C - Content v Commission (Law governing the institutions) [2010] EUECJ T-247/08 (28 September 2010)

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(Non-contractual liability – Public service contracts – Community tendering procedures – Electronic publication services – Irregularities and infringements of Community law allegedly committed by the Publications Office – Limitation periods – Causal link)

C-Content BV, established in ’s-Hertogenbosch (Netherlands), represented by M. Meulenbelt, lawyer,

European Commission, represented initially by E. Manhaeve and N. Bambara, acting as Agents, assisted by O. Soudry, adviser, and A. Nucara, lawyer, and subsequently by E. Manhaeve and N. Bambara, assisted by O. Soudry and E. Petritsi, lawyer,

1 The applicant, C-Content BV, is a Netherlands company which supplies medium-independent indexing and retrieval technology and content publishing solutions.

2 On 1 December 1998, the Office for Official Publications of the European Communities and Saarbrücker Zeitung und Druckerei GmbH (‘SZ’) concluded a contract for the daily production on CD-ROM of the Supplement to the Official Journal of the European Communities and for the construction of the Internet site from which it is possible to access the Publications Office’s European public contracts database TED (Tenders Electronic Daily) (‘Contract No 1695’). The applicant worked in cooperation with SZ and acted as its sub-contractor.

3 On 5 May 2001, the Publications Office published a contract notice in respect of tender No 2034 in the Official Journal (OJ S 87). This was for the production and duplication of CD-ROMs containing the L series and the C series of the Official Journal in all official European Community languages with consultation aids.

4 The Publications Office received six bids, including one from AIS Berger-Levrault (‘AIS’) and one from SZ.

5 On 3 August 2001, the Evaluation Committee concluded that, of the tenders submitted in response to that call for tenders, AIS’ tender offered the best quality/price ratio and proposed that the contract be awarded to it.

6 At its meeting No 432 of 12 September 2001, the Advisory Committee on Procurements and Contracts delivered a favourable opinion on the conclusion of the contract with AIS.

7 On 6 November 2001, the contract was awarded to AIS. On the same day, the Publications Office wrote to SZ informing it that its offer had been rejected. On 29 December 2001, a contract award notice was published in the Official Journal (OJ S 250).

8 By letter of 20 June 2003, the applicant asked the Publications Office to explain why the contract had been awarded to AIS when the latter’s bid was the highest in terms of price and, more than a year and a half later, it had still not supplied a reliable product in accordance with the tender specifications.

9 By letter of 14 August 2003, the Publications Office replied to the applicant that the product in question had been available since July 2002 and that the bid selected was the most economically advantageous on the basis of the award criteria at the time of the evaluation. The Publications Office added that the delays incurred were due to administrative developments within the Publications Office. With regard to the technical issues, the Publications Office drew the applicant’s attention to the fact that the call for tenders stated that the specifications were liable to change during the period of validity of the contract according to the market trends.

10 Moreover, the Publications Office had, on 10 July 2003, published in the Official Journal (OJ S 130) invitation to tender No 6019 for the provision of services in relation to the collection, production and dissemination of electronic publications. The products covered by that invitation to tender had hitherto been provided by SZ, under contract No 1695, which was due to expire on 1 May 2004.

11 Among the bids submitted for tender No 6019 were those of GrafiData BV, which proposed DOCData France and the applicant as sub-contractors, and of SZ together with another partner.

12 On 2 October 2003, an article about tender No 6019 was published in a newspaper, which stated that, out of 55 interested undertakings, two had been selected, namely, first, a consortium which currently had the contract and, secondly, DOCData in association with GrafiData and the applicant.

13 The applicant informed the Publications Office of the publication of that article and, at its request, sent it a copy.

14 After reading the article, the Publications Office decided to cancel the tendering procedure. It informed the applicant of that decision at the meeting it held with it on 23 October 2003 to discuss tender No 2034. It gave as the reason for its decision the leakage of confidential information.

15 By fax and registered letter of 24 October 2003, the Publications Office informed GrafiData of the cancellation of tender No 6019. By letter dated 31 October 2003, GrafiData questioned the reasons for the cancellation. By letter of 25 November 2003, the Publications Office reiterated to GrafiData that the tendering procedure had had to be cancelled owing to the publication of an article in a newspaper, it no longer being possible to guarantee the required confidentiality.

