Judgment — ECLI:EU:T:2011:73
Date: 2011-03-03
Language of the case: English
Court formation: Eighth Chamber
Subject matter: Public procurement in the European Union
Procedure: Action for annulment - unfounded;Action for damages - unfounded
Origin: Greece

summary of the evaluation report, it admits that the reasoning is inadequate. 38 The Commission disputes those arguments. Findings of the Court 39 First of all, it should be noted that in the context of the action for annulment only the arguments relating to the third award criterion are relevant. The applicant’s plea is broken down into three parts, referring to the number of days indicated for carrying out the works, the role of the environmental experts and the presence of a quality manager. – The number of days indicated for the performance of the works 40 In its report, the evaluation committee observed that ‘[t]he suggested number of days to execute the work of the tasks seem[ed] unrealistically low’ and that ‘this raise[d] serious doubts as to whether the objectives [could] be delivered appropriately’. 41 In that connection, it must be recalled that, in its tender, the applicant had suggested 45 person-days for the management of the project, while the estimate in the tender specifications was 60 person-days. As the evaluation committee noted in its report, the number of person-days suggested by the applicant is therefore 25% lower than the indicative estimate provided in the invitation to tender at issue. The Court considers, and the applicant admitted at the hearing, that such a discrepancy requires a convincing explanation. 42 First, in that connection, the applicant relies on the fact that this was a fixed-price bid. Therefore, it seems to indicate that, from a strictly financial point of view, the number of person-days is unimportant to the Commission, because any underestimate would be entirely the applicant’s responsibility. However, in the present context, the indication of the number of person-days provided for is relevant, principally in order to assess the reliability of the applicant’s offer. It is to that aspect that the evaluation committee’s remark refers when it stated that the number of days indicated for the performance of the works was 25% lower than the indicative estimate in the call for tenders at issue. In that regard the Commission harboured ‘serious doubts’. Taking account of the fact that that estimate was based on the Commission’s past experience with respect to the proper implementation of similar tasks, it must be concluded that such an assessment is not manifestly incorrect. Finally, in the context of a fixed-price bid, fewer person-days does not represent an advantage to the Commission. 43 Second, the alleged experience of the applicant’s experts is also unable to explain that discrepancy. In that regard, however, the Court does not share the Commission’s view that the applicant’s experience is irrelevant for the assessment of the award criteria. Although it is true, in general, that that factor is taken into account in order to assess whether the bid is able to satisfy the selection criteria and not in the assessment of the award criteria, it must be observed that the applicant does not rely on its experience as an award criterion in itself, but only in order to justify the reduced number of person-days provided for. In that context, more experience would, in principle, be able to explain such a difference between their estimates. 44 However, the applicant has not established that its team had more experience. In that connection, the Commission states that the experience relied on is unrelated to software similar to those used in the CITL and the CR, namely real-time systems. The applicant has indeed challenged that assertion, but its arguments are not convincing. First of all, its assertion that the Commission introduced the term ‘real-time systems’ for the first time in its defence, amending a posteriori the content of the tender specifications, is unfounded. The Commission merely pointed out that the experience relied on concerned ‘information gathering and dissemination software/websites’, that ‘[n]one of these software [was] similar to a real-time system like the CITL, and none of these [was] subject to Emission Trading Scheme rules and regulations.’ Therefore, it took the view that ‘the alleged experience was not relevant for the assessment of the question whether or not the team could perform the requested services in 45 days’. Since the applicant had mentioned its experience, the Commission evaluated it in order to ascertain whether it could explain the discrepancy found. The fact that the software used were real-time systems was only one point among others. Furthermore, the Commission rightly states that anyone who has experience of the Emissions Trading Scheme, the CR or the CITL is aware that the CITL is a ‘real-time’ system. 