It is apparent from Article 97(2) of Regulation No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities, and from Articles 139 and 146(4) of Regulation No 2342/2002, laying down detailed rules for the implementation of Regulation No 1605/2002, that the concept of ‘abnormally low tender’ is not defined in either Regulation No 1605/2002 or Regulation No 2342/2002. In that regard, the abnormally low nature of a tender must be assessed by reference to the composition of the tender and the services at issue. Thus, the contracting authority may, in the course of its examination of the abnormally low nature of a tender, take into consideration, for the purpose of ensuring healthy competition, not only the situations set out in Article 139(2) of Regulation No 2342/2002, but also all the factors that are relevant in the light of the services at issue.

It follows from Article 139(1) and Article 146(4) of Regulation No 2342/2002 that the contracting authority is obliged, when examining tenders which are abnormally low, to request the tenderer to furnish the necessary explanations to prove that those tenders are genuine. The existence of a proper exchange of views, at an appropriate time in the procedure for examining tenders, between the contracting authority and the tenderer, to enable the latter to demonstrate that its tender is genuine, constitutes a fundamental requirement in the award of public contracts, in order to prevent the contracting authority from acting in an arbitrary manner and to ensure healthy competition between undertakings.

An action founded on damage resulting from loss of profit must be dismissed because the damage at issue is not real and existing, but future and hypothetical. The condition relating to damage requires that the harm for which compensation is sought be actual and certain, which it is for the applicant to prove.

Thus, in the case of damage corresponding to the loss of profit of an unsuccessful tenderer in the context of a tendering procedure organised by the Commission and linked to the loss of the contract in question, that loss is not real and existing, but hypothetical and cannot therefore be compensated for. According to Article 101 of Regulation No 1605/2002, the contracting authority may, before the contract is signed, either abandon the procurement or cancel the award procedure without the candidates or tenderers being entitled to claim any compensation. Thus, even if the evaluation committee had recommended that the contract be awarded to the unsuccessful tenderer, the contracting authority would not have been bound by the evaluation committee’s proposal and would have a broad discretion in assessing the factors to be taken into account for the purpose of deciding to award the contract. There is no principle or rule applicable to the Commission’s tendering procedures which requires it to sign the relevant contract with the person designated as the contractor at the conclusion of the tendering procedure. In that regard, as a result of the wording of Article 101 of Regulation No 1605/2002, an unsuccessful tenderer loses not a contract but rather an opportunity to obtain the contract which was the subject of the Community tendering procedure.

Moreover, in the case of a tenderer whose tender is discarded for being abnormally low, even if the rejection of the applicant’s tender were unlawful, the fact remains that the tender would still be abnormally low and the unsuccessful tenderer could not in any event plead harm linked to the loss of the opportunity to secure the contract in question.

(see paras 91-96, 100, 110)