16 Following the cancellation of tender No 6019, the Publications Office decided to extend contract No 1695 by a further year from 1 May 2004. To that end, on 19 November 2003 it asked SZ for a proposal for the technical specifications for the adaptations necessary for the forthcoming enlargement of the European Union.

17 By letter of 21 November 2003, SZ asked the applicant to inform it of its conditions in the event that the Publications Office should decide to extend contract No 1695. The applicant replied on the same day, estimating that the costs of the addition of nine new languages in the Supplement to the Official Journal and on the Internet site from which it is possible to access the TED public contracts database would amount to EUR 75 000. It added that this would be subject to SZ and the applicant agreeing the necessary arrangements for future cooperation.

18 By letter of 3 December 2003, SZ submitted its proposal to the Publications Office, which involved a change in the software used. In that letter, SZ referred to using a new sub-contractor. In the body of the proposal, annexed to that letter, SZ mentioned that it had established strong and equitable partnerships with another company and new suppliers. It also highlighted the high risk of failure in the project because of major obstacles in its relationship with its current supplier, namely the applicant.

19 On the same day, SZ left a telephone message for the applicant asking for a response concerning the costs of the development of new features in the existing applications relating to the Supplement to the Official Journal on CD-ROM and on the Internet site from which it is possible to access the TED European public contracts database.

20 In its reply of 4 December 2003, the applicant expressed its surprise at this request. It asked SZ to specify the new features concerned and expressed its willingness to meet at short notice the representatives of the Publications Office. The applicant also asked for an official request for the extension of contract No 1695 from the Publications Office or from SZ, as the main contractor.

21 By letter of 5 December 2003, the Publications Office informed SZ that it accepted in principle the offer of 3 December 2003.

22 On the same day, SZ confirmed receipt of the applicant’s letter of 4 December 2003. Referring to its request of 21 November 2003 for an estimate of the cost, it pointed out that that estimate had to cover the cost of introducing nine additional languages and of including additional features as ‘described in Invitation to tender No 6019, Annex 1, page 26, 27/37, points 4.1.2; 4.1.3’.

23 In its reply of 8 December 2003, the applicant told SZ that it was necessary, first, to clarify the terms of their future cooperation, in accordance with the proposals made in its letter of 21 November 2003. Concerning the additional features, it pointed out that this was a new request which, for an estimate to be made, required further information from the Publications Office.

24 On 8 December 2003, the Publications Office decided to launch a new negotiated procedure in order to conclude a new contract with SZ supplementing contract No 1695. This new procedure was given the reference number 6029.

25 On 11 December 2003, SZ sent a fax to the applicant setting out the applicant’s various proposals regarding the possible forms of cooperation between them and the impact of these on the prices charged by the applicant. It asked the applicant to confirm its understanding of those proposals. On the same day, the applicant replied that the various scenarios presented sought to demonstrate its willingness to establish a basis for co-operation with the Publications Office for the medium and long-term as well as the short-term. It added that the longer the co-operation, the lower the investment would be. Referring to the confidential and sensitive nature of the proposals, the applicant declined to respond in writing and requested that a meeting be held.

26 On 16 December 2003, the Publications Office sent a draft contract to SZ, which sent an offer back on 18 December 2003; it sent a supplement to the offer the following day.

27 By the end of 2003, however, the Publications Office had decided that there was no legal basis for negotiated procedure No 6029 and came to the conclusion that the only solution was to extend contract No 1695 for an additional 18 months, limiting any technical modifications to the bare minimum.

28 On 9 January 2004, the Publications Office sent a letter to SZ informing it of its intention to extend contract No 1695. It enclosed a proposed Amendment No 3 to that contract, accompanied by a list of prices and a specimen tender to be completed by SZ.

29 By two letters of 13 January 2004, SZ accepted the extension of contract No 1695 and returned the necessary documents, completed and signed, to the Publications Office.

30 By letter of 26 February 2004, the applicant asked the Publications Office to inform it as a matter of urgency as to the extension of the contract and to indicate within the shortest possible term the conditions of such an extension.

31 On 11 March 2004, Amendment No 4 to contract No 1695 was signed by the Publications Office.

32 On 15 April 2004, having still not received any satisfactory response from the Publications Office, the applicant submitted a complaint to the European Ombudsman. The complaint claimed, inter alia, that the applicant had been systematically excluded from the public service tenders of the Publications Office since a change of officials within the Publications Office in 2000 and 2001. The Ombudsman gave his final decision on 18 February 2008, finding that there had been two instances of maladministration, one in relation to contract No 2034 and the other in relation to the extension of contract No 1695.