45 Moreover, the applicant’s arguments are contradictory, in that it states that it and its experts satisfied the selection criteria and that nothing related to their experience should be raised in the context of the award phase. However, it raised that issue itself. Finally, even assuming that the experience relied upon related to the software concerned, the applicant did not – apart from one reference at the hearing to the 30 years of experience of a university professor who was put forward as project manager – explain why the experience of its experts was not only relevant but so superior as to justify the substantial discrepancy between the Commission’s estimate and the applicant’s proposal. In those circumstances, the Commission was entitled to take the view that the experience relied upon did not enable the team’s capacity to perform the required services in 45 days to be ascertained. 46 Third, as regards the assertion that, in fact, the applicant was proposing more than 45 person-days because it provided for a team of experts offering their assistance to the whole project team horizontally and that, therefore, the 45 person-days were supplemented by a substantial number of additional persons-days provided by quality management and environmental experts, it must be observed that the applicant did not indicate the number of person-days that that would have represented. The fact that the applicant has presented them as being part of the team, without explaining what portion of the work they were going to undertake, is contradictory or even evasive. It was of no assistance to the Commission for the purpose of assessing the amount of work which would be performed by those experts or their precise tasks. 47 In those circumstances, the Commission has not committed a manifest error of assessment in taking the view that the number of days indicated by the applicant for the performance of the works for the project seemed unrealistically low and that that gave rise to serious doubts as to the possibility that it would properly deliver the objectives. That branch of the plea must therefore be rejected. – The role of the environmental experts 48 In its report, the evaluation committee stated as follows: ‘The role of the [environmental experts] is quite essential for the proper carrying out of the requested services … Yet the project management does not include any environmental expert in the team for the specific task, so it is not possible to evaluate how they would be integrated into the team and calls into question the ability of the tenderer to deliver the required objectives of the [tender specification].’ 49 The applicant does not deny the absence of an environmental expert in the team for the specific task. However, it challenges both the need to use environmental experts and the possibility of including such experts in the team. According to the applicant, the evaluation committee assessed Criterion No 3 on the basis of the constraints formulated in the context of Criterion No 2, thereby introducing a posteriori a new evaluation criterion. 50 As regards the need to provide environmental experts, the Court considers that the Commission has shown that the task at issue was not purely an information technology task and that environmental expertise was therefore necessary. The execution of the specific task required knowledge of the relevant rules and regulations on the presentation of reports on the CITL and the ability to give advice on that subject. Furthermore, the applicant’s assertion is contradictory since environmental experts are in fact provided for in its tender. In that regard, the specific task does not differ qualitatively from the specific services to be provided by the successful tenderer. 51 As regards the possibility of including environmental experts, it must be stated that the tender specification explicitly required the tenderers to employ only the types of profile suggested therein and that it did not provide, at least expressly, for environmental experts. Having regard to the constraints in the tender specifications, the applicant indeed provided for the use of environmental experts in its tender, but it anticipated that they would be used only in the context of the overall framework contract and that their approach would be horizontal. Therefore, it did not include them in the team responsible for the specific task in the tender specifications. 52 The question thus arises whether, notwithstanding the remark on page 8/57 of the tender specifications that ‘the offer from the contractor must conform to the profile description with the requested level of expertise and to the specific requirements indicated in the request form’ and the fact that it did not provide for any environmental experts, it was possible to include those experts in the tender formulated by one or other tenderers. If the tender specification had excluded the possibility of including profiles other than those set out on page 8/57 the assessment of the evaluation committee would be manifestly incorrect. 53 Therefore, the Court put a written question in that regard to the Commission. In its reply and at the hearing, the Commission submitted, first, that the tender specification did not stipulate that it was forbidden to include additional profiles. Second, it submitted that anything which could constitute an improvement of the tender was permitted. Although the Commission did not invite the tenderers to add any extra profiles, it took the view that an additional profile could thus represent an added value. On page 28/57, the tender specifications state that ‘tenders should elaborate on all points addressed in order to score as many points as possible’. Third, it must be held that both the successful tenderer and the applicant itself included additional profiles in their tenders. 