JUDGMENT OF THE GENERAL COURT (Third Chamber, Extended Composition)
12 February 2019(*)
(Non-contractual liability — Public supply contracts — Tender procedure — Conflict of interests — Duty of diligence — Loss of opportunity — Compensation)
In Case T‑292/15,
Vakakis kai Synergates — Symvouloi gia Agrotiki Anaptixi AE Meleton, formerly Vakakis International — Symvouloi gia Agrotiki Anaptixi AE, established in Athens (Greece), represented by B. O’Connor, Solicitor, S. Gubel and E. Bertolotto, lawyers,
applicant,
v
European Commission, represented by F. Erlbacher, E. Georgieva and L. Baumgart, acting as Agents,
defendant,
ACTION brought under Article 268 TFEU, seeking compensation in respect of the loss which the applicant allegedly suffered as a result of irregularities committed by the Commission in the context of the tendering procedure ‘Consolidation of the Food Safety System in Albania’ (EuropeAid/129820/C/SER/AL),
THE GENERAL COURT (Third Chamber, Extended Composition),
composed of S. Frimodt Nielsen, President, V. Kreuschitz, I.S. Forrester, N. Półtorak (Rapporteur) and E. Perillo, Judges,
Registrar: P. Cullen,
having regard to the written part of the procedure and further to the hearing on 12 December 2018,
gives the following
Judgment
Background to the dispute and procedure
1 By judgment of 28 February 2018, Vakakis kai Synergates v Commission (T‑292/15, ‘the interlocutory judgment’, EU:T:2018:103), the General Court upheld the claim for damages brought by the applicant, Vakakis kai Synergates — Symvouloi gia Agrotiki Anaptixi AE Meleton, in so far as it sought compensation for the loss of an opportunity to be awarded the contract ‘Consolidation of the Food Safety System in Albania’ (EuropeAid/129820/C/SER/AL), organised by the EU Delegation to Albania on behalf of the European Commission, and compensation for the costs and expenses relating to the participation in the tendering procedure, plus compensatory interest.
2 According to paragraphs 4 and 5 of the operative part of the interlocutory judgment, the parties were required to submit to the Court, within three months of the date of delivery of the judgment, the amount of compensation, drawn up by agreement, or, failing agreement, to submit to the Court, within the same time limit, a statement of their views with supporting figures. The costs were reserved.
3 By letter of 24 May 2018, the Commission requested an extension of that time limit until 7 August 2018. By letter of 25 May 2018, the applicant requested an extension of that time-limit until 28 June 2018.
4 By decision of the President of the Third Chamber (Extended Composition) of the General Court of 28 May 2018, the three-month time limit laid down in the interlocutory judgment was extended until 7 August 2018.
5 In the context of their negotiations, the parties exchanged several letters. The applicant in particular sent five letters on 16 March, 20 April, 14 May, 6 June and 13 July 2018, to which the Commission responded by letters of 27 March, 4 and 24 May and 5 July 2018.
6 Since the parties were unable, during their negotiations, to reach an agreement on all the points relating to the precise determination of the damages due to the applicant, they sent a statement of their views with supporting figures to the Court on 7 August 2018.
7 By a measure of organisation of procedure of 28 August 2018, the Court sent questions in writing to the applicant concerning one of the points of difference which remained between the parties. The applicant replied to those questions within the time limit set.
8 By a measure of organisation of procedure of 24 September 2018, the Court requested the Commission to submit its observations on the applicant’s reply to that measure of organisation of procedure and to documents annexed to it. The Commission complied with that request within the prescribed time limit.
9 Acting on a proposal from the Judge-Rapporteur, the Court (Third Chamber, Extended Composition) decided to open the oral phase of the procedure.
10 The parties presented oral argument and gave their replies to the questions asked by the Court at the hearing on 12 December 2018.
Forms of order sought
11 The applicant claims that the Court should:
– require the Commission to pay compensation amounting to EUR 422 899.6;
– order the Commission to bear all the costs incurred until the compensation is paid in full and an order for costs is made.
