ORDER OF THE COURT OF FIRST INSTANCE (Third Chamber)
10 October 2006(*)
(Public service contracts – Call for tenders concerning technical assistance to improve the information and communication technology system in the State Institute of Statistics of the Republic of Turkey – Application rejected – Period for bringing proceedings – Confirmatory act – Inadmissibility)
In Case T‑106/05,
Evropaiki Dinamiki – Proigmena Sistimata Tilepikinonion Pliroforikis kai Tilematikis AE, established in Athens (Greece), represented by N. Korogiannakis, lawyer,
applicant,
v
Commission of the European Communities, represented by C. Tufvesson and K. Kańska, acting as Agents,
defendant,
APPLICATION for: (1) annulment of the Commission decision not to short-list the applicant in the tendering procedure concerning the provision of technical assistance to improve the information and communication technology system (ICT) in the State Institute of Statistics of the Republic of Turkey, and (2) annulment of the decisions rejecting the applicant’s request for review of the decision not to short-list it,
THE COURT OF FIRST INSTANCE
OF THE EUROPEAN COMMUNITIES (Third Chamber),
composed of M. Jaeger, J. Azizi and E. Cremona, Judges,
Registrar: E. Coulon,
makes the following
Order
Legal background
1 The award of contracts by the Commission in the course of its external actions is subject to the provisions of Part II, Title IV, Chapter 3, of Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 248, p. 1) (‘the Financial Regulation’) and the provisions of Part II, Title III, Chapter 3, of Commission Regulation (EC, Euratom) No 2342/2002 of 23 December 2002 laying down detailed rules for the implementation of the Financial Regulation (OJ 2002 L 357, p. 1) (‘the implementing rules’).
2 According to Article 100(2) of the Financial Regulation:
‘The contracting authority shall notify all candidates or tenderers whose applications or tenders are rejected on the grounds on which the decision was taken, and all tenderers whose tenders are admissible and who make a request in writing of the characteristics and relative advantages of the successful tender and the name of the tenderer to whom the contract is awarded.
However, certain details need not be disclosed where disclosure would hinder application of the law, would be contrary to the public interest or would harm the legitimate business interests of public or private undertakings or could distort fair competition between those undertakings.’
3 Article 149 of the implementing rules, in the version applicable to the facts in this case, provides as follows:
‘1. The contracting authorities shall as soon as possible inform candidates and tenderers of decisions reached concerning the award of the contract, including the grounds for any decision not to award a contract for which there has been competitive tendering or to recommence the procedure.
2. The contracting authority shall, within not more than fifteen calendar days from the date on which a written request is received, communicate the information provided for in Article 100(2) of the Financial Regulation.’
Facts at the origin of the dispute
4 By contract notice of 24 September 2004 published in the Supplement to the Official Journal of the European Communities (OJ 2004 S 187), the Commission, acting through its delegation in Turkey, issued an international restricted call for tenders under the reference EuropeAid/117579/C/SV/TR for a contract entitled ‘Technical Assistance to improve the Information and Communication Technology (ICT) System in the State Institute of Statistics (SIS) of [the Republic of] Turkey – Upgrading the Statistical System of [the Republic of] Turkey (USST)’.
5 On 27 October 2004, Evropaiki Dinamiki, in consortium with the German company CCGIS Christl & Stamm GbR and the Department of Statistics of the Middle Eastern Technical University of Turkey, applied to be short-listed in respect of that call for tenders.
6 By fax of 2 December 2004, the Commission Delegation in Turkey (‘the Delegation’) informed the applicant that it had not been included on the short-list of candidates invited to submit a detailed tender, on the ground that it did not satisfy the criterion of technical capacity.
7 By letter of 8 December 2004, complaining that it had not been short-listed, the applicant informed the Delegation that it was clear from the documents supplied that, with its partners, it had the experience required by the contract notice concerned. It therefore asked the Delegation to reconsider its decision and include the consortium in the list of selected companies, so that it could participate in the final stage.
