62006TJ0125_EN
Parties
Grounds
Operative part
Parties
In Case T‑125/06,
Centro Studi Antonio Manieri Srl,
established in Rome (Italy), represented by C. Forte, M. Forte and G. Forte, lawyers,
applicant,
v
Council of the European Union,
represented by A. Vitro, P. Mahnic and M. Balta, acting as Agents,
defendant,
APPLICATION, first, for annulment of the decision of the Council, made public by letter of its General Secretariat of 16 January 2006, abandoning the tendering procedure 2003/S 209‑187862 for the full management of a crèche; second, for annulment of the decision to accept the proposal of the Office for Infrastructure and Logistics (OIB) for the management of those services; and, third, for damages,
THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Second Chamber),
composed of I. Pelikánová, President, K. Jürimäe (Rapporteur) and S. Soldevila Fragoso, Judges,
Registrar: J. Palacio González, Principal Administrator,
having regard to the written procedure and further to the hearing on 24 June 2008,
gives the following
Judgment
Grounds
Background to the dispute
1. The applicant, Centro Studi Antonio Manieri Srl, is a company which specialises in the management of training activities and organisations.
2. On 2 October 2003, the Council issued a restricted tendering procedure for a service contract entitled ‘B‑Brussels: full crèche management 2003/S 209‑187862’ (‘the tendering procedure’).
3. The Council notified the applicant, by letter of its General Secretariat of 7 January 2004, that its candidature had been accepted by the evaluation committee and confirmed that the company satisfied the conditions to qualify for the restricted procedure.
4. Initially planned for July 2004, the forwarding of the tendering specifications was twice deferred. It was finally sent to the applicant by letter of 8 December 2004, together with a draft contract. The closing date for submitting tenders was 28 February 2005.
5. At the beginning of 2005, the applicant submitted its tender to the Council. By letter of its General Secretariat of 21 April 2005, the Council acknowledged receipt of the tender.
6. The Council notified the applicant by letter of 20 December 2005 that the date upon which a decision would be taken had been deferred to 16 January 2006.
7. By letter of the General Secretariat of the Council of 16 January 2006, which was faxed to the applicant, the latter was informed of the Council’s decisions, first, to abandon the tendering procedure and, second, to entrust the management of the crèche to the Office for Infrastructure and Logistics (OIB) in Brussels. That letter stated as follows:
‘[t]he General Secretariat has decided to abandon the invitation to tender in question in accordance with paragraph 4 of the specifications, formulated pursuant to Article 101 of Council Regulation No 1605/2002.
The General Secretariat has given a favourable evaluation of the proposal submitted to it during the second half of 2005 by the OIB …, for the direct educational and administrative management of the crèche, which is intended primarily for the children of officials of the General Secretariat.
In analysing that option, the many advantages it entails have become apparent, particularly as regards the contractual conditions offered to the staff, the economies of scale and the optimisation of the available resources in the context of appropriate interinstitutional cooperation.
…’
8. By letter of 15 February 2006, the applicant asked the Council to provide explanations concerning its letter of 16 January and set out a number of arguments challenging its content.
9. The Council responded to the applicant’s questions and arguments by letter of 3 March 2006.
Procedure
10. The applicant brought the present action by fax on 20 March 2006. The original application was sent by post on 17 March 2006 and arrived at the Registry of the Court of First Instance on 3 May 2006. A corrigendum to the request for measures of inquiry was lodged on 20 May 2006.
11. By decision of 12 June 2006, the President of the Court of First Instance allocated the case to the Fourth Chamber.
12. The Council lodged its defence on 18 July 2006.
13. The time-limit for lodging the reply was set for 10 October 2006. The reply was sent by post on 6 October 2006 and arrived at the Court Registry on 12 October 2006.
14. On 10 October 2006, the applicant lodged an additional request for the production of documents by way of measures of inquiry.
15. The Council submitted its observations on that request on 23 October 2006.
16. The written procedure concluded with the lodging of the rejoinder on 30 November 2006.
17. By decision of 18 January 2007, the President of the Court of First Instance reallocated the case to the Third Chamber.
18. As the Judge-Rapporteur was unable to sit in the present case, the President of the Court of First Instance reallocated the case to the Second Chamber.
Forms of order sought by the parties
19. The applicant claims that the Court should:
– annul the decision of the General Secretariat of the Council of 16 January 2006 to abandon the tendering procedure;
– annul the favourable evaluation of the OIB’s proposal;
– adopt all measures necessary to protect its rights and privileges, including the suspension of the operation of the contract with the OIB;
– assess the damage suffered by the applicant on an equitable basis;
– order the Commission to pay the costs.
20. The Council contends that the Court should:
– declare the action inadmissible on the ground that the application was lodged after the expiry of the maximum period laid down in Article 230 EC;
– in the alternative, declare that the applications for annulment and the claim for damages are unfounded;
– order the applicant to pay the costs.
