ORDER OF THE GENERAL COURT (Third Chamber)
24 October 2012 (*)
(Action for annulment – Act not subject to review – Act which is confirmatory, in part, and informative, in part – Inadmissibility – Action for damages – Failure to identify the alleged conduct or to define the alleged damage – Inadmissibility – Action for damages – Absence of proof of damage – Action manifestly lacking any foundation in law)
In Case T‑442/11,
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 by S. Delaude and D. Calciu, acting as Agents, assisted by P. Wytinck, lawyer,
defendant,
APPLICATION, first, for the annulment of a letter of the Commission of 27 May 2011, second, for an order for the Commission to pay damages and, third, for an order for the Commission to publish a communiqué,
THE GENERAL COURT (Third Chamber),
composed of O. Czúcz, President, I. Labucka and D. Gratsias (Rapporteur), Judges,
Registrar: E. Coulon,
makes the following
Order
Background to the dispute
1 On 29 December 1995, the Commission entered into two contracts relating to IT services with a company to which the applicant, Evropaïki Dynamiki, was subcontractor. It is not disputed that those contracts concerned an IT application formerly known as ‘communication and information resource centre administrator’ (‘CIRCA’).
2 The CIRCA application was an extranet, aimed at making the sharing of documents between public administrations secure. That application was used by the Commission and other European institutions and national authorities.
3 In accordance with the three contracts, signed on 29 December 1999, 21 December 2000 and 20 December 2001, respectively, the applicant provides the Commission, as a contracting partner, services related to the CIRCA application, such as development and maintenance services and assistance and user support services.
4 In 2002, the Commission launched a tendering procedure entitled ‘Further development of the collaborative software CIRCA’ (OJ 2002/S 106-083279-LOT1). The applicant submitted a tender, which was not retained. The applicant thus brought an action before the Court, which it withdrew (order of the President of the Second Chamber of the General Court of 23 January 2003 in Case T‑345/02 Evropaïki Dynamiki v Commission, not published in the ECR). The applicant and the Commission settled the case out of court. Following a new assessment of tenders the applicant’s tender was successful and it was invited to sign a framework agreement. However, before the contract was signed, the Commission decided to annul the call for tenders on 12 September 2003.
5 In 2004, following an IT related incident which it regarded as ‘major’, the Commission decided to replace CIRCA with a new application named ‘communication and information resource centre for administrators, businesses and citizens’ (‘CIRCABC’). It is not disputed that that application was to be based entirely on open source software.
6 In March 2005, the Commission launched a new call for tenders, related to assistance and user support services for the CIRCA application. However, that call for tenders was annulled, which was brought to the applicant’s attention by letter of 26 October 2005.
7 Moreover, the Commission carried out a market study to determine which open source software could be used to develop the CIRCABC application. The results of that study were presented to the committee responsible for the CIRCABC application on 19 September 2005. Twenty-two types of open source software were identified by that study. None of them had been designed by the applicant. Then, a feasibility study was carried out, from the end of 2005 to the beginning of 2006, in order to test the 3 of the 22 types of software in a more detailed manner. Following that study, it was recommended that the software designed by the company A. S. be used as the basic component of the CIRCABC application.
8 On 20 February 2006, the Commission entered into a contract with the applicant concerning assistance and user support services for the CIRCA application.
9 By letter of 10 April 2006, the applicant claimed that the study referred to in paragraph 7 above had been biased and proven to be a failure. The applicant raised three arguments in support of that claim. First, it alleged that it had not had the opportunity to defend its position before the Commission. Second, it argued that it had developed software called Mermig, and added that that software should have been included in the list of software identified as being able to be used as a component of the CIRCABC application. Third, the applicant stated that ‘in the case [the market study were] produced by [T. and/or S]., [there] may be a serious conflict of interest’. In the final paragraph of its letter, the applicant concludes by stating that it expected ‘a fair treatment and a fair cooperation’ from the Commission.
10 By letter of 28 April 2006, the Commission indicated that it had given its full attention to the applicant’s letter of 10 April 2006 and merely stated that its Directorate General in charge of IT had ‘always treated – and [continued] to do so – all of its contractors and all companies that participate in our procurement procedures in a professional manner and in the same fair and transparent way’.
11 By letter of 19 July 2006, the applicant requested the Commission to inform it of the reasons why the Mermig software did not feature among the software identified by the market study referred to in paragraph 7 above. After stating that that software was an open source software, the applicant added that it had ‘serious reasons to believe that the [Commission’s] motive [was] to dissociate [it] from CIRCA, rather than to select the best value for money [software], in compliance with the applicable public procurement legislation’. Then it stated that it was ‘deeply sorry for such an unjustified situation’ and remained ‘ready to take action to remedy it’. Finally, it requested the Commission to ‘take all necessary actions to assure a fair and objective evaluation’.
12 By letter of 7 August 2006, the Commission stated that, as regards the ‘future of CIRCA’ the applicant’s statements were not new and that the Commission had already replied at length in its letter of 28 April 2006. It added that it is ‘its responsibility to decide the best approach for the development of its information systems’ and stated that it ‘seeks the general interest and cannot allow itself to be guided by interests of a private nature, no matter how legitimate they could be’. Finally, it concluded by requesting the applicant to note that it considered the ‘debate’ concerning the ‘future of CIRCA’ ‘as closed’.
13 By letter of 8 August 2006, the applicant stated that it appeared that the Commission had decided to ‘replace [the] CIRCA [application] with [software designed by A. S.]’. Then it invited the Commission to ‘freeze [the] process [aimed at replacing the CIRCA application] which [was, in its view,] both contrary to public procurement rules and damaging for [it]’, and stated that, ‘[i]n case [it] do not hear from [the Commission] in the next 30 days, [it would] be forced to bring [the] case before the competent forums to seek legal redress and compensation’.
14 By letter of 7 September 2006, the Commission responded by ‘[referring] to [its] letter … of 7 August 2006, in which it had informed [the applicant] that [it] consider[ed] [the debate concerning the future of CIRCA] as closed’.
15 None the less, the applicant reiterated its request by letter of 25 October 2006, stating that the replacement of the CIRCA application by an application based on software distributed by A. S. was not carried out in a transparent manner and infringed 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). Next, it stated that, if an amicable solution could not be reached, it would request a meeting with the representatives of the Secretary General of the Commission and of the European Anti-Fraud Office.
