Judgment — ECLI:EU:T:2011:721
Date: 2011-12-08
Language of the case: English
Court formation: Eighth Chamber
Subject matter: Financial provisions;Public procurement in the European Union
Procedure: Action for damages - unfounded;Action for annulment - successful
Origin: Greece

summary of services provided by the Tenderer relevant to the contract along with a list of the web addresses of any relevant sites managed by the Tenderer.’ 30 The contested decision stated that the applicant’s tender received 25 points out of 30 for that criterion, while that of the successful tenderer received 29 points out of 30, and that the evaluation committee considered that the applicant ‘was very experienced in providing web services for the European Commission, however was not specialised in the area of education and training or eLearning’. 31 The applicant argues that the Commission, in applying the criterion set out at point 10.1.3 of the tender specifications, took into account the tenderers’ experience in the fields covered by the contract in question during the award phase of that contract, even though it was entitled to take that criterion into account only during the phase of selecting tenderers. 32 It must therefore be determined whether the Commission was entitled to reject the applicant’s tender and award the contract in question on the basis, inter alia, of the criterion set out at point 10.1.3 of the tender specifications, which is ‘[t]he experience of the Tenderer in similar large international and multilingual projects as well as in the fields of education and training’. 33 It should be noted that the Commission, as it correctly maintains, evaluated the quality of the human resources proposed by the tenderers during the award phase of the contract in question. As is clear from the tender specifications, the award criterion set out at point 10.1.2 was intended to evaluate ‘[t]he quality and adequacy of the proposed technical and organisational arrangements, including the appropriateness of the staff to the tasks which are proposed for them’. In order to evaluate the tenders by reference to that criterion, tenderers were in particular asked to provide ‘the CVs of the staff proposed by the Tenderer, together with specifications of the role to be performed by each member of staff’. In that regard, the assessment of the applicant’s tender in the contested decision states that the list of CVs provided by the applicant showed the quality of the team members and their international experience, but the roles and functions of the content management team were not sufficiently clear. 34 However, as the very wording of point 10.1.3 of the tender specifications shows, during the award phase the Commission evaluated the tenders on the basis of the tenderers’ experience in the fields covered by the contract in question, relying on a summary of the services provided and the websites managed by the tenderers. 35 That finding is confirmed by the Commission’s assessment in the contested decision that the applicant was very experienced in providing web services for the Commission, but was not, however, specialised in the area of education and training or eLearning. 36 At paragraph 93 of the defence, the Commission also justifies its assessment by arguing that the applicant proved in its tender that it provides a very wide range of computer and web-based services, but that of the 134 examples that it cited, only four relate to fields relevant to the contract in question. 37 Therefore, contrary to its contention, the Commission evaluated the tenderers’ experience in the fields covered by the contract in question not only during the selection phase, but also during the award phase. 38 It follows from the foregoing that in applying the criterion set out at point 10.1.3 of the tender specifications during the award phase, the Commission did not evaluate the quality of the tenders solely on the basis of the tenders themselves, but also by reference to the tenderers’ experience in the fields covered by the contract. 39 As is clear from the principles recalled at paragraphs 22 to 24 above, a criterion based on the tenderers’ experience concerns their technical and professional capacity to perform the contract in question and cannot therefore be aimed at identifying the tender offering the best value for money within the meaning of Article 97(2) of the Financial Regulation and Article 138(2) of the Implementing Rules. 40 Therefore, the Commission was not entitled to base the award of the contract in question on the criterion of the tenderers’ experience in the fields covered by the contract in question. 41 It should be added that, as is clear from the criteria at points 9.2.1.1, 9.2.1.2 and 9.2.1.3 of the tender specifications, reproduced at paragraph 26 above, the applicant’s experience in the fields covered by the contract in question had already been evaluated during the selection phase, under technical and professional capacity. As follows from the case-law cited at paragraph 24 above, it could not therefore be taken into account again for the purposes of comparing the tenders during the award phase. 