Admissibility
21. The Council contends that the application and the reply are inadmissible since they were both lodged out of time.
1. Compliance with the time-limit for bringing an action
22. The fifth paragraph of Article 230 EC provides that proceedings for annulment must be instituted within two months of the publication of the measure, or of its notification to the plaintiff, or, in the absence thereof, of the day on which it came to the knowledge of the latter, as the case may be. In accordance with Article 102(2) of the Rules of Procedure of the Court of First Instance, that period must also be extended by 10 days on account of distance.
23. In the present case, the decision of the Council was sent by letter of its General Secretariat dated 16 January 2006, and addressed to the applicant by fax the following day. At the hearing, the applicant expressly acknowledged that it received that letter on 17 January 2006.
24. Since the letter was received by the applicant on 17 January 2006, the time-limit for instituting proceedings for the annulment of the decision in question, extended by 10 days on account of distance, expired at midnight on 27 March 2006 ( dies ad quem ).
25. It is clear that a copy of the application was received at the Registry by fax on 20 March 2006 and the original application was subsequently lodged on 3 May 2006.
26. Under Article 43(6) of the Rules of Procedure, 20 March 2006 is deemed to be the date of lodgment for the purpose of compliance with the time-limits for taking steps in proceedings, provided that the signed original of the pleading was lodged at the Registry no later than 10 days thereafter, that is, no later than midnight on 30 March 2006. Given that, in the present case, the signed original application was lodged only on 3 May 2006, 20 March 2006 cannot be deemed to be the date of lodgment for the purposes of compliance with the time-limits for taking steps in proceedings. The only date that can be taken into account for the purpose of determining whether the application was lodged out of time is therefore 3 May 2006. Since that date is after the dies ad quem, the action is out of time and must, in principle, be declared inadmissible.
27. However, it is necessary to examine whether, in the present case, there exist unforeseeable circumstances or force majeure which would permit the Court to derogate from the time-limit in question on the basis of the second paragraph of Article 45 of the Statute of the Court of Justice, applicable to proceedings before the Court of First Instance pursuant to Article 53 of that statute.
28. The concepts of ‘force majeure’ and ‘unforeseeable circumstances’ within the meaning of Article 45 of the Statute of the Court of Justice contain both an objective element relating to abnormal circumstances unconnected with the person in question and a subjective element involving the obligation, on that person’s part, to guard against the consequences of the abnormal event by taking appropriate steps without making unreasonable sacrifices. In particular, the person concerned must pay close attention to the course of the procedure set in motion and, in particular, demonstrate diligence in order to comply with the prescribed time-limits (Case C‑195/91 P Baye r v Commission
[1994] ECR I-5619, paragraph 32). Thus, the concept of force majeure does not apply to a situation in which, objectively, a diligent and prudent person would have been able to take the necessary steps before the expiry of the period prescribed for instituting proceedings (Case 209/83 Ferriera Valsabbia
v Commission
[1984] ECR 3089, paragraph 22, and order of the Court of Justice in Case C‑325/03 P Zuazaga Meabe
v OHIM
[2005] ECR I‑403, paragraph 25). It is therefore necessary to examine whether the circumstances relied on by the applicant may be regarded as exceptional circumstances which constitute a case of force majeure.
29. In the present case, the package containing the original signed application was sent by the applicant on 17 March 2006. By sending the original document on that date, the applicant could reasonably expect it to arrive at the Court before the expiry of the limitation period, especially since, in view of the fact that a copy of that document had been sent by fax, that period had been extended to 30 March 2006. The package in question had already reached the offices of the Luxembourg postal service on 21 March 2006, as demonstrated by the postmark on the package. The fact that the postal service kept the package for a period of 42 days (from 21 March to 3 May 2006) clearly constitutes abnormal circumstances unconnected with the applicant, which, for its part, demonstrated diligence in order to comply with the prescribed time‑limits by sending the original application well before the expiry of the limitation period and by taking the steps necessary to extend that period in accordance with Article 43(6) of the Rules of Procedure by sending a copy of the application to the Court Registry by fax. Consequently, the fact that the original application was lodged out of time is attributable to a case of force majeure (see, to that effect, Joined Cases 25/65 and 26/65 Simet and Feram v High Authority [1967] ECR 33, p. 43).
30. It follows that, as the expiry of the time-limit is not enforceable against the applicant, pursuant to the second paragraph of Article 45 of the Statute of the Court of Justice, the Council’s plea alleging inadmissibility must be rejected.
2. Compliance with the time‑limit for lodging the reply
31. The time‑limit for lodging the reply was 10 October 2006. Since the reply was received at the Court Registry on 12 October 2006, it was lodged out of time.