16 The Commission’s agent, to whom that letter was sent, replied by letter of 8 November 2006. He stated, first of all, that the question raised by the applicant fell under the sole responsibility of the officer authorised to make the payments referred to by the applicant and that there was therefore ‘no room for discussion’. Second, he stated that the end of the email could be seen as an attempt to threaten Commission staff and, third, that that email contained false information illustrating misunderstandings.
17 On 23 November 2006, after an additional study had been carried out, it was formally proposed that the committee in charge of the CIRCABC application opt for the software designed by A. S., referred to in paragraph 7 above, as the basic component for the CIRCABC application. It is not disputed that the committee accepted that proposal by an act of the same date. However, there is no written evidence in the file regarding its acceptance. At best, the Commission produced, in response to the written request of the Court, a letter dated 4 December 2006 confirming that the report containing the proposal at issue had been approved.
18 Services related to the development of the CIRCABC application, such as advice services, were then provided to the Commission by an undertaking in possession of several IT services framework contracts. A. S. was a subcontractor of that undertaking.
19 On 1 February 2007, the applicant lodged complaint No 438/2007(TN)RT with the European Ombudsman. In that complaint, it stated, in particular, that, when CIRCA was replaced, the Commission failed to have regard to the principles of sound financial management and transparency and discriminated against the applicant.
20 On 10 November 2010, the European Ombudsman decided to close his inquiry. He merely made a critical remark directed at the Commission pursuant to Article 7 of the Decision of the European Parliament of 9 March 1994 on the regulations and general conditions governing the performance of the Ombudsman’s duties (OJ 1994 L 113, p. 15). According to the European Ombudsman, the Commission ‘failed to put forward sufficient convincing reasons why the contract with [A. S.] was not a public contract within the meaning of … Regulation [No 1605/2002]’. It also ‘failed to justify its decision for having selected the supplier of this software without conducting an appropriate call for tenders’.
21 On 7 December 2010, the applicant asked the Commission, by fax, which measures it planned on taking to respond to the European Ombudsman’s critical remark.
22 On 20 December 2010, the Commission informed the applicant that, as is customary, it intended to respond directly to the European Ombudsman, without entering into correspondence with the applicant in parallel.
23 On 4 May 2011, the applicant sent the Commission a fax entitled ‘Request to take action, [pursuant] to Article 265 TFEU’.
24 In that fax, it noted, first of all, the critical remark made against the Commission by the European Ombudsman (see paragraph 20 above) and added that that remark confirmed ‘something on which [it] repeatedly insisted over the last years’.
25 Next, it stated, first, that the Commission acquired the software designed by A. S. without any call for tenders having been initiated and, second, that the decision to replace CIRCA with CIRCABC has been adopted on the basis of a study carried out by a company with a ‘serious conflict of interests’, given its relations with A. S.
26 Finally, it made four separate claims.
27 First, it instructed the Commission to ‘freeze’ any running projects using the software designed by A. S., particularly the CIRCABC application (claim 1).
28 Second, it requested the Commission to ‘stop’ any ‘future investments’ in the CIRCABC application (claim 2).
29 Third, it sought compensation in the following amounts:
– EUR 1 million for the loss of opportunity to provide its own ‘platform’ for the CIRCABC application (claim 3(a));
– EUR 1 million ‘for the use of [its] intellectual property rights’ (claim 3(b));
– EUR 10 million ‘for the deterioration of its image, fame and credibility in the market, caused to it by the Commission’s actions and omissions which made the whole market consider that our company and our products were rejected by the Commission [as] being found inadequate for CIRCABC and other applications in the field of e-collaboration and document/content management’ (claim 3(c)).
30 Fourth, the applicant requested the Commission to provide it with all relevant material, in particular the contract signed between the Commission and A. S., reports, meeting minutes, correspondence and contracts with third parties concerning directly or indirectly the subject matter of the dispute, that is to say the migration from CIRCA to CIRCABC and the Commission’s relations with A. S. (claim 4).
31 In response to that fax, the Commission sent the applicant a letter, dated 27 May 2011.
32 In that letter, it stated, first, that it had responded, on 20 December 2010, to the fax which the applicant had sent it on 7 December 2010. It added that it had received the ‘decision of the European Ombudsman … closing his enquiry [No 438/2007/(TN)RT]’. It pointed out that it had responded to that decision, adding that it ‘[did] not share the view of the [European Ombudsman] in all cases’.
33 Second, the Commission stated that the applicant did not accurately sum up the decision of the European Ombudsman. In its view, that decision, first, rejected as inadmissible all of its claims ‘[with the exception of] the critical remark’ and, second, rejected the claim that the Commission should ‘freeze the process of replacing CIRCA’ with CIRCABC. Moreover, it explicitly stated, first, that the applicant had not been discriminated against and, second, that there was no evidence of a manifest error of assessment.
34 Third, the Commission stated that it ‘could not accept’ the claims made by the applicant in the fax of 4 May 2011. In particular, it noted that:
– claims 1 and 2 had ‘already [been] rejected by the [European Ombudsman]’;
– claim 3(a) was unfounded, ‘since the [European Ombudsman] stated there was no manifest error of assessment’;
– claim 3(b) was ‘completely new and no[t] part of the [European Ombudsman’s] enquiry’;
– claim 3(c), first, was ‘unrealistic as an assessment of the Commission’s capacity to influence the market’ and, second, had been ‘refuted by the recent judgment of the Court of First Instance of Brussels’.
– claim 4 was ‘formulated in excessively wide terms’.
35 It is apparent from the documents in the file and, in particular Annex 6 to the plea of inadmissibility, that the judgment referred to by the Commission concerned an action for damages brought by an agent of the Commission against the applicant.