12 The Commission contends that the Court should:
– confirm that the amount of EUR 10 642, provisionally agreed between the parties, represents just and adequate compensation for the costs and expenses incurred by the applicant for participating in the call for tenders;
– hold that the amount of EUR 49 464 constitutes just and adequate compensation for the damage suffered by the applicant in relation to the loss of an opportunity to be awarded the contract at hand;
– order that each party bear its own costs for the main proceedings, while for the negotiations after the interlocutory judgment and for the current proceedings, order that the applicant bear the costs.
Law
13 First, it is necessary to note the criteria which the parties had to take into account in order to determine the amount of compensation due to the applicant, as they were established in the interlocutory judgment.
14 In the first place, the parties had to take into account the fact that, in the context of the tendering procedure at issue in the present case, since the applicant is part of a consortium, the compensation should correspond to its participation in that consortium (see paragraph 215 of the interlocutory judgment).
15 In the second place, as regards the costs and expenses relating to the participation in the tendering procedure, first, the parties had to take into consideration the exact proportion of the costs linked to the participation in the tendering procedure in the ‘general expenses’ submitted by the applicant and the exact number of workdays necessary for that purpose. Secondly, as regards the compensatory interest, the parties had to take into account the fact that the starting point and the end of the period giving rise to a right to the monetary revaluation must respectively be fixed on the first day of the month following the month during which the applicant last took steps prior to initiating proceedings and on the date of delivery of the judgment establishing the obligation to make good the damage. As regards the rate of compensatory interest, the parties had to take into consideration the fact that the monetary depreciation linked to the passage of time was, in principle, reflected by the annual rate of inflation recorded, for the period in question, by Eurostat (the European Union’s statistical office) in the Member State where the applicant was established (see paragraphs 216 and 217 of the interlocutory judgment).
16 In the third place, as regards the loss of an opportunity, first, the parties had to take into account the probability the applicant would have had of winning the tender in the absence of the unlawful acts found by the Court. For that purpose, they had first of all to take into consideration the probability that a diligent investigation would have resulted in the exclusion of company A.’s tender in so far as the existence of a conflict of interests justified the exclusion of a tenderer only on condition that that fact constitutes a situation of unfair competition, that the contracting authority be able to adopt measures in order to offset the advantage resulting from the conflict of interests and that it can cancel the tendering procedure. Next, they had to take into consideration the fact that, since the applicant’s tender was ranked in second place, it would have had a very good chance of winning the contract in the event of the exclusion of company A. Finally, they had to take into consideration the fact that, in the present case, the contracting authority had not made use of the possibility provided for by 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’) to abandon the contract or cancel the award procedure. Secondly, the parties had to take into consideration the net profit which could have resulted from performance of the contract by the applicant. In that regard, the parties had to determine the net profit margin to which the performance of similar contracts generally gave rise (see paragraphs 218 and 219 of the interlocutory judgment).
17 It is in the light of these considerations that it is necessary to determine, first, the amount of compensation due to the applicant in respect of costs and expenses concerning its participation in the tendering procedure and, secondly, the amount of compensation due to the applicant in relation to the loss of an opportunity.
The amount of compensation due to the applicant in respect of costs and expenses concerning its participation in the tendering procedure
18 It is apparent from the submissions lodged by the parties on 7 August 2018 that they came to an agreement on the amount of compensation due to the applicant in respect of costs and expenses concerning its participation in the tendering procedure for the purposes of paragraph 216 of the interlocutory judgment. In its submissions lodged on 7 August 2018, the applicant confirms that, on the basis of the calculation set out by the Commission in its letter of 5 July 2018 sent to the applicant (Annex E.33), it accepts that that compensation amounted to EUR 10 642.
