JUDGMENT OF THE GENERAL COURT (Fourth Chamber)
9 February 2010 (*)
(Arbitration clause – ‘eContent’ programme – Contract relating to a project designed to ensure maximum effectiveness of the programme and the widest possible participation of target groups – Non-performance of the contract – Termination of the contract)
In Case T‑340/07,
Evropaïki Dynamiki – Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE, established in Athens (Greece), represented by N. Korogiannakis, lawyer,
applicant,
v
European Commission, represented by E. Manhaeve, acting as Agent, and by D. Philippe and M. Gouden, lawyers,
defendant,
ACTION brought under Articles 235 EC, 238 EC and 288 EC for an order that the Commission make good damage suffered as a result of its failure to comply with contractual obligations in the context of the performance of the EDC-53007 EEBO/27873 contract relating to the project entitled ‘e-Content Exposure and Business Opportunities’,
THE GENERAL COURT (Fourth Chamber),
composed of O. Czúcz, President, I. Labucka and K. O’Higgins (Rapporteur), Judges,
Registrar: C. Kantza, Administrator,
having regard to the written procedure and further to the hearing on 11 March 2009,
gives the following
Judgment
Background to the dispute
1 On 22 December 2000, the Council of the European Union adopted Decision 2001/48/EC adopting a multiannual Community programme to stimulate the development and use of European digital content on the global networks and to promote linguistic diversity in the information society (OJ 2001 L 14, p. 32).
2 Following a call for proposals launched by the Commission of the European Communities in the context of that multiannual Community programme (‘eContent programme’), the applicant, Evropaïki Dynamiki – Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE, was awarded the project entitled ‘e-Content Exposure and Business Opportunities’ (‘the eEBO project’). The objective of that project was in particular to contribute to achieving the overall aims of the eContent programme by providing a platform to raise public awareness of the activities developed in the context of that programme, to disseminate them and to enable access to them, complementary to the existing measures and means. It was concerned, in particular, with ensuring that the eContent programme was as efficient as possible, increasing the number of participants in the projects of that programme through the use of various means of mass communication and by efforts in the area of public relations.
3 On 3 July 2002, the European Community, represented by the Commission, concluded with the applicant contract EDC-53007 EEBO/27873 concerning the eEBO project. Under Article 2(1) of that contract, the duration of the project was fixed at 18 months from the day after the date on which the contract at issue was signed, that is to say, from 4 July 2002.
4 The tasks to be fulfilled by the applicant within the context of the eEBO project were, in accordance with Article 1(1) of the contract at issue, defined in Annex I thereto, entitled ‘Description of Work’ (‘the technical annex’). The conditions of performance of those tasks were set out in Annex II to the contract at issue, entitled ‘General Conditions’ (‘the general conditions’).
5 The technical annex provided that the project comprised three essential elements: first, the establishment and management of an interactive communication system by means of a public relations and communications centre enabling interaction between the projects financed in the context of the eContent programme, as well as between the participants of those projects and the press; second, the organisation of a think tank designed to create a common vision, to address business opportunities and to enable European industries to establish a strong foothold and high visibility in the digital content sector; and, third, support for the public relations and communications centre and the think tank by the provision of contributions, strategic information, media monitoring and publicity related to the eContent programme.
6 The technical annex also contained a detailed work plan comprising eight parts (work packages) and providing, for each work package, that one or more documents be drawn up and delivered to the Commission according to a predetermined timetable set out in a table in paragraph 4 of that annex.
7 The maximum financial contribution for the eEBO project was fixed at EUR 500 000, in accordance with Article 3 of the contract at issue. The conditions governing reimbursement of the eligible costs were set out in Articles 13 to 16 of the general conditions, which provided in particular that, in order to be eligible, the costs had to ‘be incurred during the duration of the project’ and that they would be reimbursed only where they were justified by the participant.
8 Under Article 5 of the contract at issue, ‘[t]he Court of First Instance of the European Communities and, in the case of an appeal, the Court of Justice of the European Communities shall have sole jurisdiction to hear any disputes between the Community, on the one hand, and the contractors, on the other hand, as regards the validity, the application or any interpretation of this contract’, which was governed by the law of Luxembourg.
9 Under Article 2(2)(h) of the general conditions, the applicant was required to ‘take part in meetings concerning the supervision, monitoring and evaluation of the project which are relevant to [it]’. Article 2(3) provided that the Commission could, in certain circumstances, be assisted by independent experts in the framework of those meetings.
10 Article 5(1) of the general conditions also obliged the applicant to conclude ‘membership agreements’ with each of the other participants in the eEBO project. Article 5(2) allowed the applicant and the other participants in the eEBO project to conclude subcontracts where necessary for the performance of their work. However, ‘the Commission’s prior written approval [was] required … where the cumulative amount of the subcontracts of a participant [exceeded] 20% of his estimated eligible costs … or EUR 100 000’.
11 Article 7(3)(b) of the general conditions provided that ‘[t]he Commission [could] immediately terminate this contract … from the date of receipt of the registered letter with acknowledgement of receipt sent by [it] … where the participant directly concerned [had] not fully performed his contractual obligations despite a written request from the Commission … to remedy a failure to comply with such obligations within a period not exceeding one month’.
12 Article 7(6) provided that ‘contractors [were to] take appropriate action to cancel or reduce their commitments, upon receipt of the letter from the Commission notifying them of the termination of the contract …’.
13 Finally, under Article 18(1) of the general conditions, ‘[t]he Commission, or any representative authorised by it, [could] initiate a technical verification in respect of a participant up to the contract completion date in order to verify that the project [was] being or [had] been carried out in accordance with the conditions indicated by the contractor’. Article 18(4) added that ‘[a] report on the technical verification of the project [was to] be sent to the contractor concerned’, who could ‘communicate his observations to the Commission within a month’.
14 On 12 August 2002, the Commission paid, as an advance, a sum of EUR 150 000 to the applicant, in accordance with Article 3(3) of the contract at issue.
15 By email of 26 November 2002, Mr O., an administrator in the Directorate General (‘DG’) ‘Information Society’ of the Commission, requested information from the applicant concerning four technical documents which should have been delivered in the first five months. Mr O. also questioned the applicant as to why the eEBO project had not been presented during a conference in Copenhagen (Denmark). He emphasised the importance of regular coordination with a project relating to an Internet portal connected to the eContent programme (‘the PICK project’) and suggested that the applicant make all the documents to be delivered accessible via its Internet site in order to ‘make … interaction [among the participants of the project] improve a bit’.
16 During a meeting with the applicant’s representatives on 4 December 2002, and in the course of a telephone conversation with the eEBO project coordinator on 10 December 2002, the Commission expressed its concerns with regard to certain delays in the progress of the work.