Procedure and forms of order sought by the parties
36 By application lodged at the Court Registry on 5 August 2011, the applicant brought the present action.
37 The applicant claims that the Court should:
– annul the ‘decision of the Commission taken [on] 27 May 2011, not to take any remedial action, after the European Ombudsman [decided]’ to close its inquiry relating to complaint No 438/2007/(TN)RT;
– annul ‘all the Commission’s decisions and all the related decisions’;
– order the Commission to pay it damages in the amount of the ‘competitive advantage’ granted to A. S., in compensation for the harm resulting, first, from ‘the Commission’s decision of November 2006’, by which the Commission ‘selected the goods and services [of A. S.]’ and, second, ‘the decisions of the [Commission] to sign specific contracts … between 2006 and 2011, related to the provision of consulting and development services … to produce the new version of CIRCA (CIRCABC)’;
– order the Commission to pay the applicant [EUR] 1 million … ‘for a loss of opportunity to participate in the call for tenders which it decided to cancel’;
– order the Commission to pay the applicant [EUR] 1 million ‘for an unauthorised use of its [intellectual property] rights’;
– order the Commission to pay the applicant the amount of [EUR] 10 million … ‘for a non-pecuniary loss, consisting of its reputation and credibility being undermined’;
– order the Commission to issue a ‘public notice, informing the market and all users interested in CIRCA, that CIRCA is not an obsolete platform, that [the software developed by A. S.] is not a privileged platform for CIRCABC and that they are free to select as a substitute for CIRCA the platform of their choice’.
– order the Commission to pay the costs, ‘even if the present action is dismissed’.
38 By separate document lodged at the Court Registry on 31 October 2011, the Council raised an objection of inadmissibility pursuant to Article 114(1) of the Rules of Procedure.
39 The Commission contends that the Court should:
– dismiss the action as manifestly inadmissible or manifestly unfounded;
– in any event, order the applicant to pay the costs;
40 On 27 January 2012, the applicant lodged its written observations in response to the exception of inadmissibility at the Court Registry. It concludes in those observations that the exception of inadmissibility should be rejected and reiterates the form of order which it seeks in its application.
Law
41 Under Article 114 of the Rules of Procedure, where a party applies for a decision on the admissibility of an action, the Court may determine that application without considering the substance of the case.
42 Moreover, under Article 111 of the Rules of Procedure, where it is clear that the Court has no jurisdiction to take cognisance of an action or where the action is manifestly inadmissible or manifestly lacking any foundation in law, the Court may, by reasoned order, without taking further steps in the proceedings, give a decision on the action.
43 In the present case, the Court considers that it has sufficient information from the documents in the file and decides, pursuant to that article, to give its decision by way of reasoned order.
1. The claims for annulment
The scope of the claims for annulment
The claims in so far as they have been brought against the letter of 27 May 2011 and ‘all of the Commission’s decisions’ ‘related’ to the applicant
44 In its application the applicant has requested, in essence, the Court to annul the letter of 27 May 2011 referred to in paragraph 31 above (‘the letter of 27 May 2011’) as that letter refused the adoption of ‘corrective measures’ allegedly imposed by the decision of the European Ombudsman to close his inquiry in relation to complaint No 438/2007/(TN)RT. In addition, it expressly stated that its action also sought the annulment of ‘all of the Commission’s decisions … related’ to that letter.
45 In order to assess the scope of such a head of claim, the Court finds it necessary, first of all, to reiterate the content of that letter.
– Content of the letter of 27 May 2011
46 In the first part of the letter of 27 May 2011, the Commission, first, noted that it had responded, on 20 December 2010, to a fax sent to it by the applicant on 7 December 2010, second, stated that it had received the ‘decision’ of the European Ombudsman, third, pointed out that, in its view, the applicant had not accurately summarised that ‘decision’ and, fourth, added that it intended to respond to the European Ombudsman directly, while noting that it did not systematically share the Ombudsman’s point of view.
47 In the second part, it informed the applicant that it rejected its claims, numbered 1 to 4, which were made by fax of 4 May 2011 (see paragraphs 27 to 30 above). Among those claims, claim 3(a) was of a compensatory nature. As for claim 4, it called on the Commission to communicate a number of documents to the applicant.
– Scope of the head of claim
48 The claims for damages made in the application, and referred to in indents four to six of paragraph 37 above, reiterate claim 3(a), (b) and (c), to which reference is made in paragraph 47 above. They seek damages for the same harm as in those claims. In addition, the sums claimed in the way of damages are identical.
49 Moreover, in support of its claims for annulment, the applicant has not raised any arguments in relation to the Commission’s rejection of the claims referred to in the paragraph above.
50 In those circumstances, the applicant must be regarded as having intended not to contest, on the basis of Article 263 TFEU, the legality of the rejection of those claims, but to bring those claims directly before the Court in the context of an action for damages.
51 In so far as concerns claim 4, it clearly did not seek the adoption of the ‘corrective measures’ referred to by the applicant in its application. Moreover, in support of its claims for annulment, the applicant has not raised any arguments in relation to the Commission’s rejection of claim 4. In those circumstances, the Court considers that the applicant has not sought to challenge that rejection before it.
52 Accordingly, the head of claim referred to in paragraph 44 above seeks only the annulment, first, of the first part of the letter of 27 May 2011, second, of the second part of that letter, in so far as it rejects claims 1 and 2 and, third, of ‘all of the Commission’s decisions’ related to that letter.
The possible surplus of claims for annulment
53 In its application, the applicant referred not only to the letter of 27 May 2011 and the decisions related to it, but also to other measures, allegedly adopted by the Commission.
54 Thus, it stated, in point 3 of its application, that the ‘the current case concern[ed] … [not only the letter of 27 May 2011, but also] the following decisions of the Commission:
– The Commission’s decision to select the goods and services of [A. S.] and to sign a contract (or contracts) with that company … in order to acquire a specific software and to use it to develop [the CIRCABC application], which was adopted in November 2006;
– [and] the Commission’s decisions to sign specific contracts … between 2006 and 2011 related to the provision of consulting and development services using [A. S.], to produce [the CIRCABC application]’.
55 In addition, on numerous occasions, it referred to the unlawful nature, in its view, of the decision adopted in November 2006, by which software designed by A. S. was selected as the component for the CIRCABC application. In particular, it submitted that, when that decision was adopted, the Commission infringed Articles 27, 88, 89 and 91 of Regulation No 1605/2002 and Articles 116, 122 and 124 of Commission Regulation (EC, Euratom) No 2342/2002 of 23 December 2002 laying down detailed rules for the implementation of Regulation No 1605/2002 (OJ 2002 L 357, p. 1). Moreover, it claimed that that decision infringed the principles of non‑discrimination and equal treatment and was vitiated by a misuse of powers.