32. The original reply was sent from Brussels by post on 6 October 2006. Although the original was sent only four days before the expiry of the time‑limit by which it was to be lodged, the applicant failed to avail itself of the possibility provided for in Article 43(6) of the Rules of Procedure to send a copy of the signed original to the Registry by fax or by any other technical means of communication available to the Court of First Instance, which could have extended the time‑limit for lodging the reply by an additional period of up to 10 days.
33. In the light of those circumstances, the applicant failed to demonstrate the diligence to be expected of a reasonably prudent applicant in order to comply with the time‑limits. On the contrary, it increased the risk that the reply would be delivered to the Court out of time, first, by failing to draw the appropriate conclusions from the problems encountered in lodging the application and, second, by omitting to send a copy of the signed original to the Registry by fax or by any other technical means of communication available to the Court.
34. Such a lack of diligence rules out the existence of a case of force majeure and it is therefore necessary to reject the repl y as inadmissible.
The applications for annulment
1. Preliminary observations
35. First of all, it should be pointed out that the applicant asks the Court to annul not only the Council’s decision to abandon the tendering procedure but also the Council’s favourable evaluation of the OIB’s proposal. The Court will examine the application for annulment of the favourable evaluation of the OIB’s proposal after examining the application for annulment of the decision to abandon the tendering procedure.
36. Next, it should be observed that, in support of its claims for annulment, the applicant relies on four pleas in law, alleging, first, infringement of Articles 43 EC, 49 EC and 86 EC; second, misapplication of paragraph 4 of the tendering specifications and infringement of Articles 43 EC and 49 EC and of Articles 89, 97, 98, 100 and 101 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) (‘the Financial Regulation’) and Articles 135 and 147 of Commission Regulation (EC, Euratom) No 2342/2002 of 23 December 2002 laying down detailed rules for the implementation of the Financial Regulation (OJ 2002 L 357, p. 1) (‘the Implementing Regulation’); third, infringement of the obligation to state reasons; and, fourth, misapplication of Article 116 of the Implementing Regulation.
37. Lastly, in each of the four pleas, the applicant has alleged infringement of the principle of transparency and the principle of equal treatment. Consequently, the Court will examine all the applicant’s arguments alleging infringement of both those principles after examining the four pleas in law.
2. The application for annulment of the Council’s decision to abandon the tendering procedure
The fourth plea in law, alleging misapplication of Article 116 of the Implementing Regulation
Arguments of the parties
38. As regards the ground put forward by the Council in its letter of 3 March 2006 (see paragraph 9 above) that the rules of the Treaty and the Financial Regulation and the general principles of Community law do not apply in the present case since the Council did not act as a contracting authority within the meaning of Article 116(7) of the Implementing Regulation, the applicant does not accept that that provision may be taken into consideration for the purpose of examining the legality of the ‘decision of 16 January 2006’, given that the provision is not referred to in that decision.
39. In any event, the applicant does not accept that the exception provided for in Article 116(7) of the Implementing Regulation is applicable to the present case.
40. First of all, the applicant takes the view that that exception must be interpreted strictly, in that it is applicable solely to arrangements between departments of the Community institutions. The applicant considers that the OIB does not constitute such a department but, as is apparent from recital 7 in the preamble to Commission Decision 2003/523/EC of 6 November 2002 establishing the OIB in Brussels (OJ 2003 L 183, p. 35), is a European office within the meaning of Article 171 of the Financial Regulation. Moreover, unlike other European offices such as the European Anti-Fraud Office (OLAF) or the European Personnel Selection Office (EPSO), the OIB cannot be attached to the Council. It is not, in fact, an interinstitutional European office within the meaning of Article 174 of the Financial Regulation, since, under Article 6 of Decision 2003/523, it is managed exclusively by members appointed by the Commission.
41. Secondly, it is necessary to apply, by analogy, the case‑law according to which provisions governing public procurement are applicable where a contracting authority, such as a regional or local authority, intends to conclude, in writing and for consideration, with an entity which is formally distinct from it and independent of it with regard to decision-making, a contract for the supply of goods. In the present case, given that the OIB is not a department of the Council, which does not have any control over it, it is not possible to plead the inapplicability of the Financial Regulation or Articles 43 EC and 49 EC.
42. Thirdly, it is apparent from recitals 2 and 3 in the preamble to Decision 2005/523 that the OIB was established as an office whose purpose is to manage the externalisation of the non‑core activities of the Community administration. Consequently, the internalisation of a department which is already subject to a tendering procedure is inconsistent with its purpose.
43. The Council disputes the applicant’s arguments.
Findings of the Court
44. According to Article 88 of the Financial Regulation, ‘[p]ublic contracts are contracts for pecuniary interest concluded in writing by a contracting authority within the meaning of Articles 104 and 167 [of that regulation], in order to obtain, against payment of a price paid in whole or in part from the budget, the supply of movable or immovable assets, the execution of works or the provision of services’.