17 On 21 January 2003, during a meeting with the applicant’s representatives in Luxembourg, the Commission reiterated its concerns relating to certain delays in the organisation of a think tank summit. It requested that the applicant provide the Commission with a detailed plan indicating all the dates and participants at that event no later than 5 February 2003. The Commission stated that it would otherwise have to renegotiate the contract at issue with the applicant.
18 On 5 February 2003, the applicant presented a detailed plan entitled ‘Strategic and operation plan of think tank’.
19 By letter of 6 March 2003, the Commission invited the applicant to present to it, during a review meeting, the work completed during the first nine months of the eEBO project. It also decided to have that review conducted by two independent experts.
20 On 20 March 2003, the review meeting took place in Luxembourg.
21 During a meeting on 28 April 2003, the Commission informed the applicant of the contents of the evaluation report drafted by the two independent experts. By letter of the same day, it also notified the applicant of its decision to initiate the procedure provided for under Article 7 of the general conditions. In that letter, the Commission pointed out that the review of the eEBO project had brought to light the existence of ‘very serious’ problems, in particular by reason of the accumulation of significant delays in the completion of certain major stages of the project, such as the organisation of a think tank summit. The Commission requested that the applicant and its partners should ‘not undertake any new project activities’ and should ‘make their decision whether, in the light of the present situation, a continued commitment of the human and financial resources engaged so far in this project [were] still justified’.
22 In that letter, the applicant was also invited to take a position on the various points of criticism and to present an action plan for overcoming the problems which had been identified. Finally, the Commission reserved the right to have the requested action plan reviewed by independent experts and to terminate the contract pursuant to the provisions of Article 7 of the general conditions if the proposed action plan was not satisfactory.
23 On 12 May 2003, the applicant submitted to the Commission an action plan to resolve the problems identified. Acknowledging certain problems and some delays, the applicant undertook to adopt ‘a constructive approach in order to address the situation’ and stated that it had ‘undertaken all the necessary actions to remedy the situation’. In particular, it provided a list of events at which the eEBO project would be ‘present’, a detailed agenda for the organisation of the think tank summit with a fixed date for that summit, and an explanation concerning the noted problems of cooperation with certain consultants and the managers of a separate project.
24 By letter of 16 May 2003, the Commission informed the applicant of its decision to terminate the contract pursuant to Article 7(3)(b) of the general conditions. It indicated that the action plan submitted by the applicant ‘[did] not address satisfactorily the issues [detected] in the review and [did] not provide enough elements as to judge what timescale and effort [were] needed to fulfil all the tasks described in the technical annex’. It stated in particular that that action plan did not indicate which measures would be taken to solve the delays which had been identified and when those measures would be adopted. It also observed that no advisory board had been set up, no drafting of theme papers had been undertaken, and no press events had been staged in preparation for the think tank summit.
25 By fax of 27 May 2003, the applicant expressed its surprise at the termination of the contract at issue and its disagreement with several matters mentioned in the letter of 16 May 2003. It claimed that that decision was unfair and completely devastating for its efforts to organise the summit and project. It also pointed out that it had serious grounds for suspecting that some people officially involved with the project were in a conflict-of-interest situation. Moreover, the applicant announced that it would continue to prepare the think tank summit, as the organisation of that summit had already begun and was therefore not covered by the prohibition on undertaking new project activities connected with the eEBO project which had been notified to it by letter of 28 April 2003. Finally, the applicant asserted that all tasks described in the technical annex had already been fulfilled or were going to be fulfilled within the time-limits fixed, and it provided a new detailed agenda for the think tank summit in which that summit was scheduled to be held on 13 June 2003 in Athens (Greece).
26 By letters of 2 and 6 June 2003, the Commission pointed out to the applicant that, as the contract at issue had been terminated, the Commission would not support the organisation of the summit and ‘that, naturally, no expenses incurred after the termination of the contract [could] be charged to the contract’.
27 On 13 June 2003, the think tank summit opened in Athens.
28 By letter of 18 July 2003, Mr H.-R., Head of Unit 4 ‘Information market’ within Directorate E ‘Interfaces, knowledge and content technologies, Applications, Information market’ of DG ‘Information Society’, thanked the applicant for having sent him a preliminary report at the conclusion of the think tank summit and stated that the outcome of that event ‘will certainly contribute to the continued attempts to develop the eContent market’.
29 By letter of 18 December 2003, the applicant reiterated its claim that the decision to terminate the contract at issue was ‘absolutely unfair and unjustified’, since all the assigned tasks had been successfully implemented. The applicant also requested that the Commission organise a new project review, excluding all officials in a conflict-of-interest situation from any participation in that procedure. Finally, it raised a number of questions concerning the relations which two of its consultants and the two independent experts had had with the Commission’s representatives over the course of the previous five years.
30 During a meeting held on 5 February 2004, the applicant stated that Mr V., its managing director, had been the victim of blackmail by its two consultants. It also claimed that one of the two independent experts had a conflict of interest.
31 In view of the applicant’s criticisms concerning the alleged ‘unfairness’ of the decision to terminate the contract at issue and the alleged conflict of interest on the part of one of the independent experts, the Commission ordered an internal audit.
32 On 22 April 2004, the Commission’s internal audit service made several preliminary observations. It stated that ‘there [was] no material evidence of a conflict of interest regarding the reviewers of the project’, that ‘even though it [was] highly probable that [one of the independent experts had known the applicant’s two consultants], as all of them [had] worked in the framework of [another contract], there [was] no evidence that [the independent expert] [had been] requested by the two others to give a negative opinion on the project during the review’ and that the applicant ‘[had] not yet provided to the Commission any evidence of the “blackmail” from their two consultants, which [had been] referred to during the meeting of 5 February 2004’. The service also stated that, from a technical standpoint, the decision to end the project seemed therefore to be appropriate. Nevertheless, in order to confirm its conclusions, the Commission’s internal audit service recommended the appointment of two new independent experts to review the file once more.
33 By letter of 14 June 2004, the Commission notified the applicant of its decision to order a technical verification by two new independent experts in accordance with Article 18 of the general conditions.
34 By letter of 20 July 2004, Ms M., Head of Unit 5 ‘Cognition’ within Directorate E of DG ‘Information Society’, requested from the applicant additional information concerning the status of its personnel, in particular concerning its two consultants, and the costs charged by the applicant to the contract at issue.
