Judgment — ECLI:EU:T:2008:160
Date: 2008-05-21
Language of the case: French
Court formation: Fifth Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Public procurement in the European Union
Concepts: General;Admissibility and examination of applications, forms of order sought and pleas in law;Abnormally low tenders;Locus standi;Damage for which compensation is payable
Procedure: Action for annulment - unfounded;Action for damages - unfounded;Action for annulment - successful
Origin: Belgium

summary of the pleas in law relied on, and that new pleas in law may not be introduced in the course of the proceedings unless they are based on matters of law or of fact which come to light in the course of the procedure. However, a submission or argument which may be regarded as amplifying a plea made previously, whether directly or by implication, in the original application, and which is closely connected therewith, will be declared admissible (Case 108/81 Amylum v Council [1982] ECR 3107, paragraph 25; Case 306/81 Verros v Parliament [1983] ECR 1755, paragraph 9; and Case T-216/95 Moles García Ortúzar v Commission [1997] ECR-SC I‑A‑403 and II‑1083, paragraph 87). 88 The case-law also provides that, under Article 139(1) of the Implementing Rules, the contracting authority is obliged to allow the tenderer to clarify, or even explain, the characteristics of its tender before rejecting it, if it considers that a tender is abnormally low (Case T-148/04 TQ3 Travel Solutions Belgium v Commission [2005] ECR II‑2627, paragraph 49). 89 In the present case, the Court finds that, in paragraph 17 of its application, the applicant places particular reliance, in support of it action against the decision of 13 October 2004, in so far as it relates to Lot No 2, on the infringement of the general principle of sound administration, infringement of the principle of non-discrimination and a manifest error of assessment, in that its tender was rejected, without being given further consideration, on the sole ground that the total number of hours of work in that tender was more than 12.5% lower than the average of the total number of hours proposed. Similarly, in paragraph 26 of its application, it submits that the implementation of that criterion is discriminatory in that it leads to the automatic exclusion, without further consideration, of objectively more advantageous tenders. It follows that the applicant, in its application, expressly criticised the Council for having rejected its tender without further consideration, by reason of its being abnormally low. 90 It follows that although the fourth plea, alleging infringement of Article 139(1) of the Implementing Rules, was not expressly raised by the applicant until its reply, that plea represents an amplification of the three pleas put forward in the original application and is closely connected with them. That plea must accordingly be declared admissible. – The substance of the action against the decision of 13 October 2004, in so far as it relates to Lot No 2 91 As was mentioned in paragraph 89 above, the three pleas raised in the application and alleging infringement of the principle of sound administration, a manifest error of assessment and infringement of the principle of non-discrimination essentially seek to show that the Council was wrong not to invite the applicant, prior to the automatic elimination of the latter’s tender by reason of the abnormally low number of hours proposed by the applicant and in accordance with the principle that the constituent elements of that tender should be verified after due hearing of the parties laid down in Article 139(1) of the Implementing Rules, to provide it with evidence that the tender was a genuine one. Consequently, it is appropriate to start by examining the fourth plea, alleging infringement of Article 139(1) of the Implementing Rules. 92 In that respect, it is necessary, in the first place, to determine whether the concept of abnormally low tender extends, as the Council submits, only to the price criterion in the tender assessed by the contracting authority or, as the applicant essentially claims, that concept also extends to other criteria which apply to the evaluation of tenders. 93 According to the case-law, since the requirements laid down by Article 29(5) of Council Directive 71/305/EEC of 26 July 1971 concerning the coordination of procedures for the award of public works contracts (OJ, English Special Edition 1971 (II), p. 682), by Article 37(1) of Directive 92/50 and by Article 30(4) of Directive 93/37 are in substance identical to those laid down by Article 139(1) of the Implementing Rules, the following considerations apply equally in relation to the interpretation of the last-mentioned provision (see, by way of analogy, Joined Cases C-285/99 and C-286/99 Lombardini and Mantovani [2001] ECR I‑9233, paragraph 50). 94 It must also be pointed out that the Court of Justice held in paragraph 67 of the judgment in Lombardini and Mantovani, cited in paragraph 93 above, that it was undisputed that Article 30(4) of Directive 93/37 did not define the concept of an abnormally low tender and, a fortiori, did not determine the method of calculating an anomaly threshold. In the same case, the Advocate General was of the opinion that the concept of an abnormally low tender was not an abstract one, but was very precise and had to be determined for each contract according to the specific purpose it was intended to fulfil (Opinion of Advocate General Ruiz-Jarabo Colomer in Lombardini and Mantovani, cited in paragraph 93 above, points 32 and 35). 