45. In order to be classified as a public contract, a contract must be concluded by a ‘contracting authority’. Article 116(7) of the Implementing Regulation provides that ‘[d]epartments of the Community institutions shall be considered to be contracting authorities, save where they conclude between themselves administrative arrangements for the provision of services, the supply of products or the execution of works’.
46. It follows from the two provisions referred to above that the provision of services is outside the ambit of the rules governing public contracts where it forms part of an administrative arrangement concluded between the departments of Community institutions.
47. Contrary to the applicant’s submission, the OIB is a department of the Community institutions within the meaning of Article 116(7) of the Implementing Regulation. In accordance with recital 4 in the preamble to Decision 2003/523, ‘[t]he type of office selected [for the OIB] consists of administrative entities aimed at providing support for the activities of other Commission departments and/or potentially of other Community institutions’. By referring to ‘other Commission departments’ as being among the recipients of support from the OIB, the Commission has indicated in that recital, impliedly but necessarily, that the OIB is also one of its departments.
48. It follows that the Council was not required to comply with the rules governing public procurement when it decided to have recourse to the services of the OIB. That conclusion cannot be affected by the other arguments put forward by the applicant.
49. First of all, the applicant’s arguments that the OIB is, first, attached to the Commission and not to the Council and, second, managed exclusively by the members appointed by the Commission are invalid. The first point to be made is that the exception provided for in Article 116(7) of the Implementing Regulation concerns administrative arrangements between departments of the Community institutions, irrespective of whether such departments belong to the same institution. Secondly, the fact that the OIB is attached to the Directorate-General (DG) for Personnel and Administration of the Commission does not preclude it from being an interinstitutional body, as is clear from recitals 4 and 6 in the preamble to and Article 2(4) of Decision 2003/523. Thirdly, as regards Article 6(1)(g) of Decision 2003/523, that provision expressly states that the Management Committee of the OIB is to include a representative of the other Community institutions. That fact not only contradicts the applicant’s claim that the OIB is managed exclusively by members appointed by the Commission but also makes clear the interinstitutional character of the OIB.
50. On the same grounds, it is necessary to reject as invalid the applicant’s arguments based on the fact that the OIB is an entity which is formally distinct from the Council and independent of it with regard to decision-making. In any event, the OIB is precluded from being distinct from and independent of the Council by virtue of Article 281 EC. In view of the fact that, under that provision, only the European Community as such has legal personality under the Community institutional system, both the Council and the OIB are part of the same legal person and, consequently, the OIB cannot be regarded as an entity that is distinct from or independent of the Council
51. With regard to the applicant’s argument that Article 116(7) of the Implementing Regulation should not be taken into account for the purpose of examining the legality of the ‘decision of 16 January 2006’, since no reference was made to that provision in the decision, it must be noted that the Council informed the applicant in the letter of 16 January 2006 of its decision to abandon the tendering procedure in view of the decision it had taken to have recourse to the services of the OIB. As regards the decision to abandon the tendering procedure, it is clear that the two provisions on which that decision is based, namely Article 101 of the Financial Regulation and paragraph 4 of the tendering specifications, were duly referred to by the Council in that letter. On the other hand, it is apparent from paragraphs 44 to 48 above that the decision to have recourse to the services of the OIB is an act that is unconnected with the tendering procedure and is of no concern to the applicant. It follows that the fact that no reference was made to Article 116(7) of the Implementing Regulation is irrelevant for the purpose of examining the legality of the decision to abandon the tendering procedure and, accordingly, the argument in question must be rejected as invalid.
52. Finally, with regard to the applicant’s argument that the internalisation of the full management of the crèche by the OIB is inconsistent with its purpose, which is to manage the externalisation of the non-core activities of the Community administration, it must be noted that the OIB is not obliged under Decision 2003/523 systematically to use tendering procedures in the performance of its tasks. While, under Article 16 of that decision, it is in fact entitled to use such a procedure, the fact remains that there is no provision which prohibits it from carrying out its task by its own means. In the absence of any formal prohibition, the OIB may therefore decide on a case‑by‑case basis whether it is necessary to use a tendering procedure.
53. It follows from the foregoing that the conclusion between the Council and the OIB of an arrangement for full crèche management constitutes the conclusion of an administrative arrangement between two departments of the Community institutions for the provision of services to which the rules on public procurement are not applicable.
54. The fourth plea in law must therefore be rejected in its entirety as unfounded.
The third plea, alleging infringement of the ‘obligation to state reasons’
Arguments of the parties
55. The applicant disputes that the many advantages put forward by the Council in its letter of 16 January 2006 could justify its decision to have recourse to the services of the OIB, even taking into account the explanations which it provided in its letter of 3 March 2006. Thus, the applicant argues, by the explanations given as regards the advantages represented by the contractual conditions guaranteed to staff, the economies of scale and the optimisation of the available resources, the Council infringed the ‘obligation to state reasons’.
