Judgment;Abstract — ECLI:EU:T:2022:28
Date: 2022-01-26
Language of the case: Italian
Subject matter: Public procurement in the European Union
Procedure: Action for damages - unfounded;Action for annulment - inadmissible
Origin: Italy

summary of the pleas in law and that statement must be sufficiently clear and precise to enable the defendant to prepare its defence and the EU judicature to rule on the action. Similarly, the form of order sought in the application initiating proceedings must be set out unambiguously so that the EU judicature does not rule ultra petita or indeed fail to rule on a complaint (see judgment of 14 September 2017, Università del Salento v Commission, T‑393/15, not published, EU:T:2017:604, paragraph 75 and the case-law cited). 41 It follows that claims for the annulment of acts which are prior to, associated with or subsequent to other acts referred to in the action for annulment, without those prior, associated or subsequent acts having been identified, must be regarded as not complying with those requirements, in that they lack precision as to their subject matter (see judgment of 14 September 2017, Università del Salento v Commission, T‑393/15, not published, EU:T:2017:604, paragraph 76 and the case-law cited). 42 It follows that the applications for annulment of the contested acts referred to in the application and in the pleadings of 11 August 2020 are inadmissible in so far as they relate to any act which is prior to, associated with or subsequent to the other acts referred to therein. 43 In the light of the foregoing, the applications for annulment of the contested acts must be dismissed as inadmissible, without there being any need to rule on the requirements relating to the existence of a challengeable act and the applicant’s legal standing to bring proceedings, and without there being any need to rule on the effectiveness of the measures of inquiry sought or the admissibility of the pleadings of 11 August and 1 September 2020. The claim for compensation 44 The applicant seeks compensation for all the direct and indirect damage that has been suffered and continues to be suffered, in whatever capacity, as a result of the unlawful nature of the call for tenders at issue. The damage claimed is said to result from the loss of the contract at issue and the amount of the damage therefore corresponds to the value of that contract. 45 Frontex disputes those arguments. 46 According to settled case-law, non-contractual liability on the part of the European Union is incurred under the second paragraph of Article 340 TFEU if a number of conditions are fulfilled relating to the illegality of the conduct alleged against the institution, actual damage and the existence of a causal link between that conduct and the damage complained of. Moreover, it should be recalled that, if any one of those conditions is not satisfied, the entire action must be dismissed and it is unnecessary to consider the other conditions for such liability (see judgment of 14 October 1999, Atlanta v European Community, C‑104/97 P, EU:C:1999:498, paragraph 65 and the case-law cited). 47 In that regard, with respect to the condition requiring actual damage to have been suffered, the European Union will incur liability only if the applicant has actually suffered ‘real and certain’ loss. It is for the applicant to produce to the EU Courts the evidence to establish the fact and the extent of such loss (see judgment of 8 November 2011, Idromacchine and Others v Commission, T‑88/09, EU:T:2011:641, paragraph 25 and the case-law cited). 48 In the present case, the applicant is merely seeking compensation for all of the damage that has been suffered and continues to be suffered as a result of the unlawful nature of the call for tenders at issue, without adducing evidence to establish the fact and the extent of that damage. 49 The applicant merely submits that the value of the damage claimed results from the loss of the contract at issue and the amount of the harm therefore corresponds to the value of that contract. 50 With regard to the alleged damage suffered by the applicant as a result of the loss of the chance of securing the contract, it should be recalled that the loss of the chance of securing a contract constitutes real and certain damage only if, in the absence of the improper conduct by the institution, there would be no doubt that the applicant would have been awarded that contract (see, to that effect, order of 22 June 2011, Evropaïki Dynamiki v Commission, T‑409/09, EU:T:2011:299, paragraph 85 and the case-law cited). That is not the case here. Even if the contract documents contained unlawful terms, it is established that three undertakings participated in the tendering procedure launched by the contested contract notice and that the applicant has not demonstrated that, if the documents at issue had not contained the allegedly unlawful terms, the contract would undoubtedly have been awarded to it and not to one of those three undertakings. 51 It follows that the condition requiring actual damage to have been suffered has not been satisfied for the European Union to incur non-contractual liability under the second paragraph of Article 340 TFEU. 52 Moreover, given the cumulative nature of the conditions to which the contractual liability of the Union, within the meaning of the second paragraph of Article 340 TFEU, is subject, there is no need to examine the other conditions required by the case-law in that regard. 53 In those circumstances, the claim for compensation must be rejected. 54 In the light of all of the foregoing, the present action must be dismissed in its entirety. Costs 55 Under Article 134(1) 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, it must be ordered to pay the costs, including those incurred in the proceedings for interim measures, in accordance with the form of order sought by Frontex. On those grounds, THE GENERAL COURT (Ninth Chamber, Extended Composition) hereby: 1. Dismisses the action; 2. Orders Leonardo SpA to pay, in addition to its own costs, the costs incurred by the European Border and Coast Guard Agency (Frontex), including those incurred in the proceedings for interim measures. Papasavvas Costeira Schwarcz Kancheva Perišin Delivered in open court in Luxembourg on 26 January 2022. [Signatures] * Language of the case: Italian.