JUDGMENT OF THE GENERAL COURT (Second Chamber)

26 September 2014 ( *1 )

‛Public service contracts — Tender procedure — Provision of non-scheduled passenger transport services by air and chartered air-taxi service — Rejection of application — Article 94(b) of the Financial Regulation — Rights of the defence — Article 134(5) of the detailed rules for the implementation of the Financial Regulation — Actions for annulment — Letter responding to a request made by the applicants — Act not amenable to review — Award decision — Lack of direct concern — Inadmissibility — Non-contractual liability’

In Joined Cases T‑91/12 and T‑280/12,

Flying Holding NV, established in Wilrijk (Belgium),

Flying Group Lux SA, established in Luxembourg (Luxembourg),

Flying Service NV, established in Deurne (Belgium),

represented by C. Doutrelepont and V. Chapoulaud, lawyers,

applicants,

v

European Commission, represented initially by S. Delaude and D. Calciu, and subsequently by S. Delaude, acting as Agents, assisted by V. Vanden Acker, lawyer,

defendant,

APPLICATION, first, for annulment of the decisions contained in the Commission’s letters of 15 December 2011 and 17 January 2012 rejecting the application submitted by the applicants in the restricted tendering procedure for the provision of non-scheduled passenger transport services by air and chartered air-taxi service (OJ 2011/S 192-312059) and in the Commission Decision of 28 February 2012 awarding the contract to another company and, secondly, for damages,

THE GENERAL COURT (Second Chamber),

composed of M.E. Martins Ribeiro, President, S. Gervasoni (Rapporteur) and L. Madise, Judges,

Registrar: S. Spyropoulos, Administrator,

having regard to the written procedure and further to the hearing on 28 February 2014,

gives the following

Judgment

Background to the dispute

1 By contract notice of 6 October 2011, published in the Supplement to the Official Journal of the European Union (OJ 2011/S 192-312059), the European Commission issued call for tenders PMO2/PR/2011/103 concerning the conclusion of a framework agreement entitled ‘Provision of non-scheduled passenger transport services by air, chartered air-taxi service’. The purpose of that call for tenders was to select a provider of non-scheduled air transport services responsible for chartering air-taxi services and providing transport for the President and other members of the Commission, for the European Parliament Presidency, for the Presidency of the European Council, for the High Representative of the Union for Foreign Affairs and Security Policy, and any accompanying persons, mostly within the territory of the European Union.

2 The procedure laid down in the contract notice for the award of the contract in question was the restricted procedure governed by Article 91(1)(b) 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), as amended (‘the Financial Regulation’), and by Article 122(2) 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), as amended (‘the Implementing Rules’). The procedure is organised in two stages. The first stage consists in verifying the absence of the exclusion criteria laid down in Articles 93 and 94 of the Financial Regulation and compliance with the selection criteria laid down in the contract notice. Any interested economic operator may participate in the first stage of the procedure. In the second stage, only candidates meeting the selection criteria who are not in one of the situations of exclusion are invited to submit a tender and are sent the contract specifications for that purpose.

3 The documents and information to be submitted by the candidates during the first stage as evidence of their technical capacity are described in point III.2.3 of the contract notice, which reads as follows: ‘Information and formalities necessary for evaluating if the requirements are met: … * Security and safety: on pain of rejection of the application, the candidate must provide: — a copy of part A “General provisions” of the company’s operating manual, — description of the emergency response plan (ERP), aviation safety programme and safety programme, — complete particulars of the body or bodies responsible for airworthiness and aeroplane maintenance. * For the period from 1.1.2007 to the date of publication of this contract notice: — for all aeroplanes operated by the tenderer, an exhaustive list of severe accidents and incidents which occurred, the corresponding reports from the competent authorities and the conclusions available regarding their likely cause, — the annual security and safety audit reports from the competent authorities (mandatory) or third parties (optional), and a summary of findings and action taken on them, — a mention of all inspections carried out under Directive 2004/36/EC (SAFA). …’

4 On 7 November 2011, Flying Holding NV submitted, on behalf of its two subsidiaries, Flying Group Lux SA and Flying Service NV (together, ‘the applicants’), an application to participate in the restricted procedure at issue.

5 On 18 November 2011, the Commission asked the applicants to provide it with additional information concerning, in particular, their technical capacity. The applicants replied to the Commission on 28 November 2011, enclosing several documents.

6 On 2 December 2011, the Commission asked the applicants for further additional information, reminding them that the contract notice asked them to supply, on pain of rejection of their application, complete particulars of the body or bodies responsible for aeroplane maintenance and, in respect of Flying Group Lux, a description of its ERP (emergency response plan) and the annual security and safety audit reports.

7 The applicants sent further documents to the Commission on 6 December 2011, stating that they were providing only the annual security and safety audit report for 2011, as Flying Group Lux was only established at the end of 2008, and that no annual security and safety report had been issued by the Luxembourg civil aviation authorities for 2009 and 2010.

8 By letter of 12 December 2011 addressed to the Commission in response to its email of 8 December 2011, the Luxembourg Directorate for Civil Aviation stated that it had carried out several audits of Flying Group Lux, including several general audits with a view to issuing an air operator’s certificate (air operator’s certificate, ‘AOC’) and renewing that certificate in 2009, 2010 and 2011.

9 On 15 December 2011, the Commission informed the applicants that their application to participate in the restricted procedure had been rejected. It considered that their application file was not ‘exact, sincere and complete’. In fact, the applicants had not supplied all the documents required by the contract notice under the ’Security and safety’ heading, whereas the Commission had been informed that security and safety audits had been carried out on Flying Group Lux in 2009 and 2010. It was also stated that the evaluation committee had decided to reject the applicants’ application under Article 94(b) of the Financial Regulation, which provides that contracts may not be awarded to candidates who, during the procurement procedure, are guilty of misrepresentation in supplying the information required by the contracting authority as a condition of participation in the contract procedure or fail to supply this information.

10 By letter of 20 December 2011 addressed to the Commission, the applicants explained that the failure to supply the requested reports for the years 2009 and 2010 resulted from the fact that they had understood that the contract notice was referring to specific security and safety audits and not general audits containing a section relating to security and safety, which were carried out in this case exclusively by the Luxembourg civil aviation authorities. They also relied on the establishment of a new database from the beginning of 2011 which did not incorporate the data relating to 2009 and 2010, leading them to think that that data did not exist. Finally, they supplied the ‘pre-AOC’ general audit reports for 2009, the ‘AOC Continuous Oversight Audit’ for 2010 and the ‘AOC Continuous Oversight Audit’ for 2011.

