Judgments nº T-292/15 of Tribunal General de la Unión Europea, February 12, 2019

Resolution DateFebruary 12, 2019
Issuing OrganizationTribunal General de la Unión Europea
Decision NumberT-292/15

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

In Case T-292/15,

Vakakis kai Synergates - Symvouloi gia Agrotiki Anaptixi AE Meleton, formerly Vakakis International - Symvouloi gia Agrotiki Anaptixi AE, established in Athens (Greece), represented by B. O’Connor, Solicitor, S. Gubel and E. Bertolotto, lawyers,

applicant,

v

European Commission, represented by F. Erlbacher, E. Georgieva and L. Baumgart, acting as Agents,

defendant,

ACTION brought under Article 268 TFEU, seeking compensation in respect of the loss which the applicant allegedly suffered as a result of irregularities committed by the Commission in the context of the tendering procedure ‘Consolidation of the Food Safety System in Albania’ (EuropeAid/129820/C/SER/AL),

THE GENERAL COURT (Third Chamber, Extended Composition),

composed of S. Frimodt Nielsen, President, V. Kreuschitz, I.S. Forrester, N. Półtorak (Rapporteur) and E. Perillo, Judges,

Registrar: P. Cullen,

having regard to the written part of the procedure and further to the hearing on 12 December 2018,

gives the following

Judgment

Background to the dispute and procedure

1 By judgment of 28 February 2018, Vakakis kai Synergates v Commission (T-292/15, ‘the interlocutory judgment’, EU:T:2018:103), the General Court upheld the claim for damages brought by the applicant, Vakakis kai Synergates - Symvouloi gia Agrotiki Anaptixi AE Meleton, in so far as it sought compensation for the loss of an opportunity to be awarded the contract ‘Consolidation of the Food Safety System in Albania’ (EuropeAid/129820/C/SER/AL), organised by the EU Delegation to Albania on behalf of the European Commission, and compensation for the costs and expenses relating to the participation in the tendering procedure, plus compensatory interest.

2 According to paragraphs 4 and 5 of the operative part of the interlocutory judgment, the parties were required to submit to the Court, within three months of the date of delivery of the judgment, the amount of compensation, drawn up by agreement, or, failing agreement, to submit to the Court, within the same time limit, a statement of their views with supporting figures. The costs were reserved.

3 By letter of 24 May 2018, the Commission requested an extension of that time limit until 7 August 2018. By letter of 25 May 2018, the applicant requested an extension of that time-limit until 28 June 2018.

4 By decision of the President of the Third Chamber (Extended Composition) of the General Court of 28 May 2018, the three-month time limit laid down in the interlocutory judgment was extended until 7 August 2018.

5 In the context of their negotiations, the parties exchanged several letters. The applicant in particular sent five letters on 16 March, 20 April, 14 May, 6 June and 13 July 2018, to which the Commission responded by letters of 27 March, 4 and 24 May and 5 July 2018.

6 Since the parties were unable, during their negotiations, to reach an agreement on all the points relating to the precise determination of the damages due to the applicant, they sent a statement of their views with supporting figures to the Court on 7 August 2018.

7 By a measure of organisation of procedure of 28 August 2018, the Court sent questions in writing to the applicant concerning one of the points of difference which remained between the parties. The applicant replied to those questions within the time limit set.

8 By a measure of organisation of procedure of 24 September 2018, the Court requested the Commission to submit its observations on the applicant’s reply to that measure of organisation of procedure and to documents annexed to it. The Commission complied with that request within the prescribed time limit.

9 Acting on a proposal from the Judge-Rapporteur, the Court (Third Chamber, Extended Composition) decided to open the oral phase of the procedure.

10 The parties presented oral argument and gave their replies to the questions asked by the Court at the hearing on 12 December 2018.

Forms of order sought

11 The applicant claims that the Court should:

- require the Commission to pay compensation amounting to EUR 422 899.6;

- order the Commission to bear all the costs incurred until the compensation is paid in full and an order for costs is made.

12 The Commission contends that the Court should:

- confirm that the amount of EUR 10 642, provisionally agreed between the parties, represents just and adequate compensation for the costs and expenses incurred by the applicant for participating in the call for tenders;

- hold that the amount of EUR 49 464 constitutes just and adequate compensation for the damage suffered by the applicant in relation to the loss of an opportunity to be awarded the contract at hand;

- order that each party bear its own costs for the main proceedings, while for the negotiations after the interlocutory judgment and for the current proceedings, order that the applicant bear the costs.

Law

13 First, it is necessary to note the criteria which the parties had to take into account in order to determine the amount of compensation due to the applicant, as they were established in the interlocutory judgment.

14 In the first place, the parties had to take into account the fact that, in the context of the tendering procedure at issue in the present case, since the applicant is part of a consortium, the compensation should correspond to its participation in that consortium (see paragraph 215 of the interlocutory judgment).

15 In the second place, as regards the costs and expenses relating to the participation in the tendering procedure, first, the parties had to take into consideration the exact proportion of the costs linked to the participation in the tendering procedure in the ‘general expenses’ submitted by the applicant and the exact number of workdays necessary for that purpose. Secondly, as regards the compensatory interest, the parties had to take into account the fact that the starting point and the end of the period giving rise to a right to the monetary revaluation must respectively be fixed on the first day of the month following the month during which the applicant last took steps prior to initiating proceedings and on the date of delivery of the judgment establishing the obligation to make good the damage. As regards the rate of compensatory interest, the parties had to take into consideration the fact that the monetary depreciation linked to the passage of time was, in principle, reflected by the annual rate of inflation recorded, for the period in question, by Eurostat (the European Union’s statistical office) in the Member State where the applicant was established (see paragraphs 216 and 217 of the interlocutory judgment).

16 In the third place, as regards the loss of an opportunity, first, the parties had to take into account the probability the applicant would have had of winning the tender in the absence of the unlawful acts found by the Court. For that purpose, they had first of all to take into consideration the probability that a diligent investigation would have resulted in the exclusion of company A.’s tender in so far as the existence of a conflict of interests justified the exclusion of a tenderer only on condition that that fact constitutes a situation of unfair competition, that the contracting authority be able to adopt measures in order to offset the advantage resulting from the conflict of interests and that it can cancel the tendering procedure. Next, they had to take into consideration the fact that, since the applicant’s tender was ranked in...

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