33 By letter of 7 March 2008, the applicant, through its lawyers, asked the Publications Office to arrange a meeting to discuss how it intended to act upon the decision of the Ombudsman of 18 February 2008. That meeting took place on 7 May 2008. The Publications Office did not accept any liability for the events which had occurred and refused to pay compensation.

34 By application lodged at the Court Registry on 20 June 2008, the applicant brought the present action.

35 Since the Commission and the Publications Office confirmed, at the request of the Court Registry, that the Commission should be regarded as the only defendant in the case, the Court, by decision of 9 September 2008, approved the correction of the name of the defendant. The Commission lodged its defence on 17 September 2008.

36 As a member of the chamber was unable to sit in the present case, the President of the Court designated another judge to complete the Chamber, pursuant to Article 32(3) of the Court’s Rules of Procedure.

37 By letter of 6 April 2009, the Commission requested the Court to take formal note that it had provided the applicant with two documents requested by it and to add them to the documents in the case-file. They are a legible version of the letter written in English that SZ sent to the Publications Office on 13 January 2004 and the full version of the letter written in German that SZ sent to the Publications Office on 13 January 2004, including the annexes. As the applicant did not submit its observations within the time-limits prescribed by the Court, the Court decided to add those documents to the case-file.

38 The parties presented oral argument and answered the questions put by the Court at the hearing on 8 December 2009, after which the oral procedure was closed and the case was deliberated.

39 By letter of 11 June 2010, the applicant requested that the oral procedure be reopened on account of the decisive importance for the present case of the judgment in Case C-91/08 Wall [2010] ECR I-0000. By letter of 28 June 2010, the parties were informed by the Court Registry that the Court’s decision on that request was reserved.

42 The applicant submits that it should be compensated for the loss which it suffered on the occasion of the award of the contract to a competitor in tendering procedure No 2034, the cancellation of call for tenders No 6019 and the extension of contract No 1695.

Admissibility of the action as regards the award of the contract to a competitor in call for tenders No 2034

43 The Commission submits that the action is inadmissible in so far as it concerns the award of the contract to a competitor in call for tenders No 2034. The action, in that regard, is time-barred and the applicant lacks locus standi to bring proceedings.

44 As regards limitation, the Commission relies on Article 46 of the Statute of the Court of Justice, applicable to proceedings before the General Court pursuant to Article 53 of the Statute, which provides that proceedings against the Communities in matters arising from non-contractual liability are to be barred after a period of five years from the occurrence of the event giving rise thereto. The Commission maintains that, according to settled case-law, the limitation period does not begin to run until all the preconditions for the obligation to provide compensation, in particular the existence of damage, are satisfied.

45 In the present case, those conditions were satisfied on the day on which SZ’s tender was rejected, namely on 29 December 2001, when the notice of the award of the contract to AIS was published in the Official Journal. The damage materialised on the day of rejection and, accordingly, 29 December 2001 is the day from which the five-year time-limit should be calculated for determining whether the action for damages is admissible in so far as it concerns the call for tenders at issue.

46 The Commission also submits, for the sake of completeness, that, under the applicable legislation, the five-year limitation period cannot be interrupted by the submission of a complaint to the Ombudsman.

47 The Commission also challenges the applicant’s interpretation of the case-law cited. The date on which the applicant obtained information from the Publications Office is irrelevant to the commencement of the limitation period. In the Commission’s view, to allow the applicant itself to determine the beginning of the limitation period would be contrary to the principle of legal certainty, which underlies the very purpose of the limitation period.

48 In the alternative, the Commission submits that the action is also time-barred if the period runs from the bringing into service of the CD-ROM in July 2002. The applicant even obtained the Dutch version of the CD-ROM on 3 June 2003 and therefore should or could have been aware of the alleged unlawful conduct on the part of the Commission.

49 The applicant states that it became aware of the Commission’s unlawful conduct only when it saw in practice that that CD-ROM did not satisfy the requirements of the call for tenders at issue. It states that it therefore, by letter of 20 June 2003, asked the Commission to provide explanations. Since the Commission replied to it by letter of 14 August 2003, the applicant claims that the limitation period certainly did not start to run before that date. It submits that, according to the case-law relied on by the Commission, the limitation period started to run at the earliest on 3 September 2003, the day on which it confirmed its view that the procedure was unlawful by indicating its disagreement to the Commission in writing. The applicant also points out that it had no reason to doubt at the beginning that the Commission was conducting the tendering procedure with due diligence. Consequently, the limitation period expired at the earliest on 14 August 2008 and the action is not time-barred in so far as concerns the award of the contract to a competitor in call for tenders No 2034.