35 The applicant provided that information on 30 July 2004.
36 By letter of 6 October 2004, the Commission thanked the applicant for the information provided and pointed out to it potential irregularities as regards Articles 14 and 15 of the general conditions concerning the use of the two consultants. It also notified the second evaluation report. As that report confirmed the previous review of the project and the fact that the different documents requested for each of the work packages of the technical annex had not been delivered or had been delivered late, the Commission informed the applicant that it would be basing its determination of the eligible costs on that technical verification.
37 By fax of 12 October 2004, the applicant expressed disagreement with the conclusions of the second evaluation report on the ground that, first, it had ‘never agreed to the mandate of this committee’ and that, secondly, ‘experts paid by [the Commission’s] own department and who are invited, in practical terms, just to generate a report to validate an unfair decision taken … [the previous] year [could] not be considered as “independent” or impartial’. It also stressed the lack of independence of the first two reviewers of the project.
38 By letter of 12 November 2004, the Commission rejected the applicant’s claims and informed the applicant that it had passed to the next step in determining the eligible costs pursuant to Articles 13 and 16 of the general conditions and that it had fixed the eligible costs of the project at EUR 90 515. As an advance payment of EUR 150 000 had been made to the applicant at the beginning of the project, the Commission announced that it would be issuing a recovery order for EUR 59 485.
39 By fax of 9 December 2004, the applicant again called into question the validity of the first evaluation report and expressed its doubts as to the impartiality of the new ‘evaluation committee’. It also requested information concerning the calculation of the eligible costs made by the Commission.
40 By letter of 22 December 2004, the Commission responded to the applicant’s criticisms and referred to the letter of 12 November 2004 for details of how the eligible costs had been calculated.
41 By fax of 4 January 2005, the applicant reiterated its criticisms, repeated its request for information and proposed a new review by the European Anti-Fraud Office.
42 By letter of 7 March 2005, the Commission responded to the points of criticism set out by the applicant in the fax of 4 January 2005 and stated that it would be issuing a recovery order for the amount of EUR 59 485, pointing out that, in the absence of payment before the date specified, it would add interest and could recover the amount either by offsetting it against any payments due or by enforcing payment.
43 By application lodged at the Registry of the Court on 17 May 2005, the applicant brought an action under Article 230 EC for annulment of the Commission’s decisions to terminate the contract at issue, to reimburse an amount of labour costs not exceeding EUR 85 971 and to issue a recovery order for an amount of EUR 59 485. That application was registered as Case T-205/05.
44 By letter of 24 June 2005, the Commission sent a debit note for EUR 59 485 to the applicant, with an expiry date of 7 August 2005.
45 By letter of 8 July 2005, the Commission informed the applicant that it was offsetting the amount stated on the debit note against amounts still owing to the applicant.
46 By a separate document, lodged at the Registry of the Court on 5 August 2005, the Commission raised an objection of inadmissibility in Case T-205/05 under Article 114(1) of the Court’s Rules of Procedure. The applicant lodged its observations on that objection on 26 September 2005.
47 By order of 26 February 2007, the Fourth Chamber of the Court ruled that the applicant’s action in Case T-205/05 was inadmissible on the ground that ‘it [sought] the annulment, pursuant to Article 230 EC, of measures of a purely contractual nature’ (order of the Court of 26 February 2007 in Case T-205/05 Evropaïki Dynamiki v Commission, not published in the ECR, paragraph 56).
48 By application lodged at the Registry of the Court on 4 September 2007, the applicant brought the present action under Articles 235 EC, 238 EC and 288 EC.
49 Acting upon a report of the Judge-Rapporteur, the Court (Fourth Chamber) decided to open the oral procedure and, by way of measures of organisation of procedure as provided for in Article 64 of the Rules of Procedure, requested the parties to reply to certain written questions and to provide it with certain documents. The parties complied with those requests within the prescribed period.
50 The parties presented oral argument and replied to the questions put by the Court at the hearing, which took place on 11 March 2009.
Forms of order sought by the parties
51 The applicant claims that the Court should:
– order the Commission to pay it the amount of EUR 172 588.62 constituting unpaid eligible costs incurred in the framework of the contract;
– order the Commission to pay it the amount of EUR 1 000 corresponding ‘to the damage suffered [to] its fame and goodwill’;
– order the Commission to pay its legal and other costs and expenses incurred in connection with the present action.
52 The Commission contends that the Court should:
– dismiss all the applicant’s claims;
– order the applicant to pay the costs.
Law
53 The applicant essentially raises two pleas in law based, firstly, on the failure to comply with contractual obligations and, secondly, on an infringement of the principles of sound administration and transparency, in conjunction with the existence of a conflict of interest.
The first plea based: failure to comply with the contractual obligations
Arguments of the parties
54 The applicant claims in essence that the Commission’s decision to terminate the contract at issue is vitiated by manifest errors of assessment, was not adopted in accordance with the procedure laid down by Article 7(3)(b) of the general conditions, and is based on incorrect and unfounded evaluation reports.
55 In the first place, with regard to the allegation that the contract at issue is vitiated by manifest errors of assessment, the applicant submits that the Commission ‘terminated the contract [at issue] referring to minor delays which occur in all projects of this type, and for which in any event the responsibility did not lie with [the applicant]’.
56 Firstly, the applicant takes the view that ‘[t]he alleged delays in the implementation of the [e]EBO project were mainly due to the fact that [it] did not dispose of the adequate [elements] … from the “PICK” project and had therefore to develop itself the technical platform and the IT solutions for numerous applications’. However, in its view, the Commission was responsible for contacting the contractor of the PICK project and insisting on the fulfilment of its contractual obligations.
57 The applicant points out that ‘the PICK project contractor was refusing to assist [it] to implement its contractual obligations using all possible means’, in particular by refusing to provide it with the source code for certain software. It also disputes the Commission’s arguments justifying that refusal on grounds of intellectual rights and claims that, in any event, the Commission should have informed it in a timely manner that the software module which was supposed to be made available to it was covered by such rights.
58 Secondly, the applicant submits that ‘its conflict with [its consultants] and the fact that the Commission was taking their side [were] the only cause[s] of the interruption of the project and in no way the proof of the existence of problems in the performance of the [contract at issue]’. The applicant takes the view that the Commission should have ‘[taken] the necessary measures in order to assure that [that] situation would not lead to a conflict of interest or to any kind of bias for or against the entities involved’. The failure to perform the contract at issue was the responsibility solely of its consultants, who were ‘involved in a [range of Community] funded projects’ and ‘had close social links with the officials responsible for the project’.
59 In the second place, the applicant submits that the Commission also breached its contractual obligations concerning the organisation of the think tank summit.