19 It follows both from that letter of 5 July 2018 and from the submissions lodged on 7 August 2018 by the Commission that that amount results from adding together the estimate of the proportion of the costs linked to the participation in the tendering procedure in the applicant’s ‘general expenses’, which amounts to EUR 1 090, and the personnel costs incurred, according to the number of workdays necessary for the participation in the tendering procedure, which amounts to EUR 9 552.
20 It is therefore necessary to take note of that agreement between the parties and to fix the amount of compensation due to the applicant in respect of costs and expenses concerning its participation in the tendering procedure at EUR 10 642.
21 Furthermore, as regards compensatory interest, for the purposes of paragraph 217 of the interlocutory judgment, it is apparent from the letters of 14 May and 13 July 2018 that the applicant provisionally accepted that the compensatory interest relating to the compensation due in respect of costs and expenses of participation in the tendering procedure not be paid as a result of the financial crisis which seriously affected Greece during the relevant period and as a result of the deflationary situation at that time (Annexes E.21 and E.34). At the hearing, the applicant moreover confirmed that position by pointing out that, for that reason, it was forgoing payment of that interest.
22 Therefore, it is necessary to take note of the fact that the applicant waives the compensatory interest payable on the compensation due in respect of costs and expenses of participation in the tendering procedure.
The amount of compensation due to the applicant in relation to the loss of an opportunity
23 In the first place, it appears that the parties agreed on the amount to be taken into consideration as the starting point for the calculation of the compensation due to applicant in relation to the loss of an opportunity. It follows from the submissions lodged by the parties on 7 August 2018 that they agreed that that amount was EUR 458 064.
24 However, it is apparent from the submissions lodged on 7 August 2018 by the Commission that it considers that amount to be ‘gross profit’, and that is despite the fact that the Court had ruled that the parties had to take the net profit into consideration. According to the Commission, the net profit should be ‘after tax profits’. Therefore, the Commission contends that, in order to take due account of the net profit, ‘the amount of the compensation [in relation to the loss of an opportunity] must … be reduced by the applicable taxes’.
25 In that regard, first, it should be noted that the amount of EUR 458 064 was negotiated and agreed by the parties on the basis of the budget agreed in September 2010 by the members of the consortium, including the applicant, and which appears in Annex E.15. In that budget the amount is referred to as ‘the expected net profit for the consortium leader’. According to that document, the amount in question was calculated by deducting all of the costs and expenses relating to the performance of the contract from the general budget for that performance.
26 Secondly, it must be noted that, when the Court, in its interlocutory judgment, stated that it was necessary to take the net profit which the applicant would have obtained as a starting point for the calculation of the compensation due to the applicant in relation to the loss of an opportunity, contrary to what is claimed by the Commission, it was not referring to compensation after taxes. The question of the taxability of the compensation, which is an issue for national law, is therefore not to be taken into consideration for the purposes of calculating the compensation.
27 Consequently, the amount of EUR 458 064 must be considered, for the purposes of calculating the compensation for the loss of an opportunity, to be the net profit which the applicant could have derived from performance of the contract. Moreover, contrary to what is suggested by the Commission, no amount representing ‘the applicable taxes’ can be deducted from the amount of the compensation due to the applicant in relation to the loss of an opportunity.
28 In the second place, the submissions lodged by the parties on 7 August 2018 indicate disagreements relating to four points. They concern, first, the share of the net profit between the members of the consortium, secondly, the deduction of the costs and expenses of participating in the tendering procedure from the net profit, thirdly, the probability of winning the tender, fourthly, the deduction of profits otherwise realised from the amount of the compensation due in relation to the loss of an opportunity.
The share of the net profit between the members of the consortium
29 The applicant claims that, in accordance with the agreement between the members of the consortium, as it appears in the minutes of the meeting of the consortium of 17 September 2010 and from the budget agreed at that time, it should have received the entirety of the net profit.