42 Consequently, it must be held that, by having rejected the applicant’s tender and awarded the contract to another tenderer at the end of the award phase of the contract in question on the basis, inter alia, of a criterion which was not capable of constituting an award criterion for the purposes of Article 97(1) of the Financial Regulation and Article 138(2) of the Implementing Rules, the Commission infringed those provisions. 43 Consequently, the contested decision must be annulled, there being no need to rule on the other parts of the present plea, the other pleas or on the application for measures of organisation of procedure. The application for damages 44 The applicant seeks an order, on the basis of Articles 235 EC and 288 EC, requiring the Commission to pay the sum of EUR 441 564.50 by way of compensation for the loss caused by the contested decision, which corresponds to the estimated gross profit that it would have made from performing the contract in question had it been awarded that contract. 45 According to settled case-law, the European Union’s non-contractual liability under the second paragraph of Article 288 EC for unlawful conduct by its institutions is dependent on the coincidence of a series of conditions: the unlawfulness of the conduct alleged against the institutions, the fact of damage and the existence of a causal link between the conduct alleged and the damage complained of (Case 153/73 Holtz & Willemsen v Council and Commission [1974] ECR 675, paragraph 7; 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). Where one of those conditions is not satisfied the application must be dismissed in its entirety without it being necessary to examine the other preconditions (see, to that effect, Case C‑146/91 KYDEP v Council and Commission [1994] ECR I‑4199, paragraph 81). 46 The condition relating to damage requires that the damage for which compensation is sought be actual and certain, which it is for the applicant to prove (Case C‑243/05 P Agraz and Others v Commission [2006] ECR I‑10833, paragraph 27, and judgment of 16 July 2009 in Case C‑481/07 P SELEX Sistemi Integrati v Commission, not published in the ECR, paragraph 36). It is for the applicant to adduce conclusive proof as to the existence and extent of the damage it alleges (Case C‑362/95 Blackspur DIY and Others v Council and Commission [1997] ECR I‑4775, paragraph 31, and SELEX Sistemi Integrati v Commission, paragraph 36). 47 In that regard, it follows from the case-law that the action in support of which damage resulting from loss of profit is claimed must be dismissed, because the damage at issue is not real and existing, but future and hypothetical. Indeed, the success of such an action presupposes that, in the absence of the unlawful conduct alleged against the Commission, the tenderer whose tender was rejected was entitled to be awarded the contract. However, even if the evaluation committee proposed to award that tenderer the contract, the contracting authority is not bound by the evaluation committee’s proposal but has a broad discretion in assessing the factors to be taken into account for the purpose of deciding to award a contract (see, to that effect, Case T‑13/96 TEAM v Commission [1998] ECR II‑4073, paragraph 76 and the case-law cited, and Case T‑160/03 AFCon Management Consultants and Others v Commission [2005] ECR II‑981, paragraph 113). 48 In the present case, the damage claimed by the applicant is the loss of profit following the award of the contract to another tenderer. 49 Since such damage is not real and certain, the application for damages must be dismissed. Costs 50 Under Article 87(2) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. 51 As the Commission has been unsuccessful, inasmuch as the contested decision has been annulled, it must be ordered to bear its own costs and to pay those incurred by the applicant, in accordance with the form of order sought by the latter. On those grounds, THE GENERAL COURT (Eighth Chamber) hereby: 1. Annuls the Commission Decision of 12 November 2007 rejecting the tender submitted by the Evropaïki Dynamiki – Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE in open call for tenders EAC/04/07 relating to the hosting, management, enhancement, promotion and maintenance of the European Commission’s internet portal on eLearning (elearningeuropa.info), and awarding the contract to another tenderer; 2. Dismisses the application for damages; 3. Orders the Commission to bear its own costs and to pay those incurred by Evropaïki Dynamiki – Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis. Truchot Martins Ribeiro Kanninen Delivered in open court in Luxembourg on 8 December 2011. [Signatures] * Language of the case: English.