8 By letter dated 13 December 2004, faxed to the applicant on 22 December 2004 (‘the letter of 13 December 2004’), the Head of Section, Financial Management and Procurement, at the Delegation replied in the following terms:
‘With reference to your fax dated 8 December 2004 … , I would like to inform you that I have taken due note of your complaint regarding the short-listing of the above tender.
While the proceedings of the short-listing committee are confidential, I would like to inform you that all committee members read your references very carefully and in detail. The selection was done taking into consideration only the selection criteria mentioned at point 7 of the Procurement Notice. All the applications received were then compared to each other in order to finalise a final ranking and 8 applicants were short-listed.
Even though the references you presented were impressive the committee unanimously believed that in your application was not evident the fulfilment of the criterion related to the minimum number of areas (six out of ten listed) requested in the Procurement Notice while in the references of the firms short-listed the criterion was clearly fulfilled.’
9 By letter of 23 December 2004, sent by fax and registered post, to the Delegation and to the Commission’s Directorate-General (DG) for Enlargement, the applicant insisted that the projects conducted by the consortium to which it belonged, and described in its application to participate in the call for tenders, satisfied all the required criteria and called on the Commission to comply with the provisions of Council Regulation (EC) No 1488/96 of 23 July 1996 on financial and technical measures to accompany (MEDA) the reform of economic and social structures in the framework of the Euro-Mediterranean partnership (OJ 1996 L 189, p. 1), and apply the provisions of the Financial Regulation concerning the applicant’s right of appeal.
10 By fax of 24 December 2004, the Head of Section, Financial Management and Procurement, informed the applicant that it would receive a reply to its letter of 23 December 2004 within three weeks. In particular, it stated as follows:
‘I have taken due note of your explanations on the issue and I would like to assure you that I would do all I can to clarify it. Since we shall be looking into the matter more closely, you will receive our reply within three weeks.’
11 On 10 January 2005, the applicant sent a letter, transmitted first by fax, to the Delegation and to DG Enlargement, in which it repeated in essence that its consortium was in a better position and had more references which suited the subject-matter of the call for tenders than other short-listed consortia. It also repeated the assertion that among the subject areas referred to in the ‘terms of reference of the call for tenders’ was the need to link the Turkish authorities with the ‘Stadium’ and ‘Statel’ applications of Eurostat (Statistical Office of the European Communities), both previously developed by the applicant.
12 On 14 and 20 January 2005, the applicant sent to the Delegation, with copies to DG Enlargement, two letters in which it expressed its wish to obtain a response within the time‑limits given. In particular, in the fax of 20 January 2005, the applicant, complaining that it had not yet received a reply to its letter of 23 December 2004, informed the Delegation of its intention, despite the rejection of its application, to submit a tender before the expiry date stipulated by the contracting authority, namely 7 February 2005.
13 By letter of 24 January 2005, the Head of the Delegation informed the applicant that since the short-listing procedures had been duly applied, there was no justification for re-examining the decision concerning the short-list. In particular, having briefly set out the working methods of the short-list panel, it stated that all the members of that panel had taken the view that, in spite of the very technical descriptions provided by the applicant about its experience, the number of references to the areas required by the contract notice was not sufficient.
14 On 7 February 2005, after repeating its criticisms in respect of the decision to reject its application, the applicant informed the Commission of its intention to participate in one of the pre-selected consortia and announced that it would bring legal proceedings.
Procedure and forms of order sought
15 By application lodged at the Registry of the Court of First Instance on 22 February 2005, the applicant brought these proceedings.
16 The applicant claims that the Court of First Instance should:
– annul the Commission’s decision, contained in the letter of 2 December 2004, not to shortlist the applicant, and to short-list other candidates;
– annul the Commission’s decision contained in the letter of 13 December 2004 refusing its request for review of the decision of 2 December 2004, as well as that contained in the letter of 24 January 2005;
– order the Commission to pay the costs, even if the present application is dismissed.