50 As regards lack of locus standi, the Commission submits that the applicant lacks standing because it did not submit a bid in tendering procedure No 2034. Since the applicant was not a tenderer but a proposed sub-contractor, it had no direct interest in obtaining the contract.

51 The applicant replies that this argument is ‘as surprising as it is formalistic’ and that there is no basis for it in Community law. There are no such restrictions on persons who may bring an action under the second paragraph of Article 288 EC. Being a tenderer is not a pre-condition for locus standi in an action for non-contractual liability. The Commission is confusing contractual and non-contractual liability. The applicant states that it had a direct interest in SZ obtaining the contract and that its interests have been directly harmed by actions, statements and decisions of the Publications Office.

52 Article 46 of the Statue of the Court of Justice provides that ‘proceedings against the Communities in matters arising from non-contractual liability shall be barred after a period of five years from the occurrence of the event giving rise thereto’.

53 According to the case-law, it is apparent from the second paragraph of Article 288 EC that the existence of the non-contractual liability of the Community and the enforceability of the right to compensation for damage suffered depend on the satisfaction of a number of requirements: the conduct of the institution must be unlawful, there must be actual damage and there must be a causal relationship between the conduct of the institution and the damage alleged, and that the five-year limitation period which applies to proceedings alleging Community liability therefore cannot begin before all the requirements governing the obligation to provide compensation are satisfied and in particular before the damage to be made good has materialised (see order in Case T-140/04 Ehcon v Commission [2005] ECR II-3287, paragraph 39 and the case-law cited).

54 Furthermore, it should be pointed out that the function of the limitation period is to reconcile protection of the rights of the aggrieved person and the principle of legal certainty. The length of the limitation period was thus determined by taking into account, in particular, the time that the party who has allegedly suffered harm needs to gather the appropriate information for the purpose of a possible action and to verify the facts likely to provide the basis of that action (see order in Ehcon v Commission, cited in paragraph 53 above, paragraph 57 and the case-law cited).

55 Furthermore, it must be observed that preventing the limitation period for proceedings against the Community for non-contractual liability from starting to run as long as the party who has allegedly been harmed is not personally convinced that he has suffered damage has the result that the point in time at which those proceedings become time-barred varies according to the individual perception that each party may have as to the reality of the damage, something which is at variance with the requirement of legal certainty necessary for the application of limitation periods. In that connection, it must also be observed that the Court of Justice has rejected the argument that the limitation period referred to in Article 46 of the Statute cannot begin to run until the victim has specific and detailed knowledge of the facts of the case, since knowledge of the facts is not one of the conditions which must be met in order for the limitation period to begin running. The subjective appraisal of the reality of the damage cannot therefore be taken into consideration in order to determine the moment at which the limitation period begins in proceedings being brought against the Community for non-contractual liability. The time at which the limitation period begins to run must be determined on the basis of exclusively objective criteria (see Case C-51/05 P Commission v Cantina sociale di Dolianova and Others [2008] ECR I-5341, paragraphs 60 to 62 and the case-law cited).

56 In any event, it is apparent from Annex 3 to the letter of 20 June 2003 which the applicant sent to the Publications Office that the applicant obtained the Dutch version of the CD-ROM in question from a local distributor on 3 June 2003.

57 It follows that the applicant was able to have the use of the CD-ROM in question and assess its alleged deficiencies in relation to call for tenders No 2034 as of 3 June 2003 at the latest and that it then had a five-year period to bring an action for damages, namely until 3 June 2008.

58 Consequently, even if it were accepted that the limitation period could have begun to run only when the applicant was in a position to establish the defects in the bid of the undertaking to which the contract was awarded, the present action, which was lodged on 20 June 2008, is out of time in so far as it relates to call for tenders No 2034.

59 As the action is inadmissible in so far as it relates to call for tenders No 2034, the substantive examination must be restricted to the applicant’s pleas in law and arguments relating to the cancellation of call for tenders No 6019 and the extension of contract No 1695. The applicant relies in essence on the unlawfulness of the Publications Office’s decision to cancel call for tenders No 6019 and then puts forward three pleas in law to show that the extension of contract No 1695 was unlawful. The applicant then sets out its arguments relating to the requirements linked to damage and the causal link. The Court takes the view that those requirements should be examined first.