54 Therefore, it must be held that the remark quoted in paragraph 52 does not prevent the inclusion of experts not provided for by the heading ‘Definition of profiles’ which precedes that remark. 55 In those circumstances, the Court considers that the Commission is correct in asserting that, in the absence of an accurate description of the manner in which the environmental experts would be employed in the team for the specific task, it would be impossible to evaluate how they would be integrated into the team and therefore whether the proposed project management would be able to achieve the required objectives. That assertion also referred to the third award criterion, so that no new evaluation criterion was introduced a posteriori. 56 Those findings are not called into question by Clarification 24. It should be recalled that the applicant’s question which gave rise to that clarification reads as follows: ‘3. Could you please clarify if the “Project Management and Availability” chapter of the document should refer to the Tenderer’s Project Management methodology for the management of the overall framework contract (e.g. service management, request handling etc.) or its methodology for the management of the ‘sample work request’ of each lot?’ 57 The Commission replied as follows: ‘It should refer to the overall Project Management of each lot’. 58 It must be held that neither the applicant’s question nor the Commission’s reply are very clear. The applicant’s question was confusing in so far as it had used the words ‘overall framework contract’ in the first alternative and ‘lot’ in the second. The applicant states that, by ‘framework contract’ it meant ‘lot’, because each lot represents a separate framework contract. However, as the Commission stated at the hearing, the words ‘framework contract’, especially in combination with ‘overall’ may also be understood not only as an individual ‘lot’, but also as all three lots, since the invitation to tender at issue concerned a ‘framework contract’ comprising of three lots. For that reason, the Commission thought that the term ‘lot’ in its reply meant a reply in favour of the second part of the alternative submitted to it. If the Commission thus misunderstood the question, the fact remains that that error is also due to the formulation of the question. 59 In those circumstances, it must be held that both the question and the reply supposed to clarify the initial statement are so ambiguous that neither the applicant’s interpretation nor that put forward by the Commission are convincing. Therefore, the applicant cannot rely on Clarification 24 in order to found this part of the plea, which must, therefore, be rejected. – The presence of a quality manager 60 It is common ground that the evaluation committee’s report does not mention the team responsible for quality suggested by the applicant. Although the latter (also) mentions that fact in the part of the application entitled ‘Manifest errors of assessment’, it does not put forward any argument in that respect, but points to ‘blatant discrimination’ between the tenderers in the evaluation process concerned. According to the Commission, that omission does not mean that the evaluation committee failed to take account of that element. The applicant replies that such a statement amounts to an admission that the reasoning in the contested decision concerned is inadequate. 61 Therefore, it is appropriate to examine the extent of the Commission’s obligation to state reasons for its decision on this issue. The complaint alleging discrimination will be examined in the context of the second plea (paragraph 74 et seq.). 62 As stated in paragraph 22 et seq., public procurement procedures launched by the Commission are subject to the provisions of the Financial Regulation and of the Implementing Rules and, as regards the obligation to state reasons, the provisions laid down in Article 100(2) of the Financial Regulation and Article 149 of the Implementing Rules. 63 It is apparent from those provisions and the case-law of the Court, that the Commission fulfils its obligation to state reasons if it, first, informs an unsuccessful tenderer immediately of the reasons for the rejection of its tender and then, if expressly requested to do so, provides to tenderers who have made an admissible tender the characteristics and relative advantages of the tender selected as well as the name of the successful tenderer within a period of 15 days from the date on which a written request is received (see judgment of 10 September 2008 in Case T‑465/04 Evropaïki Dynamiki v Commission, not published in the ECR, paragraph 47 and the case-law cited). 64 In addition, it should be noted that the requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations (see Case C‑367/95 P Commission v Sytraval and Brink’s France [1998] ECR I‑1719, paragraph 63 and the case-law cited). 