17 By separate document, registered at the Court of First Instance on 26 May 2005, the Commission raised a plea of inadmissibility in accordance with Article 114(1) of the Rules of Procedure of the Court of First Instance.
18 The Commission contends that the Court of First Instance should:
– dismiss the application as inadmissible;
– order the applicant to pay the costs.
19 The applicant submitted its observations on that plea of inadmissibility on 11 July 2005.
20 The applicant claims there that the Court of First Instance should:
– dismiss the plea of inadmissibility;
– proceed with the examination of the case.
Law
21 Under Article 114(1) of the Rules of Procedure, if a party so requests, the Court may give a ruling on admissibility without going into the substance of the case. In accordance with Article 114(3), the remainder of the proceedings is to be oral, unless the Court decides that the information in the file is sufficient to enable it to rule on the application made by the defendant and that there is no need to open the oral procedure.
Arguments of the parties
22 The Commission takes the view that the action is inadmissible. For that purpose it relies in the first place on the argument that the action for annulment brought by the applicant against the decision contained in the letter of 2 December 2004 is out of time. The date on which the application was lodged at the Court Registry, 22 February 2005, is after the expiry of the period of two months and ten days available to the applicant for bringing such proceedings. Since that decision was sent by fax on 2 December 2004, and received by the applicant on the same day, the period for bringing an action against that decision expired on 14 February 2005.
23 The Commission recalls, first of all, that, according to settled case-law, in order for a letter to constitute a notification for the purpose of Article 230 EC, it must be precise, unequivocal and contain a reasoned decision of the Commission (order in Case C-12/90 Infortec v Commission [1990] ECR I-4265, paragraph 9). In this case the letter satisfies those criteria, since it clearly informed the applicant that its application had been rejected and provided a reason for that. The letter concerned is, therefore, sufficiently detailed to constitute a decision enabling the applicant to ascertain its precise content in order to exercise its right to bring proceedings.
24 Second, as regards the application for annulment of the reiteration of its position, which is the subject of the letter of 13 December 2004, the Commission submits that that letter merely confirmed the contents of the initial decision of 2 December 2004. Therefore, the second letter cannot be regarded as a new decision, since neither the information on the file nor the letter itself indicates that the case was reconsidered before the letter was sent to the applicant. It cannot constitute a decision as it simply informs the applicant that the Commission did not intend to reconsider its decision concerning the short-list.
25 In that regard, the defendant recalls that, according to settled case-law, a measure constitutes a decision which may be the subject of an action for annulment under Article 230 EC if it produces legal effects which are binding on, and capable of affecting the interests of, the applicant, by bringing about a distinct change in his legal position (Case 60/81 IBM v Commission [1981] ECR 2639, paragraph 9, and Joined Cases C-68/94 and C-30/95 France and Others v Commission [1998] ECR I-1375, paragraph 62). The letter of 13 December 2004 merely confirmed the Commission’s decision and thus did not bring about a distinct change in the applicant’s legal position. Therefore, in accordance with the case-law of the Court of Justice, that letter cannot be the subject of an action for annulment (Case C-199/91 Foyer culturel du Sart-Tilman v Commission [1993] ECR I-2667, paragraph 23).
26 The Commission adds that, even if the Court of First Instance considered that the letter concerned constituted a decision, as a confirmatory decision it does not have the effect of laying down a fresh time-limit (Joined Cases 166/86 and 220/86 Irish Cement v Commission [1988] ECR 6473, paragraph 16; order in Infortec v Commission, paragraph 10; and Case C-480/93 P Zunis Holding and Others v Commission [1996] ECR I-1, paragraph 14). In that regard, the defendant refers to the case-law according to which, where an applicant allows the time-limit for bringing an action against a decision unequivocally laying down a measure with legal effects affecting his interests and binding on him to expire, he cannot start time running again by asking the institution to reconsider its decision and by bringing an action against the refusal confirming the decision previously taken (Case T‑514/93 Cobrecaf and Others v Commission [1995] ECR II-621, paragraph 44).