11 On 17 January 2012, the Commission confirmed its decision to reject the applicants’ application. It considered that there was no ambiguity concerning the documents to be supplied.

12 On 18 January 2012, the applicants informed the Commission of their intention to contest that decision before the Court and announced that ‘in the following days’ they would produce evidence that the reports requested for Flying Group Lux were not available, as they had not been issued by the competent authority, the Luxembourg Directorate for Civil Aviation.

13 On 25 January 2012, the Luxembourg Directorate for Civil Aviation wrote to Flying Group Lux in these terms: ‘[The Luxembourg Directorate for Civil Aviation] would point out that the pre-AOC general audits and the AOC renewal audits covered “quality system, flight safety management and security” aspects. Moreover, from the year 2012, the [Luxembourg] Directorate for Civil Aviation will also carry out more specialised audits including security-related audits according to an annual audit and inspection programme agreed between the authority and the operators.’

14 On the same day, the Luxembourg Directorate for Civil Aviation sent an identical letter to the Commission adding that it had informed Flying Group Lux by letter of 12 February 2010 that it was enclosing a copy of the scope of the audits carried out.

15 At the end of the first stage of the restricted procedure, a single candidate, Abelag Aviation NV, was invited to submit a tender. Following the examination of that tender, the contract was awarded to it on 28 February 2012. The award notice was published in the Official Journal on 28 April 2012 (OJ S 83-135396, p. 101).

Procedure and forms of order sought

16 By applications lodged at the Court Registry on 23 February and 28 June 2012 respectively, the applicants brought the present actions.

17 Cases T‑91/12 and T‑280/12 were joined for the purposes of the oral procedure and the judgment, by order of the President of the Eighth Chamber of 4 September 2012.

18 Following a change in the composition of the Chambers of the Court, the Judge-Rapporteur was assigned to the Second Chamber, to which the present case was accordingly allocated.

19 Upon hearing the report of the Judge-Rapporteur, the Court (Second Chamber) decided to open the oral procedure and, by way of measures of organisation of procedure, sent the applicants and the Commission a question to be answered orally at the hearing.

20 The parties presented oral argument and answered the written question and oral questions put by the Court at the hearing on 28 February 2014.

21 In Case T‑91/12, the applicants claim that the Court should: — annul the decisions contained in the Commission’s letters of 15 December 2011 and 17 January 2012 rejecting their application in the restricted tender procedure for the contract in question. — order the Commission to pay the costs.

22 In that case, the Commission contends that the Court should: — dismiss the action; — order the applicants to pay the costs.

23 In Case T‑280/12, the applicants claim that the Court should: — annul the Commission decision of 28 February 2012 awarding the contract in question to another company; — order the Commission to pay them compensation for the damage suffered of EUR 1 014 400, increased by interest at the rate of 2.9% until the date of the judgment to be delivered, and then by default interest at the rate of 3% as from that date until payment in full; — order the Commission to pay the costs.

24 The Commission contends that the Court should: — dismiss the action as inadmissible or, in the alternative, as unfounded; — order the applicants to pay the costs.

Law

25 The applicants are seeking, first, the annulment of the Commission decision of 15 December 2011 rejecting their application in response to the call for tenders in question, of the decision allegedly contained in the Commission’s letter of 17 January 2012 confirming that rejection and of the Commission decision of 28 February 2012 awarding the contract to another company and, secondly, the award of damages.

A – The applications for annulment (Cases T‑91/12 and T‑280/12)

1. The applications for annulment of the Commission decision of 15 December 2011 and of the decision allegedly contained in its letter of 17 January 2012 (Case T‑91/12)

a) The application for annulment of the Commission decision of 15 December 2011

26 The applicants claim that, by adopting the decision of 15 December 2011, the Commission disregarded, first, Article 135(5) of the Implementing Rules and Article 89(1) of the Financial Regulation, secondly, their rights of defence, the principle of sound administration and Article 134(5) of the Implementing Rules and, thirdly, the principle of proportionality.

The plea alleging infringement of Article 89(1) of the Financial Regulation and of Article 135(5) of the Implementing Rules

27 The applicants plead infringement by the Commission of Article 135 of the Implementing Rules, in that the Commission required the communication of information going beyond the subject of the contract and did not take account of the legitimate interests of the economic operators, by requesting the production of documents originating from the Luxembourg authorities. The Commission also therefore infringed Article 89 of the Financial Regulation requiring respect for the principles of transparency, proportionality, equal treatment and non-discrimination.

28 As regards the first part of this plea, alleging infringement by the Commission of Article 135(5) of the Implementing Rules, it should be noted that, under that provision: ‘The information requested by the contracting authority as proof of the financial, economic, technical and professional capacity of the candidate or tenderer and the minimum capacity levels required in accordance with paragraph 2 may not go beyond the subject of the contract and shall take account of the legitimate interests of the economic operators as regards in particular the protection of the firm’s technical and business secrets.’

29 In the present case, the Commission, in fact, required the production, in respect of Flying Group Lux, of the annual security and safety audit reports issued by the Luxembourg Directorate for Civil Aviation (see paragraphs 6 and 7 above).

30 However, it should be noted, first, that, according to point II.1.2 of the contract notice, most flights are expected to depart from Brussels (Belgium), although departures are not ruled out from other cities such as Luxembourg (Luxembourg), which is also the seat of EU institutions, and, secondly, that the applicant company Flying Group Lux is based in Luxembourg.

31 In those circumstances, the requirement to supply documents issued by the Luxembourg authorities does not go beyond the requirements of the contract or act against the interests of the operator concerned, which could not even submit its application without producing such documents.

32 As regards the second part of this plea, alleging infringement by the Commission of Article 89(1) of the Financial Regulation requiring respect for the principles of transparency, proportionality, equal treatment and non-discrimination, it need merely be observed that the applicants are content to infer that infringement from the failure to have regard to Article 135(5) of the Implementing Rules and do not submit any specific arguments in support of that allegation.

33 The plea alleging infringement of Article 89(1) of the Financial Regulation and of Article 135(5) of the Implementing Rules must therefore be rejected.