56 In spite of those circumstances, the Court finds that the claims for annulment brought by the applicant are no different from those referred to in paragraph 52 above.
57 It is true that the applicant stated, in point 3 of its application, that the present case ‘concerned’, in particular, a decision adopted in November 2006 and various decisions to sign contracts. However, at no point did it state that it was bringing pleas of annulment against those decisions. The existence of such conclusions can neither be inferred, in particular, from the part of the application entitled ‘Application’, nor from the front page which sets out the subject‑matter of the action.
58 Moreover, in its exception of inadmissibility, the Commission considered that only the letter of 27 May 2011 and the decisions ‘related’ to it were in dispute. Confirming that interpretation of its action, the applicant did not mention, in its observations on the exception of inadmissibility, claims of annulment other than those brought against the letter of 27 May 2011 and the ‘related’ decisions. It also reiterated, without amendment, the form of order which it sought in the part of its application entitled ‘Application’.
59 In doing so, it must be regarded as having intended to stress that its claims for annulment were directed only against the letter of 27 May 2011 and the decisions related to the letter. Therefore, the decisions referred to in paragraph 54 above must be regarded as having been referred to in the context of arguments raised in support of the claims for damages.
The admissibility of the claim seeking the annulment in part of the letter of 27 May 2011
The admissibility of the claim for annulment of the first part of the letter of 27 May 2011
60 According to settled case‑law, only a measure the legal effects of which are binding on, and are capable of affecting the interests of, the applicant by bringing about a distinct change in his legal position is an act or decision which may be the subject of an action for annulment under Article 263 TFEU (see Case C‑249/02 Portugal v Commission [2004] ECR I‑10717, paragraph 35 and the case‑law cited). To determine whether a measure produces such effects, it is necessary to look to its substance (see Joined Cases T-125/97 and T-127/97 Coca-Cola v Commission [2000] ECR II-1733, paragraph 78 and the case‑law cited).
61 Relying on that case‑law, the Commission submits, in essence, that the claim for annulment is inadmissible in so far as it concerns the first part of the letter of 27 May 2011. In its view, that part of the letter is informative in nature and is devoid of any binding legal effects.
62 Such a plea of inadmissibility must be upheld.
63 As has been said, in the first part of the letter of 27 May 2011, the Commission limited itself to, first, noting that it had responded, on 20 December 2010, to a fax sent to it by the applicant on 7 December 2010, second, stating that it had received the ‘decision’ of the European Ombudsman of 10 November 2010, third, pointing out that, in its view, the applicant had not summarised that ‘decision’ accurately, fourth, adding that it intended to respond to the European Ombudsman directly and, fifth, noting that it did not systematically share the latter’s point of view.
64 However, none of those five assertions has binding legal effects capable of affecting the applicant’s interests. On the contrary, the content of all those assertions is purely informative.
65 By its first two assertions, the Commission provided only factual information relating to past events. By its third assertion, it merely informed the applicant of its opinion on the way in which it had interpreted the conclusions of the European Ombudsman. By its fourth assertion, it informed the application how it intended to respond to the European Ombudsman. Finally, by its fifth assertion, it merely informed the applicant that it did not always agree with the European Ombudsman.
The admissibility of the claim for annulment of the second part of the letter of 27 May 2011 in so far as it concerns the rejection of claims 1 and 2.
66 According to settled case‑law, an action against a confirmatory measure is inadmissible inasmuch as the confirmed decision has become final in relation to the person concerned because he has failed to bring an action within the time-limit (Case C‑135/06 P Weiβenfels v Parliament [2007] ECR I‑12041, paragraph 54; see, to that effect, the order or 24 May 2011 in Case T‑115/10 United Kingdom v Commission, not published in the ECR, paragraph 25).
67 A measure is regarded as merely confirmatory of a previous decision if it contains no new factor as compared with a previous measure and was not preceded by a re-examination of the circumstances of the person to whom that measure was addressed (order of 7 December 2004 in Case C‑521/03 P Internationaler Hilfsfonds v Commission, not published in the ECR, paragraph 47; order in United Kingdom v Commission, paragraph 66 above, paragraph 25).
68 In particular, if a measure constitutes the reply to a request in which substantial new facts are relied on, and whereby the administration is requested to reconsider its previous decision, that measure cannot be regarded as merely confirmatory in nature, since it constitutes a decision taken on the basis of those facts and thus contains a new factor as compared with the previous decision (see the order in United Kingdom v Commission, paragraph 66 above, paragraph 30 and the case‑law cited).
69 The Court must examine the admissibility of the claim for annulment of the second part of the letter of 27 May 2011 in the light of those considerations.
– Plea of inadmissibility based on the confirmatory nature of the letter of 27 May 2011
70 The Commission submits, in essence, that the letter of 27 May 2011 is confirmatory in so far as it rejects the claims made by fax of 4 May 2011 and referred to as claims 1 and 2 (see paragraphs 27 and 28 above).
71 First, according to it, those latter claims were already made in a letter of 8 August 2006.
72 Second, the letter of 27 May 2011 responded to those claims in essentially identical terms to those in an earlier letter of 7 September 2006. Thus it limited itself to definitively confirming that letter and the subsequent decision of 23 November 2006, by which the committee in charge of the CIRCABC application selected as the component of that application open source software edited by A. S. If the applicant had wished to contest that letter or that decision, it should have done so within the time-limit prescribed.
73 Finally, there was no new element or re‑examination of the situation.
– Examination by the Court of that plea of inadmissibility
74 By letter of 27 May 2011, the Commission rejected the first two claims made by the applicant in its fax of 4 May 2011 (see paragraphs 27 and 28 above), by which it essentially requested the Commission not to accept any IT project using software designed by A. S. and, in particular, to stop developing and using the CIRCABC application.
75 In doing so, the Commission merely reaffirmed its earlier position, as presented in the letters of 7 August 2006 and 7 September 2006, referred to in paragraphs 12 and 14 above respectively, and in the measure of 23 November 2006, referred to in paragraph 17 above.