60 As regards, first, the Publications Office’s decision to cancel call for tenders No 6019, the applicant maintains that that decision caused it a loss of profit estimated at EUR 871 360. The applicant claims, at least, financial compensation estimated at EUR 4 000 for the preparation of the tender.

61 Furthermore, even though the applicant does not dispute the case-law cited by the Commission which establishes that economic operators must bear the risks inherent in their activities, it submits, however, that the Commission forgets that that principle cannot apply to cases of infringement of Community law in the conduct of tendering procedures.

62 The Commission states that there is no causal link between the cancellation of the tendering procedure and the alleged damage, because the applicant was simply a sub-contractor of the tenderer GrafiData. It is evident from the report of the Evaluation Committee of 6 October 2003 that GrafiData’s offer was not sufficient for the contract to be awarded to it. The Commission also maintains that it is clear from Article 101 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) that the applicant ought to have known, even without being specifically informed, that the Publications Office was entitled to cancel the tendering procedure at any stage without the candidates or tenderers being entitled to claim any compensation.

63 In addition, the Commission also points out that tenderers must themselves bear the economic risks inherent in their activities, including the costs relating to preparation of the tender. Furthermore, the applicant did not provide any evidence to substantiate the sums claimed.

64 As regards, secondly, the extension of contract No 1695, the applicant claims damages for loss of profit resulting from the change of sub-contractor in that connection.

65 SZ’s letter written in English and dated 13 January 2004, referred to in paragraph 37 above and produced by the Publications Office during the proceedings before the Ombudsman, clearly shows that the officials of the Publications Office intended to exclude the applicant from the contract.

66 The applicant estimates the loss of profit at EUR 514 750. In addition, it claims compensation of EUR 6 750 in respect of its costs relating to its efforts to assist SZ in the extension of the contract.

67 According to the applicant, there is a direct causal link between the acts, decisions and omissions of the Publications Office and the damage suffered by the applicant. The mere fact that SZ played its own part does not remove this causal link.

68 The Commission states that the decision not to sub-contract to the applicant was taken by SZ, not by the Publications Office, and that the reasons for SZ’s decision are irrelevant for the purpose of determining any liability on the part of the Publications Office. Therefore, there is no direct causal link between the Publications Office’s conduct in the tendering procedure and the damage alleged by the applicant.

69 In the alternative, the Commission considers that the Publications Office cannot be considered liable for loss of profit resulting from the exclusion of the applicant as sub-contractor, as that decision was taken by SZ alone. Moreover, the applicant should have claimed those costs from SZ and not from the Publications Office, since the documents in the file show that the applicant exchanged correspondence with SZ about the terms of the contract and that the Publications Office was not involved in this correspondence. In addition, the applicant has not adduced any evidence to substantiate the sums claimed and has failed to establish that those costs resulted directly from unlawful conduct on the part of the Publications Office.

70 As for, thirdly, the costs incurred in challenging the lawfulness of the procedures referred to, the applicant claims compensation as regards the resources which it allocated to the complaints made to the Publications Office, to the handling of the file before the Ombudsman and to legal costs. The applicant also claims damages, estimated at EUR 300 000, for loss of profile and damages, estimated at EUR 100 000, for damage to its reputation.

71 The Commission considers that, according to established case-law, the applicant is not entitled to claim, in an action for damages, compensation for loss suffered as a result of costs allegedly incurred in obtaining evidence prior to the present proceedings. The Commission maintains that the same argument holds for the costs allegedly incurred in relation to complaints made by the applicant to the Ombudsman. It also submits that the applicant has provided no evidence capable of substantiating its estimate of those costs. Finally, the applicant’s claim for damages for loss of profile and the argument that the adverse effect on its image put an end to the applicant’s business with the European Union institutions are unfounded and unsubstantiated. Moreover, the applicant has not succeeded in establishing a causal link between the alleged unlawful conduct on the part of the Publications Office and the damage resulting from it. Lastly, the applicant has not proved that the non-financial damage was still present, real, and certain.

72 As was pointed out in paragraph 53 above, it follows from a consistent line of decisions that the non-contractual liability of the Community for unlawful conduct on the part of its organs depends on the satisfaction of a number of conditions.