The pleas alleging infringement of the applicants’ rights of defence, of the principle of sound administration and of Article 134(5) of the Implementing Rules

34 By these pleas, the applicants complain, in essence, that the Commission applied to the Luxembourg authorities in order to obtain the information that it considered necessary (infringement of Article 134(5) of the Implementing Rules) and then relied on that information without notifying them in advance and without providing them with the opportunity to state their views on that information. (infringement of the rights of the defence and of the principle of sound administration). It is therefore necessary to examine, first, the plea alleging infringement of Article 134(5) of the Implementing Rules and, secondly, the pleas alleging infringement of the applicants’ rights of defence and of the principle of sound administration.

– The plea alleging infringement of Article 134(5) of the Implementing Rules

35 The applicants argue, in the reply, that the Commission disregarded Article 134(5) of the Implementing Rules by applying directly to the Luxembourg authorities in order to obtain the information that it considered necessary. Indeed, the Luxembourg Directorate for Civil Aviation was not one of the authorities referred to in paragraph 3 of that article. The applicants state that this plea is admissible in that it is based on matters of law which came to light in the Commission’s defence.

36 First of all, the admissibility of the plea, which is contested by the Commission, should be examined.

37 Under the first subparagraph of Article 48(2) of the Rules of Procedure of the Court, no new plea in law may be introduced 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 procedure.

38 In the present case, it is common ground, first, that the Commission referred to Article 134(5) of the Implementing Rules for the first time in the defence in order to show that it was entitled to question the Luxembourg civil aviation authorities for the purpose of verifying the applicants’ statements and, secondly, that the applicants first raised the plea alleging infringement of that article in the reply.

39 It follows that the applicants’ plea is based on a matter of law, in this case the legal basis of the consultation of the national authorities concerned, which came to light in the course of the present procedure. Thus, the present plea alleges infringement of the provision in question and not the unlawfulness of consulting the national authorities. Therefore, contrary to what the Commission maintains, it is irrelevant in this case that that consultation was referred to as early as the letter of 15 December 2011 which is the subject of this action.

40 The plea alleging infringement by the Commission of Article 134(5) of the Implementing Rules must therefore be regarded as admissible.

41 As regards the merits of this plea, it is necessary to recall the wording of the provision in question: ‘Where they have doubts as to whether candidates or tenderers are in one of the situations of exclusion, contracting authorities may themselves apply to the competent authorities referred to in paragraph 3 to obtain any information they consider necessary about that situation.’

42 Article 134(3) of the Implementing Rules provides as follows: ‘The contracting authority shall accept as satisfactory evidence that the candidate or tenderer to whom the contract is to be awarded is not in one of the situations described in points (a), (b) or (e) of Article 93(1) of the Financial Regulation, a recent extract from the judicial record or, failing that, an equivalent document recently issued by a judicial or administrative authority in the country of origin or provenance showing that those requirements are satisfied. The contracting authority shall accept, as satisfactory evidence that the candidate or tenderer is not in the situation described in point (d) of Article 93(1) of the Financial Regulation, a recent certificate issued by the competent authority of the State concerned. …’

43 In the present case, as the applicants rightly argue, the Luxembourg Directorate for Civil Aviation is not one of the authorities specified in Article 134(3) of the Implementing Rules, to which paragraph 5 of that article refers. Indeed, Article 134(3) of the Implementing Rules, read in conjunction with Article 93(1) of the Financial Regulation, refers only to ‘judicial and administrative authorities’ able to issue an extract from the judicial record or an equivalent document (first sentence) and to ‘competent authorities’ able to issue a certificate of payment of social security contributions or of payment of taxes (second sentence).

44 However, it cannot be inferred from this that Article 134(5) of the Implementing Rules was disregarded, since that provision is not applicable in a situation such as that in the present case, in which the Commission applies to national authorities in order to verify the existence of the situations of exclusion provided for in Article 94(b) of the Financial Regulation.

45 It is clear from the scheme of Article 134 of the Implementing Rules and from the wording of paragraph 5 thereof that that paragraph applies only in cases where the contracting authority has doubts as to the existence of the situations of exclusion referred to in Article 93(1)(a), (b), (d) and (e) of the Financial Regulation.

46 It should be noted in that regard that Article 134(1) of the Implementing Rules provides that candidates and tenderers must provide a declaration on their honour, duly signed and dated, stating that they are not in one of the situations referred to in Article 93 or 94 of the Financial Regulation (first subparagraph). However, that article provides that, for certain procedures, candidates must provide the certificates referred to in paragraph 3 (second subparagraph).

47 Therefore, even though Article 134(5) of the Implementing Rules refers in general to ’situations of exclusion’, it is clear from the reference made in that paragraph to paragraph 3 of the same article and from the statement that ‘contracting authorities may themselves apply to the competent authorities’ referred to in paragraph 3 that paragraph 5 concerns the case where, as candidates are not obliged to provide the certificates specified in paragraph 3 relating to the situations of exclusion referred to in Article 93(1)(a), (b), (d) and (e) of the Financial Regulation, the contracting authority wishes all the same to ensure that those candidates are not in one of those situations of exclusion.

48 Consequently, in so far as the Commission wished, in the present case, to ensure that there was no misrepresentation by the applicants under Article 94(b) of the Financial Regulation, and not under Article 93(1) of that regulation, it was not required to comply with Article 134(5) of the Implementing Rules.

49 It follows that the plea alleging infringement of Article 134(5) of the Implementing Rules must be rejected as irrelevant.

50 Moreover, in so far as the applicants do not cite any other reason for the unlawfulness of the consultation of the national authorities by the Commission, there is no need to ascertain whether there is any other legal basis for that consultation in the applicable provisions or principles.

– The pleas alleging infringement of the rights of the defence and of the principle of sound administration

51 The applicants claim that their rights of defence have been infringed, since the Commission justified the application of Article 94(b) of the Financial Regulation and, therefore, the rejection of their application, by relying on information obtained from the Luxembourg authorities which was not sent to them for their comments prior to the adoption of the decision of 15 December 2011.

52 The applicants claim that, by adopting the decision of 15 December 2011 without giving them the opportunity to make their views known on the information obtained from the Luxembourg authorities, the Commission also disregarded the principle of sound administration.