76 First of all, it has already pointed out clearly to the applicant, in its letters of 7 August 2006 and 7 September 2006, that it intended to pursue the development and use of the CIRCABC application. In addition, it concluded its letter of 7 August 2006, which responded to the critical observations formulated by the applicant on 19 July 2006 (see paragraph 11 above), by requesting the applicant to note that the ‘discussion’ regarding ‘the future of CIRCA’ was, in its view, ‘closed’. Moreover, in its letter of 7 September 2006, the Commission merely ‘referred to [its] recent letter … of 7 August 2006’, thus indicating that it refused to uphold any of the applicant’s claims regarding the CIRCA and CIRCABC applications.
77 It is indeed apparent from the documents in the file and, in particular, Annex 1 to the application, that the Commission’s letters of 7 August 2006 and 7 September 2006 seem to have been at the origin of the applicant’s referral to the European Ombudsman, which also attests to the fact that the applicant considers that those letters adversely affected it. However, those letters were not placed before the Courts of the European Union within the time-limit prescribed. It is apparent from the file, and especially Annex 1 to the applicant’s response to the measure of organisation of procedure decided upon by the Court, that the letter of 7 September 2006, which referred, as has been said, to the letter of 7 August 2006, was received by the applicant on 8 September 2006. Consequently, on 27 May 2011, those letters were definitive for the purposes of the case‑law referred to in paragraph 66 above.
78 Secondly, by measure of 23 November 2006, the Commission had already made known its intention to select software edited by A. S. as the component of the CIRCABC application.
79 In accordance with settled case‑law, in the absence of publication or notification, the period for bringing an action begins to run only from the moment at which the person concerned acquires precise knowledge of the content of the decision in question and of the reasons on which it is based, provided that he requests the full text within a reasonable period. That case-law is based on requirements related to the principle of legal certainty, which requires that, where the addressees of an act have no knowledge of the precise content of that act, they must seek sufficient information with due diligence (Case C‑48/96 P Windpark Groothusen v Commission [1998] ECR I‑2873, paragraphs 25 and 26, and Case T‑185/05 Italy v Commission [2008] ECR II‑3207, paragraph 68). In the present case, although nothing in the file suggests that the measure of 23 November 2006 was published or notified to the applicant, it must be found that it was mentioned in the decision of the European Ombudsman to close his inquiry relating to complaint No 438/2007/(TN)RT (point 25 of that decision). The applicant thus knew of that measure on 7 December 2010, at the latest, when it sent the request referred to in paragraph 21 above to the Commission, in which it referred to that decision of the European Ombudsman. However, it is not established that, as of that date, it asked the Commission for the reasons for that measure. In those circumstances, it is from 7 December 2010 that the time-limit for bringing proceedings must be calculated. Accordingly, on 27 May 2011, the measure of 23 November 2006 became final within the meaning of the case‑law set out in paragraph 66 above.
80 The applicant claims that, in spite of the elements set out in the preceding paragraphs, the letter of 27 May 2011 is not confirmatory in nature.
81 In that regard, it states that, in the decision referred to in paragraph 20 above, the European Ombudsman made a critical remark aimed at the Commission. In the applicant’s view, although that critical remark is not binding on the Commission, it constitutes a new legal element, which supplements the factual context of the case. According to the applicant, that remark also constitutes a ‘call’ for the Commission to reconsider its approach up until that point and to ‘remedy the situation’. Finally, it had a considerable impact in the IT services sector and should have caused the Commission to re-examine the applicant’s situation. Therefore, according to the applicant, it is reasonable to presume that the letter of 27 May 2011 constitutes the result of such a re-examination and, thus, amounts to a ‘new measure’.
82 In other words, the applicant claims that it is, first, necessary to consider that the critical remark made by the European Ombudsman constituted a substantial new fact within the meaning of the case‑law set out in paragraph 68 above and, second, to presume that, following that remark, the Commission had re-examined the applicant’s situation.
83 However, such claims must be rejected.
84 First of all, Article 3(6) of Decision 94/262 states: ‘If the [European] Ombudsman finds there has been maladministration, he shall inform the institution or body concerned, where appropriate making draft recommendations. The institution or body so informed shall send the Ombudsman a detailed opinion within three months.’ Article 3(7) adds: ‘The Ombudsman shall then send a report to the European Parliament and to the institution or body concerned. He may make recommendations in his report …’. It follows from those provisions that, even where the European Ombudsman uncovers a case of maladministration, he can, ultimately, only make recommendations, which are by nature not binding. In other words, in spite of such recommendations, the institution or body concerned remains free not to re-examine its position (see, to that effect, the order in Hilfsfonds v Commission, paragraph 67 above, paragraph 49).
85 It follows from there that the applicant cannot claim that it must be presumed that, following the European Ombudsman’s critical remark aimed at the Commission, that institution re-examined its situation. Moreover, the letter of 27 May 2011 did not state either explicitly or implicitly that it was the result of a re-examination of the applicant’s situation, and such a re-examination is not apparent from any of the documents in the file.
86 Secondly, pursuant to Article 2(6) of Decision 94/262, complaints submitted to the European Ombudsman do not affect time-limits for appeals in administrative or judicial proceedings. It is apparent from Article 2(6) that, a fortiori, a complaint made to the European Ombudsman cannot have the effect of resetting the time‑limit for bringing an action once the time-limit has expired.
87 In that context, a complaint lodged with the European Ombudsman cannot, in any instance, be regarded as a new substantial fact, within the meaning of the case‑law cited in paragraph 68 above. The same is necessarily true for any recommendations made by the European Ombudsman following an inquiry resulting from a complaint. Whatever they prescribe, such recommendations are merely the consequence of that complaint.
88 A solution to the contrary would negate the effect of the rule laid down in the sixth paragraph of Article 263 TFEU, namely that an action for annulment must be brought within a two‑month time-limit. Indeed, if such a solution were to be adopted, an individual who has failed to bring, within that time-limit, an action for annulment against a decision of an institution or body of the European Union would only have to lodge a complaint with the European Ombudsman for an action against a subsequent measure of the institution or body concerned, which merely reiterates the grounds and the operative part of that decision, to be found admissible and, thus, for the lawfulness of that decision to be indirectly examined by the Courts of the European Union.