30 The Commission considers that it was for the applicant to provide evidence of the internal agreement between the members of the consortium together with the application and maintains, as a result, that the applicant’s claim based on that agreement should be rejected. For the sake of completeness, the Commission adds that the probative value of the minutes and of the budget submitted by the applicant is limited. It maintains that the applicant should provide evidence showing that the other members of the consortium had indeed accepted that arrangement at the time. In the absence of evidence establishing such an agreement and in so far as the consortium consisted of four members, including a public body, the Commission proposes that the amount of the net profit be divided into three equal parts.
31 Following a measure of organisation of procedure of 28 August 2018, the applicant submitted to the Court three declarations of the respective representatives of the three other members of the consortium to which the applicant belonged (Annexes F.2 to F.4). According to those declarations, on 17 September 2010, the members of the consortium met and agreed on how the consortium would implement the project, if their tender was successful. The minutes of the meeting drafted by the applicant, which were sent to the members of the consortium by letter of 17 September 2010, were an accurate reflection of what had been agreed at that meeting.
32 In that regard, the Commission contends that, since the applicant claimed for the first time during the negotiations that such an agreement existed between the members of the consortium, those members’ declarations are inadmissible in so far as they support that claim.
33 It should be noted that the Court considered that the declarations of the members of the consortium (Annexes F.2 to F.4) were necessary in order to determine the share of the net profit between those members — a criterion fixed by the interlocutory judgment (see paragraph 14 above) — since it requested the applicant to confirm the agreement between the members of the consortium by way of a measure of organisation of procedure. Moreover, in its submissions lodged on 7 August 2018, the Commission had noted that it was necessary for the Court to have more information about the applicant’s claim in that regard. In those circumstances, the Commission cannot legitimately call into question the admissibility of those declarations. Therefore, those declarations are admissible.
34 Furthermore, it should be noted that, in accordance with paragraph 5 of the minutes of the meeting of the members of the consortium of 17 September 2010, those members agreed that the expected net profit was to go to the applicant. Moreover, it is clearly apparent from the declarations of the members of the consortium, namely from Annexes F.2 to F.4, that those members had effectively accepted the conditions set out in those minutes — acceptance which had taken place at that time by the delivery to the applicant of documents necessary in order to submit the tender. It follows that the applicant sufficiently demonstrated that the entirety of the net profit was to go to it.
35 Therefore, in accordance with paragraph 215 of the interlocutory judgment, since the compensation should correspond to the applicant’s participation in the consortium, it must be considered for the calculation of that compensation, that the applicant had a right to the entirety of the net profit.
The deduction of the costs and expenses of participating in the tendering procedure from the net profit
36 First of all, it should be clarified that, by letter of 4 May 2018 sent to the applicant, the Commission contended that, when undertakings participate in tendering procedures, they calculate that the cost of their participation in a tendering procedure will be covered by the contract itself, if they are awarded it. The Commission maintained that the costs and expenses of participating in the tendering procedure had thus to be deducted from the net profit in order to avoid overcompensation (Annex E.20). By letter of 5 July 2018 sent to the applicant, the Commission repeated that argument (Annex E.33). By letter of 13 July 2018 sent to the Commission, the applicant provisionally accepted that the costs of participation in the tendering procedure would be deducted from the net profit (Annex E.34).
37 When questioned on this by the Court at the hearing, the applicant explained, in essence, that the costs and expenses of participating in tendering procedures constituted investments for undertakings participating in those tendering procedures and that, when those undertakings won a tender, the costs of participating in that tendering procedure were generally recovered from the net profit deriving from the performance of the contract won. In the present case, the applicant neither claimed nor demonstrated that the costs and expenses relating to its participation in the tendering procedure at issue would not be recovered from the net profit it would have achieved had it obtained the contract.
38 In the light of the above, in order to calculate the amount of compensation due in relation to the loss of an opportunity, it is necessary to deduct the amount of the costs and expenses of participation in the tendering procedure from the net profit so as to avoid overcompensation.