27 In its observations on the plea of inadmissibility, the applicant challenges the Commission’s arguments.
28 It states, by way of a preliminary, that the contested decisions are those contained in the three letters from the Commission, that is, the letters of 2 and 13 December 2004 and 24 January 2005.
29 The applicant submits that in its plea of inadmissibility the Commission failed to refer to the letter of 24 December 2004 and the letter of 24 January 2005. The latter one contradicts, in particular, the Commission’s argument that the letters sent after that of 2 December 2004 were not based on any new factors and did not lead to a re-examination of the decision contained in it.
30 According to the applicant, several factors lead to that conclusion. In particular, the fact that, in the letter of 24 December 2004, the Head of Section, Financial Management and Procurement, stated expressly that it was necessary to take a closer look at the problem, and indicated that the applicant would receive a reply within an exceptional period of three weeks, is evidence that the case was, in fact, reconsidered by the Delegation. Furthermore, that corresponds to what the applicant understood from the telephone conversations it had with the officials handling the case. In the same way, the statement ‘I have taken due note of your explanations …’ contained in that letter shows clearly that new information had been submitted to the Delegation by the applicant.
31 In any event, the letters of 24 December 2004 and 24 January 2005 constitute the Commission’s response to the applicant’s request for re-examination of its bid set out in the letter of 23 December 2004. Consequently, the decision contained in the letter of 24 January 2005, signed by the Head of the Delegation, must be regarded as a new decision, producing legal effects and capable of being challenged in accordance with Article 230 EC. It follows that the application was lodged within the time-limits, since the period in which to bring an action against the decision of 24 January 2005 expired only on 3 April 2005.
32 Moreover, the fact that the letter concerned was signed by the Head of the Delegation, and not by the official responsible for the tender procedure, implies that he had re-examined the file, since he had not been involved previously in the tender evaluation procedure, and that therefore he must necessarily have requested explanations, a copy of the file and the reports of the Evaluation Committee.
33 According to the applicant, the letter of 24 January 2005 must therefore be regarded as the act whereby the Commission notified its definitive decision, and not as confirmation of a prior act (Case 44/81 Germany v Commission [1982] ECR 1855, paragraph 12).
34 Furthermore, the applicant takes the view that, when a Community institution enters into discussions with a third party regarding the legality of its acts, as in this case, by declaring directly that it will re-examine its position, and requests an additional period within which to examine the arguments of that third party, it would be contrary to the principle of good faith for the institution to rely on the time-limit for bringing an action, as against the third party, immediately or shortly after giving him a definitive answer.
35 In that regard, the applicant recalls that it had to wait a month (from 24 December 2004 until 24 January 2005), at the Commission’s specific request, before receiving the definitive decision rejecting its request for re-examination. Therefore, if the objection of inadmissibility were to be accepted, that would mean that the applicant had only 20 days within which to bring an action, instead of the two months provided for by Article 230 EC.
Findings of the Court
36 The plea alleging an absolute bar to proceeding raised by the Commission is divided into two parts, alleging, first, that the action is out of time as regards the first decision challenged, namely the letter of 2 December 2004, and, second, that the decision allegedly contained in the letter of 13 December 2004 does not constitute a challengeable act because it does not produce legal effects capable of affecting the applicant’s interests by bringing about a distinct change in its position. In any event, that letter should be regarded as being merely a confirmation of the decision contained in the letter of 2 December 2004 to reject the applicant’s application. However, the defendant does not explicitly define its position with respect to the letter sent by the Head of the Delegation on 24 January 2005.
37 Therefore, it is appropriate to determine whether, as the defendant claims, the letter of 2 December 2004 must be regarded as a ‘notification within the meaning of Article 230 EC’.
38 In that regard, it must be recalled, first of all, that, according to Article 100(2) of the Financial Regulation, the contracting authority is to notify all candidates whose applications are rejected of the grounds on which the decision was taken, and, under Article 149 of the implementing rules, it must as soon as possible inform candidates of decisions reached concerning the award of the contract.
