Case T‑292/15

Vakakis kai Synergates — Symvouloi gia Agrotiki Anaptixi AE Meleton, anciennement Vakakis International — Symvouloi gia Agrotiki Anaptixi AE

v

European Commission

(Non-contractual liability – Public supply contracts – Tender procedure – Admissibility – Misuse of procedure – Conflict of interests – Duty of diligence – Loss of opportunity)

Summary — Judgment of the General Court (Third Chamber, Extended Composition), 28 February 2018

Non-contractual liability — Damage — Assessment — Insufficient evidence for the EU judicature to rule in the context of the judgment finding the existence of unlawful conduct by the Union — Determination of the compensation deferred to a later stage of the proceedings

Non-contractual liability — Damage — Damage for which compensation is available — Legal fees incurred in the context of a procedure before the Ombudsman — Not included

Non-contractual liability — Conditions — Real and certain damage caused by an illegal measure — Damage resulting from the loss of earnings suffered by a tenderer unlawfully excluded from a public contract — Not included — Damage consisting in the loss of opportunity to be awarded the contract — Included

Non-contractual liability — Conditions — Unlawfulness — Sufficiently serious breach of EU law — Lack of inquiry into the existence of a conflict of interests in favour of a tenderer in the context of a public procurement procedure, despite the existence of indications in that regard — Included

European Union public contracts — Tender procedure — Award of contracts — Exclusion of tenderers in a conflict of interest situation — Conditions — Concrete assessment of the tender and the situation of the tenderer — Need to establish a real and not hypothetical risk

Actions for annulment — Pleas in law — Breach of legitimate expectations — Reliance by an unsuccessful tenderer in the context of a public procurement procedure — Lack of assurances by the contracting authority concerning the outcome of the procedure — Rejection

Non-contractual liability — Conditions — Unlawfulness — Sufficiently serious breach of a rule of law intended to confer rights on individuals — Rule of law intended to confer rights on individuals — Concept — Organisation for Economic Cooperation and Development (OECD) Guidelines for Managing Conflict of Interest in the Public Service — Not included

Non-contractual liability — Conditions — Unlawfulness — Sufficiently serious breach of a rule of law intended to confer rights on individuals — Rule of law intended to confer rights on individuals — Concept — Principle of equal treatment of tenderers for a public contract — Included

Non-contractual liability — Conditions — Unlawfulness — Sufficiently serious breach of a rule of law intended to confer rights on individuals — Rule of law intended to confer rights on individuals — Concept — Right of good administration and duty of care — Included — Principle of the protection of legitimate expectations — Included

Judicial proceedings — Application initiating proceedings — Formal requirements — Identification of the subject-matter of the dispute — Brief summary of the pleas in law on which the application is based

Actions for damages — Autonomy in relation to the action for annulment — Limits — Claim for compensation for damage suffered as a result of irregularities committed by an institution acting as contracting authority in the context of a call for tenders — Admissibility

Actions for damages — Autonomy in relation to the action for annulment — Limits — Action seeking the same outcome as an action for annulment — Inadmissibility

See the text of the decision. (see para. 28)

See the text of the decision. (see paras 29-32)

In view of the special nature of disputes relating to EU public contracts, an action for damages seeking compensation for the harm allegedly suffered by a tenderer who is unsuccessful as a result of irregularities committed by an institution acting as a contracting authority in the context of has neither the same object nor the same legal and economic implications as an action for annulment of the decision to reject that tenderer’s bid and it cannot consequently nullify the effects of that decision. First, whereas actions for annulment seek a declaration that a legally binding measure is unlawful, actions for damages, on the other hand, seek compensation for damage resulting from a measure or from unlawful conduct, attributable to an EU institution or body. The tenderer’s action for annulment targets only the decision rejecting its tender and awarding the contract to another tenderer and, provided it is upheld by the EU judicature, it could result only in the annulment of that decision. On the contrary, by its action for damages, the tenderer does not seek to have that decision set aside, but to obtain compensation for damage allegedly resulting from its adoption. The tenderer therefore does not seek to obtain, by the action for damages, the same or similar result as an action for annulment. Secondly, actions for annulment and actions for damages do not have the same legal effects. In the context of an action for annulment, the finding that an act is unlawful, and consequently the operative part of a judgment setting that act aside, has ex tunc effect whereas the finding by the EU judicature that an act is unlawful, justifying the liability of the EU, has ex nunc effect and does not, in principle, have the effect of retroactively eliminating the legal basis for that act. In particular, in the context of disputes relating to EU public procurement, the circumstances to be taken into account pursuant to Articles 264 and 266 TFEU in order to give effect to a judgment of annulment are not only linked to the provision set aside and the scope of that judgment, but also to other circumstances such as the date of signing the contract, the possible performance of the contract or implementation of Article 103 of Regulation No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities. It cannot be excluded, after a judgment setting aside the decision to award a public contract, that the institution may be directed to bring the contract at issue to an end and to organise a new tender procedure. By contrast, a judgment giving rise to the liability of the EU necessarily results in the payment of compensation to the applicant where the latter requested such compensation and not reparation in kind. (see paras 35-38)

See the text of the decision. (see para. 46)

See the text of the decision. (see para. 50)

See the text of the decision. (see paras 62-67, 159)

See the text of the decision. (see para. 70)