95 In the present case, the Court finds, first, that there is no definition of the anomaly threshold and of the concept of abnormally low tender, within the meaning of Article 139(1) of the Implementing Rules, in the Financial Regulation or the Implementing Rules. Secondly, there is no express provision in that article to the effect that the concept of abnormally low tender cannot be applied to criteria other than that of price. 96 Consequently, in order to define the material scope of the concept of abnormally low tender within the meaning of Article 139(1) of the Implementing Rules, it is necessary, first of all, to take as a basis the objective pursued by that provision. 97 As was mentioned in paragraph 88 above, where a contracting authority considers that a tender is abnormally low, Article 139(1) of the Implementing Rules obliges it to allow the tenderer to clarify or even to explain the nature of its tender before rejecting that tender. More precisely, it is clear from the case-law that it is essential that each tenderer suspected of submitting an abnormally low tender should have the opportunity effectively to state its point of view in that respect, giving it the opportunity to supply all explanations as to the various elements of its tender at a time when it is aware not only of the anomaly threshold applicable to the contract in question and of the fact that its tender has appeared abnormally low, but also of the precise points which have raised questions on the part of the contracting authority (Lombardini and Mantovani, cited in paragraph 93 above, paragraph 53). At the same time, the Court of Justice stated that the existence of a proper exchange of views, at an appropriate time in the procedure for examining tenders, between the contracting authority and the tenderer constitutes a fundamental requirement, in order to prevent the contracting authority from acting in an arbitrary manner and to ensure healthy competition between undertakings (Lombardini and Mantovani, cited in paragraph 93 above, paragraph 57). 98 It follows that Article 139(1) of the Implementing Rules enshrines a fundamental requirement in the field of public procurement, which obliges a contracting authority to verify, after due hearing of the parties and having regard to its constituent elements, every tender appearing to be abnormally low before rejecting it. 99 Next, the Court notes that Article 97(2) of the Financial Regulation provides that contracts may be awarded by the automatic award procedure or by the best-value-for-money procedure and that, as regards the latter form of procedure, Article 138(2) of the Implementing Rules states that the tender to be accepted is the one with the best price-quality ratio, taking into account criteria justified by the subject of the contract such as the price quoted, technical merit, aesthetic and functional characteristics, environmental characteristics, running costs, profitability, completion or delivery times, after-sales service and technical assistance. 100 The Court is accordingly of the view that, where the contract is awarded to the tender offering best value for money, the fundamental requirement referred to in paragraph 98 above applies not only to the price criterion under the tender evaluated but also to the other criteria referred to in Article 138(2) of the Implementing Rules, since those criteria allow an anomaly threshold to be determined beneath which a tender submitted in the tender procedure in question is suspected to be abnormally low, within the meaning of Article 139(1) of the Implementing Rules. 101 In the second place, it is necessary to determine in the light of the above whether the Council was, as the applicant submits, obliged in the present case to comply with the procedure for verification after due hearing of the parties laid down in Article 139(1) of the Implementing Rules. 102 In that regard, the Court notes that the award procedure in question was that of the tender offering best value for money. In addition, it is not in dispute that, of the criteria which were relevant, the criterion regarding the average of the total number of hours proposed related to the qualitative aspect of the applicant’s tender and constituted one of the various elements of its tender for the purposes of the case-law referred to in paragraph 97 above. Lastly, in accordance with the provisions of the specifications referred to in paragraph 16 above, that criterion allowed an anomaly threshold to be determined, beneath which the tender in question was to be automatically eliminated. 103 As is clear from the Council’s letter of 22 October 2004 and as the Council expressly confirmed at the hearing in reply to a question from the Court, it is on the basis of the latter criterion that the applicant’s tender was rejected, on the sole ground of the excessively low nature of the total number of hours included in that tender. Moreover, it is plain that the Council did not arrange any hearing of the parties, within the meaning of Article 139(1) of the Implementing Rules, in relation to the applicant’s tender prior to its being eliminated automatically. 104 That being the case, the Council has infringed the provisions of Article 139(1) of the Implementing Rules. 