Judgment — ECLI:EU:T:2018:967
Date: 2018-12-14
Language of the case: French
Court formation: First Chamber
Subject matter: Provisions governing the Institutions
Procedure: Action for damages - successful;Action for damages - unfounded
Origin: Belgium

summary details of its operating costs. In that context, and in the absence of any material in the file that would cast doubt on their reliability, there is no need to query the amounts deducted, in the table evaluating the damage linked with the loss of the procurement at issue, for the purpose of calculating the net profit margin expected when the procurement at issue was carried out by the consortium, which, following the correction made in paragraph 172 above, comes to the sum of EUR 115 650. 174 As regards the 45% share of that net profit margin that ought to have been received by the applicant, the Commission objects that the applicant has produced no written agreement to that effect with the members of the consortium, that in the table evaluating the damage linked with the loss of the procurement at issue that share is accompanied by the abbreviation ‘TBC’ and that it seems disproportionate, since, when added to the management commission, it would have resulted in the applicant’s receiving 67% of the net profit margin expected when the procurement at issue was carried out, leaving the other four members of the consortium with only the remaining 33% of that margin to share among them. In that regard, it should be observed that the only admissible evidence which the applicant has adduced does not show the key for allocating the net profit margin on which the members of the consortium agreed in the event that the procurement at issue should be awarded to them. Nor does the applicant dispute that the abbreviation ‘TBC’, in the table evaluating the damage linked with the loss of the procurement at issue, showed that the allocation key mentioned remained ‘to be confirmed’ when the contract had been formally signed. Since the applicant was necessarily entitled, on the same basis as the other members of the consortium, to a share of the net profit margin expected when the procurement at issue was carried out, but since it has not succeeded, in the present case, in establishing that its share ought to have been greater than that of the other members of the consortium and, more particularly, since it would have been equivalent to 45% of that margin, the Court considers that, on a fair assessment of the applicant’s rights to compensation, that share will be fixed at 20%, which corresponds to an allocation in equal shares of the expected net profit margin among the five members of the consortium. 175 Consequently, the share of the net profit margin expected when the procurement at issue was carried out by the consortium that ought to have been paid to the applicant is estimated at the sum of EUR 23 130, corresponding to 20% of that margin, which is itself evaluated at EUR 115 650 (see paragraph 173 above). For the purpose of taking into account the element of chance relating to the perfect and complete performance of the procurement at issue by the consortium, referred to in paragraph 167 above, it is appropriate, moreover, to reduce that sum to an amount of EUR 20 000. 176 Following the preceding findings, the applicant’s claim for compensation for the material damage corresponding to the loss of an opportunity to achieve the profits which it expected when the procurement at issue was carried out must be allowed in the sum of EUR 20 000 and the claim for compensation concerning the loss of the procurement at issue must be rejected as to the remainder. – The damage arising from the loss of an opportunity to obtain other public contracts and the causal link between that damage and the illegality committed by the Commission 177 The applicant claims to have sustained material and non-material damage arising from the loss of an opportunity to obtain other public contracts. It maintains, in that regard, that the cancellation of the tender procedure for the procurement at issue because of its W3b warning in the EWS, made public by the opinion published in November 2010, adversely affected its image and therefore its commercial reputation, in particular with respect to the former members of the consortium, and deprived it of the important reference that would have been represented by the procurement at issue, on which it would have been able to rely in order to participate in other tender procedures in the same sector or in the former Yugoslav Republic of Macedonia. Consequently, it maintains that it has lost the opportunity to participate in 15 tender procedures. Since at the time it was successful, on average, in one in five of the occasions in which it participated in calls for tenders, it maintains that it has lost the opportunity to conclude three contracts equivalent to the contract relating to the procurement at issue. Thus, it evaluates the amount corresponding to that loss at three times the amount of profit lost in the context of the procurement at issue, namely EUR 480 000, while provisionally setting the damage at a lower amount, namely EUR 330 000. 178 The applicant maintains that the loss of opportunity on which it relies is a direct consequence of the illegality committed by the Commission, for the same reasons as those set out in paragraph 157 above. 179 The Commission denies, in essence, that the applicant has adduced proof, as it is required to do, of the damage on which it relies and of the causal link between that damage and the illegality committed. 180 In the present case, it should be observed that the applicant has not evaluated, even approximately, the non-material damage corresponding to the loss of an opportunity to obtain other public contracts. Accordingly, its claim for compensation under that head of claim cannot be taken into account by the Court, in accordance with the case-law cited in paragraph 163 above. 