39 In this case, it must be observed that the Delegation informed the applicant that its application had been rejected by a standard letter, the model for which is in Annex B8 of the Finance Guide for the external actions financed from the General Budget of the EC, sent by fax on 2 December 2004. The Delegation had ticked the box indicating that the application did not satisfy the criterion of technical capacity and that it was inferior to that of the applications which were accepted and stated, furthermore, that, out of 19 applications received following the publication of the contract notice, it had short-listed eight of them. As was stated in Article 21(3) of the contract notice, concerning the candidate’s technical capacity, the latter had to demonstrate ‘at least one project/reference of the execution of 6 of the 10 assignments listed under point 7 [of the contract notice] within the last three years’, relating to the description of the contract.
40 By that letter, the Commission did, therefore, notify the applicant in a sufficiently precise and unequivocal manner of its definitive decision to reject the application at issue and stated the reasons for that, in accordance with the provisions of the Financial Regulation and the implementing rules mentioned above. Furthermore, it is clear from the words used by the applicant in its letter of 8 December 2004, and the correspondence subsequently exchanged between it and the Delegation, that it had indeed identified the reasons for the decision to reject its application. There is no other possible explanation for the arguments set out in that letter as regards the fact that the decision to reject the application did not take account of all the projects and references set out in sections 5 and 6 of the application form with reference to the list of areas of technical assistance set out in point 7 of the contract notice.
41 Contrary to the applicant’s submissions, there is no doubt, therefore, that the letter at issue constitutes an act which brought about a distinct and immediate change in its legal position and which should, if necessary, have been challenged within the period provided for that purpose. Under the fifth paragraph of Article 230 EC, the period within which to institute an action for annulment is two months from the notification of the decision to the applicant, which in this case was 2 December 2004, and an additional 10 days on account of distance as provided for in Article 102(2) of the Rules of Procedure. The period for instituting an action for annulment against that decision therefore expired on 14 February 2005. Since the application was lodged on 22 February 2005, the action was brought out of time.
42 The applicant’s argument that that letter did not contain a definitive decision, as evidenced, it argues, by the fact that after it was sent discussions with the Delegation continued and the latter sent the applicant a further three letters, does not alter that assessment. The fact that the applicant and the Delegation were in contact after the letter of 2 December 2004 was sent and that the Delegation sent other letters in response to issues raised by the applicant does nothing to alter the manifestly binding and definitive nature of that letter.
43 Furthermore, the applicant’s reasoning is contradicted by its letter of 23 December 2004, in which it explicitly requested the Delegation to provide it with assurances as regards its right of appeal, which shows that it was perfectly aware of the fact that the decision of 2 December 2004 was an act adversely affecting it. The only uncertainty on the part of the applicant related to remedies, as is clear from the passage in the letter where it states the following:
‘In case our legitimate appeal is rejected we do not feel that we will enjoy sufficient protection if we bring this issue before the Turkish courts. As an EU taxpayer we respectfully ask the European Commission to protect our rights arising from the EU public procurement legislation. In particular, we would like to ask that in case we are not immediately included in the short list, we have the appeal rights as specified by the EU public procurement legislation and the Financial Regulation.’
44 Furthermore, it must be held, in that regard, that it was for the applicant alone to decide whether to bring an action for annulment and not to allow the mandatory time-limit of two months provided for for that purpose to expire. Therefore, no importance can be attached to the correspondence exchanged between the applicant and the Delegation after the decision to reject its application.
45 As regards the decisions supposedly contained in the letters from the Delegation of 13 December 2004 and 24 January 2005, it is appropriate to determine whether the latter merely confirmed therein the decision to reject the applicant’s application without taking into consideration any new factor capable of producing binding legal effects capable of affecting the applicant’s interests.