65 In the present case, the Commission communicated to the applicant the reasons for the rejection of its tender and provided, at the latter’s request, the characteristics and relative advantages of the successful tender and the name of the successful tenderer. Therefore, it has fulfilled its obligations under the rules applicable. It is true that it did not mention the quality manager provided for in the applicant’s bid. However, given the brevity of the evaluation report, it could not mention all the details of that bid. In the light of the case-law and the applicable provisions, the mere fact that there was no mention in the evaluation report of the presence of a quality manager cannot constitute defective reasoning. 66 Therefore, the third part and, consequently, the first plea in its entirety must be rejected. c) The second plea, alleging the addition of a new award criterion, breach of the principle of equal treatment and insufficient reasoning of the decision to reject the tender Arguments of the parties 67 As regards the third award criterion (‘Project management and availability’), the applicant puts forward three complaints, alleging the introduction a posteriori of a new award criterion, breach of the principle of equal treatment and a failure to state adequate reasons. 68 First, the evaluation committee assessed criterion No 3 based on the requirements set out in the context of criterion No 2, thereby introducing a posteriori a new evaluation criterion, contrary to the tender specifications and the guidelines of DG ‘Environment’. 69 Second, the evaluation report mentions, with respect to the successful tenderer, the fact that ‘the presence of a quality engineer was positively evaluated’, while the presence of a quality manager in the structure proposed by the applicant was totally ignored by the evaluation committee, contrary to the principle of equal treatment. 70 Third, the applicant pleads a failure to state adequate reasons in so far as the evaluation committee failed to explain in its report precisely what DG ‘Environment’ required when using the word ‘recommendations’. Moreover, the Commission did not reply adequately to its requests for clarifications. 71 The Commission challenges those arguments. Findings of the Court 72 The applicant’s plea as regards the third award criterion is divided into three parts. – The alleged introduction a posteriori of a new award criterion 73 By the first part, the applicant submits that the evaluation of the third criterion carried out by the Commission refers to a requirement requested with respect to the second award criterion. That complaint must be understood as meaning, once again, that the applicant defends its decision not to include the environmental experts in the team responsible for the specific task but to involve them horizontally. Essentially, that part of the second plea corresponds therefore to the second part of the first plea. Therefore, it must be rejected on the same grounds (see paragraph 48 et seq.). – The alleged breach of the principle of equal treatment 74 In the evaluation report for the successful tenderer, the evaluation committee states that ‘… the offer suggests including in the team a maintenance leader and a quality engineer which is an interesting idea’. Conversely, the presence of a quality engineer in the applicant’s offer was not noted in the evaluation report on the applicant’s tender. The applicant therefore relies on breach of the principle of equal treatment. 75 According to that principle, which is a general principle of law, the Commission may not treat comparable situations differently and different situations may not be treated in the same way unless such treatment is objectively justified (Case 106/83 Sermide [1984] ECR 4209, paragraph 28). 76 In that connection, the Commission contends that the failure to mention a quality engineer in the evaluation report does not mean that that element was not taken into consideration by the evaluation committee. However, that statement cannot be proved or disproved, since the evaluation report does not contain any evidence in that respect. The fact remains that the presence of such an engineer was positively evaluated in the case of the successful tenderer and not in the applicant’s case. 77 However, there is an objective justification for that difference in treatment. In the applicant’s tender, since that expert was not included in the team responsible for the specific task contained in the tender specifications, and since neither his role or participation in that task were clearly explained, the Commission was unable to take account of the quality engineer for the purpose of evaluating the tender proposed by the applicant. Therefore, his presence could not be positively evaluated. 78 On the other hand, as the evaluation report states and as the Commission observed in its reply to the Court’s written questions, the successful tenderer, Trasys, suggested including a ‘quality’ engineer in the team responsible for the specific task. In addition to the suggestion to include a separate ‘quality’ engineer, the successful tenderer’s team included several members who have both technical experience and proven experience of the Emission Trading System and/or CR, CITL and Member State Registry’s software, which also helped to ensure the maintenance of quality. Several of its members having experience in both fields were involved in the performance of the specific task, as established in the tender specifications. In other words, unlike the applicant, the successful tenderer included the additional profile of the quality engineer in the description of the specific tasks and therefore explained how that person would be involved in the performance of those tasks. 