Judgment — ECLI:EU:T:2010:33
Date: 2010-02-09
Language of the case: English
Court formation: Fourth Chamber
Subject matter: Industrial policy
Procedure: Arbitration clause
Origin: Greece

summary of the pleas in law on which the application is based. 122 Pursuant to the case-law, irrespective of any question of terminology, that summary must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the application, if need be without having to seek further information (see, to that effect, Case T-84/96 Cipeke v Commission [1997] ECR II-2081, paragraph 31, and order in Case T-154/98 Asia Motor France and Others v Commission [1999] ECR II-1703, paragraph 49). 123 Consequently, in the absence of a clear and precise summary by the applicant with regard to the Commission’s infringement of its obligations under the general principles relating to individuals under Article 235 EC and the second paragraph of Article 288 EC, there is no need to analyse the question of non-contractual liability. 124 Moreover, as the Community institutions are subject to obligations arising under the general principles raised in relation to individuals exclusively within the framework of the exercise of their administrative responsibilities, and as the relationship between the parties is clearly contractual in nature, the applicant can allege only that the Commission breached contractual terms or the law applicable to the contract at issue. 125 In the present case, it is therefore necessary to examine whether the Commission breached its contractual obligations. – The Commission’s obligations in the context of the first evaluation 126 First, it should be pointed out that Article 2(2)(h) of the general conditions allows the Commission to organise review meetings. Article 2(3) authorises the Commission to be assisted by independent experts under three conditions. First, it must take all appropriate steps to ensure that experts assisting it during such a meeting treat the data which is communicated to them as confidential. Next, it must communicate the names of those experts to the contractor prior to the meeting. Finally, it must take into account any objections on the part of the participants based on ‘legitimate interests’. The concept of ‘legitimate interest’ is defined in Article 1(27) of the general conditions as ‘any interest, in particular of a commercial nature, of a participant which may be invoked in the cases provided for in [these general conditions] provided that he demonstrates that the damage to that interest is likely, given the circumstances, to cause a specific prejudice that is disproportionate, considering the objectives of the provision in respect of which it is invoked’. 127 In the present case, the Commission cannot be accused of having breached the first condition laid down by Article 2(3) of the general conditions (namely, the adoption of appropriate measures to ensure that the independent experts treat as confidential the information communicated to them) because the first two independent experts both signed a declaration of confidentiality. 128 Concerning, next, the last condition laid down by that article, namely the consideration of the contractor’s objections based on legitimate interests, it should be stated that the applicant has not pleaded infringement of any legitimate interest likely to cause a specific prejudice which would be disproportionate within the terms of the general conditions. By taking part in the review meeting of 20 March 2003, the applicant was in a position to express a view on the essential questions which were the subject of the review (see, to that effect, Case T-29/02 GEF v Commission [2005] ECR II-835, paragraphs 220 and 221) and voluntarily subjected itself to the evaluation committee’s assessments (see, to that effect, Case C‑114/94 IDE v Commission [1997] ECR I‑803, paragraphs 45 to 54). The applicant was also requested by the Commission to respond in writing to the various points of criticism expressed in the first evaluation report, which it did by submitting an action plan on 12 May 2003. It is apparent from the documents before the Court that the Commission took account of the objections set out by the applicant in that response before terminating the contract at issue and that the applicant was therefore given the opportunity to have a proper and fair hearing. 129 Finally, the second condition laid down by Article 2(3) of the general conditions, namely the communication prior to the review meeting of the names of the independent experts assisting the Commission, was not complied with. Nevertheless, the applicant did not make any comments on the choice of those experts in its formal reply to the first evaluation report of 12 May 2003. In those circumstances, the Commission was entitled to form the view that the applicant had implicitly accepted the appointment of those two independent experts as reviewers. 130 Secondly, according to settled case-law, the existence of professional relations between an official and a third party cannot, in principle, imply that the official’s independence is, or appears to be, undermined where that official is called to take a view on a case involving that third party (Case T-89/01 Willeme v Commission [2002] ECR-SC I-A-153 and II-803, paragraph 58; Case T-137/03 Mancini v Commission [2005] ECR-SC I-A-7 and II-27, paragraph 33; and Case T-100/04 Giannini v Commission [2008] ECR-SC I-A-0000 and II-0000, paragraph 224). The existence of such contacts does not, in itself, establish to the requisite legal standard that the relations between those persons went beyond what is normal (Case T-157/04 De Bry v Commission [2005] ECR-SC I-A-199 and II-901, paragraph 35). 131 Thus, the mere fact that one of the independent experts responsible for evaluating the eEBO project or certain Commission officials worked with the applicant’s consultants on a separate project does not in itself suffice to establish a conflict of interest. In addition, the applicant itself states, in paragraph 45 of the application, that it ‘does not argue that any previous social or professional contact between consultants and Commission officials or evaluators should be prohibited or considered a priori as dubious’. 