that the call for tenders does not explicitly describe what is meant by the requirement of multilingual coverage in at least three languages, it must be held, however, in the light of the tasks defined by sections 4.5.1 and 4.5.3 of the tender specifications, that that condition must be interpreted as referring to building and updating websites which are available in their entirety in at least three different languages. Such an interpretation does not constitute, in the context of the present call for tenders, a manifest error of assessment. The mere presence of documents available for download in other languages on a server does not demonstrate the capacity of the applicant to build and manage a multilingual website that has, inter alia, an interface in at least three different languages. The language of the documents available for download on a website cannot be the sole criterion that allows its multilingual coverage to be assessed, since those documents are, as a general rule, opened by using external programmes. Furthermore, such documents are, as a rule, supplied to the undertaking that manages the website of an institution by the institution itself and do not provide evidence of the capacity of the undertaking to manage a multilingual website and, in particular, its capacity to deploy and to maintain search engines that require, inter alia, the definition of keywords in all the languages covered by the site.
57 Finally, as the Commission stated in its written pleadings, without being challenged by the applicant, of the eleven tenders submitted for Lot 2, only those of the applicant and one other tenderer did not demonstrate both of the skills required, namely use of SharePoint and a multilingual capacity. This appears to be confirmed upon reading the award notice for the Lot 2 contracts, since eleven tenders were indeed received and the OP awarded five contracts, as planned. Those factors confirm that most of the undertakings participating in the call for tenders had correctly interpreted the present condition.
58 It is therefore apparent from examination of the file that the assessment of the Evaluation Committee is not incorrect and therefore did not vitiate the contested decision with a manifest error.
59 The second plea concerning Lot 2 must be rejected and, therefore, the first head of claim must be rejected in its entirety.
Lot 3
60 The applicant puts forward, essentially, a single plea alleging that the presence of the company Intrasoft International (‘Intrasoft’) in two separate consortia, to which framework contracts were awarded under Lot 3, constitutes a breach of Article 106 of the Financial Regulation, which provides that ‘[p]articipation in tendering procedures shall be open on equal terms to all natural and legal persons coming within the scope of the Treaties and to all natural and legal persons in a third country which has with the European Communities a special agreement in the field of public procurement under the conditions laid down in that agreement.’
61 In its letter of 29 October 2009, the OP indicated that one of the contracts relating to Lot 3 had been awarded to the consortium made up of the companies Siveco and Intrasoft and, by fax of 2 November 2009, the applicant challenged that matter. However, the applicant has acknowledged that the OP, in its letter of 24 November 2009, had admitted that the first letter included a clerical error and that, in actual fact, the contract for Lot 3 had been awarded to Siveco alone. By letter of 26 November 2009, the applicant requested clarification as to the exact composition of the consortia that had been successful in Lot 3, but did not receive a precise reply.
62 At the hearing, the applicant focused its argument on the absence of a statement of reasons in the OP’s response with regard to the possible involvement of Intrasoft as a subcontractor of Siveco. The Commission contended that that argument was inadmissible on the ground that it had been raised out of time.
63 It must be held, however, that, as the applicant raised that argument in paragraph 53 of its application, it is therefore admissible.
64 At the hearing, the Commission confirmed that Intrasoft did not belong to two consortia and stated that that undertaking did not participate as a subcontractor either, as that possibility was explicitly excluded for Contract No 20, awarded to Siveco, as would have been apparent upon reading the award notice for the Lot 3 contracts (OJ 2010/S 16‑020106), which provided that the contract could not be subcontracted.
65 It is apparent from that document, with regard to Lot 3, that the applicant was awarded Contract No 16. Intrasoft is indicated as being a member of the consortium that was awarded Contract No 15 and Siveco as having been awarded Contract No 20. Moreover, it is apparent from the award notice for the Lot 3 contracts that the possibility of subcontracting a part of the contract was excluded.
66 It follows from the examination of that document that, in the context of Lot 3, no company competing with the applicant was awarded a contract whilst being a member of two separate consortia or as a subcontractor in the context of another contract, a fact, moreover, which the applicant did not dispute in the course of the hearing. Finally, as the OP corrected, by letter of 24 November 2009, the clerical error appearing in the letter of 29 October 2009, that plea must consequently be rejected.
67 It follows from all of the foregoing that the applicant’s application for annulment must be dismissed in its entirety.
2. The claim for damages
68 The applicant requests the Court, should it find that the contested decision, as regards Lot 2, was adopted in breach of the Financial Regulation, and given that it will probably rule on the present dispute following the full execution of the contract by the successful tenderer, to order the Commission, on the basis of Articles 268 TFEU and 340 TFEU, to pay it damages of EUR 260 760.
69 The Commission contends that the claim for damages is unfounded, in particular by reason of the fact that the applicant has failed to adduce evidence of unlawful conduct on the Commission’s part.
70 Without it being necessary to examine the other arguments of the parties, it should be noted that it follows from established case-law that, in order for the European Union to incur non-contractual liability by reason of the unlawful conduct of its institutions, within the meaning of the second paragraph of Article 340 TFEU, a number of requirements must be satisfied, namely that the alleged conduct of the institutions is unlawful, that the damage is real, and that there is a causal link between the conduct alleged and the damage relied upon (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).
71 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 (Case T‑170/00 Förde-Reederei v Council and Commission [2002] ECR II‑515, paragraph 37; see, to that effect, Case C‑146/91 KYDEP v Council and Commission [1994] ECR I‑4199, paragraphs 19 and 81).
72 In the present case, in the context of the application for annulment of the contested decision insofar as it concerns Lot 2, it has been held that that decision was not vitiated by unlawfulness.
73 As the condition relating to the unlawfulness of the conduct alleged against the Commission has not been fulfilled, the claim for damages must be rejected as unfounded and, therefore, the application must be dismissed in its entirety.
Costs
74 The applicant submits that, even if the Court were to dismiss the action, the Commission should be ordered to pay the costs of the proceedings pursuant to Article 87(3) of the Rules of Procedure.
75 It must be noted that, 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. However, the first subparagraph of Article 87(3) of those Rules of Procedure provides that the Court may order that the costs be shared where the circumstances are exceptional.
76 In the absence of exceptional circumstances, and since the applicant has been unsuccessful, the applicant must bear its own costs and pay the costs incurred by the Commission.
On those grounds,
THE GENERAL COURT (Sixth Chamber)
hereby:
1. Dismisses the action;
2. Orders Evropaïki Dynamiki – Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE to bear its own costs and to pay the costs incurred by the European Commission.
Kanninen | Prek | Soldevila Fragoso |
Delivered in open court in Luxembourg on 21 February 2013.
[Signatures]