79 Consequently, the plea alleging breach of the principle of equal treatment must be rejected. – The alleged insufficiency in the reasoning of the decision rejecting the tender 80 As far as concerns the answers to the requests for clarification, it must be stated that, even assuming that the Commission’s answer was insufficient, that fact cannot constitute a breach of the obligation to state reasons. The obligation to state reasons under Article 296 TFEU applies to final decisions and not to such answers. That part of the plea is therefore ineffective. At most, an inadequate answer might constitute a breach of the principles of sound administration or due care. Although it is true that the Commission did not give detailed answers to all the questions, it must be observed that it has no legal obligation to reply to each request for clarification (judgment of 10 September 2008 in Case T-59/05 Evropaïki Dynamiki v Commission, not published in the ECR, paragraphs 144 to 146). Nonetheless, it answered each of the applicant’s requests promptly. 81 As far as concerns the reasoning of the contested decisions, it is appropriate to refer to paragraphs 61 to 65, in which the Court concluded that the Commission had satisfied its obligations in that regard. 82 Therefore, this part of the plea and therefore the applicant’s second plea must be rejected. 83 It follows from all of the foregoing that the action must be dismissed as regards Lot No 1 and, therefore, the action against the decision to award that contract to the successful tenderer. 2. Lot No 2 (CR) 84 As in the context of Lot No 1, the applicant puts forward two pleas in law, alleging, respectively, manifest errors of assessment and breach of the principles of equal treatment and transparency. a) The evaluation committee’s report 85 The evaluation committee’s report, as regards the third award criterion ‘Project management and availability’, states as follows: ‘In [its] offer the tenderer states that “… the role of the [environmental experts] is quite essential for the proper carrying out of the requested services …”. However, the section “Project management” does not include any environmental expert in the team for the specific task, so it is not possible to evaluate how they would be integrated into the team and calls into question the ability of the tenderer to deliver the required objectives of the [tender specifications]. In that offer there is no Tester (or Test manager) proposed for the CR, although this is essential for the proper execution of the task.’ b) The first plea: the existence of manifest errors of assessment Arguments of the parties 86 As regards the third award criterion (‘Project management and availability’), the applicant puts forward two complaints. 87 First, the applicant argues that the role of the environmental experts is to provide horizontal advice and support to the implementation team. They are not mentioned in the context of each specific task, since they participate in the whole framework contract and the costs occasioned by their involvement are covered by the applicant. 88 Second, it submits that the evaluation committee’s comment that there is no tester (or test manager) in its bid is unfounded. According to the applicant’s tender, the tests were to be performed by the analyst programmer, as set out in the tender specifications and in particular Chapter 7.3 ‘Description of Profiles’. The applicant’s choice is justified, in particular, by the fact that an analyst programmer has more experience than a tester and has a deeper understanding of the specific task. In that regard, Section 7.3.8, which sets out the description of the analyst programmer profile, refers under nature of tasks to: ‘Write, maintain and test programs, ... Assist with the testing of such programs, ... minimum 3 years experience in IT’. Moreover, the estimated effort was too low to justify the presence of a separate test manager. 89 The Commission challenges those arguments. Findings of the Court 90 The applicant’s plea, as regards the third criterion, consists of two parts concerning the role of the environmental experts and the supposed absence of a tester in its tender. 91 First, as far as concerns the integration of the environmental experts in the applicant’s team, it is appropriate to refer to the reasoning set out in paragraph 48 et seq. 92 As regards the absence of a tester in the applicant’s tender, it suffices to observe that, with respect to Lot No 2, the tender specifications provide for the presence of a tester and that the applicant’s tender does not contain any person with the specific profile of a tester. In those circumstances, the evaluation committee did not commit a manifest error in holding that ‘there is no tester … proposed … for the CR’. 