46 It should be remembered, in that regard, that according to settled case-law, actions for annulment brought against decisions which merely confirm earlier decisions which have not been contested within the time-limits are inadmissible (see, to that effect, the order of 7 December 2004 in Case C-521/03 P Internationaler Hilfsfonds v Commission, not published in the ECR, paragraph 41; Case T-275/94 CB v Commission [1995] ECR II-2169, paragraph 27; order in Case T-235/95 Goldstein v Commission [1998] ECR II-523, paragraph 41; order in Case T‑84/97 BEUC v Commission [1998] ECR II-795, paragraph 52; and order in Case T‑127/01 Ripa di Meana v Parliament [2002] ECR II-3005, paragraph 25). A decision 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 (Case 54/77 Herpels v Commission [1978] ECR 585, paragraph 14; order in BEUC v Commission, paragraph 52; Case T-186/98 Inpesca v Commission [2001] ECR II‑557, paragraph 44; and order in Internationaler Hilfsfonds v Commission, paragraph 47).
47 The applicant submits in its observations on the plea of inadmissibility that the third decision contested, that is, the decision supposedly contained in the letter of 24 January 2005, constitutes the response of the Delegation to its letter of 23 December 2004, in which it had challenged the Evaluation Committee’s decision not to include the applicant in the short-list and requested a re-examination of its application. That decision was adopted after a re-examination of the file and should therefore be regarded as a new decision producing legal effects and thus capable of being challenged, in accordance with Article 230 EC. The applicant argues essentially that the letter at issue must be regarded as the act by which the Commission notified its definitive decision, and not as the confirmation of a previous act.
48 In that regard, it is clear, as the case-law indicates, that whether a measure is confirmatory cannot be determined solely with reference to its content as compared with that of the previous decision which it confirms, but must also be appraised in the light of the nature of the request to which it constitutes a reply (see, to that effect, Inpesca v Commission, paragraph 45 and the case-law cited, and the order in Case T-308/02 SGL Carbon v Commission [2004] ECR II-1363, paragraph 52).
49 In particular, it is clear from that case-law that, if the measure constitutes the reply to a request in which substantial new facts are relied on, and whereby the administration is asked to reconsider its previous decision, that measure cannot be regarded as merely confirmatory, since it constitutes a decision taken on the basis of those facts and thus contains a new factor as compared with the previous decision. The existence of substantial new facts may justify the submission of a request for reconsideration of a previous decision which has become definitive. Conversely, if the request for reconsideration is not based on substantial new facts, an action against the decision refusing to reconsider it must be declared inadmissible (see, to that effect, Inpesca v Commission, paragraph 49, and the order in SGL Carbon v Commission, paragraph 54).
50 It must be observed that, in this case, the evidence relied on by the applicant in support of its request for re-examination of the decision to reject its application in no way constitutes substantial new facts. In the letter of 23 December 2004, the applicant merely challenges the letter of 13 December 2004 which it had just received in which the Delegation repeated the grounds which were the basis of the decision to reject its application. It simply inserted a table in which it matched the areas of technical assistance set out in point 7 of the contract notice with the references mentioned in its application form, numbered in the same way as the latter.
51 Likewise, it cannot be held that the letter of 13 December 2004, sent by the Delegation in response to the applicant’s letter of 8 December 2004, in which the applicant had already set out its objections as to the reasons which were the basis of the rejection of its application, is based on new factors and was preceded by a re-examination of the applicant’s situation.
52 In that letter, the Delegation essentially merely restated its position, as already set out in its decision of 2 December 2004. It states, in particular, that the selection was made solely on the basis of the criteria mentioned in point 7 of the contract notice and that all the applications received were then compared in order to determine the eight applicants to be short-listed. In the final paragraph, the Delegation states, finally, that the applicant’s application did not satisfy the criterion relating to the minimum number of references (six out of the ten listed) to projects in the contract notice, whereas that criterion was fulfilled by the candidates selected.
53 The same is true as regards the note of 24 January 2005, in which the Head of Delegation merely repeated what the Head of Section, Financial Management and Procurement had stated in the letter of 13 December 2004.