53 At the hearing, the Commission disputed the applicability in the present case of the plea alleging infringement of the applicants’ rights of defence. It argued that it had complied with all the applicable provisions concerning public contracts and that none of those provisions required it to hear the applicants before adopting a decision such as the one contested in the present case.

54 It should be noted in that regard that it is settled case-law that observance of the right to be heard is, in all proceedings initiated against a person which are liable to culminate in a measure adversely affecting that person, a fundamental principle of EU law which must be guaranteed even in the absence of any rules governing the proceedings in question, whether relating, for example, to the suspension, reduction or withdrawal of financial assistance from the European Social Fund (Case C-32/95 P Commission v Lisrestal and Others [1996] ECR I-5373, paragraph 21), in proceedings seeking an order to deprive a Commission member of her right to a pension (Case C-432/04 Commission v Cresson [2003] ECR I-6387, paragraph 104) or in proceedings for authorisation of plant protection products (Case T-75/06 Bayer CropScience and Others v Commission [2008] ECR II-2081, paragraph 130).

55 Therefore, the fact that no provision of the Financial Regulation or of the Implementing Rules requires observance of the rights of the defence in a situation such as that in the present case does not, in itself, preclude such a guarantee based on the general principle of respect for the rights of the defence.

56 However, also at the hearing, the Commission disputed the applicability of that general principle to the present case on the ground that, unlike in the situations referred to in the abovementioned case-law, the decision of 15 December 2011 could not be classified as a decision imposing a penalty.

57 It should be noted in that regard that, contrary to what the Commission maintains, the decision of 15 December 2011 may be regarded as having imposed a penalty on the applicants.

58 Indeed, that decision is based, at least in part, as is clear from its wording and as the Commission confirmed at the hearing, on Article 94(b) of the Financial Regulation, under which contracts may not be awarded to candidates or tenderers who, during the procurement procedure, are ‘guilty’ of misrepresentation in supplying the information required by the contracting authority as a condition of participation in the contract procedure or fail to supply this information.

59 Therefore, the decision of 15 December 2011 is not merely a decision rejecting the applicants’ application to tender for the contract in question. It is a decision immediately excluding the applicants from the contract without examining, in their case, the other criteria for assessing applications, on the ground that they are guilty of misrepresentation. The Commission actually explained in that decision that it was informed that, contrary to what the applicants had stated, annual security and safety audits had been carried out by the competent authorities in 2009 and 2010 and that their application was therefore ‘not exact and sincere’ and had to result in the application of Article 94(b) of the Financial Regulation.

60 However, it has been held that measures such as the temporary exclusion of an economic operator from the benefit of an EU aid scheme on the ground of misrepresentation may be classified as administrative penalties. According to that case-law, in the context of a European Union aid scheme in which the granting of the aid is necessarily subject to the condition that the beneficiary offers all guarantees of probity and trustworthiness, the penalty imposed in the event of non-compliance with those requirements, although not of a criminal nature, nevertheless constitutes a specific administrative instrument forming an integral part of the scheme of aid and intended to ensure the sound financial management of public funds of the European Union (see, to that effect, Case C‑489/10 Bonda [2012] ECR, paragraphs 28 to 30 and the case-law cited).

61 Like those European Union aid schemes, the provisions governing public contracts awarded by EU institutions have provided, in Articles 93 and 94 of the Financial Regulation, for various situations of exclusion from participation in the procurement and award procedures for such contracts in order to prevent irregularities and to combat fraud and corruption and promote sound and efficient management (recital 25 in the preamble to the Financial Regulation).

62 Moreover, Article 95 of the Financial Regulation provides that detailed information on candidates who are in one of the situations described, inter alia, in Article 94 of that regulation must be kept in a central database administered by the Commission and that authorities participating in the implementation of the budget must have access to that database and must take that information into account when awarding contracts relating to implementation of the budget.

63 It follows that the decision to exclude the applicants from the contract in question is in the nature of an administrative penalty, even though, in the present case, as the Commission stated at the hearing, no information on the applicants was stored in the database referred to in Article 95 of the Financial Regulation.

64 In any event, even assuming that the decision of 15 December 2011 may not be regarded as having imposed a penalty on the applicants, it should be noted that, according to the case-law on the principle of respect for the rights of the defence, that principle is of general application and applies, quite apart from cases where an institution plans to impose a penalty, in all proceedings initiated against a person which are liable to culminate in a measure adversely affecting that person (see paragraph 54 above; see, by analogy, Case C‑277/11 M [2012] ECR, paragraph 85).

65 In the present case, the decision of 15 December 2011 constitutes, if not a decision imposing a penalty, at the very least a measure adversely affecting the applicants, that is to say that it significantly affects their interests, since it has serious financial consequences (see, to that effect, Case T-231/97 New Europe Consulting and Brown v Commission [1999] ECR II-2403, paragraph 43), or, more generally, it has serious consequences on their situation (see, to that effect, Case F‑26/10 AZ v Commission [2011] ECR, paragraph 51). Thus, a decision such as that rejecting the applicants’ application on the ground, in particular, of misrepresentation pursuant to Article 94(b) of the Financial Regulation is liable, at the very least, adversely to affect their reputation and, as stated in paragraph 62 above, to have consequences which go beyond the contract in question.

66 It must also be held that the decision of 15 December 2011 does not merely constitute the administration’s response to the application to participate in an invitation to tender with a view to the award of a public contract. That decision was taken following the request for information sent to the Luxembourg authorities owing to the Commission’s doubts as to the veracity of the applicants’ statements contained in their letter of 6 December 2011 (see paragraph 7 above), according to which no annual security and safety audit was carried out in respect of Flying Group Lux for the years 2009 and 2010. The Commission therefore intensified its examination of an aspect of the applicants’ application and, by that request for information, took an action aimed at checking the applicant’s statements which led to the adoption of the decision of 15 December 2011.

67 It follows from all the above that the general principle of respect for the rights of the defence should have been applied by the Commission in this case.

68 That consideration is not called into question by the Commission’s argument, put forward at the hearing, that the communication of the letter of 12 December 2011 from the Luxembourg authorities to the applicants, for the purposes of ensuring respect for the rights of the defence, disregarded Article 99 of the Financial Regulation and Article 148 of the Implementing Rules, which provide, in essence, that, while a procurement procedure is under way, all contacts between the contracting authority and candidates must satisfy conditions ensuring transparency and equal treatment. According to the Commission, the communication of the letter from the Luxembourg Directorate for Civil Aviation to the applicants afforded them a possibility of supplementing their application and thereby gave them an advantage over the other candidates.