Concerning the non-contractual liability of the Union, the principle of sound administration and Article 41 of the Charter of Fundamental Rights of the European Union must be classified as rules of law conferring rights on individuals. The principle of sound administration and Article 41 of that charter constitute the expression of specific rights within the meaning of that provision, namely the right to have its affairs handled impartially and fairly and, therefore, the obligation imposed on the competent institution to carefully and impartially examine all the relevant elements of the individual case. Moreover, the principle of protection of legitimate expectations is also a rule of law conferring rights on individuals. (see paras 79, 85)

See the text of the decision. (see para. 80)

See the text of the decision. (see para. 86)

See the text of the decision. (see para. 89)

Since the award of a public contract takes place following a comparative assessment of the tenders by the contracting authority and no tenderer is entitled to be awarded contracts automatically, an unsuccessful tenderer cannot invoke an infringement of the principle of protection of legitimate expectations unless the contracting authority had created certain hopes as to the outcome of the award procedure. (see paras 90-92)

See the text of the decision. (see paras 94-96)

See the text of the decision. (see paras 99, 100, 103)

Confronted with a risk of a conflict of interests in the area of public contracts, the contracting authority is required to act with due diligence and on the basis of all the relevant information when formulating and adopting its decision on the outcome of the procedure for the award of the tender at issue. Such an obligation derives in particular from the principles of sound administration and equal treatment since it is obliged to ensure at each stage of a tendering procedure equal treatment and, thereby, equality of opportunity for all the tenderers. That obligation of due diligence is necessarily imposed on the contracting authority where it possesses information relating to a risk of a conflict of interests and where it must, as in the present case, establish whether that risk is shown. That obligation is particularly important where, firstly, the expert of a company which is a member of a tendering consortium is requested to draft the terms of reference of the call for tenders and that expert appears to be the author of a document containing those terms, thereby creating a clear risk of a conflict of interests, and, secondly, several other candidates claimed during the tendering procedure that such a situation constituted a conflict of interests. In that regard, the infringement of the obligation of due diligence as a result of a failure to conduct an inquiry allowing the existence of a conflict of interests during a tendering procedure to be conclusively excluded also infringes the principle of equal treatment of tenderers. (see paras 106, 126, 127, 150)

Given that a conflict of interests during a public procurement procedure undermines equality between tenderers, a decision not to exclude a candidate who is the subject of an allegation of a conflict of interests can be adopted only on condition that the contracting authority is able to be certain that that candidate is not in such a situation. Therefore, the mere fact that the EU Delegation organising a tender procedure failed to conduct a proper inquiry allowing the existence of a clear risk of a conflict of interests alleged by several tenderers to be conclusively excluded constitutes an infringement of the principle of equal treatment as set out in Article 89 of Regulation No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities and, therefore, a sufficiently serious infringement of rules of law intended to confer rights on individuals, given the seriousness of the consequences of a possible conflict of interests for the outcome of procedures for the award of public contracts. (see paras 133, 152)

See the text of the decision. (see paras 136, 137)

With respect to the non-contractual liability of the Union in the field of public procurement, the damage relating to a loss of profit and to the loss of an opportunity are distinct. The loss of profit concerns compensation for the loss of the contract itself, whereas the loss of opportunity concerns compensation for the loss of the opportunity to conclude that contract. As regards the loss of profit, the damage resulting from a loss of profit or loss of revenue is not real and certain, but rather future and hypothetical. The damage invoked in relation to the loss of profit or loss of revenue presupposes that, in the absence of the unlawful conduct alleged against the Commission, the applicant, whose tender was rejected, was entitled to be awarded the contract at issue. Even assuming that the Evaluation Committee proposed to award the contract to it, the contracting authority is not bound by the Evaluation Committee’s proposal, but has a broad discretion in assessing the factors to be taken into account for the purpose of deciding to award a contract. Moreover, it follows from Article 101 of Regulation No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities that the contracting authority may, before the contract is signed, either abandon the contract or cancel the award procedure without the candidates or tenderers being entitled to claim any compensation. By contrast, as regards the loss of an opportunity, the fact that the contracting authority enjoys a broad discretion in the context of the award of the contract at issue does not prevent the damage caused by the loss of opportunity from being actual and certain In that regard, the fact that the contracting authority is never obliged to award a public contract does not preclude the finding of a loss of opportunity in the present case. Although that fact affects the tenderer’s certainty of winning the contract, and, therefore, the corresponding loss, it cannot preclude all likelihood of winning that contract and therefore the loss of opportunity. In any event, although it is true that the contracting authority may always, until the signature of the contract, either abandon the procurement, or cancel the procedure for the award of a public contract, without the candidates or tenderers being entitled to claim compensation, the fact remains that those situations of abandonment of the procurement or cancellation of the procedure did not actually materialise and that, as a result of the unlawful acts committed during the procedure for the award of the contract, the applicant lost an opportunity of winning that contract. Moreover, as regards the loss of an opportunity to win the contract in other tendering procedures, even assuming that the unsuccessful tenderer could have suffered damage as a result of the loss of an opportunity to obtain the public contract at issue, such a situation does not suffice to give rise to actual and certain damage resulting from the loss of an opportunity to obtain other public contracts. In a public tendering system such as in the present case, the contracting authority enjoys a broad discretion in a decision to award a contract. As a result, it cannot be assumed that that tenderer would have fulfilled all of the conditions for the award of those other contracts. That loss must therefore be considered to be an uncertain and hypothetical loss. (see paras 166, 179, 188, 189)

See the text of the decision. (see paras 173, 174)

See the text of the decision. (see paras 194-196)

See the text of the decision. (see paras 199, 200, 222, 223)