105 That conclusion cannot be affected by the fact that, as the Council argues in its reply, while the applicant’s total number of hours was 25.2% lower than that of the successful tenderer, its total price was, by contrast, 3.7% beneath that of that tenderer. It is sufficient to point out once again that, as is clear from the Council’s letter of 22 October 2004, the applicant’s tender was excluded on the sole ground that the total number of hours included in that tender was excessively low. 106 It follows from the foregoing that the fourth plea, alleging infringement of Article 139(1) of the Implementing Rules, is well founded. 107 Consequently, without it being necessary to rule on the merits of the first three pleas raised in support of the action for annulment, the decision of 13 October 2004 should be annulled, in so far as it relates to Lot No 2. The claims for damages Arguments of the parties 108 The applicant considers that the wrongful rejection of each of its tenders by the Council has caused it damage and seeks compensation for that damage, which it assesses, by multiplying the annual price of its tender by the period of the contract (three years), at EUR 1 481 317.65, together with interest at the rate of 7% a year. 109 With respect to the existence of a wrongful act, it submits that the Council plainly committed a serious and manifest wrongful act, as regards Lot No 1, by failing to verify that its tender was correct and, as regards Lot No 2, by infringing the provisions of the Financial Regulation and the Implementing Rules. 110 With regard to the actual harm suffered, the applicant argues that the wrongful rejection of each of its tenders has led to a considerable loss of profits, which threatens its very survival. 111 First, and in the alternative, the applicant invites the Court, should the latter not be satisfied in the present case with its claims for compensation for the damage suffered by it as a result of the rejection of each of its tenders, to make an immediate award in its favour of EUR 500 000 by way of interim damages. Secondly, it proposes that prior to adjudicating definitively on the amount of the damages the Court should appoint an accountant to calculate the profits, both direct and indirect, that it would have earned from the award of each of the contracts. 112 As regards the existence of a causal link between the wrongful act and the damage suffered, the applicant is of the view that the principle of proximate causes requires that the Court examine whether it would have suffered the same damage in the absence of any wrongful act committed by the Council. It argues in that regard that since the Council excluded both of its tenders automatically it is not possible in the present case to assess the damage in this way. 113 According to the applicant, since the Council did not annex the original evaluation report to its defence, the Court cannot scrutinise the Council’s reasoning and determine on what basis the applicant’s tenders might, even without the Council acting wrongfully, have been excluded from the tender procedure at issue. 114 The Council considers, as regards Lot No 1, that it did not commit any manifest error of assessment. It adds that, even if it were to be accepted that it should be held liable for such an error, the applicant has not established that such an error was serious and manifest, that there was any actual harm suffered or the existence of a causal link between them. 115 As regards Lot No 2, the Council is of the view that it did not infringe the principles of sound administration and non-discrimination, and that it also did not commit a manifest error of assessment. It adds that, even if it were to be accepted that it should be held liable for such an infringement, the applicant has not established that such an error was serious and manifest, that there was any actual harm suffered or the existence of a causal link between them. 116 It submits that, contrary to what the applicant maintains, the criteria for awarding marks in respect of Lot No 2 clearly allowed it to evaluate the applicant’s tender. The Council notes that 75% of those marks were allocated pursuant to calculations based on information provided by tenderers, while the remaining 25% were allocated pursuant to the evaluation that had been carried out. 117 Lastly, under reference to an ‘ordinary’ evaluation (described by the Council as being ‘based on the documentation actually submitted by the applicant on the assumption that it was not excluded from the tender process’) and a ‘theoretical’ evaluation (described by the Council as being ‘based on the award to the applicant [of the maximum number of marks awarded] to the tenderer who was given the highest number of marks for each criterion, save where the criterion is based on mathematical information contained in the tender’), the Council claims that it can show that, as regards both Lot No 1 and Lot No 2, the applicant’s tenders did not rank first and that, as a result, the requirement that actual harm must have been suffered is not satisfied in the present case. 118 In any event, both as regards Lot No 1 and Lot No 2, even if the Court were, contrary to all probability, to accept the applicant’s claims for damages, the Council is of the view that the damages sought by the applicant should be recalculated and limited to the net annual profits which it can show it would have earned under the contract in question. Findings of the Court 119 It is settled case‑law that, in order for the Community to incur non‑contractual liability under the second paragraph of Article 288 EC for unlawful conduct of its institutions, a number of conditions must be satisfied: the institution’s conduct must be unlawful, actual damage must have been suffered and there must be a causal link between the conduct and the damage pleaded (Case 26/81 Oleifici Mediterranei v EEC [1982] ECR 3057, paragraph 16; Case T-175/94 International Procurement Services v Commission [1996] ECR II‑729, paragraph 44; Case T-336/94 Efisol v Commission [1996] ECR II‑1343, paragraph 30; and Case T-267/94 Oleifici Italiani v Commission [1997] ECR II‑1239, paragraph 20). 