69 It is sufficient to recall, in that regard, that, according to settled case-law, the principle of equal treatment prohibits comparable situations from being treated differently and different situations from being treated alike, unless such treatment is objectively justified (Joined Cases 201/85 and 202/85 Klensch and Others [1986] ECR 3477, paragraph 9, and Case T-160/03 AFCon Management Consultants and Others v Commission [2005] ECR II-981, paragraph 91).

70 In the present case, the applicants, quite apart from their status as a candidate for participation in the restricted procedure in question, a status which they had in common with all the other declared candidates, were in a situation which differentiated them and which cannot be regarded as being comparable to that of the other candidates, since they were the only candidates in respect of which the Commission carried out checks (see paragraph 66 above). The Commission’s communication to the applicants of the letter sent by the Luxembourg authorities in connection with those checks did not therefore disregard the principle of equal treatment.

71 However, it cannot be inferred from all the foregoing that the Commission’s failure to communicate the letter from the Luxembourg civil aviation authorities to the applicants, an irregularity affecting the rights of the defence, must result in the annulment of the decision of 15 December 2011.

72 Indeed, according to settled case-law, it is for the court to verify, where it considers that such an irregularity has occurred, whether, in the light of the specific factual and legal circumstances of the case, the procedure at issue could have resulted in a different outcome if the applicants would have been better able to defend themselves in the absence of that irregularity (see, to that effect, Case C-141/08 P Foshan Shunde Yongjian Housewares & Hardware v Council [2009] ECR I-9147, paragraphs 81, 88, 92, 94 and 107; see, by analogy, Case C‑383/13 PPU G. and R. [2013] ECR, paragraph 40).

73 It must therefore be examined whether, if the Commission had given the applicants the opportunity to make their views known on the letter from the Luxembourg Directorate for Civil Aviation of 12 December 2011, it would have taken the same decision to exclude the applicants on the ground of misrepresentation within the meaning of Article 94(b) of the Financial Regulation.

74 First, it is clear from the documents before the Court that the Commission was justified, in the light of the abovementioned letter from the Luxembourg authorities, in considering that the applicant’s statements were inaccurate. They actually stated in their letter of 6 December 2011 that no security and safety audit had been carried out in respect of Flying Group Lux for 2009 and 2010, whereas the Luxembourg Directorate for Civil Aviation stated in its letter of 12 December 2011 that general reports relating to the grant and renewal of the AOC had been produced for those years and covered ’security’ and ’safety’ aspects. The applicants also acknowledged, in their letter of 20 December 2011, sent in response to the decision of 15 December 2011 accusing them of misrepresentation, that the abovementioned general reports contained information on the assessment of the security and safety of the airline in question, contrary to the submissions made by the applicants in their pleadings (see paragraph 80 below), since they stated that as an annex to that letter they were enclosing the said general reports, ‘marking the aspects relating to security and safety’ (see also paragraphs 81 to 87 below).

75 Secondly, the Commission has no other choice, where, as in the present case, the communication of inaccurate information has been proven, but to implement Article 94(b) of the Financial Regulation by rejecting the application concerned. As the Commission rightly stated at the hearing, the concept of ‘misrepresentation’ covers both knowingly erroneous statements and those which are erroneous as a result of negligence and does not therefore require an assessment of the reasons for the inaccuracy once it has been established.

76 In those circumstances, even if the applicants had been sent the letter from the Luxembourg authorities of 12 December 2011 and had explained that their statement regarding the non-existence of the requested reports was due to a misunderstanding, as they subsequently did in their letter of 20 December 2011, the only possible conclusion of the Commission would have been that the statement was inaccurate, as it stated, moreover, at the hearing.

77 This is also shown by the Commission’s letter of 17 January 2012, sent in response to the abovementioned letter from the applicants of 20 December 2011. The Commission examines, in its letter, the applicants’ arguments as to the existence of a misunderstanding only in that they might substantiate the incompleteness of their application, thereby implicitly considering, as it stated at the hearing in response to a question put by the Court, that those arguments could not justify the misrepresentation at issue or, a fortiori, cast doubt on the finding of misrepresentation.

78 It follows that, although the applicants were not given the opportunity of making their views known before the adoption of the decision of 15 December 2011, that fact is not, in the light of the specific facts of the dispute, such as to justify annulment of that decision. The plea alleging infringement of the rights of the defence must therefore be rejected.

79 In those circumstances, nor is it possible to uphold the plea alleging infringement of the principle of sound administration, based on the same arguments as those relied on in support of the plea alleging infringement of the rights of the defence. In fact, the principle of sound administration, as claimed by the applicants, is indistinguishable from the right to be heard covered by the principle of respect for the rights of the defence.

The plea alleging infringement of the principle of proportionality

80 According to the applicants, the decision of 15 December 2011 infringes the principle of proportionality by prohibiting them from participating in the restricted procedure at issue, even though all the relevant information directly relating to the subject of the contract was sent to the Commission in good time. The applicants were unable to produce the annual security and safety audit reports required by the contract notice for 2009 and 2010, because those reports had not been produced by the Luxembourg authorities and because the ‘pre-AOC’ and ‘AOC Continuous Oversight Audit’ reports were not those required by the contract notice. They state that the Commission was informed by a letter of 25 January 2012 from the Luxembourg authorities that the abovementioned reports granting and renewing the AOC were not those required by the contract notice, since they contained only certain information on safety, and that specific reports on security were only produced from 2012 onwards. Moreover, the specific purpose of the ‘pre-AOC’ report was not to assess the operator’s security and safety and it was clear from the ‘AOC Continuous Oversight Audit’ that the annual audit for 2009 had not been finalised and that the annual audit for 2010 had not begun.

81 As a preliminary point, it should be noted, as the applicants themselves recognised in their letter of 20 December 2011, sent in response to the decision of 15 December 2011, that the ‘pre-AOC’ and ‘AOC Continuous Oversight Audit’ reports contained information on the assessment of the security and safety of the airline in question (see paragraph 74 above), from which it may be inferred that those reports met the requirements of the contract notice in the absence of the production by the Luxembourg authorities of specific security and safety reports for 2009 and 2010.