54 It must be held, therefore, that none of the information contained in those two letters constitutes a new factor of such a kind as to confer on them the character of new decisions adversely affecting the applicant. Furthermore, there is nothing either in the file submitted to the Court of First Instance or in the final contested letter to indicate that the sending of that letter was preceded by a re-examination of the applicant’s application (see, to that effect, the order in Case T-372/02 Internationaler Hilfsfonds v Commission [2003] ECR II-4389, paragraph 44). Moreover, the statement of reasons contained in those two letters is substantially the same as that contained in the first contested letter.
55 It must also be observed that according to settled case-law, where an applicant allows the time-limit for bringing an action against a decision unequivocally laying down a measure with legal effects affecting his interests and binding on him to expire, he cannot start time running again by asking the institution to reconsider its decision and by bringing an action against the refusal confirming the decision previously taken (Cobrecaf and Others v Commission, paragraph 44; see also, to that effect, the order in Case C-250/90 Control Union v Commission [1991] ECR I-3585, paragraph 14).
56 Finally, as regards the applicant’s claim that it is clear from the letter sent to it by the Delegation that the latter had assured the applicant that its application would be re-examined and that it would reply within three weeks to the applicant’s request for re-examination, the applicant’s allegation that the conduct of the Commission was such as to give rise to pardonable confusion on its part as to the definitive nature of the letter of 2 December 2004 is unfounded, since the terms of that letter clearly disclose both the Delegation’s decision to reject its application and the reasons for the decision.
57 In any event, even if the conduct of the Commission, assuming it were established, caused the application to be lodged out of time that would not have made the action admissible by derogation from the rules governing the time-limits for initiating proceedings. Such conduct could not have led the applicant to make an excusable error, that is to say, one which the Community judicature accepts as permitting a derogation from the rules governing time-limits for initiating proceedings. The concept of excusable error, the direct source of which is a concern for observance of the principles of legal certainty and the protection of legitimate expectations, can, according to settled case-law, concern only exceptional circumstances in which, in particular, the conduct of the institution concerned was, either alone or to a decisive extent, such as to give rise to pardonable confusion in the mind of a party acting in good faith and exercising all the diligence required of a normally prudent person (Case T-12/90 Bayer v Commission [1991] ECR II-219, paragraphs 28 and 29, confirmed on appeal in Case C-195/91 P Bayer v Commission [1994] ECR I-5619, paragraph 26).
58 Although such may be the case where the commencement of an action out of time is caused by the provision, by the institution concerned, of wrong information creating pardonable confusion in the mind of a party acting in the manner mentioned above, it cannot be the case where, as here, the party cannot harbour any doubt that the measure notified to it is in the nature of a decision (see, to that effect, the order in Case T-218/01 Laboratoire Monique Rémy v Commission [2002] ECR II‑2139, paragraph 30, and the Opinion of Advocate General Tizzano in Case C‑193/01 P Pitsiorlas v Counciland ECB [2003] ECR I-4837, I-4839, paragraph 20).
59 In any event, it must be observed that, in this case, the applicant has not established or even alleged the existence of excusable error.
60 In the light of all of the foregoing considerations, it must be held that, as the letters of 13 December 2004 and 24 January 2005 do not contain any new factor as regards the decision contained in the letter of 2 December 2004 and there was no re-examination of the applicant’s position, those letters are merely decisions confirming the decision of 2 December 2004. Consequently, since the latter was not challenged within a period of two months from the date of its notification to the applicant and an additional 10 days on account of distance as referred to in Article 102(2) of the Rules of Procedure, the action must be dismissed as inadmissible.
Costs
61 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 forms of order sought by the defendant.
On those grounds,
THE COURT OF FIRST INSTANCE (Third Chamber)
hereby orders:
1. The action is dismissed as inadmissible.
2. The applicant shall pay the costs.
Luxembourg, 10 October 2006.