56. The Council disputes the applicant’s arguments.
Findings of the Court
57. As a preliminary point, in connection with the plea in question, the applicant is confusing infringement of the obligation to state reasons and manifest error of assessment. Although the heading of this plea refers to an infringement of the obligation to state reasons, the arguments put forward in that connection relate, instead, to the errors allegedly made by the Council in assessing the advantages entailed by a decision to have recourse to the services of the OIB.
58. It should be recalled that these are two distinct pleas in law that may be invoked in an application for annulment, The first, which relates to the fact that a statement of reasons is lacking or inadequate, constitutes an infringement of essential procedural requirements for the purposes of Article 253 EC and is a matter of public interest which must be raised by the Community judicature of its own motion (see Case C‑166/99 P Commission
v Daffix
[1997] ECR I‑983, paragraph 24, and the case‑law cited). On the other hand, the second, which concerns the substantive legality of the decision in question, can be examined by the Community judicature only if it is raised by the applicant.
59. Consequently, it is necessary to rule on the arguments put forward in connection with the third plea by examining first of all those alleging infringement of the obligation to state reasons and, subsequently, those alleging manifest errors of assessment.
60. As regards any infringement of the duty to state reasons, according to established case-law, that duty depends on the type of document at issue and the context in which it was adopted. The statement of reasons must disclose in a clear and unequivocal fashion the reasoning followed by the institution in such a way, first, as to make the persons concerned aware of the reasons for the measure and thus enable them to defend their rights and to verify whether or not the decision is well founded and, secondly, as to permit the Community judicature to exercise its power of review (Case C‑350/88 Delacre and Others v Commission
[1990] ECR I‑395, paragraphs 15 and 16; Case T‑217/01 Forum des migrants
v Commission
[2003] ECR II‑1563, paragraph 68; and Case T‑195/05 Deloitte Business Advisory v Commission
[2007] ECR II‑871, paragraph 45).
61. In the circumstances, the letter of 16 January 2006 expressly states that the tendering procedure had been abandoned as a result of the favourable evaluation of the proposal which the OIB had made to the Council. In that letter, the General Secretariat of the Council therefore informed the applicant that, as a result of the decision to entrust the management of the services in question to the OIB on the basis of the latter’s proposal, there was no longer any reason to continue with the tendering procedure. It follows that the letter of 16 January 2006 discloses in a clear and unequivocal fashion the reasoning followed by the Council in such a way, first, as to make the applicant aware of the reasons for the measure and thus enable it to defend its rights and to verify whether or not the decision was well founded and, secondly, to enable the Court to exercise its power of review. It follows that, in its decision to abandon the tendering procedure, the Council did not infringe the obligation to state reasons.
62. As regards the existence of any manifest errors of assessment, it must be borne in mind that an institution using the tendering procedure has broad discretion with regard to the factors to be taken into account for the purpose of deciding to award a contract and that review by the Court must be limited to checking that the rules governing the procedure and statement of reasons are complied with, the facts are correct and there is no manifest error of assessment (see judgment of 12 July 2007 in Case T‑250/05 Evropaïki Dynamiki v Commission, not published in the ECR, paragraph 89, and the case‑law cited). The applicant has not put forward any facts capable of establishing that the decision to abandon the tendering procedure was vitiated by a manifest error of assessment. With regard to the decision to have recourse to the services of the OIB and, in particular, the supposed advantages to be gained from such a decision, while the Council is of course required to justify its choice to the political authority and internal auditors, it is not required to demonstrate to a participant in a tendering procedure the advantages of the decision to perform the services in question by its own means. Such a decision is a matter of policy and thus within the Council’s discretion. It follows that the Court is not required in these proceedings to examine whether the decision to have recourse to the services of the OIB is justified economically and at institutional level.
63. The third plea must therefore be rejected as unfounded.
The second plea, alleging infringement of the Treaty, the Financial Regulation, the Implementing Regulation and the tendering specifications
Arguments of the parties
64. First of all, the applicant submits that paragraph 4 of the tendering specifications can serve as the legal basis for the abandonment of a tendering procedure only if the purpose of such a decision is to instigate a new tendering procedure. As a consequence, the reference to paragraph 4 of the tendering specifications in the Council’s decision to abandon the tendering procedure is inconsistent and contradictory and constitutes an error of law.
65. Secondly, the reference to Article 101 of the Financial Regulation in the Council’s decision to abandon the tendering procedure is also irrelevant, since that provision requires reasons to be given for such abandonment. In that regard, the reasons are to be found in the decision to entrust the services in question to the OIB. In view of the fact that the OIB did not, unlike the others, participate in the tendering procedure and submitted its offer out of time, that decision does not constitute an abandonment of the tendering procedure. As a consequence, Article 101 of the Financial Regulation was misapplied and Articles 89, 97, 98 and 100 of the Financial Regulation and Articles 135 and 147 of the Implementing Regulation disregarded.