82 The arguments put forward in the course of the present proceedings cannot cast doubt on that finding.

83 First, it is true that the main purpose of the ‘pre-AOC’ report is not to assess the operator’s security and safety. Thus, the applicants explained in the reply, without being contradicted by the Commission, that the ‘pre-AOC’ report is produced during the stage prior to the grant of the AOC and that the ‘pre-AOC’ inspection is conducted in order to verify the operator’s capacity to plan, prepare and conduct its operations.

84 However, it is clear from that report enclosed with the applicants’ letter of 20 December 2011 that a number of the aspects audited related to the security and safety of the audited airline. These included the skills of the navigation staff, in particular the pilots, and information on emergency procedures. The heading ’Security’ was actually expressly used. In fact, as the Commission rightly points out, the purpose of the audit preceding the grant of an air operator’s certificate is to verify that that operator has the professional skills and organisation necessary to ensure the security and safety of the aircraft concerned. It is, in fact, clear from the EU legislation, which is also cited by the Luxembourg Directorate for Civil Aviation in its letters to the applicants as constituting the legal basis for carrying out the audit in question, that a high and uniform level of protection of the European citizen should at all times be ensured in civil aviation, by the adoption of common safety rules [recital 1 in the preamble to Regulation (EC) No 216/2008 of the European Parliament and of the Council of 20 February 2008 on common rules in the field of civil aviation and establishing a European Aviation Safety Agency, and repealing Council Directive 91/670/EEC, Regulation (EC) No 1592/2002 and Directive 2004/36/EC (OJ 2008 L 79, p. 1); see also second recital in the preamble to Council Regulation (EEC) No 3922/91 of 16 December 1991 on the harmonisation of technical requirements and administrative procedures in the field of civil aviation (OJ 1991 L 373, p. 4)].

85 Secondly, the applicants are mistaken when they maintain that, in the ‘AOC Continuous Oversight Audit’ report of 2010, the inspectors of the Luxembourg Directorate for Civil Aviation stated that the annual audit for 2009 had not been finalised and that the annual audit for 2010 had not begun. It is, in fact, clear from that report, as the Commission points out, that the statement that ‘the 2009 audit has not been finalised and the 2010 audit has not begun’ is contained in the section entitled ‘Quality System’ and therefore concerns the assessment of the ‘quality’ aspect, whereas, in fact, the ‘Flight Safety’ aspect was audited, as the various comments under that heading show.

86 Thirdly, the applicants’ allegations based on the letter of 25 January 2012 sent by the Luxembourg authorities to the Commission cannot be taken into consideration since, according to settled case-law, the European Union judicature must assess the legality of a measure on the basis of the elements of fact and of law existing at the time when the measure was adopted, and in particular in the light of the information available to the Commission when the measure was adopted (Joined Cases 15/76 and 16/76 France v Commission [1979] ECR 321, paragraph 7; see, to that effect, Case C-197/99 P Belgium v Commission [2003] ECR I-8461, paragraph 86).

87 In any event, it follows from the wording of the letter from the Luxembourg authorities of 25 January 2012 that the applicants’ allegation that the ‘pre-AOC’ and ‘AOC Continuous Oversight Audit’ reports only contained information on air safety must be rejected. That letter expressly refers to aviation ’security’, stating that ‘the pre-AOC general audits and the audits renewing the AOC carried out by the [Directorate for Civil Aviation] cover quality system, flight safety management and security aspects’. In so far as the terms ’safety’ and ’security’ are both mentioned, it cannot be inferred from the word ’safety’ placed in brackets after the term ’security’ that only the ’safety’ aspect is audited. That interpretation is confirmed by the letter attached as an annex to the letter of 25 January 2012 explaining the content of the AOC renewal inspection, which refers expressly and separately to the safety audit and the security audit. Doubt is not cast on that interpretation by the announcement in the letter of 25 January 2012 of the establishment of specialised security-related audits from 2012, from which it can be inferred only that there were no specific reports on security before 2012, but not that the general reports relating to the AOC did not contain a specific aspect on security.

88 Moreover, as the applicants were airlines and therefore professionals in the aviation sector, they had to be aware of the purpose of the audits carried out with a view to obtaining the certificate enabling them to fly, which is the AOC. This is also shown by the letters the Luxembourg Directorate for Civil Aviation sent to them before carrying out the audits relating to renewal of the AOC, which they enclosed with their letter of 20 December 2011 and which describe the various aspects of those audits, in particular, the ‘Flight safety management’ and ’Security’ aspects.

89 It follows from the foregoing that, by not sending to the Commission the 2009 ‘pre-AOC’ and 2010 ‘AOC Continuous Oversight Audit’ reports in response to its letter of 2 December 2011, the applicants did not provide it with all the relevant information in good time.

90 In those circumstances, by rejecting the applicants’ application, the Commission cannot be criticised for having failed to use measures appropriate for attaining the legitimate objectives pursued by the legislation on public contracts and for having gone beyond what was necessary to achieve them (see, to that effect, Case C-176/09 Luxembourg v Parliament and Council [2011] ECR I-3727, paragraph 61 and the case-law cited).

91 The plea alleging infringement of the principle of proportionality must therefore be rejected.

92 In view of the foregoing, the application for annulment of the decision of 15 December 2011 must be dismissed.

b) The application for annulment of the decision allegedly contained in the Commission’s letter of 17 January 2012

93 Without formally raising an objection of inadmissibility within the meaning of Article 114 of the Rules of Procedure, the Commission argues that the applicants have no interest in bringing proceedings against the decision of 17 January 2012, from the annulment of which they can derive no benefit, since only the decision of 15 December 2011 constitutes the decision rejecting their application.

94 At the hearing, the Commission stated, in response to a question put by the Court, that it also disputed that the letter of 17 January 2012 was a challengeable act. According to the Commission, that letter is not a decision within the meaning of the case-law, in that it does not alter the legal situation of the applicants, which was already determined by the decision of 15 December 2011. The sole purpose of the letter of 17 January 2012 was to reply to the applicants’ letter of 20 December 2011 alleging a misunderstanding by rejecting that allegation.

