Judgment — ECLI:EU:T:2012:194
Date: 2012-04-24
Language of the case: English
Court formation: Sixth Chamber
Subject matter: Public procurement in the European Union
Procedure: Action for annulment - unfounded;Action for damages - unfounded;Action for annulment - inadmissible
Origin: Greece

summary of the pleas in law on which it is based. In accordance with the case‑law, that statement must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the action, if necessary, without any further information. In order to guarantee legal certainty and the sound administration of justice it is necessary, in order for an action to be admissible, that the basic legal and factual particulars relied on be indicated, at least in summary form, coherently and intelligibly in the application itself (Case T‑387/94 Asia Motor France and Others v Commission [1996] ECR II‑961, paragraph 106, and the judgment of 12 November 2008 in Case T‑406/06 Evropaïki Dynamiki v Commission, not published in the ECR, paragraph 131). 163 In order to satisfy those requirements, an application seeking compensation for damage allegedly caused by a Community institution must state the evidence from which the conduct which the applicant alleges against the institution can be identified, the reasons for which the applicant considers there is a causal link between the conduct and the damage it claims to have suffered, and the nature and extent of that damage (Asia Motor France and Others v Commission, paragraph 161 above, paragraph 106, and Case T‑19/01 Chiquita Brands and Others v Commission [2005] ECR II‑315, paragraph 65). 164 It is apparent from the application that the unlawful conduct complained of is the alleged unlawfulness of the contested decision, as supported by the pleas seeking annulment. As regards the nature of the damages, it is clear from the application that the applicant ‘requests monetary compensation equal to EUR 7 638 125 from DG TAXUD, corresponding to its estimated gross profit from the aforementioned public procurement procedure, should [it] have been awarded the contract’. So far as concerns the requirement of a causal link, it emerges sufficiently from the application that the applicant considers that the damage it suffered resulted from the adoption of the contested decision by the Commission and the alleged infringements, by that decision, of European Union law. 165 Accordingly, the claim in damages must be declared admissible. Substance 166 The applicant claims that, should the Court find that the contested decision was adopted in breach of the Financial Regulation and/or the principles of transparency and equal treatment, and given that the Court will in all likelihood adjudicate on the present case after the contract has been fully performed by the successful tenderer, it should order DG TAXUD, on the basis of Articles 235 EC and 288 EC, to pay the applicant compensation of EUR 7 638 125. The Commission argues that the claim in damages is unfounded. First, the applicant has failed to prove any unlawful conduct on the Commission’s part. Secondly, the calculation method which the applicant used to estimate its loss of profits is not valid. Third and finally, the applicant has not furnished evidence that the contract would have been awarded to it if its tender had not been rejected. 167 It is settled case‑law that, in order for the Community to incur non‑contractual liability under the second paragraph of Article 288 EC for unlawful conduct of its institutions, a number of conditions must be satisfied: the institution’s conduct must be unlawful, actual damage must have been suffered and there must be a causal link between the conduct and the damage pleaded (Case 26/81 Oleifici Mediterranei v EEC [1982] ECR 3057, paragraph 16; Case T‑175/94 International Procurement Services v Commission [1996] ECR II‑729, paragraph 44; Case T‑336/94 Efisol v Commission [1996] ECR II‑1343, paragraph 30; and Case T‑267/94 Oleifici Italiani v Commission [1997] ECR II‑1239, paragraph 20). 168 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 (Case C‑146/91 KYDEP v Council and Commission [1994] ECR I‑4199, paragraphs 19 and 81, and Case T‑170/00 Förde-Reederei v Council and Commission [2002] ECR II‑515, paragraph 37). 169 In the present case, it has been held, in relation to the action for annulment, that the contested decision was not vitiated by an illegality. 170 Since the requirement of illegality has not been satisfied, the claim in damages must be rejected as unfounded, as must, therefore, the action in its entirety. Costs 171 According to the applicant, even if the Court decides to reject the action, the Commission should be ordered to pay the costs of the proceedings, in accordance with Article 87(3) of the Rules of Procedure. 172 It should be noted that, 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. However, under the first subparagraph of Article 87(3) of the Rules of Procedure, the Court may order that the costs be shared where the circumstances are exceptional. 173 As there are no exceptional circumstances and the applicant has been unsuccessful, it is to be ordered to pay its own costs and those incurred by the Commission. On those grounds, THE GENERAL COURT (Sixth Chamber) hereby: 1. Dismisses the action; 2. Orders Evropaïki Dynamiki – Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE to pay its own costs and those incurred by the European Commission. Jaeger Wahl Soldevila Fragoso Delivered in open court in Luxembourg on 24 April 2012. [Signatures] * Language of the case: English.