181 As regards the material damage corresponding to the loss of an opportunity to obtain other public contracts, which the applicant evaluates in the amount of EUR 330 000, it should be observed that the cancellation of the tender procedure for the procurement at issue because of the applicant’s W3b warning on the EWS undoubtedly had an adverse effect on its image and therefore on its commercial reputation, both with the public authorities of the former Yugoslav Republic of Macedonia and with the former members of the consortium, who were aware of it. In addition, the cancellation of the procedure certainly deprived the applicant of the opportunity to be able to rely on the procurement at issue, as a reference, in order to establish its technical capacity to operate in the sector covered by that contract in other tender procedures in which it would have participated or wished to participate. 182 However, it does not follow directly, by a link of cause and effect, from the findings set out in paragraph 181 above that the applicant would have lost the opportunity to conclude three contracts equivalent to the contract relating to the procurement at issue and therefore to make profits corresponding to three times those which it expected from the performance of the latter contract, namely an amount of EUR 480 000, reduced, in the form of order sought, to the sum of EUR 330 000. 183 As a preliminary point, it should be noted that, as the Commission observes and as the applicant acknowledges, the fact that the applicant was the subject of a W3b warning on the EWS between June 2010 and February 2015 did not prevent it from signing, alone or in the framework of consortia, five contracts with the Commission, between 15 December 2010 and 3 August 2015, relating to public procurement financed by EU funds, in particular in the context of the IPA, in sectors other than employment, in neighbouring States of the former Yugoslav Republic of Macedonia (Bosnia-Herzegovina, Montenegro and Albania) and in Africa, for a total value of EUR 3 503 955. 184 In so far as the applicant maintains that the reference connected with the procurement at issue was a determining factor as regards its eligibility to tender in other relevant procurement procedures, it should be stated that its assertions concerning its lack of experience in the employment sector are contradicted by the information on the pages of its website, placed in the file by the Commission, in which the applicant states, among its reference sectors, ‘Employment and Labour Market’. Even on the assumption that, as the applicant maintains, it lacked references in that sector, that did not prevent it from winning public contracts such as the procurement at issue by forming a consortium with other undertakings with such expertise, as already observed in paragraph 167 above. 185 In so far as the applicant claims that, following the cancellation of the procurement at issue, it became impossible for it to become associated with other undertakings, in particular with former members of the consortium, it has not, as the Commission correctly observes, adduced any evidence to show that, in order to be able to participate in tender procedures, in the employment sector or in the former Yugoslav Republic of Macedonia, it had contacted other undertakings with a view to forming a consortium and those undertakings had refused to do so. In addition, the applicant itself acknowledges that, as the leader of a consortium, it successfully tendered in procedures relating to sectors other than employment or outside the former Yugoslav Republic of Macedonia. The applicant’s assertions in that regard are therefore not sufficiently substantiated. 186 In the same way, in so far as the applicant claims that it had lost the opportunity to obtain other public contracts in the former Yugoslav Republic of Macedonia because its image there was tarnished in the eyes of the authorities of that State, it should be noted that, as the Commission correctly observes, the applicant has not indicated, nor, a fortiori, has it shown, that it was a candidate for the award of public contracts in which the authorities of the former Yugoslav Republic of Macedonia would have been the contracting authority. In those circumstances, the applicant cannot claim to have lost a genuine opportunity to obtain those contracts because its image was tarnished in the eyes of those authorities. 187 Last, it should be observed that the table evaluating the damage linked with the loss of the procurement at issue set out in the application contains data which are purely hypothetical. In fact, the applicant has not mentioned any specific tender procedures in which it would have participated or might have participated, but merely inferred the number of tender procedures in which it considered that it would have been able to participate from data based on its past experience, without providing any evidence that would allow the veracity and the relevance of those data to be verified. 188 It follows from the foregoing findings that the applicant has neither demonstrated the actual and certain nature of the material damage corresponding to the loss of opportunity to obtain other public contracts nor shown that that damage arose in a sufficiently direct manner from the illegality established in paragraph 153 above, in the sense that that illegality constituted the determining cause of that damage. 189 The claim for compensation based on the loss by the applicant of the opportunity of obtaining other public contracts must therefore be rejected in its entirety. 190 In the light of all of the foregoing findings, the Commission must be ordered to pay the applicant the sum of EUR 20 000 by way of compensation for the injury sustained by it and the action must be dismissed for the remainder. Costs 191 Under Article 134(2) of the Rules of Procedure, where there is more than one unsuccessful party the General Court is to decide how the costs are to be shared. In the present case, as the parties have been partly unsuccessful in the forms of order sought, each of them must be ordered to bear its own costs. On those grounds, THE GENERAL COURT (First Chamber) hereby: 1. Orders the European Commission to pay East West Consulting SPRL the sum of EUR 20 000; 2. Dismisses the action as to the remainder; 3. Orders each of the parties to bear its own costs. Pelikánová Valančius Öberg Delivered in open court in Luxembourg on 14 December 2018. [Signatures] Table of contents * Language of the case: French.