Odette Nicos Petrides Co. Inc. v Commission of the European Communities.
Date: 1999-09-09
18 It must be pointed out that this ground of appeal raises a separate issue and has been put forward by the appellant for the first time in its appeal.  According to settled case-law, under Articles 113(2) and 116(1) of the Rules of Procedure of the Court of Justice new pleas, not contained in the original application, cannot be raised in an appeal (see, in particular, Case C-153/96 P De Rijk v Commission [1997] ECR I-2901, paragraph 18).
27 In that regard, it must be pointed out, as the Commission has done, that the Court of Justice has held, in relation to the common organisation of the market in vinous alcohols (Case C-358/90 Compagnia Italiana Alcool v Commission [1992] ECR I-2457, paragraph 42), that, where the Commission decides not to make an award because of the risk of disturbance of the market, it enjoys a wide power for the assessment of complex economic situations.  The decision whether or not to accept a bid is not therefore a simple and mechanical administrative operation but calls for the appraisal of a complex economic situation.  The same applies to the procedures for the making of awards in this case.
28 The Court of First Instance was therefore right, in reliance on the case-law of the Court of Justice (Case 27/85 Vandelmoortele v Commission [1987] ECR 1129, paragraphs 31 to 34), to take the view in paragraph 58 of the contested judgment that, in those circumstances, even decisions which may subsequently prove to be open to criticism do not necessarily cause the Community to incur liability in the absence of a manifest error of assessment on the part of the institution.
31 According to the appellant, the Court of First Instance should not have relied solely on the documents cited by the Commission in its reply to the written questions put to it by that Court in rejecting the appellant's pleas alleging breach of the principle audi alteram partem and the principle of equality of arms in relation to the fourth tendering procedure and the increase of the amount of the guarantee.  The appellant observes that, in view of the timing of the production of those documents and the complexity of the case, it had no opportunity of verifying the information they contained, so that the requirements of the principle audi alteram partem and the principle of equality of arms were not observed.  Moreover, the Commission's answer was lodged at the Registry of the Court of First Instance on 16 April 1997, whereas the date set was 15 April 1997.
32 It need merely be pointed out, as the Commission has done without being contradicted, that the appellant was entitled to put forward at the hearing any observations on those documents which it considered necessary or to request an adjournment of the hearing to enable it to analyse the Commission's reply, but did not do so.  In those circumstances, the appellant cannot, in an appeal, rely on a procedural safeguard which it had already waived.
33 As regards the delay - which, it should be said, has not been established - in the lodging of the Commission's reply, nothing has been disclosed to show that it could have had any impact on the appellant's exercise of its rights in the course of the procedure.
34 This plea must therefore also be rejected.
Incorrect assessment of the appellant's allegations concerning the principle of equal treatment and the increase of the amount of the guarantee in relation to the fourth tendering procedure