93 Moreover, even assuming that it were possible to replace a tester by an analyst programmer, the Commission rightly states that, in the present case, it was relevant to integrate an independent tester into the team because, first, the specific task consisted essentially in testing a new software application and, second, it was preferable to have an independent tester to carry out tests on the work done by the analyst programmer. It is apparent from the description of the tasks of the analyst programmer set out in the applicant’s tender that he was also to perform other tasks: ‘[An AP] will carry out the actions required for the upgrade. … Also s/he will test the components … Furthermore, s/he shall perform any adaptations to the code …’. 94 It follows that the first plea must be rejected. c) The second plea: breach of the principles of equal treatment and transparency Arguments of the parties 95 In the context of the third award criterion (‘Project management and availability’), the applicant observes that, in the evaluation report of the successful tenderer, the presence of a ‘quality’ engineer was positively evaluated, while that presence, in the organigram proposed by the applicant, was ignored. 96 The Commission observed that the applicant’s assertion is incorrect, since the evaluation of the third criterion for the successful tenderer did not mention a quality engineer. In the second plea, the applicant simply replicated by mistake a complaint relating to the evaluation of Lot No 1. Findings of the Court 97 The single complaint, which concerns the third award criterion raised by the applicant in the context of the second plea, is the alleged mention of a ‘quality’ engineer in the evaluation of the successful tender for Lot No 2. As the Commission rightly observed, it must be held that that evaluation makes no mention of a ‘quality’ engineer. 98 Therefore, this plea must be rejected and, consequently, the action in so far as it concerns Lot No 2 and the action against the decision to award the contract to the successful tenderer. 3. Lot No 3 (User Support) 99 As regards Lot No 3, the applicant puts forward a single plea alleging manifest errors of assessment. a) Report of the evaluation committee 100 The evaluation committee’s report, as regards the third award criterion ‘Project management and availability’, states as follows: ‘The presented team for this lot has only 3 team members so there is no backup foreseen per profile, which does not give confidence on the reliability of the team to meet contract requirements. In [its] offer the tenderer states that “… [t]he role of the [environmental experts] is quite essential for the proper carrying out of the requested services …”.Yet the project management does not include any environmental expert in the team for the specific task, so it is not possible to evaluate how they would be integrated into the team and calls into question the ability of the tenderer to deliver the required objectives of the [tender specifications]. The suggested number of days, compared to the indicative estimation necessary to execute the work of the task provided in the call for tender [at issue], is underestimated by 30%. This raises serious doubts as to whether the objectives can be delivered appropriately.’ b) The single plea alleging manifest errors of assessment Arguments of the parties 101 As regards the third award criterion (‘Project management and availability’), the applicant puts forward three complaints. 102 First, the applicant submits that the Commission was wrong to call into question the ability of the team proposed by the applicant to meet the requirements of the contract. 103 Second, the applicant states that under its tender the environmental experts would be involved in the whole of the framework contract, that they would provide assistance during the preparation of specific contracts within the framework contract and that they would participate in the implementation of specific contracts where the work requires the provision of thematic-environmental expertise. The experts proposed in the context of the specific task have an in-depth understanding of the CITL and CR logic components. Their approach has a horizontal character, as provided for in the tender specifications and the answer to request for clarification 24. In fact, the tender specifications did not even allow tenderers to propose environmental profiles. 104 Third, the evaluation committee’s statement that the number of days suggested in the applicant’s tender for the performance of the works ‘seem[ed] unrealistically low’ and ‘raise[d] serious doubts as to whether the objectives c[ould] be delivered appropriately’ are totally unfounded, since it is a fixed price offer and the applicant presented a complete and detailed work plan under chapter 2.5 and 2.6 of its tender. 105 In its rejoinder, the applicant adds that although in the context of this plea it only raised the existence of manifest errors of assessment, taking account of the complex structure of the application, the references relevant to discrimination, lack of transparency and information must also be examined by the Court. 106 The Commission disputes those arguments. Findings of the Court 107 As a preliminary point, it must be observed that, as the Commission stated, the arguments concerning discrimination and lack of transparency and information relating to Lot No 3 were not set out in the application. Therefore, those arguments are inadmissible pursuant to Article 48 of the General Court’s Rules of Procedure. In any event, the applicant has not substantiated them in a manner which satisfies the requirements of Article 44(1)(c) of the Rules of Procedure. 