Judgment — ECLI:EU:T:2011:609
Date: 2011-10-20
Language of the case: English
Court formation: Seventh Chamber
Subject matter: Public procurement in the European Union
Procedure: Action for damages - unfounded;Action for annulment - successful
Origin: Belgium

summary of that evaluation. In the absence of information concerning the evaluation itself, it must be held that the applicant was not in a position in the present case to understand the various scores which the contracting authority awarded to the Alfastar‑Siemens consortium’s tender in respect of the different technical award criteria. 41 Nor, for all those reasons, is the Court in a position properly to review the lawfulness of the contested decision and determine in particular whether that decision contains a manifest error of assessment. 42 In those circumstances, it must be held that the contested decision is flawed by inadequate reasoning. In that regard, the Council does not plead or, a fortiori, demonstrate that there are any exceptional circumstances that would justify clarification of the reasons for the contested decision after the present action was brought. 43 The decision of 1 December 2008 must therefore be annulled, without there being any need to adjudicate on the other pleas put forward by the applicant. The claim for damages 44 As a preliminary point, it should be stated that the only head of damage claimed by the applicant and for which it seeks compensation is the loss of the public contract; it is not claiming damages in respect of the costs it incurred in taking part in the tender procedure. 45 In accordance with settled case-law, for the Community to incur non-contractual liability under the second paragraph of Article 288 EC for unlawful conduct on the part of its institutions, a set of conditions must be fulfilled, namely the unlawfulness of the conduct alleged against the institutions, the fact of damage and the existence of a causal link between that conduct and the damage complained of (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). If any of those conditions is not satisfied, the application must be dismissed in its entirety without its being necessary to examine the other conditions (see, to that effect, Case C‑146/91 KYDEP v Council and Commission [1994] ECR I‑4199, paragraph 81). 46 It is in the light of those considerations that the Court must examine whether the conditions establishing non-contractual liability on the part of the Community have been satisfied. 47 It should be noted that the claim for damages is based on the same pleas of unlawfulness as those put forward in support of the claim for annulment of the contested decision. 48 As has already been noted in the context of the claim for annulment of the contested decision, that decision is flawed by inadequate reasoning and must therefore be annulled. 49 It is clear, however, that, even if the Council did not give adequate reasons for the contested decision, that does not mean that the award of the contract to the successful tenderer constitutes wrongful conduct or that there is a causal link between that fact and the loss alleged by the applicant (see, to that effect, Case T‑4/01 Renco v Council [2003] ECR II‑171, paragraph 89). Indeed, there is no ground for concluding that the Council would have awarded the contract in question to the applicant if that decision had been adequately reasoned. 50 It follows that the claim for damages in respect of the alleged damage suffered as a result of the contested decision must, in so far as it is based on the inadequate reasoning of that decision, be rejected as unfounded. 51 In so far as the claim is based on the allegations of unlawfulness made by the applicant in the context of the other pleas put forward in support of the claim for annulment of the contested decision, the Court is not in a position to consider whether the conditions are met in the present case for the Council to incur non‑contractual liability. First, it necessarily follows from the considerations put forward above concerning the inadequate reasoning for the contested decision that the Court is not in a position to consider the merits of the other allegations of unlawfulness made by the applicant that might give rise to liability on the part of the Council. Second, the fact that the report of the evaluation committee appears as an annex to the Council’s pleadings does not make it possible to establish whether there was unlawful conduct on the part of the Council, since it is not apparent from the parties’ pleadings that the contracting authority agreed with everything in that report. Thus, a claim for annulment based on the allegations of unlawfulness made in the context of pleas of manifest errors of assessment and infringement of the principle of equal treatment and the obligation of transparency can be examined, if necessary, only in the light of the grounds of the decision which replaces the contested decision, following the latter’s annulment by the Court. 52 It is clear from the foregoing that the claim for damages appears to be premature and must be rejected on that ground (see, to that effect, Case T-478/93 Wafer Zoo v Commission [1995] ECR II-1479, paragraphs 49 and 50, and Case T-300/97 Latino v Commission [1999] ECR-SC I-A-259 and II-1263, paragraphs 95 and 101). 53 It follows that the claim for damages must be rejected in its entirety. Costs 54 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. 55 Since the applicant has applied for costs and the Council has essentially been unsuccessful, the latter must be ordered to pay the costs On those grounds, THE GENERAL COURT (Seventh Chamber) hereby: 1. Annuls the Council’s decision of 1 December 2008 to reject the tender submitted by the consortium composed of Alfastar Benelux SA and Siemens IT Solutions and Services SA, in response to Call for Tenders UCA/218/07 for the provision of technical maintenance – help desk and on-site intervention services for the PCs, printers and peripherals of the General Secretariat of the Council and to award the contract to another tenderer; 2. Dismisses the claim for damages; 3. Orders the Council of the European Union to pay the costs. Dittrich Wiszniewska-Białecka Prek Delivered in open court in Luxembourg on 20 October 2011. [Signatures] * Language of the case: English.