60 First, although the applicant never argued that the Commission had a contractual obligation to participate in the organisation of that event, it takes the view that ‘it was the responsibility of the Commission to initiate contacts in order to include [that event] in the official agenda’ of the Greek Presidency of the European Union in 2003 (‘the Greek Presidency’). However, it submits, the Commission failed immediately to contact the Greek Minister for Foreign Affairs to obtain his authorisation to include the think tank summit on the official agenda. According to the applicant, despite its repeated requests, the Commission did not send a letter to the minister until 3 February 2003, that is to say, after a delay of three months. Any delay in the organisation of that summit was therefore attributable to the Commission, since ‘the proper execution of the contract [at issue] would require that the Commission undertake the necessary steps to assist the applicant to fulfil its contractual obligations with the Commission and not the contrary’.
61 The applicant further claims that, ‘even if [the Commission] had rightfully terminated the [eEBO] project, quod non, [it] should have accepted to reimburse [the costs incurred by the think tank summit] that took place successfully during the Greek Presidency … in compliance [with] the terms of the contract [at issue]’. According to the applicant, by writing a letter to the Greek authorities confirming the applicant’s request to have that summit added to the programme of the Greek Presidency, the Commission ‘itself accepted and validated the organisation of the event during the Greek Presidency before the termination of the [eEBO] project’. Therefore the Commission could not arbitrarily terminate that project and should ‘accept all the responsibilities which arise from the implementation of this event which was requested by the Commission to the Greek Presidency’.
62 Secondly, the applicant argues that the Commission made no comments on or suggested any improvements to the agenda of the event when it was presented. It also takes the view that the Commission committed another breach of the contract at issue by insisting that the think tank summit be held in Rome (Italy) during the Italian Presidency of the European Union in 2003.
63 Thirdly, the applicant challenges the Commission’s argument that the event was not international in scope, since it was composed almost exclusively of Greek participants. In its view, ‘the event was attended by many representatives of many nationalities’ and ‘many international market actors, media and media-related projects decided for obvious reasons of [organisational] economy to be present through [sending] their local correspondents, partners or representatives’. The applicant considers that the Commission ‘did not do its part of the deal in order to attract further international attention’ since it ‘did not attend [the think tank summit], it did not advertise it through all its channels and web sites, it did not support it in many ways, etc.’.
64 Finally, the applicant submits that the think tank summit was a genuine success and that, contrary to the Commission’s assertion, the summit lasted three days, from 13 to 15 June 2003. Moreover, according to the applicant, no new action was undertaken following the letters from the Commission of 28 April and 16 May 2003. The applicant claims that it ‘simply completed all the actions and activities which [had been] triggered [before that first date]’.
65 In the third place, the applicant submits that, contrary to the reviewers’ assertions, the requested documents and the applications provided for in the contract at issue were delivered to the Commission.
66 Firstly, the applicant submits that ‘the [Commission] never … informed [it] on whether something was going wrong in the context of the [eEBO] project between July 2002 and early December 2002 and [that the Commission] never criticised [its performance in the framework of the contract at issue as being] against [its] contractual obligations’. In the applicant’s view, the same applies ‘for the subsequent period after December 2002, when the two experts were threatening and blackmailing [it]’.
67 Secondly, the applicant argues that ‘[a]lthough entirely developed by [it] and not through the “PICK” project, the technical application [which it] provided … is fully compliant with the terms of the contract [at issue]’ and ‘[a]s a whole … [is] substantially better than the one proposed in the Technical Annex of the contract [at issue]’.
68 Thirdly, the applicant disputes the Commission’s argument concerning the delays in respect of the documents to be delivered which had to be produced during the first six months of the project. It claims that the proper performance of the contract justified taking measures a little later in order to take the results of the think tank summit into account, that those delays could, in any event, be easily redressed and that, finally, it provided everything within the time-limits. The applicant also claims that the ‘minor’ delays observed contributed, in any case, to a ‘better implementation of the project’.
69 Fourthly, the applicant submits that ‘its work was compliant to the contract [at issue]’, that ‘all the [elements provided] were compliant to the contract [at issue]’ and that ‘[t]wo progress reports [concerning the eEBO project] containing the necessary elements were submitted [to the Commission]’. According to the applicant, ‘[a]ll [of those] project systems were made available through [its] own developed platform’, but neither those responsible from the Commission nor the independent reviewing experts accessed that platform, though it ‘was clearly demonstrated to the reviewers and the Commission project officer, and it [had been] positively embraced’.
70 Finally, with regard to the example presented by the Commission and relating to the failure to present the eEBO project at certain press briefings, the applicant responds that ‘[s]ince international events take place all the time, there is no foundation [to] the argument that if one event was not covered, no other event of equal or higher significance could replace it in the near future’. According to the applicant, ‘[it] had the opportunity … to cover a number of subsequent events which were of even higher importance than what … was originally proposed’ and, in any event ‘it would make more sense to initiate this exercise after [the think tank summit], to take into account its findings and directions’.
71 In the fourth place, the applicant takes the view that the Commission caused it ‘significant losses and damages’ by ‘abusively’ deciding to pay only part of the eligible costs on the first cost statement, even though ‘the services and [elements] … corresponding to the three cost statements were delivered to [the Commission] in compliance [with] the terms of the contract [at issue]’. The applicant disputes in particular the Commission’s refusal to reimburse to it the costs connected with the organisation of the think tank summit. In its view, ‘although it is true that [that event] took place after the … termination of the project, [it] was part of the contractual obligations of the parties, it was scheduled far before this decision was taken and it could not have been cancelled a few weeks before it took place’. The applicant also claims that ‘[t]he Commission has never motivated its decision to reject part of the costs of the project’ and ‘has not even commented on [the applicant’s] argument … that some of the costs paid after the project was terminated could not be avoided any more’.
72 The applicant accordingly takes the view that it is entitled to reimbursement of all the ‘allowable costs’ which it incurred under the contract at issue, that is to say, the sum of EUR 174 647.65 relating to the first cost statement, the sum of EUR 31 025.81 relating to the second cost statement, and the sum of EUR 57 430.16 relating to the third cost statement, in other words a total amount of EUR 263 103.62, from which it is, however, necessary to deduct the sum of EUR 90 515 paid by the Commission, with the result that the final amount is EUR 172 588.62.
73 Fifthly, the applicant submits that the termination by the Commission of the contract at issue and the absence of its officials at the think tank summit adversely affected its reputation. Accordingly, the applicant claims that it ‘was indirectly excluded from any further [eContent sector] programme’. The applicant estimates the amount of damages to its reputation at the ‘symbolic’ amount of EUR 1 000.
74 The Commission disputes the applicant’s arguments.
Findings of the Court
75 First of all, it is apparent from paragraph 34 of the application that the applicant seeks to place in issue both the Community’s contractual and its non-contractual liability. However, it must be stated that the arguments raised by the applicant in the context of its first plea relate only to contractual liability.