108 First, as far as concerns the argument relating to the ability of the applicant’s team to satisfy the requirements of the contract, an argument which is not presented very clearly in the application, it must be emphasised that there were only three members in that team. It is true that in its tender the applicant states that it would appoint highly qualified staff to support roles. The fact remains that none of those persons is mentioned in its tender. Therefore, the Commission was not in a position to determine whether those persons were in fact able to carry out the support work for the tasks required. 109 Second, as regards the integration of the environmental experts into the applicant’s team, it is appropriate to refer to paragraph 48 et seq. Furthermore, the applicant’s assertion that the proposed team had an in-depth understanding of the CITL and the CR is not supported by any of the previous professional experience set out in the team members’ Curriculum Vitaes. 110 Third, as far as concerns the number of days required, it must be stated that the discrepancy between the indicative estimate in the call for tenders at issue and the applicant’s offer (that is 30%) is even greater than that for Lot No 1. In paragraph 41 et seq., the Court held that such a discrepancy required a convincing explanation. As with Lot No 1, the applicant has not provided any explanation. Even assuming that the experience relied on related to the software concerned, the Court is not convinced that the experience of the applicant’s experts is not only relevant, which is contested by the Commission, but also greater to such an extent as to justify the substantial discrepancy between the Commission’s estimate and the applicant’s tender relating to Lot No 3. In those circumstances, the Commission was right to take the view that that discrepancy raised serious doubts as to the applicant’s ability to properly deliver the relevant objectives. 111 Therefore, the action in so far as it concerns Lot No 3 and, therefore, the action against the decision to award the contract to the successful tenderer must be rejected. Consequently, all the applications for annulment must be rejected. C – The claim for compensation 112 According to settled case-law, for the Community to incur non-contractual liability, the applicant must prove the unlawfulness of the conduct alleged, the fact of damage and the existence of a causal link between that conduct and the damage complained of. If any one of those conditions is not satisfied, the action must be dismissed in its entirety and it is unnecessary to consider the other conditions (see judgment of 12 November 2008 in Case T-406/06 Evropaïki Dynamiki v Commission, not published in the ECR, paragraph 133 and the case-law cited). 113 It is apparent from paragraph 111 that the applicant has not proved unlawful conduct on the part of the Commission. It follows that the claim for compensation must be rejected. 114 The action must, therefore, be dismissed in its entirety. Costs 115 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. Since the applicant has been unsuccessful, and the Commission has applied for costs, the applicant must be ordered to pay the costs. On those grounds, THE GENERAL COURT (Eighth Chamber) hereby: 1. Dismisses the action; 2. Orders Evropaïki Dynamiki – Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE to pay the costs. Martins Ribeiro Dittrich Wahl Delivered in open court in Luxembourg on 3 March 2011. [Signatures] Table of contents Facts Procedure and forms of order sought Law A – Preliminary remarks 1. Arguments of the parties 2. Findings of the Court a) The applicable law b) The scope of judicial review c) The alleged lack of interest in bringing proceedings B – The applications for annulment 1. Lot No 1 (CITL) a) The evaluation committee’s report b) The first plea: manifest errors of assessment and insufficient reasoning of the decision to reject the tender Arguments of the parties Findings of the Court – The number of days indicated for the performance of the works – The role of the environmental experts – The presence of a quality manager c) The second plea, alleging the addition of a new award criterion, breach of the principle of equal treatment and insufficient reasoning of the decision to reject the tender Arguments of the parties Findings of the Court – The alleged introduction a posteriori of a new award criterion – The alleged breach of the principle of equal treatment – The alleged insufficiency in the reasoning of the decision rejecting the tender 2. Lot No 2 (CR) a) The evaluation committee’s report b) The first plea: the existence of manifest errors of assessment Arguments of the parties Findings of the Court c) The second plea: breach of the principles of equal treatment and transparency Arguments of the parties Findings of the Court 3. Lot No 3 (User Support) a) Report of the evaluation committee b) The single plea alleging manifest errors of assessment Arguments of the parties Findings of the Court C – The claim for compensation Costs * Language of the case: English.