The likelihood of winning the tender
39 The applicant considers that, in the light of the facts of the case, the likelihood of it being awarded the contract at issue should be set at 90%. In that regard, it claims, first, that it is apparent from the tendering procedure conducted in respect of the contract at issue that the supporting documents showing compliance with the tender specifications survived scrutiny, since it was not excluded on that ground. It also claims that the members of the consortium had declared in good faith that they were not in an exclusion situation. Next, the applicant claims that the Commission was not able to indicate the appropriate measures which it could have taken in order to neutralise the conflict of interests at issue in the present case, which shows that there were no such measures. Finally, given that the tendering procedure was not cancelled and that the applicant’s tender was ranked in second place, the latter considers that those factors cannot serve as a justification for reducing the likelihood that it would win the tender, or if so, only to a very small extent.
40 The Commission contends that the likelihood of the consortium of which the applicant was a member being awarded the contract should be set at 50%. In that regard, it states, first, that, in the application, the applicant had claimed that it had a serious chance of being awarded the contract and that 50% of the value of the contract amounted to fair and reasonable compensation. Next, the Commission states that, de jure, the contracting authority was not obliged to award the contract at issue and thus had the possibility of cancelling the procedure. According to the Commission, that fact should be taken into consideration in so far as the exclusion of company A. would have created a new situation. Finally, even if the contracting authority had selected the consortium’s tender, it would have had to verify the documents submitted in support of the tender and all of the members of the consortium would have had to prove that they were not in an exclusion situation, since declarations made in good faith cannot replace the contracting authority’s verifications.
41 First of all, it should be noted that, as was set out in paragraph 188 of the interlocutory judgment, the loss of profit concerns compensation for the loss of the contract itself, whereas the loss of opportunity concerns compensation for the loss of the opportunity to conclude that contract. Unlike the loss of profit, the loss of an opportunity is not the same as the creation of a loss which has an absolute probability of being confirmed, which is why it is more difficult to quantify (see, to that effect, judgment of 21 February 2008, Commission v Girardot, C‑348/06 P, EU:C:2008:107, paragraph 60, and Opinion of Advocate General Cruz Villalón in Giordano v Commission, C‑611/12 P, EU:C:2014:195, point 65). As a result, the loss of an opportunity cannot give rise to a right to compensation of all of the profit expected by the applicant. Compensation for the loss of an opportunity must be determined on the basis of all the particular facts of the case. In that regard, it should be noted that the Court enjoys a margin of discretion, in the exercise of its unlimited jurisdiction, in relation to the method to be chosen to carry out such a determination (judgment of 21 February 2008, Commission v Girardot, C‑348/06 P, EU:C:2008:107, paragraph 61).
42 In the present case, in accordance with the interlocutory judgment, in order to determine the likelihood that the applicant would win the tender, it is necessary to take into consideration, first of all, the probability that a diligent investigation would have resulted in the exclusion of company A.’s tender, next, the fact that the applicant’s tender was ranked in second place and, finally, the fact that, although the Financial Regulation provides for the possibility for the contracting authority to abandon the contract or cancel the award procedure, the latter did not make use of that possibility (see paragraph 218 of the interlocutory judgment).
43 It should be noted that the applicant’s chances of being awarded the contract depended on the outcome of the diligent investigation which should have been undertaken. In that regard, it should be pointed out that the applicant’s argument that it had a 90% chance of being awarded the contract at issue is based on the premiss that the investigation in question was not able to conclusively exclude the existence of a conflict of interests in favour of company A., that that fact constituted a situation of unfair competition and that no measure would have been able to offset the advantage resulting from that conflict of interests. However, that premiss does not correspond to the facts.
44 It must be pointed out that, in the absence of an investigation diligently undertaken by the contracting authority, the possible outcome of such an investigation cannot be known or presumed. Therefore, contrary to what is claimed by the applicant, no possibility can be excluded. Although, following a diligent investigation, it was probable that company A. would be excluded, which has not been contested by the Commission since the delivery of the interlocutory judgment, the evidence submitted before the Court does not provide any certainty concerning the likelihood thereof. In other words, since the outcome of an investigation which is diligently undertaken is unknown, it cannot be considered that the applicant had every chance of being awarded the contract at issue.