76 According to case-law, the jurisdiction of the Community Courts under an arbitration clause to determine a dispute concerning a contract falls to be determined solely with regard to Article 238 EC and the terms of the clause itself (Case C-209/90 Commission v Feilhauer [1992] ECR I‑2613, paragraph 13, and judgment of 12 September 2007 in Case T‑449/04 Commission v Trends, not published in the ECR, paragraph 29).
77 It follows that, in the present case, the Court has jurisdiction pursuant to Article 238 EC and the arbitration clause included in Article 5(2) of the contract at issue.
78 Moreover, in accordance with the first paragraph of Article 288 EC, the contractual liability of the Community is governed by the law applicable to the contract in question, that is to say, Luxembourg law, which is designated by the parties in Article 5(1) of the contract at issue.
79 Although the civil law of Luxembourg allows the parties to a contract to make contractual provision for the possibility of unilateral termination in the case where one of the parties fails to fulfil its obligations, that possibility may be subject to judicial review and misuse thereof may lead to the award of damages (Ravarani, G., La responsabilité civile des personnes privées et publiques, 2nd edition, Pasicrisie luxembourgeoise, Luxembourg, 2006, paragraph 467, citing, by way of example, a judgment of the Cour d’appel of 13 July 2005, No 28210 of the case list).
80 In the present case, Article 7(3)(b) of the general conditions provides that ‘the Commission may immediately terminate this contract … from the date of receipt of the registered letter with acknowledgement of receipt sent by [it] … where the participant directly concerned has not fully performed his contractual obligations despite a written request from the Commission, or the coordinator in agreement with the other contractors, or, in the case of a member, the contractor involved, to remedy a failure to comply with such obligations within a period not exceeding one month’.
81 With regard to the formal requirement under Article 7(3) of the general conditions, namely the sending of a ‘written request from the Commission … to remedy a failure to comply with [the contractual] obligations within a period not exceeding one month’, it should be noted that that condition was fulfilled. In its letter of 28 April 2003, the Commission informed the applicant of a variety of points of criticism raised in the first evaluation report and requested it to present an action plan to resolve the problems identified. Whilst expressly reserving the right to terminate the contract at issue pursuant to Article 7(3)(b) of the general conditions in the event that the action plan proposed should be ineffective, the Commission also pointed out that, if it had to terminate, the letter in question was to be regarded as the written warning required by that article.
82 With regard to the formal requirement under Article 7(3) of the general conditions, namely the fact that the contracting party did not fully perform its contractual obligations, it is necessary to examine in turn the different problems in implementing the contract at issue which have been raised by the Commission.
– The delays in the delivery of certain documents
83 It is clear from the documents in the case-file, and in particular from the evaluation reports, that the applicant did not provide several documents at the precise time laid down in the contract at issue. The applicant itself acknowledged that there had been numerous delays in sending several documents to the Commission. Thus, in a table in paragraph 2.2 of the two six-month progress reports produced by the applicant in accordance with the contract and annexed to the reply, the applicant acknowledges that certain documents were delivered with at least one month’s delay. The same is true of its reply of 12 May 2003 to the first evaluation report. In paragraph 8 of the reply, the applicant even asserted that some of those delays had contributed to a ‘better implementation of [the] project’.
84 Without rebutting the Commission’s detailed contentions concerning those delays, the applicant, by way of defence, invokes principally hindrances for which it was not responsible and which explain the delays in implementation of the project. The necessary conclusion, however, is that none of those obstacles can justify the applicant’s failure to fulfil its own contractual obligations within the respective periods laid down in the contract at issue.
85 First, with regard to the applicant’s arguments that the onus was on the Commission to contact the joint contractor of the PICK project and to initiate contacts with the Greek Presidency with regard to the think tank summit, it should be noted that Article 1(1) of the contract at issue expressly states that it was for the contractors to carry out the work set out in the technical annex. The term ‘contractor’ is defined in Article 1(2) of the general conditions as ‘a legal entity, an international organisation or the Joint Research Centre … which has concluded this contract with the Community’. That term therefore excludes the Commission, which signed the contract at issue for and on behalf of the Community. Furthermore, the applicant was the ‘coordinator’ of the eEBO project and therefore, as such, responsible for the scientific, financial and administrative coordination of all the works in accordance with Article 2(1) of the general conditions.
86 Moreover, as the Commission has correctly pointed out, the description of the tasks in the technical annex demonstrates that it was the applicant which was principally responsible for carrying them out. Therefore, with regard to the think tank summit, for example, paragraph 3.1.4.2 of that annex states that ‘[e]EBO proposes to organise that conference in cooperation with the Greek Presidency’ and, a little later, that ‘[e]EBO will provide the think tank with logistical and organisational support, and draft the declaration of the summit’. The description of Work package 6 covering that summit is even clearer in that respect: ‘[eEBO’s] senior experts, who will play a major role in the organisation of the summit, will produce a strategic theme paper including a draft declaration. Based on close links to the Greek Government, [the eEBO] experts will be in a position to ensure the highly attractive support of the Greek Presidency’. Finally, the applicant acknowledged in paragraphs 17 and 55 of the reply and during the hearing that it ‘[had] never argued that the [Commission] had a contractual obligation to participate [in] the organisation of that event’.
87 Secondly, the applicant’s argument that it was not itself that had failed to fulfil its obligations, but rather its two consultants, must be rejected. Whatever the legal status of those consultants with respect to the contract at issue, the applicant itself is the party which concluded that contract with the Commission. Consequently, it was responsible for the successful implementation thereof vis-à-vis the Commission.
88 The applicant acknowledges as much in its reply of 12 October 2004 to the second evaluation report, in which it maintains that ‘all the personnel involved in the eEBO project from our company are full-time employees or independent consultants who are directly hired by our company, in accordance with the national legislation, [and] they are under the sole technical supervision of our company’. It is likewise stated in Article 6 of the unsigned contract with one of its consultants, which the applicant produced in response to the questions of the Court, that ‘[the applicant] is [ultimately] responsible for the Project results towards the Commission’.
– The partial failure to carry out certain services
89 In order to rebut the Commission’s argument, based on the detailed conclusions of the second evaluation report, to the effect that certain documents were provided only in draft form, the applicant merely repeats several times that those documents ‘were consistent with the contract [at issue]’ or ‘complied with the terms of the contract [at issue]’ without producing those documents so as to allow the Court to assess whether they were consistent with the contract at issue. It must therefore be held that the applicant has not adduced concrete evidence capable of demonstrating that it complied fully with its contractual obligations by delivering the required documents.