73 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 (Case T-170/00 Förde-Reederei v Council and Commission [2002] ECR II-515, paragraph 37).

74 According to settled case-law, there is a causal link for the purposes of the second paragraph of Article 288 EC where there is a certain and direct causal link between the fault committed by the institution concerned and the injury pleaded, and that link is for the applicants to prove (see Case T-304/01 Abad Pérez and Others v Council and Commission [2006] ECR II-4857, paragraph 101 and the case-law cited; see also, to that effect, Joined Cases C-363/88 and C-364/88 Finsider and Others v Commission [1992] ECR I-359, paragraph 25).

75 The applicant maintains in essence that the Commission, acting through the Publications Office, infringed the principles of sound administration, equal treatment, openness and the protection of legitimate expectations by cancelling tendering procedure No 6019 and by imposing an extension by 18 months of contract No 1695 with a new sub-contractor. Those unlawful acts caused the applicant a significant loss of profit and caused it to incur loss, connected with the cost of participating in the procedures at issue and with the work provided in that connection, and legal costs. Loss of profile and damage to its reputation also resulted from those unlawful acts.

76 The Commission disputes the existence of a direct causal link between the alleged unlawful acts and damage, primarily because the applicant was never a tenderer, but merely a sub-contractor.

77 In the present case, it is apparent from the file, and in particular from the annexes to the application and the annexes to the defence, that the applicant was indeed never a tenderer and never the successful tenderer for the tenders and contracts referred to.

78 As regards tendering procedure No 6019, it is apparent from the file, in particular from the annexes to the application, that the applicant did not participate in that tendering procedure as a tenderer. DOCdata France and the applicant are mentioned in a letter addressed to the Publications Office as partners of GrafiData, which was itself a tenderer. Furthermore, the applicant has not provided any evidence to establish, in the absence of any unlawfulness, any right to be granted the sub-contract for the contract either directly by the Publications Office or indirectly by GrafiData.

79 Consequently, the unlawful acts allegedly committed by the Commission in connection with tendering procedure No 6019, in which the applicant did not participate as a tender, cannot give rise in a sufficiently direct manner to the loss alleged by the applicant, which is linked generally to the fact that it did not obtain the sub-contract for that contract. The applicant has not shown that there is a certain and direct link between the cancellation of that tendering procedure by the Commission, even if it were to be unlawful, and the damage that it is alleging.

80 As for the extension of contract No 1695, it is apparent from the file that that contract was concluded by the Publications Office with SZ and not with the applicant, to which it does not refer. The same is true of Amendment No 4 to that contract, which was signed on 11 March 2004 and extended the duration of the contract between the same parties without referring to the applicant.

81 In that regard, it must be pointed out that the choice of sub-contractor or sub-contractors was SZ’s and not that of the Publications Office. Clause 13.2 of contract No 1695 merely requires the contractor to inform the Publications Office, which must authorise it, of its choice, as was the case here. The contractor, however, remains solely liable for the performance of the contract.

82 It follows that, in the case of contract No 1695, the unlawful acts allegedly committed by the Commission in the procedure at issue could not have given rise in a certain and direct manner to the damage alleged by the applicant, which results primarily from the fact that it did not retain the sub-contract for that contract after the extension of contract No 1695.

83 The successful tenderer for the contract at issue had a considerable discretion and the applicant has not shown that the strategy adopted by SZ of joining forces with another partner was the direct consequence of unlawful acts allegedly committed by the Commission. In such circumstances, the damage allegedly suffered by a sub-contracting undertaking cannot be regarded as having been directly caused by the Commission’s conduct, as that damage, assuming it to be established, was the result of the contractor’s choice of its sub-contractor.

84 As the applicant has not shown that there is a certain and direct causal link between the alleged unlawful acts and the alleged damage, one of the conditions for non-contractual liability to apply is not satisfied, with the result that the action must be dismissed as unfounded as regards the cancellation of call for tenders No 2034 and the extension of contract No 1695 without there being any need to examine the other conditions of that liability.

85 In any event, neither the damage constituted by the costs incurred by the applicant in the preparation for call for tenders No 6019 and for the assistance provided to SZ in the extension of contract No 1695 nor the damage resulting from the costs incurred by the applicant for the purpose of the judicial proceedings and the procedure before the Ombudsman is a loss for which compensation may be awarded in an action for damages.