66. Thirdly, although the Council carried out a kind of comparative analysis between the OIB’s proposal on the one hand and the proposals submitted by the applicant and other companies which participated in the tendering procedure on the other, it did not request that the OIB participate in the tendering procedure. Accordingly, the procedure chosen by the Council is also vitiated by a breach of the principles of equal treatment and transparency and of Articles 43 EC and 49 EC.
67. The Council disputes the applicant’s arguments.
– Findings of the Court
68. First of all, paragraph 4 of the tendering specification states as follows:
‘The Secretariat may decide at its sole discretion and without being required to state reasons for its decision:
(a) not to award the contract in respect of which the tendering procedure was launched and to recommence the procedure;
…
In none of the above cases shall a tenderer, regardless of whether his bid has been accepted or rejected, be entitled to claim any compensation.’
69. While it might be possible on the basis of a textual interpretation of paragraph 4(a) of the tendering specifications to conclude that there was a connection between the Council’s decision not to award a contract and the decision to recommence the tendering procedure, the fact remains that such a provision must be interpreted in the light of Article 101 of the Financial Regulation. While paragraph 4(a) of the tendering specifications simply allows the Council the option of instigating a new tendering procedure after deciding not to award the contract in the first procedure, express provision is made in Article 101 of the Financial Regulation for the alternative option of not awarding the contract at all. In fact, that provision states that ‘[t]he contracting authority may, before the contract is signed, either abandon the procurement or cancel the award procedure …’. The Court cannot therefore conclude from the wording of paragraph 4(a) of the tendering specifications that the Council did not have the option of abandoning the tendering procedure.
70. It is true that Article 101 of the Financial Regulation, unlike paragraph 4(a) of the tendering specifications, expressly requires the contracting authority to give reasons for its decision to abandon the procurement. However, it has been demonstrated in the examination of the third plea that, in the present case, the Council properly gave reasons for its decision to abandon the tendering procedure. It follows that its decision to abandon the tendering procedure satisfies the requirements laid down in Article 101 of the Financial Regulation.
71. Secondly, with regard to the argument alleging infringement of Articles 43 EC and 49 EC, Articles 89, 97, 98 and 100 of the Financial Regulation and Articles 135 and 147 of the Implementing Regulation, under the first paragraph of Article 21 of the Statute of the Court of Justice, applicable to the Court of First Instance by virtue of the first paragraph of Article 53 of that statute, and under Article 44(1)(c) of the Rules of Procedure, all applications are to contain the subject‑matter of the dispute and a brief statement of the pleas in law on which the application is based. According to 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 application, if necessary, without any further information (Case T‑387/94 Asia Motor France and Others v Commission
[1996] ECR II‑961, paragraph 106, and Case T‑113/96 Dubois et Fils v Council and Commission
[1998] ECR II‑125, paragraph 29). In the present case, the applicant has merely referred to infringement of the provisions in question without putting forward any arguments whatsoever in support of its claim. Consequently, in the light of the principles outlined above, the argument must be rejected as inadmissible.
72. In any event, it has already been demonstrated in the examination of the fourth plea that the decision to entrust the services in question to the OIB independently of the tendering procedure was perfectly proper, since the provision of services by the OIB for the Council is not covered by the rules governing public procurement and the issue of infringement of the provisions in question does not therefore arise.
73. It follows that the second plea must be rejected as inadmissible in part and, as for the remainder, unfounded.
The first plea, alleging infringement of Articles 43 EC, 49 EC and 86 EC
Arguments of the parties
74. The applicant takes the view that, by opting to use a tendering procedure, the Council made the decision to entrust the provision of the services in question within a clearly defined framework and is thus responsible for ensuring that the Treaty, the Financial Regulation and Articles 43 EC and 49 EC are complied with. In those circumstances, the decision to entrust the services at issue to the OIB independently of a tendering procedure is contrary to Articles 43 EC and 49 EC.
75. The applicant also relies on Article 86 EC, which does not permit any derogation from the Treaty provisions as regards the public undertakings of the Member States, and submits that that rule applies a fortiori to the Community institutions.
76. As a consequence, the decision to entrust the provision of the services in question to the OIB without publishing any advertisement or putting it out to competitive tender is contrary to the rules and principles of Community law that have been referred to, which justifies its annulment.
77. The Council does not accept the applicant’s arguments.
Findings of the Court
78. With regard, first of all, to the argument alleging infringement of Article 86 EC, it is apparent from Articles 2 and 3 of Decision 2003/523 that the OIB is an office which is responsible for managing the purely internal requirements of the Community and is not at all commercially orientated, so that it cannot be classified as a public undertaking within the meaning of Article 86 EC. Consequently, there can be no question of any kind of infringement of Article 86 EC and the applicant’s argument in that regard must therefore be rejected as unfounded.