89 In the present case, the applicant cannot validly claim that the complaint referred to in paragraph 19 above and the critical remark of the European Ombudsman referred to in paragraph 20 above constitute substantial new facts and that, consequently, the letter of 27 May 2011 contains new elements as compared with the letters of 7 August 2006 and 7 September 2006 or the measure of 23 November 2006.
90 It follows that, in the absence, first, of a re‑examination of the Commission’s position expressed in the letters of 7 August 2006 and 7 September 2006 and in the measure of 23 November 2006 and, second, of any new element since the applicant was made aware of those letters and that measure, the letter of 27 May 2011 must be regarded as a purely confirmatory measure, in so far as it responds to the first two claims made in the fax of 4 May 2011 (and set out in paragraphs 27 and 28 above).
91 Consequently, the claims for the annulment of that letter, in so far as it rejects those requests, are inadmissible.
The admissibility of the claim for the annulment of ‘all of the decisions … related’ to the letter of 27 May 2011
92 As noted by the Commission in its exception of inadmissibility, the applicant has not identified with precision the measures ‘related’ to the letter of 27 May 2011, referred to on the first page of its application. Thus, even if it wished to seek their annulment, such an application for annulment should be regarded as insufficiently clear and precise to be examined by the Court. In the light of the considerations set out in paragraph 96 below, the Court must therefore find it inadmissible (see, to that effect, the order in Case T‑56/92 Koelman v Commission [1993] ECR II‑1267, paragraph 19, and Case T‑166/98 Cantina sociale di Dolianova and Others v Commission [2004] ECR II‑3991, paragraph 79).
The admissibility of a surplus of claims for annulment
93 In spite of what has been said in paragraphs 56 to 59 above, the Court will examine, for the sake of completeness, the admissibility of possible claims for the annulment, first, of the decision of ‘November 2006’ referred to in paragraphs 54 and 55 above and, second, of the decisions to sign ‘specific contracts related to the provision of consulting and development services’, referred to in paragraph 54 above.
The admissibility of a claim for annulment of a decision ‘adopted in November 2006’
94 As has been noted in paragraphs 54 and 55 above, the applicant has made reference, on numerous occasions, to a decision, adopted in November 2006, by which software designed by A. S. was selected as the component for the CIRCABC application. In all probability, it was referring to the measure of 23 November 2006 outlined in paragraph 17 above.
95 However, as is apparent from paragraph 79 above, that measure had become final when the present action was brought. Therefore, supposing that the applicant sought its annulment, such a request can only be rejected, on the basis of Article 111 of the Rules of Procedure, as having been brought out of time and, therefore, for being manifestly inadmissible.
The admissibility of a claim for annulment of decisions to sign ‘specific contracts related to the provision of consulting and development services’
96 Under Article 44(1)(c) of the Rules of Procedure, an application must indicate the subject-matter of the proceedings and include a brief statement of the grounds relied on. That summary must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the action, if necessary without any other supporting information (see Case T‑209/01 Honeywell v Commission [2005] ECR II‑5527, paragraph 55 and the case-law cited).
97 Moreover, it is apparent from Article 44(1) in conjunction with Article 48(2) of the Rules of Procedure, that the subject-matter of the claim must be set out in the application, with the result that claims put forward at a later stage are, in principle, inadmissible (see Case T‑22/92 Weissenfels v Parliament [1993] ECR II‑1095, paragraph 27 and the case‑law cited).
98 In the present case, it is true that, in point 3 of its application, the applicant referred to the ‘[d]ecisions of the [Commission] to sign specific contracts … between 2006 and 2011, related to the provision of consulting and development services using [A. S.] to produce [the CIRCABC application]’.
99 However, even supposing that the applicant actually seeks the annulment of those decisions, it must be found that such a head of claim is not defined in the application with any precision. In the light of the case‑law cited in paragraphs 96 and 97 above, it can thus only be regarded as manifestly inadmissible, on the basis of Article 111 of the Rules of Procedure.
100 The applicant has not joined to its application either the decisions to which it referred or the contracts to which those decisions related. In addition, it has not raised any element enabling the Court to identify those decisions and contracts. Moreover, although the applicant stated in its application that those contracts ‘us[ed] A. S.’, it did not state whether they linked the Commission directly to that company or whether that company was solely a subcontracting party.
101 In that regard, it should be noted that, for information purposes, the Court, by means of a measure of organisation of procedure, requested the Commission to produce the contracts to which the applicant is most likely to have been referring in point 3 of its application. In response to that application, 30 different contractual documents were produced. Although some of those contracts actually mentioned A. S.’s name, the fact none the less remains that the application cannot be understood as seeking the annulment of those contracts. It is apparent from Article 44(1) and Article 48(2) of the Rules of Procedure, referred to above, that, in the absence of matters of law or of fact which came to light in the course of the procedure, only the order sought in the application may be taken into consideration (see Case T‑236/07 Germany v Commission [2010] ECR II‑5253, paragraph 28 and the case‑law cited). In the present case, as has been said, it is not clear from the application that it concerned specifically one or more of the contracts produced by the Commission at the Court’s request.
2. The remainder of the action
The claims for damages
102 According to the case‑law, the non-contractual liability of the European Union is dependent on a series of conditions being met: first, that the alleged conduct be attributable to an institution or body of the European Union, second, that the conduct be unlawful, third, that real and certain damage exists and, fourth, that there be a direct causal link between that conduct and the damage. Where one of those conditions is not satisfied, the application must be dismissed in its entirety without it being necessary to examine whether the other conditions have been satisfied (see Case T‑279/03 Galileo International Technology and Others v Commission [2006] ECR II‑1291, paragraphs 76 and 77 and the case‑law cited).
103 Moreover, it is for the applicant to prove that the condition relating to the existence of actual and certain damage is satisfied (see Case C‑243/05 P Agraz and Others v Commission [2006] ECR I‑10833, paragraph 27 and the case‑law cited) and, more specifically, to adduce conclusive proof as to the existence and extent of that damage (see Case C362/95 P Blackspur DIY and Others v Council and Commission [1997] ECR I‑4775, paragraph 31 and the case‑law cited).
104 Finally, to satisfy the requirements laid down in Article 44(1)(c) of the Rules of Procedure, set out in paragraph 96 above, an application seeking compensation for damage caused by an institution or body of the European Union must state the evidence from which the conduct which the applicant alleges against the institution or body can be identified, the reasons why the applicant considers that there is a causal link between the conduct and the damage it claims to have suffered, and the nature and extent of that damage (see Case T‑16/04 Arcelor v Parliament and Council [2010] ECR II‑211, paragraph 132 and the case‑law cited).
