Judgment — ECLI:EU:T:2000:182
Date: 2000-07-06
Language of the case: French
Court formation: Fifth Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Public procurement in the European Union
Concepts: Applications by natural or legal persons;Admissibility and examination of applications, forms of order sought and pleas in law;Extent of judicial review;Interest in bringing proceedings
Procedure: Action for annulment - unfounded;Action for damages - unfounded;Action for annulment - inadmissible
Origin: France

summary form the pleas raised and that no fresh issue may be raised in the course of proceedings unless it is based on matters of law or of fact which come to light in the course of the written procedure (see, inter alia, judgments in Case 306/81 Verros v Parliament [1983] ECR 1755, paragraph 9, Case T-207/95 Ibarra Gil v Commission [1997] ECR-SC I-A-13 and II-31, paragraph 51 and Case T-217/95 Passera v Commission [1997] ECR-SC I-A-413 and II-1109, paragraph 87). 60. The plea in question was not raised, either directly or by implication, in the application, nor is it closely linked with the other pleas raised therein. It is therefore a fresh plea, as the applicant itself acknowledges. It follows that it is inadmissible unless it is based on matters of law or of fact which have come to light in the course of the written procedure. 61. The applicant claimed that it was only on reading the defence that it became aware of the fact that Coopérative Taxi 13 did not meet the requirement that tenderers had to prove that they had been active in the sector for three years. 62. It is important to point out, in that connection, that the fact that the applicant became aware of a factual matter during the course of the procedure before the Court of First Instance does not mean that that element constitutes a matter of fact coming to light in the course of the procedure. A further requirement is that the applicant was not in a position to be aware of that matter previously (see judgment in Case T-141/97 Yasse v EIB [1999] ECR-SC II-929, paragraphs 126 to 128). 63. As is clear from the case-file, the applicant was indeed in a position to be able to ascertain, prior to lodgment of the application, the circumstances under which Coopérative Taxi 13 was set up. It stated in its letter to the Parliament of 15 April 1999 that it was given to understand that the Parliament was renewing the contract which had been entered into with the 'association (coopérative) des artisans taxis. In that letter it went on to state that although the tender submitted by the 'artisans taxis strasbourgeois might be financially more favourable, the services provided would not be covered by any legal framework, contrary to the terms of the invitation to tender. 64. In response to those allegations the Parliament's Director-General for Administration, in his letter of 11 May 1999, clearly stated that the successful tenderer was Coopérative Taxi 13 (see paragraph 18 above). On lodging its application on 8 June 1999, the applicant was therefore perfectly aware of the fact that Coopérative Taxi 13 had obtained the contract as a result of the invitation to tender. It could therefore have made inquiries with the competent authority as to the date on which Coopérative Taxi 13 was set up. 65. Consequently, on the supposition that it was only on reading the defence that the applicant noticed that there might be an inconsistency between acceptance of the tender by Coopérative Taxi 13 and the condition in the Notice under which tenderers had to prove that they had been active in the sector for three years, it cannot be heard to say that it was not possible for it to raise that inconsistency in the application. 66. Therefore, since the applicant was in a position to raise in its originating application the plea based on an infringement of the abovementioned condition, it cannot, under the terms of Article 48(2) of the Rules of Procedure, raise it at the stage of the hearing (see judgment in Joined Cases T-305/94 to T-307/94, T-313/94 to T-316/94, T-318/94, T-325/94, T-328/94, T-329/94 and T-335/94 Limburgse Vinyl Maatschappij and Others v Commission [1999] ECR II-931, paragraph 63). 67. In light of the foregoing, the abovementioned plea put forward for the first time at the hearing is not based on matters of law or fact coming to light during the course of the procedure and must consequently be declared inadmissible. The claim for damages 68. Under the second paragraph of Article 288 EC and the general principles to which that provision refers, Community liability depends on fulfilment of a set of conditions as regards the unlawfulness of the conduct alleged against the institution, the fact of damage and the existence of a causal link between the conduct in question and the damage complained of (see judgment in Case T-336/94 Efisol v Commission [1996] ECR II-1343, paragraph 30). 69. Since in its pleas and arguments set out above the applicant has not shown that the Parliament's conduct was unlawful, its claim for damages must be dismissed. 70. It follows from all the foregoing that the application must be dismissed in its entirety. Costs 71. Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs, if they have been asked for in the successful party's pleadings. Since the applicant has been unsuccessful, it must be ordered to pay the costs, as asked for by the Parliament. On those grounds, THE COURT OF FIRST INSTANCE (Fifth Chamber) hereby: 1. Dismisses the application; 2. Orders the applicant to bear its own costs and pay those of the Parliament. García-Valdecasas Lindh Cooke Delivered in open court in Luxembourg on 6 July 2000. H. Jung R. García-Valdecasas Registrar President 1: Language of the case: French.