120 Where one of those conditions is not satisfied, the action must be dismissed in its entirety and it is unnecessary to examine the other conditions (Case C-146/91 KYDEP v Council and Commission [1994] ECR I-4199, paragraphs 19 and 81, and Case T‑170/00 Förde-Reederei v Council and Commission [2002] ECR II‑515, paragraph 37). 121 Although the applicant invokes a right to damages on the basis of the loss it claims to have suffered by reason of the rejection of each of its tenders, taken together, it is necessary to consider its claims for damages by distinguishing between that part of the decision of 13 October 2004 which relates to Lot No 1 and that part of the decision which relates to Lot No 2. The claims for damages with respect to Lot No 1 122 It is settled case-law that an application for compensation for damage must be dismissed where there is a close connection between it and an application for annulment which has itself been dismissed (see Case T-340/99 Arne Mathisen v Council [2002] ECR II‑2905, paragraph 134 and the case-law cited). 123 Since the claims for damages in respect of Lot No 1 were rejected, on the basis that the applicant’s allegations of unlawfulness were unfounded, and since the application for damages is closely connected with those claims, the latter must be rejected as regards Lot No 1. The claim for damages with respect to Lot No 2 124 The applicant seeks damages in the amount which it would have invoiced to the Council had the contract, and thus inter alia Lot No 2, been awarded to it. That claim must therefore be understood as being based not on the loss of an opportunity to enter into the contract but on the loss of the contract itself. 125 However, the applicant puts forward no evidence to show that, had the unlawful conduct established in relation to Lot No 2 not taken place, it would have been certain that it would have been awarded that lot of the contract. Put at its highest, it submits that since the Council did not annex its original evaluation report to its pleadings it is impossible to verify on what basis the applicant’s tenders could have been excluded from the disputed tender procedure, even if the Council had not acted wrongfully. 126 In that last regard, since the Council has, in reply to a written question put by the Court, produced the original evaluation report and that report has been notified to the applicant, the only finding the Court can make is that the latter would in any event not have been awarded the contract in respect of Lot No 2, even in the absence of the unlawful conduct established in paragraph 106 above. The applicant’s tender is ranked in the original evaluation report produced by the Council in eighth and last place. 127 It follows that the damage alleged by the applicant with respect to Lot No 2, that is to say, the loss of the contract itself, is not actual and certain, but hypothetical, with the result that it cannot give rise to compensation. That, of itself, is sufficient to reject the claim for damages. In addition and for the avoidance of doubt, there is nothing to suggest, nor does the applicant put forward anything to show, that by reason of the unlawful conduct that has been established it lost even an opportunity to obtain the contract. 128 Consequently, the applicant’s claim for damages in respect of Lot No 2 must be rejected. 129 It follows from all of the above that the claims for damages must be rejected in their entirety. Costs 130 Pursuant to Article 87(3) of the Rules of Procedure, the Court of First Instance may order that the costs be shared or that each party bear its own costs where each party succeeds on some and fails on other heads. In the circumstances of the present case, each party must be ordered to bear its own costs. On those grounds, THE COURT OF FIRST INSTANCE (Fifth Chamber) hereby: 1. Annuls the decision of the Council of the European Union of 13 October 2004 to reject the tenders of Belfass SPRL under tender procedure UCA‑033/04, in so far as that decision rejected Belfass’ tender with respect to Lot No 2; 2. Dismisses the action as to the remainder; 3. Orders each party to bear its own costs. Vilaras Martins Ribeiro Jürimäe Delivered in open court in Luxembourg on 21 May 2008. E. Coulon M. Vilaras Registrar President Table of contents Legal context Facts Procedure and forms of order sought The admissibility of the action against the decision of 13 October 2004, in so far as it relates to Lot No 2 Arguments of the parties Findings of the Court Substance The action against the decision of 13 October 2004, in so far as it relates to Lot No 1 Arguments of the parties Findings of the Court The action against the decision of 13 October 2004, in so far as it relates to Lot No 2 Arguments of the parties Findings of the Court – The admissibility of the fourth plea, alleging infringement of Article 139(1) of the Implementing Rules – The substance of the action against the decision of 13 October 2004, in so far as it relates to Lot No 2 The claims for damages Arguments of the parties Findings of the Court The claims for damages with respect to Lot No 1 The claims for damages with respect to Lot No 2 Costs * Language of the case: French.