Case T-436/16: Action brought on 3 August 2016 — AEIM and Kazenas v Commission
Date: 2016-08-03
Institutions: General Court
Subjects: award of contract, damages, equal treatment, financial loss, goodwill, indemnification, invitation to tender, right to justice, rights of the defence, transparency in decision-making








C_2016371EN.01001901.xml










10.10.2016   


EN


Official Journal of the European Union


C 371/19





Action brought on 3 August 2016 — AEIM and Kazenas v Commission
(Case T-436/16)
(2016/C 371/21)
Language of the case: French

Parties


Applicants: Application électronique industrielle moderne (AEIM) (Algrange, France), Philippe Kazenas (Luxembourg, Luxembourg) (represented by: B. Wizel, lawyer)

Defendant: European Commission

Form of order sought

The applicants claim that the Court should:






—


order the defendant to pay to AEIM the sum of EUR 536 912 representing the financial losses suffered as a result of sunk investments made in respect of visits prior to the award of public contracts, which awards were carried out fraudulently;










—


order the defendant to pay to AEIM the sum of EUR 2 092 650 for loss of profit in respect of the public contracts which AEIM would have obtained had they been awarded fairly and without corruption;










—


order the defendant to reimburse Mr Kazenas the sum of EUR 85 000 in respect of the costs and fees of the lawyer that he was obliged to pay for conducting his defence, as a result of corruption on the part of the European official;










—


order the defendant to pay to Mr Kazenas the sum of EUR 150 000 in respect of non-material damage;










—


order the defendant to pay to AEIM compensatory interest on all those amounts from December 2005, being the end of the period of infringement;










—


order the defendant to reimburse lawyers’ costs and fees in respect of the present proceedings representing the sum of EUR 75 000;










—


order the defendant to pay default interest from the date on which judgment is delivered;










—


order the defendant to pay the costs.





Pleas in law and main arguments

The applicants claim that unlawful conduct on the part of an official of the European Commission in the context of the award of public contracts led to their suffering serious damage directly linked to that conduct, and they seek compensation in respect of that damage.
They submit accordingly that the three conditions for invoking the non-contractual liability of the European Union are satisfied, namely unlawful conduct on the part of an institution or one of its servants, the fact of damage and a causal link between the conduct of that servant and the damage complained of.
In the present case, they claim that acts of corruption on the part of a European official in the context of the award of public contracts constitute a sufficiently serious breach of the principles of equal treatment and transparency which the contracting authority must observe in relation to all tenderers in tendering procedures.
The applicants submit that the fraudulent award of the public contracts in question led to the company AEIM suffering genuine damage since it was awarded contracts relating to countries deemed dangerous, which the other two — corrupting — tenderers did not wish to be awarded, whereas had all the contracts been awarded without corruption, that company, being the only one to have tendered with probity, would have obtained those contracts.
They rely on the principle of good administration on the part of the Commission, in the observance of which there were serious shortcomings in this instance, as well as on the principle of the protection of legitimate expectations which extends to any trader in a situation in which an institution has caused it to entertain justified expectations.
The applicants submit that, in addition to financial damage, they have suffered non-material damage, inter alia, as a result of damage to their reputation and the need to defend themselves against accusations that proved to be incorrect and imaginary.