95 It must be noted in that regard that it has been consistently held that any measure the legal effects of which are binding on, and capable of affecting the interests of, the applicant by bringing about a distinct change in his legal position is an act or a decision which may be the subject of an action for a declaration that it is void (Case 60/81 IBM v Commission [1981] ECR 2639, paragraph 9, and Case T-81/97 Regione Toscana v Commission [1998] ECR II-2889, paragraph 21).

96 In the present case, the Commission’s letter of 17 January 2012 cannot be regarded as bringing about a distinct change in the applicants’ legal position. Only the Commission’s decision of 15 December 2011 rejecting their application in connection with the contract in question has such an effect.

97 The letter of 17 January 2012 only contains elements of a purely informative nature and elements explaining the decision to reject the applicants’ application. The Commission therefore merely reviews the course of the procedure prior to the sending of that letter, including the letter of 20 December 2011 (first to fifth paragraphs), and informs the applicants of the existing audit reports relating to European and international air security (sixth paragraph) and of the absence of requests for clarification of the point of the contract notice in question from the other candidates (ninth paragraph). The Commission also explains therein the reasons for the rejection of the applicant’s application, stating, first, that there could be no doubt as to the nature of the reports required (seventh paragraph), secondly, that the applicants could have provided the required reports like Flying Group Belgium (eighth paragraph) and, finally, that even a misunderstanding in good faith cannot be accepted, so that the evaluation committee confirmed the decision to reject their application (tenth paragraph).

98 Moreover, even assuming that, in the absence of a formal review procedure provided for by the applicable provisions, the review carried out in response to a request of that kind can give rise to a decision against which proceedings may be brought, such a review did not take place in the present case.

99 In fact, contrary to what the applicants maintain, the letter of 17 January 2012 is not a response to an actual review of the decision of 15 December 2011, which the Commission initiated at the applicants’ request, and cannot be analysed as a new decision against which proceedings may be brought.

100 It is true that the applicants’ letter of 20 December 2011 can be interpreted as disputing the rejection of their application in connection with the contract in question and as requesting a review of that rejection. After explaining what they regarded as being a misunderstanding on their part of the requirement of the contract notice relating to the production of annual security and safety reports from the competent authorities (second, fifth and sixth paragraphs), the applicants expressed their concern over the rejection of their application and the accusation of misrepresentation (ninth paragraph) and requested an interview with the Commission’s services (tenth paragraph), expressing the hope that their letter would encourage the Commission to view them as a partner of trust for the contract in question (eleventh paragraph).

101 However, it follows both from the wording of the letter of 17 January 2012 responding to the applicants’ letter of 20 December 2011 and from the context in which it was drawn up that the Commission did not review the decision of 15 December 2011.

102 Thus, the Commission stated, at the hearing, that the applicants’ letter of 20 December 2011 and its enclosures had not been submitted to the evaluation committee. That committee was therefore mentioned at the end of the letter of 17 January 2012 for purely formal reasons. Moreover, that letter indicates no analysis of the abovementioned enclosures, since the Commission merely responded to the applicants’ allegation that there had been a misunderstanding relating to the reports to be sent, which does not in itself suggest that the letter in question was adopted in response to a review of their situation (see, to that effect, Case T-437/05 Brink’s Security Luxembourg v Commission [2009] ECR II-3233, paragraphs 65 and 66, and Order in Case T‑573/10 Octapharma Pharmazeutika v EMA [2012] ECR, paragraph 57).

103 The application for annulment of the Commission’s letter of 17 January 2012 must therefore be declared inadmissible, and there is no need to rule on the applicants’ interest in bringing proceedings against that letter, which is also disputed by the Commission.

2. The application for annulment of the Commission decision of 28 February 2012 (Case T‑280/12)

104 Since the conditions for the admissibility of an action, in particular the applicant’s standing to bring proceedings, relate to whether there is an absolute bar to proceedings, it is for the Court to consider of its own motion whether the applicants have standing to bring proceedings against the decision of 28 February 2012 in the present case (Case C-417/04 P Regione Siciliana v Commission [2006] ECR I-3881, paragraph 36, and Case T-88/01 Sniace v Commission [2005] ECR II-1165, paragraph 53).

105 Pursuant to the fourth paragraph of Article 263 TFEU, any natural or legal person may institute proceedings against an act addressed to that person or which is of direct and individual concern to them. Since it is common ground that the award decision of 28 February 2012 is addressed to the undertaking which was awarded the contract in question and not to the applicants, it is necessary to ascertain whether that decision is of direct and individual concern to the applicants.

106 After the parties had exchanged arguments, in their submissions, relating solely to the question of the applicants’ interest in bringing proceedings against the decision of 28 February 2012, the Court asked them in writing about the consequences to be drawn, for the purposes of the application for annulment of that decision, from its judgment in Case T‑415/10 Nexans France v Joint Undertaking Fusion for Energy [2013] ECR, paragraphs 54 to 58, in which it ruled on whether a candidate not selected in a contract award decision was directly affected by that decision.

107 It should be noted in that regard that a natural or legal person can be directly concerned by an act, within the meaning of the fourth paragraph of Article 263 TFEU, only where that act directly affects their legal situation (see, to that effect, Case C-386/96 P Dreyfus v Commission [1998] ECR I-2309, paragraphs 43 and 45, and Case T-80/97 Starway v Council [2000] ECR II-3099, paragraph 61).

108 It has repeatedly been held that where a tenderer’s bid is rejected before the phase preceding the award decision and accordingly was not compared with the other tenders, the admissibility of the action brought by the tenderer concerned against the award decision is conditional upon the annulment of the decision rejecting his bid (Case T-8/09 Dredging International and Ondernemingen Jan de Nul v EMSA [2011] ECR II-6123, paragraphs 134 and 135, and Case T‑17/09 Evropaïki Dynamiki v Commission [2012] ECR, paragraphs 118 and 119).

109 Only if the latter decision is annulled is the award decision capable of directly affecting the legal situation of the tenderer whose bid was rejected before the phase preceding the award decision. On the other hand, where the application for annulment of the rejection decision is dismissed, the award decision cannot have legal consequences for a tenderer whose bid was rejected before the phase preceding the award decision. In that situation, the rejection decision prevents the tenderer concerned from being directly affected by the decision awarding the contract to another tenderer (see, to that effect, Nexans France v Joint Undertaking Fusion for Energy, paragraph 106 above, paragraph 56).