79. As regards the other arguments put forward by the applicant in connection with the plea under examination, in particular those alleging infringement of Articles 43 EC and 49 EC, the applicant once again merely refers to infringement of those provisions without putting forward any substantive reasoning in that regard. In the light of the principles referred to at paragraph 71 above, those arguments must therefore be disregarded as inadmissible.
80. The first plea must therefore be rejected in its entirety on the basis that it is unfounded in part and, as to the remainder, inadmissible.
– The arguments alleging infringement of the principle of equal treatment
81. According to the applicant, the fact that the Council evaluated the proposal submitted by the OIB independently of the tendering procedure constitutes infringement of the principle of equal treatment.
82. The general principle of equality is one of the fundamental principles of Community law. That principle requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified (Case C‑304/01 Spain
v Commission
[2004] ECR I‑7655, paragraph 31).
83. Given that, as was established in the examination of the fourth plea, the OIB is a department of the Community institutions, its situation cannot in any way be compared to that of the participants in a tendering procedure. Accordingly, the fact that the Council evaluated the proposal submitted by the OIB independently of the tendering procedure cannot constitute infringement of the principle of equal treatment.
84. The applicant’s arguments alleging infringement of the principle of equal treatment must therefore be rejected as unfounded.
– The arguments alleging infringement of the principle of transparency
85. According to the applicant, the Council infringed the principle of transparency by entrusting the services in question to the OIB independently of the tendering procedure.
86. As regard the infringement of that principle, it should be noted that, according to the case‑law on public contracts, the contracting institution must comply, at each stage of a tendering procedure, not only with the principle of the equal treatment of tenderers, but also with the principle of transparency (Case C‑87/94 Commission
v Belgium
[1996] ECR I‑2043, paragraph 54, and Case T‑203/96 Embassy Limousines & Services
v Parliament
[1998] ECR II‑4239, paragraph 85).
87. The principle of transparency implies an obligation upon the contracting authority to publish all precise information concerning the conduct of the entire procedure (see, to that effect, Embassy Limousines & Services v Parliament, paragraph 85).
88. In the circumstances, it is apparent that the applicant was not kept informed, before the letter of 16 January 2006, of the discussions that had begun between the Council and the OIB which concluded in the Council’s decision to entrust the management of the crèche to the OIB. According to the information set out in the letter of 16 January 2006, those discussions commenced in the second half of 2005 when the OIB submitted its proposal.
89. However, according to case‑law, the objectives of publicity with which the contracting authority must comply under the obligation of transparency are, first, to ensure that all tenderers are afforded equality of opportunity (see, to that effect, Commission
v Belgium, paragraphs 54 and 55) and, secondly, to protect the legitimate expectations of the tenderers, who have been encouraged to make irreversible investments in advance (see, to that effect, Embassy Limousines & Services v Parliament, paragraphs 85 and 86).
90. In the present case, the applicant has failed to demonstrate that either of those objectives was compromised. First, since all the tenderers met with the same lack of publicity with regard to the correspondence between the Council and the OIB, it could not have rendered the chances of the applicant and of the other tenderers unequal. Secondly, the applicant has failed to demonstrate – and has not even claimed – that it was encouraged to make investments going beyond the risks inherent in participating in a tendering procedure.
91. Consequently, the applicant’s arguments alleging infringement of the principle of transparency must be rejected as unfounded.
3. The application for annulment of the favourable evaluation of the OIB’s proposal
92. The application for annulment of the Council’s favourable evaluation of the OIB’s proposal cannot be declared admissible.
93. The favourable evaluation of the OIB’s proposal which preceded the decision to entrust the services in question to that office is an internal act that is unconnected with the tendering procedure, given that, as was established at paragraphs 44 to 48 above, the Council is not required to comply with the rules governing public procurement when it decides to use the services of the OIB.
94. As an internal act that is unconnected with the tendering procedure, the favourable evaluation of the OIB’s proposal cannot produce binding legal effects such as to affect the interests of the applicant by bringing about a distinct change in its legal position. It cannot therefore constitute an act against which an action for annulment can be brought under Article 230 EC (see Joined Cases T‑10/92 to T‑12/92 and T‑15/ 92 Cimenteries CBR and Others v Commission
[1992] ECR II‑2667, paragraph 28 and the case‑law cited) and this application for annulment must therefore be declared inadmissible.
The claim for compensation
Arguments of the parties
95. The applicant seeks compensation for the damage which it allegedly suffered as a result of the Council’s conduct, to be assessed by the Court on an equitable basis.
96. The Council contends that that claim is unfounded.
Findings of the Court
97. According to established case‑law, in order for the Community to incur non‑contractual liability within the meaning of the second paragraph of Article 288 EC on account of the unlawful conduct of its institutions, a number of requirements must be satisfied, namely that the alleged conduct of the institutions is unlawful, that the damage is real and that there is a causal link between the conduct alleged and the damage in question (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; and order of the Court of First Instance of 8 September 2006 in Case T‑92/06 Lademporiki and Parousis & Sia
v Commission, not published in the ECR, paragraph 10).