105 The Court must examine the four heads of claim made by the applicant relating to damages in the light of those considerations.
The first head of claim relating to damages
106 The applicant requests that the Commission be ordered to pay it damages in the amount of the ‘competitive advantage’ granted to A. S., in compensation for the harm resulting, first, from ‘the Commission’s decision of November 2006’, by which the Commission ‘selected the goods and services [of A. S.]’ and, second, ‘the decisions of the [Commission] to sign specific contracts … between 2006 and 2011, related to the provision of consulting and development services … to produce the new version of CIRCA (CIRCABC)’.
107 It must be found that such a claim for damages is vitiated by imprecision.
108 The applicant states that the harm it suffered corresponds to the ‘competitive advantage’ allegedly granted by the Commission to A. S. However, first, such an indication does not, in itself, enable the Court to understand the exact extent of the harm claimed. Second, that harm is not quantified in any way. Third, there is nothing in the file to enable the Court to make its own determination of the extent of that harm.
109 The head of claim referred to in paragraph 106 above must therefore be rejected as inadmissible, in accordance with the form of order sought by the Commission.
110 In any event, even supposing that the head of claim had been admissible, the Court would have had to reject it as manifestly lacking any foundation in law, on the basis of Article 111 of the Rules of Procedure.
111 As has been stated in paragraph 108 above, the applicant has not presented any element to enable the Court to determine the precise extent of the harm alleged by the applicant, even though, in its exception of inadmissibility, the Commission explicitly stated that the applicant had not shown that it had suffered any harm. Moreover, it is not established that the harm is quantifiable. In those circumstances, the applicant must be regarded as having failed to prove that real and certain damage exists.
The second head of claim relating to damages
112 The applicant claims that the Commission should be ordered to pay it EUR 1 million ‘for a loss of opportunity to participate in the call for tenders which it decided to cancel’.
113 In support of its head of claim, the applicant submits, first, that it ‘had produced the CIRCA software based on which [the] CIRCABC [application had been] developed, [that] it was the incumbent contractor, [that] it had won the previous [call for tenders] annulled without any motivation in 2003, [that] it had won all CIRCA related [calls for tender], [and that] it had an important experience in this field [since it had produced the software named Mermig]’.
114 Second, it adds that the software which it had created, namely Mermig, ‘was in full conformity [with] the Commission’s specifications … and therefore it was 100% suitable to address the needs of hundreds of thousands of CIRCA users and organisations having equivalent needs’.
115 In those circumstances, the applicant considers that, if the Commission had launched a call for tenders to select the software on the basis of which the CIRCABC application would be developed, the applicant would have had every chance of winning it.
116 Thus, in its view, by ‘adopting illegally’ the software developed by A. S., without launching a call for tenders, the Commission ‘created an “irrevocable factual situation” which created a serious loss of opportunity against the applicant, actually excluding it permanently from its natural market, transferring its know-how and presence to another entity’.
117 The applicant submits that the harm which it suffered ‘from [that] loss of opportunity’ cannot, in any case, be considered hypothetical or a mere possibility. According to the applicant, it follows that it is possible to put an economic value on such damage despite the continuing uncertainty regarding its exact quantification.
118 In the present case, it evaluates the amount of the loss of opportunity which it incurred at EUR 1 million, ‘taking into consideration the value of the contracts, the complexity of the technical issues and the prestige of the Contracting Authority’.
119 That argument cannot prevail.
120 The conduct of which the applicant accuses the Commission is not identified in an unequivocal manner.
121 On the one hand, in point 140 of its application, the applicant mentions the annulment of a call for tenders in 2003. It doing so, it refers, implicitly but necessarily, to the annulment, in 2003, of a call for tenders relating to the CIRCA application entitled ‘Further development of the collaborative software CIRCA’ (see paragraph 4 above).
122 On the other hand, in points 123 and 126 of its application, the applicant mentions the fact that the Commission did not launch a call for tenders before selecting the software edited by A. S. as one of the components of the CIRCABC application.
123 It follows that the claims for compensation referred to in paragraph 112 above are vitiated by imprecision, as the Commission rightly notes. They do not thus satisfy the criteria set out in paragraphs 96 and 104 above and are inadmissible on that basis.
124 In any event, even had that not been the case, it would have been necessary to reject them as manifestly lacking any foundation in law, on the basis of Article 111 of the Rules of Procedure.
125 The applicant has not demonstrated, as it is required to do and as stated in paragraph 103 above, that the condition relating to the existence of actual and certain damage has been satisfied. Although it is true, as noted by the applicant, that damage corresponding to a loss of opportunity cannot be regarded, in principle, as not being certain (see, to that effect, Agraz and Others v Commission, paragraph 103 above, paragraph 30), the fact remains that, in this instance, the applicant has not furnished the slightest probative element or set out the slightest argument to justify the sum of EUR 1 million which it seeks by way of compensation for the loss of opportunity which it claims to have suffered. The mere reference to the ‘value of the contracts’, to the ‘complexity of the technical aspects’ and to the ‘prestige of the Contracting Authority’ can also not remedy such a shortcoming, as stated by the Commission in its exception of inadmissibility.
The third head of claim relating to damages
126 The applicant claims that the Commission should be ordered to pay it the amount of EUR 10 million ‘for a non-pecuniary loss, consisting of its reputation and credibility being undermined’.
127 In support of its head of claim, the applicant submits that, in the absence of the defamation of its product by the Commission it would have won numerous contracts to provide assistance services for its Mermig software. It evaluates the value of those contracts at EUR 4 million per year, a figure which, in its view, must be multiplied by six, since those contracts should have been concluded from 2006 to 2011. As a result, ‘assuming a gross margin of 50%’, the applicant considers that its loss is in the region of EUR 10 million.
128 In order to justify the level of its gross margin, the applicant claims that the Commission ‘accept[ed] in the context of all similar projects [undertaken] by the applicant the ratio of 50% gross profit’.
