Judgment — ECLI:EU:T:1998:302
Date: 1998-12-17
Language of the case: French
Court formation: Fourth Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Public procurement in the European Union
Concepts: Proceedings relating to a contract;Principle of the protection of legitimate expectations;Equal treatment and transparency;Communication with tenderers;Extent of judicial review;General;Refund of expenses
Procedure: Arbitration clause
Origin: Belgium

Summary of the Judgmen t 
1. Procedure — Reference to the Court of Justice on the basis of an arbitration chuse — Condi­
tion — Existence of a valid contract — Contract governed by Directive 92/50 requiring a 
written agreement — Requirement not fulfilled — Application inadmissible 
(EC Treaty, Art. 181; Council Decision 88/591; Council Directive 92/50, Art. 1) 
2. European Community public procurement contracts — Conclusion of a contract f ottowing an 
invitation to tender — Discretion of the institutions —Judicial review — Limits 
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SUMMARY — CASE T-203/96 
3. Community Uw — Principles — Protection of legitimate expectations — European Commu­
nity public procurement contracts — Tenderer encouraged, before the contract is awarded, to 
make irreversible investments — Community's non-contractual liability thereby incurred 
4. European Community public procurement contracts— Tendering procedure — Obligation to 
comply with the principles of the equal treatment of tenderers and of transparency and to 
adopt a coherent line of conduct 
5. European Community public procurement contracts — Tendering procedure — Expenses 
incurred by a tenderer — Right to compensation — None 
1. The jurisdiction of the Court of First 
Instance, on the basis of the combined 
provisions of Decision 88/591, as 
amended, and Article 181 of the Treaty, to 
hear actions brought before it by natural 
or legal persons pursuant to an arbitra­
tion clause presupposes that the contract 
containing the clause is a valid contract. 
An application made on the basis of an 
arbitration clause provided for in a frame­
work contract forming part of an invita­
tion to tender for the award of a contract 
by a Community institution is therefore 
inadmissible, where the framework con­
tract has never been signed, in so far as 
such a contract is governed by Directive 
92/50, which defines the contracts con­
cerned as contracts concluded in writing. 
In that last regard, the existence of a valid 
contract cannot be inferred from the fact 
that a committee on procurements and 
contracts — an advisory body within the 
institution at issue — has given an opin­
ion in favour of awarding the contract to 
the applicant, notwithstanding the impor­
tance generally accorded, in practice, to 
such an opinion in connection with an 
invitation to tender. 
2. The institutions have a broad discretion 
in assessing the factors to be taken into 
account for the purpose of deciding to 
award a contract following an invitation 
to tender, and the Court's review should 
be limited to checking that there has been 
no serious and manifest error. 
3. The right to rely on the principle of the 
protection of legitimate expectations 
extends to any individual who is in a situ­
ation in which it is apparent that the 
Community administration has led him 
to entertain justified expectations. 
Although it is true, in that regard, that 
traders must bear the economic risks 
inherent in their activities and that, in 
connection with a tendering procedure 
for a public procurement contract, those 
economic risks include, inter alia, the 
costs connected •with the preparation of 
the bid, there may be a breach of the 
principle of the protection of legitimate 
expectations capable of giving rise to 
liability on the part of the Community 
where, before the contract in question is 
awarded to the successful tenderer, a ten­
derer is encouraged by the contracting 
institution to make irreversible invest­
ments in advance and thereby to go 
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EMBASSY LIMOUSINES & SERVICES v PARLIAMENT 
beyond the risks inherent in the business 
under consideration, consisting in making 
a bid. 
4. In procedures for concluding public pro­
curement contracts, the contracting insti­
tution must comply, at each stage of a 
tendering procedure, not only with the 
principle of the equal treatment of tender­
ers, but also with the principle of trans­
parency. Therefore, a person who is 
closely involved in a tendering procedure 
and who has even been judged to be the 
successful tenderer, must receive, without 
any delay, precise information concerning 
the conduct of the entire procedure. 
Furthermore, the institution is obliged to 
show a coherent and consistent attitude 
towards its tenderers. Any interventions 
by various administrative and political 
bodies within that institution cannot 
therefore justify the failure to comply 
with its obligations to the tenderers. 
5. It is clear from the General Terms and 
Conditions applicable to the Communi­
ties' public procurement contracts that 
the contracting institution is not liable for 
any compensation with respect to tender­
ers whose tenders have not been accepted. 
It follows that the charges and expenses 
incurred by a tenderer in connection with 
his participation in a tendering procedure 
cannot in principle constitute damage 
capable of being remedied by the award 
of damages. 
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