90 Thus, with regard to the press review to be supplied, the applicant maintains in paragraph 10 of the reply that that review had been completed and was available online. It must, however, be noted that the address provided does not allow access to the document or make it possible to establish the existence of the press review in question. It would, none the less, have been easy for the applicant to attach that document or to provide a CD-Rom as an annex to the application or the reply. The same applies in regard to the database of press contacts.
91 It must also be stated that, contrary to the applicant’s claims, it is not correct that the Commission ‘never informed [it] on whether something was going wrong in the context of the [eEBO] project between July 2002 and early December 2002, and [that it] never criticised [its performance in the framework of the contract at issue] as being against [its] contractual obligations’. Indeed, Mr O. had already complained of delays in the delivery of certain documents, including the database and the extranet, in an email sent to the applicant on 26 November 2002.
92 Furthermore, the applicant has adduced no evidence of the positive comments allegedly made by the Commission and the reviewers in connection with its publication and data platform. On the contrary, as the Commission stated in paragraph 65 of the rejoinder, the first evaluation report reached the clear conclusion that the platform was not accessible and that the product presented during the review meeting was not satisfactory. The reviewers also reached that conclusion in the second evaluation report after having noted, for example, that the extranet for the press had still not been provided.
93 Finally, the applicant has failed to demonstrate the soundness of its claim that the Commission and the reviewers waited until 17 December 2007 before attempting to access its platform. Quite to the contrary, it is apparent from an email annexed to the defence that Mr O. had tried to connect to the internet site using the access code and password provided by the applicant since December 2002, but that no connection was possible.
– The complete failure to carry out certain services
94 It should be noted that the applicant does not dispute the fact that it did not take part in the previews of two events, but claims that the refusal to take part must be attributed to its two consultants. However, for the reasons stated above, the applicant cannot avoid responsibility on the basis of the failures of its two consultants.
95 Concerning the promotional leaflets, the quarterly compilation of press releases and kits and the quarterly reports on the electronic content sector, the applicant merely maintains, in paragraphs 11 and 12 of the reply, that they ‘were compliant [with] the terms of the contract [at issue]’. The applicant also claims that the promotional leaflets were distributed ‘in an electronic manner’, but nevertheless did not provide copies of those documents in the context of the present dispute. Furthermore, in its reply to the second evaluation report, the applicant made no comment on the lack of delivery of the other documents referred to above.
96 In regard to the document relating to the qualities of the members of the think tank, the applicant acknowledged in its reply to the second evaluation report that it had not delivered that document because of the difficulties which it had encountered in having the think tank summit included on the agenda of the Greek Presidency.
97 Finally, with regard to the press and project extranet, the applicant maintains, in its reply to the second evaluation report, that this was accessible from the platform which it had created. However, in the absence of evidence as to the existence of that platform, the Court is not in a position to determine whether that claim is well founded.
– The delivery of documents inconsistent with the terms of the contract
98 The Commission submits that the applicant also infringed its obligation to deliver to it each document separately and directly.
99 It follows from Article 2(1)(d) of the general conditions and from Article 4 of the contract at issue that each document was to be delivered on the dates laid down in the contract at issue. That is also apparent from the table establishing the due dates for each document included in the technical annex. For that reason the Commission was justified in claiming, in paragraph 30 of its defence, that ‘[i]t is not enough to argue that the [document] is online somewhere and that it would be [the Commission’s] fault if it did not find it’.
– The think tank summit
100 Paragraph 3.1.4 and Work package 6 of the technical annex provided that the applicant was to organise a think tank summit involving sectoral and political representatives at ‘the highest level’. That summit, to be organised ‘preferably in conjunction with the Greek EU Presidency’, was to last for three days and be chaired by ‘a prominent industry leader’. For Work package 6, three documents had to be delivered: first, a ‘strategic and operational plan’ for the event, to be delivered during the third month of the eEBO project; secondly, the details of the participants at that summit, to be delivered during the sixth month; and, thirdly, a declaration with an ‘impact at European level and beyond’, which had to be supplied after the summit, during the 17th month.
101 First of all, concerning the document entitled ‘Strategic and operation plan of think tank’, it is apparent from the documents before the Court that this was delivered to the Commission on 5 February 2003, that is to say, at least three months after the due date provided for in the contract at issue.
102 Next, concerning the details of the participants at that summit, the applicant acknowledged in its reply to the second evaluation report that it had never delivered that document.
103 Finally, the declaration with an ‘impact at European level and beyond’ appears to have been delivered five months early.
104 It should be noted, moreover, that it is not clear that the summit actually lasted three days, as provided for in the contract at issue. The applicant’s statements on this point are contradictory. Whilst maintaining in paragraph 15 of the reply that the summit took place in Athens on 13 June 2003, the applicant claims, in paragraph 21 of that same document, that the ‘live demonstrations of projects, networking sessions, group meetings, brain-storming sessions, etc.’ in reality ‘[took] place on 13, 14 and 15 June 2003’. Since the applicant bears the burden of proof in this regard, it must be concluded that it has not demonstrated that the summit in fact lasted three days as provided for in the contract at issue.
105 Finally, the Commission also states that the applicant organised that event although it had been, first, requested, by letter of 28 April 2003, ‘not [to] undertake any new [eEBO project] activities’, second, notified by letter of 16 May 2003 of the termination of the contract at issue and, third, warned in clear terms by letter of 2 June 2003 of the fact that ‘[that] event [was] not supported by the European Commission and that, naturally, no expenses incurred after the termination of the contract [at issue] [could] be charged to the contract’.
106 It should be noted that Article 7(6) of the general conditions stipulates that ‘contractors shall take appropriate action to cancel or reduce their commitments, upon receipt of the letter from the Commission notifying them of the termination of the contract [at issue]’.
107 Consequently, under that article, the applicant ought to have cancelled the summit or, at least, no longer have undertaken further activities after 16 May 2003. The applicant’s argument that it did not undertake any new actions and merely completed all the actions and activities which had been commenced before 28 April 2003 is therefore not relevant.
108 Furthermore, contrary to the applicant’s claims in paragraph 51 of the application, it is not true that the Commission accepted and validated the organisation of the event by sending a letter to the Greek Presidency on 3 February 2003. As the Commission points out in paragraph 30 of the rejoinder, it is apparent from that letter sent to the Greek Ministry of Economy and Finance that the Commission merely ‘confirmed that [the eEBO project] was an EC funded project and that one of the tasks of the project was to organise a … think tank summit in Greece during the Greek EU presidency’.