86 First, as regards the costs resulting from the applicant’s indirect participation in the procedures referred to, it must be borne in mind that economic operators must bear the economic risks inherent in their activities, regard being had to the circumstances of each particular case. As regards an award procedure, those economic risks include, in particular, the costs relating to preparation of the tender. The expenses thus incurred therefore remain the responsibility of the undertaking which chose to take part in the procedure, since the opportunity to compete for a contract does not involve any certainty as to the outcome of the procedure (see, to that effect, Case T-203/96 Embassy Limousines & Services v Parliament [1998] ECR II-4329, paragraph 75, and Case T-160/03 AFCon Management Consultants and Others v Commission [2005] ECR II-981, paragraph 98). That principle, which applies to tenderers, applies a fortiori to the applicant, which does not even have that status. The applicant is therefore faced with a twofold uncertainty, first as to the award of the contract to the tenderer with which it has joined forces and secondly as to the obtaining of the sub-contract for that contract.

87 Although it is true that, in AFCon Management Consultants and Others v Commission, cited in paragraph 86 above, paragraph 98, the Court held that that principle may be discounted in cases where an infringement of Community law in the conduct of the tendering procedure has affected a tenderer’s chances of being awarded the contract, the applicant in the present case cannot rely on that case-law as it does not in fact have the status of tenderer.

88 As regards, secondly, the costs incurred by the parties for the purpose of the judicial proceedings, according to settled case-law, they cannot as such be regarded as constituting damage distinct from the burden of costs. Furthermore, the Court has held that, even though, as a rule, substantial legal work is carried out in the course of the proceedings prior to the judicial phase, it must be recalled that by ‘proceedings’ Article 91 of the Rules of Procedure refers only to proceedings before the Court, to the exclusion of the prior stage. That follows in particular from Article 90 of the Rules of Procedure, which refers to ‘proceedings before the General Court’. Therefore, to regard such costs as a loss for which compensation may be awarded in an action for damages would be inconsistent with the fact that costs incurred during the phase before the judicial proceedings are not recoverable (see order in Ehcon v Commission, cited in paragraph 53 above, paragraph 79 and the case-law cited).

89 It follows that the applicant is not entitled to claim, in an action for damages, compensation for loss suffered as a result of costs allegedly incurred in obtaining evidence prior to these proceedings (order in Ehcon v Commission, cited in paragraph 53 above, paragraph 80).

90 As regards, thirdly, the loss as a result of the costs allegedly incurred in bringing the matter before the Ombudsman, it should be pointed out that, in the institution of the Ombudsman, the Treaty has given citizens of the Union an alternative remedy to that of an action before the judicature in order to protect their interests. That alternative non-judicial remedy meets specific criteria and does not necessarily have the same objective as judicial proceedings. Moreover, as follows from Article 195(1) EC and Article 2(6) and (7) of Decision 94/262/ECSC, EC, Euratom of the European Parliament of 9 March 1994 on the regulations and general conditions governing the performance of the Ombudsman’s duties (OJ 1994 L 113, p. 15), the two remedies cannot be pursued at the same time. Although complaints submitted to the Ombudsman do not affect time-limits for bringing actions before the Community judicature, the Ombudsman must none the less cease consideration of a complaint and declare it inadmissible if the citizen simultaneously brings an action before the Community judicature based on the same facts. It is therefore for the citizen to decide which of the two available remedies is likely to serve his interests best. It follows that the applicant’s decision to bring the complaint in question before the Ombudsman was its own choice, and that free choice cannot appear as the direct and necessary consequence of cases of maladministration which may be attributable to Community institutions and bodies (see, to that effect, order in Ehcon v Commission, cited in paragraph 53 above, paragraphs 83 to 86 and the case-law cited).

91 The applicant is thus not entitled to claim, in an action for damages, compensation for loss suffered as a result of costs allegedly incurred before the Ombudsman.

93 The application made by the applicant in the main proceedings to have the oral procedure reopened must be dismissed. The judgment relied on by the applicant does not contain any element decisive for the outcome of the dispute.

94 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. Since the applicant has been unsuccessful, and the Commission has applied for costs, the applicant must be ordered to pay the costs.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> C - Content v Commission (Law governing the institutions) [2010] EUECJ T-247/08 (28 September 2010) URL: http://www.bailii.org/eu/cases/EUECJ/2010/T24708.html Cite as: [2010] EUECJ T-247/08, [2010] EUECJ T-247/8

Court of Justice of the European Communities (including Court of First Instance Decisions)