98. Moreover, as pointed out at paragraph 71 above, the application must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the application.
99. In that regard, according to case‑law, in an action for compensation, a claim for any unspecified form of damages is insufficiently concrete and must therefore be regarded as inadmissible (Case 5/71 Zuckerfabrik Schöppenstedt
v Council
[1971] ECR 975, paragraph 9, and Joined Cases T‑79/96, T‑260/97 and T‑117/98 Camar and Tico
v Commission and Council
[2000] ECR II‑2193, paragraph 181).
100. However, the Court has accepted that, in special circumstances, it was not essential to specify the exact extent of the damage in the application and to state the amount of compensation sought (see, to that effect, Case T‑64/89 Automec
v Commission
[1990] ECR II‑367, paragraph 76, and order of the Court of First Instance in Case T‑91/05 Sinara Handel
v Council and Commission
[2007] ECR II-245, paragraph 110). It has also been held that that the applicant had to establish, or at least indicate, the existence of any such circumstances in the application (order of the Court of First Instance in Case T‑262/97 Goldstein
v Commission
[1998] ECR II‑2175, paragraph 25).
101. In the present case, the applicant requests that the Court ‘assess the damage suffered on an equitable basis’. It is also clear that, in addition to failing to put a figure in its application on the amount of damage it claims to have suffered, the applicant has also failed to furnish the Court with a shred of factual evidence to enable the extent of the damage to be ascertained. It has merely claimed, in abstract and general terms, that it has suffered damage, without giving the least detail of that damage. Moreover, the applicant fails to explain the special circumstances which might justify its inability to carry out even an approximate assessment of the damage it allegedly suffered.
102. The obligation to specify the exact extent of the damage in the application applies all the more so in the present case since it is apparent from Article 101 of the Financial Regulation and the end of paragraph 4(a) of the tendering specifications (see paragraph 68 above) that the contracting authority is not under any obligation to compensate tenderers who have participated in a tendering procedure which has been cancelled. It follows that the charges and expenses incurred by a tenderer in connection with his participation in a tendering procedure cannot in principle constitute damage which is capable of being remedied by an award of damages (Case T‑13/96 TEAM
v Commission
[1998] ECR II‑4073, paragraph 71, and Embassy Limousines & Services v Parliament, paragraph 97).
103. Therefore, in the light of the first paragraph of Article 21 of the Statute of the Court of Justice, applicable to the Court of First Instance by virtue of the first paragraph of Article 53 of that statute, and Article 44(1)(c) of the Rules of Procedure, the claim for damages must be rejected as inadmissible.
The application for suspension of the operation of the contract concluded between the Council and the OIB
104. Among the forms of order sought by the applicant is an application for the ‘suspension of the operation of the contract concluded with the OIB’.
105. From the procedural point of view, the application has not been made by a separate document in accordance with the requirement laid down in Article 104(3) of the Rules of Procedure. It is simply one of the forms of order sought in the same document as the main application and must therefore be rejected as inadmissible (see Joined Cases T‑298/97, T‑312/97, T‑313/97, T‑315/97, T‑600/97 to T‑607/97, T‑1/98, T‑3/98 to T‑6/98 and T‑23/98 Alzetta and Others v Commission
[2000] ECR II‑2319, paragraph 38 and the case‑law cited).
106. The application in question must therefore be rejected as inadmissible.
The application for measures of inquiry
Arguments of the parties
107. The applicant has requested that the Court, by way of measures of inquiry, call upon the Council to provide the following documents:
– the contract concluded between the Council and the OIB;
– all the documents relating to the Council’s decision to entrust the services in question to the OIB, in particular the communication prior to 1 August 2005 in which the Council asked the OIB to submit an offer for the management of those services.
108. The Council contends that those documents have no useful purpose in the context of the present case.
Findings of the Court
109. As a preliminary point, according to settled case-law, it is for the Court to appraise the usefulness of measures of inquiry for the purpose of resolving the dispute (Case T-68/99 Toditec
v Commission [2001] ECR II‑1443, paragraph 40, and Case T‑23/03 CAS v Commission
[2007] ECR II‑289, paragraph 323).
110. Clearly, the production of the documents requested could be justified only if it were accepted that the rules governing public procurement were applicable in the circumstances of the case. In view of the fact that the examination of the claims for annulment has led to the opposite conclusion, the production of the documents in question would no longer serve any useful purpose in the resolution of the present case.
111. In the light of those considerations, the application for measures of inquiry must be rejected.
Costs
112. 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. Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the Council.
Operative part
On those grounds,
THE COURT OF FIRST INSTANCE (Second Chamber)
hereby:
1. Dismisses the action;
2. Orders Centro Studi Antonio Manieri Srl to pay its own costs as well as the costs incurred by the Council.