109 Finally, concerning the applicant’s argument that ‘the Commission … tried to oblige [it] to transfer against its will the [think tank summit] from Athens to Rome, thus violating the terms of the contract [at issue]’, the only document provided in support of those allegations is an email from its two consultants of 20 January 2003. However, it is apparent from that document that the transfer of the event under the Italian Presidency of the European Union in 2003 was merely a proposal to improve the chances of success of the eEBO project. Furthermore, as the Commission points out in paragraph 31 of the rejoinder, that proposal came from the applicant’s representatives themselves. In any event, even if the Commission had indeed suggested to the applicant that it organise the think tank summit under the following presidency of the European Union, that would not constitute a breach of the contract at issue, because the description in Work package 6 in the technical annex specifies only that that summit was to be organised ‘preferably in conjunction with the Greek EU Presidency’. The summit under the Greek Presidency was therefore not an obligation as to results.
110 Consequently, for the reasons set out above, the applicant has not shown that the Commission acted in breach of its contractual obligations by terminating the contract at issue.
111 Finally, in light of the foregoing considerations, it must be concluded that the Commission acted correctly in law in taking the view that the applicant had not complied in full with its contractual obligations. In those circumstances, it is not necessary to examine the parties’ other arguments as to whether or not it was unlawful for some of the tasks to be subcontracted to the applicant’s consultants or as to the more or less international scope of the think tank summit. The contract at issue was therefore not terminated in breach of the contractual terms binding on the parties to the dispute.
112 The first plea must accordingly be rejected.
The second plea: infringement of the principles of sound administration and transparency, and the existence of a conflict of interest
Arguments of the parties
113 The applicant claims that the Commission infringed the principles of sound administration, transparency and conflict of interest on the ground that the independent project reviewers had a conflict of interest and that the Commission treated the applicant unfairly.
114 First, while pointing out that it did not claim that any prior social or professional relations between consultants and Commission officials or reviewers should be forbidden or regarded a priori as constituting a cause for concern, the applicant nevertheless takes the view that where such relations exist and a third party alleges that those relations interfere with those officials’ assessment, the Commission should act immediately, take the necessary measures and avoid conflicts of interest. The applicant claims that it notified the Commission of the relations between the two experts and certain Commission officials and reviewers and alleges that those relations were the cause of the dysfunctions within the project. According to the applicant, the Commission ought to have taken the necessary measures consisting, at the very least, in organising an independent evaluation of the problems arising from the project, by granting the applicant the basic right to be heard and by conducting an inquiry into its allegations.
115 Secondly, the applicant claims that the Commission interfered in the relations between the two experts and itself, because ‘[t]he project officer did put pressure (on numerous occasions and repeatedly since December 2002) on [the applicant] to implement the instructions of the two experts which were infringing the terms of the contract’.
116 Thirdly, the applicant maintains that it is the same problems of conflicts of interest which were behind the lack of cooperation with the PICK project.
117 The Commission, first of all, contends that the applicant has not established that Luxembourg law permitted it to rely on the infringement of principles such as sound administration, transparency and conflict of interest in the context of contractual liability. According to the Commission, the action must be dismissed as being inadmissible on the ground that those principles are based on non-contractual liability, which is not applicable where the parties are bound by a contract, as in the present case.
118 Secondly, the Commission contends that, in any event, the principles of sound administration, transparency and conflict of interest were not infringed.
Findings of the Court
119 In the context of the present issue, the applicant appears to raise simultaneously the question of the Community’s contractual and non-contractual liability.
120 With regard to the Community’s non-contractual liability, it must be stated that, if the applicant takes the view that the Commission’s decision to terminate the contract at issue caused it damage, it did not, however, indicate in its application whether the infringement of the principles of sound administration and transparency and the conflict of interest are to be construed as giving rise to non-contractual liability on the part of the Community.
121 Under Article 44(1)(c) of the Court’s Rules of Procedure, however, the application must state the subject-matter of the proceedings and a summary of the pleas in law on which the application is based.
122 Pursuant to the case-law, irrespective of any question of terminology, that summary must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the application, if need be without having to seek further information (see, to that effect, Case T-84/96 Cipeke v Commission [1997] ECR II-2081, paragraph 31, and order in Case T-154/98 Asia Motor France and Others v Commission [1999] ECR II-1703, paragraph 49).
123 Consequently, in the absence of a clear and precise summary by the applicant with regard to the Commission’s infringement of its obligations under the general principles relating to individuals under Article 235 EC and the second paragraph of Article 288 EC, there is no need to analyse the question of non-contractual liability.
124 Moreover, as the Community institutions are subject to obligations arising under the general principles raised in relation to individuals exclusively within the framework of the exercise of their administrative responsibilities, and as the relationship between the parties is clearly contractual in nature, the applicant can allege only that the Commission breached contractual terms or the law applicable to the contract at issue.
125 In the present case, it is therefore necessary to examine whether the Commission breached its contractual obligations.
– The Commission’s obligations in the context of the first evaluation
126 First, it should be pointed out that Article 2(2)(h) of the general conditions allows the Commission to organise review meetings. Article 2(3) authorises the Commission to be assisted by independent experts under three conditions. First, it must take all appropriate steps to ensure that experts assisting it during such a meeting treat the data which is communicated to them as confidential. Next, it must communicate the names of those experts to the contractor prior to the meeting. Finally, it must take into account any objections on the part of the participants based on ‘legitimate interests’. The concept of ‘legitimate interest’ is defined in Article 1(27) of the general conditions as ‘any interest, in particular of a commercial nature, of a participant which may be invoked in the cases provided for in [these general conditions] provided that he demonstrates that the damage to that interest is likely, given the circumstances, to cause a specific prejudice that is disproportionate, considering the objectives of the provision in respect of which it is invoked’.
127 In the present case, the Commission cannot be accused of having breached the first condition laid down by Article 2(3) of the general conditions (namely, the adoption of appropriate measures to ensure that the independent experts treat as confidential the information communicated to them) because the first two independent experts both signed a declaration of confidentiality.
128 Concerning, next, the last condition laid down by that article, namely the consideration of the contractor’s objections based on legitimate interests, it should be stated that the applicant has not pleaded infringement of any legitimate interest likely to cause a specific prejudice which would be disproportionate within the terms of the general conditions. By taking part in the review meeting of 20 March 2003, the applicant was in a position to express a view on the essential questions which were the subject of the review (see, to that effect, Case T-29/02 GEF v Commission [2005] ECR II-835, paragraphs 220 and 221) and voluntarily subjected itself to the evaluation committee’s assessments (see, to that effect, Case C‑114/94 IDE v Commission [1997] ECR I‑803, paragraphs 45 to 54). The applicant was also requested by the Commission to respond in writing to the various points of criticism expressed in the first evaluation report, which it did by submitting an action plan on 12 May 2003. It is apparent from the documents before the Court that the Commission took account of the objections set out by the applicant in that response before terminating the contract at issue and that the applicant was therefore given the opportunity to have a proper and fair hearing.