129 However, the mere fact that the Commission decided to replace the CIRCA application and opted for software edited by A. S. as a component for the new CIRCABC application cannot, in itself, constitute an attack on the applicant’s reputation or credibility.
130 Moreover, although the applicant claims, in its application, that, at a ‘major international conference on open source software, which took place in Spain’, an agent of the Commission made defamatory remarks about the applicant’s products, it does not substantiate such claims with any probative evidence. In particular, neither the applicant’s letter of 16 April 2007, and produced in Annex 17 to the application, nor the fax of 4 May 2011, to which the Commission responded by the contested letter of 27 May 2011, can constitute evidence of such defamation. It is true that that fax refers to defamatory remarks made by an agent of the Commission at a specialised IT conference and that that letter suggests a ‘hostile attitude’ on the part of the Commission towards the applicant. However, as pointed out by the Commission in its exception of inadmissibility, those are documents established by the applicant itself, which are not substantiated by any evidence.
131 Finally, although the applicant claims that it suffered harm in the amount of EUR 10 million and justifies such an evaluation by reference, first, to its ‘gross profit’ ratio and, second, to the annual value of the ‘contracts to provide assistance services’ which it could have entered into had the defamatory remarks not been made, it must be found that no document corroborates the value of those contracts and that rate. However, the applicant was in a position to be able to produce such documents, the absence of which was noted by the Commission in its exception of inadmissibility.
132 Accordingly, the alleged harm has not been established. The head of claim set out in paragraph 126 above must therefore be rejected as manifestly lacking any foundation in law, on the basis of Article 111 of the Rules of Procedure.
The fourth head of claim relating to damages
133 The applicant requests the Court to order the Commission to pay it the sum of EUR 1 million ‘for an unauthorised use of its [intellectual property] rights’.
134 In support of such a head of claim, the applicant submits that, in the context of an earlier contract concluded with the Commission, the latter obliged it to ‘to publish its own platform (i.e. Mermig) as open source software and to hand-over to the Commission all its source code and related material and technical documentation’.
135 According to the applicant, the Commission was not authorised, however, to access that ‘platform’ in any way in creating a new application (such as CIRCABC). It claims that the Commission was also not entitled to ‘hand it to a third party (or its own internal team using a third party’s product), in order to create its own applications’.
136 Yet, it claims, the Commission and the experts working for it ‘[had] undoubtedly examined, studied and made use of’ the Mermig ‘platform’ in developing the CIRCABC application.
137 Thus, the Commission is said to have obtained and used the Mermig ‘platform’ in infringement of the applicant’s intellectual property rights.
138 The Commission did not provide the applicant with any compensation to remedy that infringement. Moreover, it ‘did not return [to the applicant the] source code and [its intellectual property rights] and ‘did not assure [the applicant] that its team and/or new contractor would not use it’.
139 Therefore, the applicant suffered harm in the amount of EUR 1 million.
140 Such an argument can only be rejected.
141 First, the applicant has recognised, itself, that the Mermig software was free of rights. In those circumstances, at the very least it should have set out the reasons why, in its view, that software could not be used without ‘authorisation’. In the absence of such explanations, the applicant cannot be regarded as showing harm resulting from the ‘unauthorised use’ of that software.
142 Second, as stated by the Commission in its exception of inadmissibility, the applicant did not furnish any probative elements in its application nor set out any arguments justifying the sum of EUR 1 million which it seeks in compensation. Similarly, it neither produced such elements nor set out such arguments at a subsequent stage of the procedure.
143 Consequently, the claims seeking compensation set out in paragraph 133 above must, in any event, be rejected as manifestly lacking any foundation in law, on the basis of Article 111 of the Rules of Procedure.
The form of order requesting the Court to issue directions
144 The applicant requests the Court to order the Commission to publish a ‘public notice, informing the market and all users interest[ed] in CIRCA, that CIRCA is not an obsolete platform, that [the software developed by A. S.] is not a privileged platform for CIRCABC and that they are free to select as a substitute for CIRCA the platform of their choice’.
145 However, as submitted by the Commission, such a form of order seeks the issue by the Court of directions.
146 It is not for the Courts of the European Union to issue directions to the institutions when exercising the jurisdiction to annul acts conferred on them by Article 263 TFEU (judgment of 12 July 2007 in Case T‑266/03 CB v Commission, not published in the ECR, paragraph 78, and Case T‑74/08 Now Pharm v Commission [2010] ECR II‑4661, paragraph 19).
147 It follows that the form of order sought in paragraph 144 above must be rejected as inadmissible.
148 Therefore, the present action must be dismissed as inadmissible in its entirety.
Costs
149 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. As the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the Commission, and, consequently, the Court rejects the applicant’s claim that the Commission be ordered to pay the costs, ‘even if the … [action] is rejected’.
On those grounds,
THE GENERAL COURT (Third Chamber)
hereby:
1. Dismisses the action;
2. Orders Evropaïki Dynamiki – Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE to pay its own costs and those incurred by the European Commission.
Luxembourg, 24 October 2012.
Table of contents
Background to the dispute
Procedure and forms of order sought by the parties
Law
1. The claims for annulment
The scope of the claims for annulment
The claims in so far as they have been brought against the letter of 27 May 2011 and ‘all of the Commission’s decisions’ ‘related’ to the applicant
– Content of the letter of 27 May 2011
– Scope of the head of claim
The possible surplus of claims for annulment
The admissibility of the claim seeking the annulment in part of the letter of 27 May 2011
The admissibility of the claim for annulment of the first part of the letter of 27 May 2011
The admissibility of the claim for annulment of the second part of the letter of 27 May 2011 in so far as it concerns the rejection of claims 1 and 2.
– Plea of inadmissibility based on the confirmatory nature of the letter of 27 May 2011
– Examination by the Court of that plea of inadmissibility
The admissibility of the claim for the annulment of ‘all of the decisions … related’ to the letter of 27 May 2011
The admissibility of a surplus of claims for annulment
The admissibility of a claim for annulment of a decision ‘adopted in November 2006’
The admissibility of a claim for annulment of decisions to sign ‘specific contracts related to the provision of consulting and development services’
2. The remainder of the action
The claims for damages
The first head of claim relating to damages
The second head of claim relating to damages
The third head of claim relating to damages
The fourth head of claim relating to damages
The form of order requesting the Court to issue directions
Costs