45 In that regard, it should be noted that, even if a conflict of interests were found during the investigation, company A. could not have been excluded if it had been shown that that fact did not constitute a situation of unfair competition or if appropriate measures had been adopted in order to offset the advantage resulting from that conflict of interests. According to the ‘Practical Guide to contract procedures for European Union external actions’, a tenderer in a situation of a conflict of interests must be excluded from the tendering procedure unless proof is supplied that that fact does not constitute unfair competition. In the present case, in the absence of a diligent investigation, there is no certainty concerning the involvement of one of company A.’s experts in the drafting of the terms of reference, concerning the existence or absence of a conflict of interests and concerning the strategic advantage which such a situation would have conferred on company A. (see paragraph 149 of the interlocutory judgment). As a consequence, at this stage, it can also not be excluded that, following the result of the investigation, appropriate measures would have been defined and adopted by the contracting authority. Moreover, although, in the present case, the contracting authority did not make use of the possibility provided for by the Financial Regulation to abandon the contract or cancel the award procedure, it cannot be excluded that, after having undertaken a diligent investigation, the contracting authority would have made use of such a possibility. Those factors are such as to reduce the applicant’s chances of being awarded the contract at issue.
46 However, it should be noted that, if company A.’s tender had indeed been excluded, since the applicant’s tender was ranked in second place, it would have had a strong chance of winning the tender.
47 In the light of the above considerations, it must be concluded that the applicant ultimately had a serious chance of winning the tender at issue. In those circumstances, in view of all of the particular facts of the case, it is necessary to apply ex aequo et bono to the expected net profit of the consortium, from which the costs and expenses of participating in the tendering procedure have been deducted, a multiplying factor equal to 0.5 so as to reflect a serious chance (50%) of winning the tender at issue.
Consideration of profits otherwise realised
48 The Commission maintains that it can be reasonably presumed that the permanent staff which would have been responsible for the project in Albania was made responsible for concomitant projects in Turkey (‘Technical assistance for the implementation of the Nitrate Directive’, EuropeAid/126902/D/SER/TR) and in Egypt (‘Technical assistance to the support to rural development programme’, EuropeAid/131118/D/SER/EG), covering the years 2011 to 2013. It deduces therefrom that that would have resulted in an increase of the level of the fixed costs necessary for the performance of the contract in Albania, including the support and assistance of the permanent staff. The Commission proposes the use of the formula applied to grant contracts, with respect to which the indirect costs represent 7% of the total costs of the projects. That percentage applied to the total expenses of the two projects in Turkey and in Egypt, divided by the number of years of implementation and the number of members of the permanent staff, namely 15, could, once the average is calculated, reasonably be used in order to show the increase in fixed costs per unit which would have resulted from the implementation of the Albanian contract and which would, consequently, need to be deducted from the annual profit. In summary, the Commission proposes to reduce the amount of compensation due to the applicant in relation to the loss of an opportunity by EUR 3 132.66.
49 The applicant claims that its participation in the projects in Egypt and in Turkey cannot be regarded as a means to mitigate the loss of the contract at issue in so far as those contracts were concluded independently of that loss. As regards the contract at issue, the applicant claims that its profits depended on the experts which it had to make available to the contracting authority. However, those experts were not part of its permanent staff.
50 First, it must be noted that the Commission maintains that profits were realised by the applicant in so far as the permanent staff which would have been responsible for the project in Albania was made responsible for projects in Turkey and in Egypt between 2011 and 2013. In that regard, it must be noted, as the applicant claims, that the projects in Turkey and in Egypt were concluded independently of the decision to award the contract at issue to another company. The mere fact that the applicant was made responsible for two other projects concurrently with the contract at issue does not allow the Commission to establish that, as a result of the decision to award that contract to another company, the applicant realised profits.