129 Finally, the second condition laid down by Article 2(3) of the general conditions, namely the communication prior to the review meeting of the names of the independent experts assisting the Commission, was not complied with. Nevertheless, the applicant did not make any comments on the choice of those experts in its formal reply to the first evaluation report of 12 May 2003. In those circumstances, the Commission was entitled to form the view that the applicant had implicitly accepted the appointment of those two independent experts as reviewers.
130 Secondly, according to settled case-law, the existence of professional relations between an official and a third party cannot, in principle, imply that the official’s independence is, or appears to be, undermined where that official is called to take a view on a case involving that third party (Case T-89/01 Willeme v Commission [2002] ECR-SC I-A-153 and II-803, paragraph 58; Case T-137/03 Mancini v Commission [2005] ECR-SC I-A-7 and II-27, paragraph 33; and Case T-100/04 Giannini v Commission [2008] ECR-SC I-A-0000 and II-0000, paragraph 224). The existence of such contacts does not, in itself, establish to the requisite legal standard that the relations between those persons went beyond what is normal (Case T-157/04 De Bry v Commission [2005] ECR-SC I-A-199 and II-901, paragraph 35).
131 Thus, the mere fact that one of the independent experts responsible for evaluating the eEBO project or certain Commission officials worked with the applicant’s consultants on a separate project does not in itself suffice to establish a conflict of interest. In addition, the applicant itself states, in paragraph 45 of the application, that it ‘does not argue that any previous social or professional contact between consultants and Commission officials or evaluators should be prohibited or considered a priori as dubious’.
132 In the present case, the applicant has not adduced any facts capable of explaining the extent to which the existence of professional relations between its consultants, certain officials and one of the two first reviewers of the eEBO project might have undermined the independence of those reviewers. On the contrary, it is apparent from the file before the Court, and particularly from paragraphs 2 and 3 of the application and from the unsigned contract between the applicant and one of the two independent experts which was produced by the applicant in response to the Court’s questions, that the applicant recruited the two consultants because of their good relations with the officials involved in the eContent programme. Furthermore, it is common case that the second independent expert responsible for reviewing the eEBO project never had any professional or personal relations with the applicant’s consultants or with the Commission officials responsible for that project.
133 Likewise, the applicant has also adduced no evidence that the Commission officials ‘took the side’ of its consultants or ‘put pressure’ on the applicant to carry out the instructions of those consultants. In paragraph 30 of the reply, the applicant refers to ‘threats’ which it allegedly received from its two consultants. However, it has put forward no evidence to substantiate those allegations.
134 For its part, the Commission stated that it had chosen the independent experts responsible for the review of the eEBO project at random and provided a copy of the declarations of confidentiality and absence of conflicts of interest signed by those experts. The Commission therefore took all the measures necessary to avoid a conflict of interest.
135 As has been pointed out above, it is true that the Commission did not reveal the names of the reviewers prior to the first review meeting of 20 March 2003, as it was required to do by Article 2(3) of the general conditions. Nevertheless, as the Commission correctly noted in its pleadings and in the course of the hearing, that first review was followed by an internal audit, itself followed by a second review carried out by two new independent experts. However, the applicant itself acknowledged during the hearing that the alleged conflict of interest which it had raised related only to the first review.
136 Consequently, in light of the foregoing considerations, the applicant’s arguments relating to the Commission’s obligations in connection with the first review must be rejected.
– The Commission’s obligations in the context of the internal audit
137 The applicant complains that the Commission failed to communicate to it the result of its internal audit carried out in April 2004 and did not invite it to submit its observations.
138 Suffice it to note that the Commission has the right to request an internal audit from its audit service in accordance with Chapter 8 of Title IV 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) (see also 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)). There is no obligation to communicate the result of such audits to third parties. Furthermore, the internal auditors enjoy complete independence in the performance of their audits, with the result that they can freely decide whom to question and under what conditions. Consequently, the applicant’s arguments in that context must be rejected.
– The Commission’s obligations in the context of the second review
139 The second review was based on Article 18(1) of the general conditions. Under that article, ‘[t]he Commission, or any representative authorised by it, may initiate a technical verification in respect of a participant up to the contract completion date in order to verify that the project is being or has been carried out in accordance with the conditions indicated by the contractor’. Article 18(2) states that ‘[p]rior to the carrying out of the technical verification, the Commission [had to] communicate to the participants the identity of the authorised representatives who [were] intended to perform the verification’ and ‘[had to] take account of any objection on the part of participants based on legitimate interests’. Finally, Article 18(4) adds that ‘[a] report on the technical verification of the project [had to] be sent to the contractor concerned’, who could ‘communicate his observations to the Commission within a month’.
140 In the present case, the Commission in fact notified the identity of the reviewers to the applicant in a letter of 14 June 2004, that is to say, before conducting the technical assessment. The two reviewers also signed declarations of confidentiality and of absence of conflicts of interest. Although the Commission does not appear to have formally requested the applicant to communicate to it its observations on the assessment report within one month, as it ought to have done under Article 18 of the general conditions, suffice it to state that, de facto, the applicant was in a position to submit its observations on that report in a letter of 12 October 2004. It should also be noted that, in the letters of 10 November and 22 December 2004, the Commission took those observations into account in concluding that they did not address the problems identified. In those circumstances, the Commission cannot be accused of having breached the terms of the contract at issue.
– The alleged interference of the Commission in the relations between the applicant and its two consultants
141 The applicant submits that the Commission unlawfully interfered in its relations with its two consultants.
142 It must be stated that the applicant has not adduced any evidence in support of its allegations. The only document which it has provided is the transcript of a telephone conversation of 10 December 2002 between Mr O. and one of its employees. However, that document does not in any way indicate that the Commission unlawfully interfered in the relations between the applicant and its consultants. Furthermore, the applicant has provided no evidence showing that the Commission had requested it ‘to take actions ([that is to say] execute payments in favour of the consultants which were not in proportion with the quality and the quantity of the services delivered by them), [without regard to] the contractual obligations of the parties’.
143 It follows from the foregoing considerations that the second plea must be rejected as unfounded.
144 In the light of all the above considerations, the action must be dismissed in its entirety.
Costs
145 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.
On those grounds,
THE GENERAL COURT (Fourth Chamber)
hereby:
1. Dismisses the action;
2. Orders Evropaïki Dynamiki – Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE to pay the costs.
Delivered in open court in Luxembourg on 9 February 2010.
[Signatures]