132 In the present case, the applicant has not adduced any facts capable of explaining the extent to which the existence of professional relations between its consultants, certain officials and one of the two first reviewers of the eEBO project might have undermined the independence of those reviewers. On the contrary, it is apparent from the file before the Court, and particularly from paragraphs 2 and 3 of the application and from the unsigned contract between the applicant and one of the two independent experts which was produced by the applicant in response to the Court’s questions, that the applicant recruited the two consultants because of their good relations with the officials involved in the eContent programme. Furthermore, it is common case that the second independent expert responsible for reviewing the eEBO project never had any professional or personal relations with the applicant’s consultants or with the Commission officials responsible for that project. 133 Likewise, the applicant has also adduced no evidence that the Commission officials ‘took the side’ of its consultants or ‘put pressure’ on the applicant to carry out the instructions of those consultants. In paragraph 30 of the reply, the applicant refers to ‘threats’ which it allegedly received from its two consultants. However, it has put forward no evidence to substantiate those allegations. 134 For its part, the Commission stated that it had chosen the independent experts responsible for the review of the eEBO project at random and provided a copy of the declarations of confidentiality and absence of conflicts of interest signed by those experts. The Commission therefore took all the measures necessary to avoid a conflict of interest. 135 As has been pointed out above, it is true that the Commission did not reveal the names of the reviewers prior to the first review meeting of 20 March 2003, as it was required to do by Article 2(3) of the general conditions. Nevertheless, as the Commission correctly noted in its pleadings and in the course of the hearing, that first review was followed by an internal audit, itself followed by a second review carried out by two new independent experts. However, the applicant itself acknowledged during the hearing that the alleged conflict of interest which it had raised related only to the first review. 136 Consequently, in light of the foregoing considerations, the applicant’s arguments relating to the Commission’s obligations in connection with the first review must be rejected. – The Commission’s obligations in the context of the internal audit 137 The applicant complains that the Commission failed to communicate to it the result of its internal audit carried out in April 2004 and did not invite it to submit its observations. 138 Suffice it to note that the Commission has the right to request an internal audit from its audit service in accordance with Chapter 8 of Title IV of Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 248, p. 1) (see also Commission Regulation (EC, Euratom) No 2342/2002 of 23 December 2002 laying down detailed rules for the implementation of Regulation No 1605/2002 (OJ 2002 L 357, p. 1)). There is no obligation to communicate the result of such audits to third parties. Furthermore, the internal auditors enjoy complete independence in the performance of their audits, with the result that they can freely decide whom to question and under what conditions. Consequently, the applicant’s arguments in that context must be rejected. – The Commission’s obligations in the context of the second review 139 The second review was based on Article 18(1) of the general conditions. Under that article, ‘[t]he Commission, or any representative authorised by it, may initiate a technical verification in respect of a participant up to the contract completion date in order to verify that the project is being or has been carried out in accordance with the conditions indicated by the contractor’. Article 18(2) states that ‘[p]rior to the carrying out of the technical verification, the Commission [had to] communicate to the participants the identity of the authorised representatives who [were] intended to perform the verification’ and ‘[had to] take account of any objection on the part of participants based on legitimate interests’. Finally, Article 18(4) adds that ‘[a] report on the technical verification of the project [had to] be sent to the contractor concerned’, who could ‘communicate his observations to the Commission within a month’. 140 In the present case, the Commission in fact notified the identity of the reviewers to the applicant in a letter of 14 June 2004, that is to say, before conducting the technical assessment. The two reviewers also signed declarations of confidentiality and of absence of conflicts of interest. Although the Commission does not appear to have formally requested the applicant to communicate to it its observations on the assessment report within one month, as it ought to have done under Article 18 of the general conditions, suffice it to state that, de facto, the applicant was in a position to submit its observations on that report in a letter of 12 October 2004. It should also be noted that, in the letters of 10 November and 22 December 2004, the Commission took those observations into account in concluding that they did not address the problems identified. In those circumstances, the Commission cannot be accused of having breached the terms of the contract at issue. – The alleged interference of the Commission in the relations between the applicant and its two consultants 141 The applicant submits that the Commission unlawfully interfered in its relations with its two consultants. 142 It must be stated that the applicant has not adduced any evidence in support of its allegations. The only document which it has provided is the transcript of a telephone conversation of 10 December 2002 between Mr O. and one of its employees. However, that document does not in any way indicate that the Commission unlawfully interfered in the relations between the applicant and its consultants. Furthermore, the applicant has provided no evidence showing that the Commission had requested it ‘to take actions ([that is to say] execute payments in favour of the consultants which were not in proportion with the quality and the quantity of the services delivered by them), [without regard to] the contractual obligations of the parties’. 143 It follows from the foregoing considerations that the second plea must be rejected as unfounded. 144 In the light of all the above considerations, the action must be dismissed in its entirety. Costs 145 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. As the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the Commission. On those grounds, THE GENERAL COURT (Fourth Chamber) hereby: 1. Dismisses the action; 2. Orders Evropaïki Dynamiki – Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE to pay the costs. Czúcz Labucka O’Higgins Delivered in open court in Luxembourg on 9 February 2010. [Signatures] * Language of the case: English.