51 Secondly, it should be pointed out that it follows from the minutes of the meeting of the consortium of 17 September 2010 and from the budget agreed at that time for the performance of the project in Albania that, if that consortium had been awarded the contract, the applicant would have been responsible for the technical, financial and administrative management of the project during the performance of the contract. Moreover, it is apparent from that budget that it included general costs, costs associated with the launch of the project and costs of managing the project. That budget included, therefore, all of the costs associated with the performance of the contract at issue. The elements on the file therefore do not support the Commission’s contention that, if the consortium had been awarded the contract at issue, the applicant would have seen its fixed costs increase. In that regard, the fact that the applicant had a permanent staff does not suffice for the conclusion that it would have had additional fixed costs to take into account, in the present case, in the event that it was awarded the contract at issue in addition to the projects in Turkey and in Egypt.
52 Therefore, in the present case, it is not necessary to reduce the compensation due in relation to the loss of an opportunity in order to take account of alleged profits otherwise realised.
Conclusions
53 It follows from the foregoing that the definitive amount of the compensation in relation to the costs and expenses of participating in the tendering procedure is EUR 10 642. The definitive amount of the compensation due in relation to the loss of an opportunity is EUR 458 064, from which the sum of EUR 10 642 is deducted, adjusted by a multiplier of 0.5. The definitive amount of the compensation due in relation to the loss of an opportunity is therefore EUR 223 711. The total amount of compensation due to the applicant is therefore EUR 234 353, namely EUR 223 711 plus EUR 10 642 for the costs and expenses of participating in the tendering procedure.
54 Moreover, in accordance with paragraph 224 of the interlocutory judgment, the compensation sought in relation to the loss of an opportunity and the costs and expenses connected with the participation in the tendering procedure must be increased by default interest, from the delivery of the interlocutory judgment and until full payment, the rate of which is set by the European Central Bank (ECB) for its principal refinancing operations, increased by two percentage points.
Costs
55 It must be recalled that the costs of the proceedings were reserved by paragraph 6 of the operative part of the interlocutory judgment.
56 As regards the costs incurred in respect of the proceedings giving rise to the interlocutory judgment, it should be noted that, in accordance with Article 134(1) of the Rules of Procedure of the General Court, 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 Commission has been essentially unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the applicant.
57 As regards the costs incurred in respect of the proceedings subsequent to the interlocutory judgment, first, it should be noted that at issue are costs incurred since 28 February 2018, including the costs relating to the negotiations conducted by the parties with a view to establishing the compensation due by common accord. Secondly, under Article 135(1) of the Rules of Procedure, if equity so requires, the General Court may decide that an unsuccessful party is to pay only a proportion of the costs of the other party in addition to bearing his own, or even that he is not to be ordered to pay any. In the light of the particular circumstances of the case and in accordance with the provisions of that article of the Rules of Procedure, each party is to bear its own costs.
On those grounds,
THE GENERAL COURT (Third Chamber, Extended Composition)
hereby:
1. Fixes the amount of compensation to be paid by the European Commission to Vakakis kai Synergates — Symvouloi gia Agrotiki Anaptixi AE Meleton in accordance with the judgment of 28 February 2018, Vakakis kai Synergates v Commission (T‑292/15), at EUR 234 353, together with default interest with effect from 28 February 2018 until full payment, at the rate set by the European Central Bank (ECB) for its principal refinancing operations, increased by two percentage points;
2. Orders the Commission to pay the costs incurred with respect to the proceedings giving rise to the judgment of 28 February 2018, Vakakis kai Synergates v Commission (T‑292/15);
3. Orders each party to bear its own costs incurred with respect to the proceedings subsequent to the judgment of 28 February 2018, Vakakis kai Synergates v Commission (T‑292/15).
Frimodt Nielsen | Kreuschitz | Forrester |
Delivered in open court in Luxembourg on 12 February 2019.
E. Coulon | | S. Frimodt Nielsen |