110 Thus, where, as in the present case, the applicants’ application has been rejected during the first stage of the restricted procedure, it is only if the applicants succeed in showing that their application was wrongly rejected that they can establish that they were entitled to have their application compared with those of the other tenderers and, accordingly, that the decision awarding the contract to another candidate directly affects their legal situation (see, to that effect, Nexans France v Joint Undertaking Fusion for Energy, paragraph 106 above, paragraph 57).

111 Consequently, in the present case, as the application for annulment of the Commission’s decision of 15 December 2011 rejecting their application in connection with the contract in question was rejected, the applicants cannot be regarded as being directly affected by the award decision of 28 February 2012. The application for annulment of that latter decision must therefore be rejected as inadmissible and there is no need to rule on the applicants’ interest in bringing proceedings against that decision, which is disputed by the Commission.

B – The application for damages (Case T‑280/12)

112 As regards the alleged unlawfulness of the Commission’s action, the applicants claim that that first condition for the institutions to be found liable has been met in the present case, in view of the sufficiently serious irregularities vitiating the rejection decisions and the decision to award the contract in question. They refer in that regard to their submissions in Case T‑91/12 and in the present case, referring in particular to the unlawful treatment of the ‘pre-AOC’ and ‘AOC Continuous Oversight Audit’ reports as being equivalent to the annual security and safety audit reports specified in the contract notice, the unlawful refusal to take into account the reports annexed to their letter of 20 December 2011, which contravenes Article 41 of the Charter of Fundamental Rights of the European Union, and the infringement of Article 89 of the Financial Regulation and of the third subparagraph of Article 123(1) of the Implementing Rules. The applicants add that the Commission’s refusal to notify them of the decision to award the contract also constitutes unlawful conduct in the light of the essential procedural requirements imposed on it and of the provisions of the Charter of Fundamental Rights guaranteeing an effective legal remedy and access to documents held by the institutions.

113 As regards the existence of damage, the applicants claim that they have lost any chance of participating in the restricted procedure and of being awarded the contract, which constitutes material damage for which compensation may be claimed. Taking into account the scale of the damage, but also the costs and anticipated profits, they estimate that the amount of the damage to them is EUR 1 014 000, or 8% of the total value of the contract in question for the four years of performance of the contract, that percentage representing the share of their turnover which performance of the contract would have constituted. The applicants also consider that compensatory interest at the rate of 2.9% and default interest at the rate of 3% should be added to that amount.

114 As regards the causal link, the applicants consider that the alleged damage follows directly from the unlawful decisions taken by the Commission in connection with the contract in question.

115 It should be noted that, according to established case-law, in order for the European Union to incur non-contractual liability under the second paragraph of Article 340 TFEU for unlawful conduct on the part of its institutions, a number of conditions must be satisfied: the institutions’ conduct must be unlawful; actual damage must have been suffered; and there must be a causal link between the conduct and the damage pleaded. 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 (see Case T‑457/10 Evropaïki Dynamiki v Commission [2013] ECR, paragraph 226 and the case-law cited).

116 In support of their claim for damages, the applicants invoke, with respect to the condition relating to wrongful conduct, the unlawfulness of the Commission decision of 15 December 2011, reiterating that, by adopting that decision, the Commission disregarded Article 89(1) of the Financial Regulation, Article 134(5) and Article 135(5) of the Implementing Rules and the principle of proportionality, in particular by unlawfully treating the ‘pre-AOC’ and ‘AOC Continuous Oversight Audit’ reports as equivalent to the annual security and safety audit reports specified in the contract notice.

117 Since all the pleas and arguments have been rejected (see paragraphs 33, 49, 81 and 91 above), the applicants’ claim for compensation must be rejected in that it is based on that alleged unlawfulness.

118 As regards the other unlawful acts alleged by the applicants, it should be borne in mind that, according to settled case-law, the alleged harm must be a sufficiently direct consequence of the conduct complained of and that conduct must be the determining cause of the damage. The EU institutions do not have an obligation to make good every harmful consequence, even a remote one, of an unlawful situation (see Joined Cases 64/76, 113/76, 167/78, 239/78, 27/79, 28/79 and 45/79 Dumortier frères and Others v Council [1979] ECR 3091, paragraph 21, and Case T-279/03 Galileo International Technology and Others v Commission [2006] ECR II-1291, paragraph 130 and the case-law cited). Thus, even in the case of a possible contribution by the institutions to the damage for which compensation is sought, that contribution might be too remote because of some responsibility resting on others, possibly the applicants (see, to that effect, Case C-419/08 P Trubsowest Handel and Makarov v Council and Commission [2010] ECR I-2259, paragraphs 59 and 61).

119 It is clear from the examination of the lawfulness of the decision of 15 December 2011 that the applicants’ response to the Commission’s request for information contained inaccurate statements (see paragraph 74 above). It is those inaccurate statements by the applicants which led, first, to the rejection of their application and thereby prevented them from submitting a tender and, secondly and in consequence, to the contract in question not being awarded to them. In view of the inaccurate statements made, whether they were deliberately erroneous or erroneous as a result of the applicants’ negligence, the Commission had no choice but to apply Article 94(b) of the Financial Regulation by rejecting the applicants’ application (see paragraph 75 above).

120 Therefore, by their conduct, the applicants have broken the alleged causal link between the unlawful acts and the damage relied upon, so that neither the irregularity affecting their rights of defence nor the alleged unlawfulness vitiating the letter of 17 January 2012 and the decision of 28 February 2012 or the alleged unlawful refusal by the Commission to inform them of the latter decision can be regarded as constituting the determining cause of the damage.

121 It follows that, as at least one of the conditions for liability is not met in respect of each of the alleged infringements, the application for damages must be dismissed.

122 The present actions must therefore be dismissed in their entirety.

Costs

123 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.

124 As the applicants have been unsuccessful, they must be ordered to pay the costs, in accordance with the form of order sought by the Commission.

On those grounds, THE GENERAL COURT (Second Chamber) hereby:

1. Dismisses the actions;

2. Orders Flying Holding NV, Flying Group Lux SA and Flying Service NV to pay the costs.

Martins Ribeiro Gervasoni Madise Delivered in open court in Luxembourg on 26 September 2014. [Signatures]

( *1 ) Language of the case: French.