Judgment — ECLI:EU:T:2002:288
Date: 2002-11-28
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;Public works, supply and services contracts
Procedure: Action for damages - unfounded
Origin: Belgium

Summary of the Judgment 
1. Non-contractual liability — Conditions — Procedures for the award of public supply 
contracts — Unlawfulness of alleged conduct — Damage — Causal link — None 
(Art. 288, second para., EC; Council Directive 93/36) 
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SUMMARY — CASE T-40/01 
2. Approximation of laws — Procedures for the award of public supply contracts — 
Directive 93/36 — Negotiated procedures — Power of the contracting authority to 
negotiate — Limits 
(Council Directive 93/36, Art 1(f)) 
3. Procedure — Production of new pleas in law in the course of proceedings — 
Conditions — Amplification of an existing plea — Whether permissible 
(Rules of Procedure of the Court of First Instance, Art. 48(2)) 
1. In order for the Community to incur 
non-contractual liability, the applicant 
must prove the unlawfulness of the 
conduct alleged against the institution 
concerned, actual damage and the 
existence of a causal link between that 
conduct and the damage pleaded. If 
one of those conditions is not satisfied, 
the action must be dismissed in its 
entirety without its being necessary to 
examine the other conditions of non­
contractual liability. 
With respect to the first condition, 
which relates to unlawful conduct, 
there was a serious fault in the Com­
mission's conduct where, in the course 
of a tender procedure published pur­
suant to Directive 93/36 coordinating 
procedures for the award of public 
supply contracts, it repeatedly denied 
the existence of documents which in 
reality existed and refused to communi­
cate those documents or extracts from 
the successful bid, but, when an action 
was brought before the Court of First 
Instance, communicated those docu­
ments on its own initiative and without 
the slightest reservation. However, 
although the Commission committed a 
number of serious faults during that 
procedure which, individually or at the 
very least taken together, must be 
regarded as fulfilling the first of the 
three conditions necessary for the non­
contractual liability of the Community 
to be incurred, the unsuccessful bidder 
failed to show that the Commission 
should have awarded it the contract. 
(see paras 18, 26-27, 107, 121) 
2. As regards Directive 93/36 coordinat­
ing procedures for the award of public 
supply contracts, even if the contract­
ing authority has a certain margin of 
discretion in the context of a negoti­
ated procedure, it is always bound to 
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SCAN OFFICE DESIGN v COMMISSION 
ensure observance of the terms and 
conditions of the tender specifications 
which it has freely chosen to make 
mandatory. 
(see para. 76) 
3. Under Article 48(2) of the Rules of 
Procedure of the Court of First Instance 
no new plea in law may be introduced 
in the course of proceedings unless it is 
based on matters of law or of fact 
which have come to light in the course 
of the procedure. Thus, arguments 
which cannot be regarded as amplify­
ing, directly or by implication, pleas 
already put forward in the original 
application and closely connected 
therewith are inadmissible. 
(see para. 96) 
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