| | ECS-46 (Statute)Period of limitation    
| ECJ (Statute) | Article 46 | | 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. The period of limitation shall be interrupted if proceedings are instituted before the Court or if prior to such proceedings an application is made by the aggrieved party to the relevant institution of the Communities. In the latter event the proceedings must be instituted within the period of two months provided for in Article 230 of the EC Treaty and Article 146 of the EAEC Treaty; the provisions of the second paragraph of Article 232 of the EC Treaty and the second paragraph of Article 148 of the EAEC Treaty, respectively, shall apply where appropriate. |
| Case | Pte | Ref | Text | T-104/04
Adviesbureau Ehcon | 39-45 | ECT-288
ECS-46 | 39. 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 (Joined Cases 256/80, European Court reports 2005 Page II-03287 8 257/80, 265/80, 267/80 and 5/81 Birra Wührer v Council and Commission [1982] ECR 85, paragraph 9, and order in Case T-106/98 Fratelli Murri v Commission [1999] ECR II-2553, paragraph 25), 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, to that effect, Birra Wührer v Council and Commission , paragraphs 9 and 10).
40. In the present case, it should be pointed out that the applicant seeks compensation for damage of a different kind.
41. In essence, it seeks compensation for: - the loss suffered as a result of not being awarded the initial contract, equal to the net profit which that contract would have generated, estimated at EUR 158 400 (the loss suffered as a result of not being awarded the contract in question'); - the loss suffered as a result of the damage caused to its reputation as an expert in the field of water research, of the reduction in its workload, of its inability to extend its expertise in water-related research and of the need to develop its expertise in a new area, estimated at EUR 60 000 at least (the loss suffered as a result of the damage caused to its reputation, of the reduction in its workload, of its inability to extend its expertise in water-related research and the development of its expertise in a new area'); - the loss of the chance of securing a later contract, awarded on 30 November 2000 to Haskoning, estimated at 10% of the net profits received by that company on that occasion, that is EUR 25 500 (the damage suffered as a result of the loss of the chance of securing the next contract').
42. In the alternative, the applicant seeks compensation for: - the loss of the chance of securing the contract in question, estimated, having regard to the fact that six companies were selected at the end of the first selection stage, at 1/6 of the net profits generated by the contract, that is EUR 26 400 (the loss suffered as a result of the loss of the chance of securing the contract in question'); - the costs incurred in participating in the initial tendering procedure, estimated at EUR 10 000 (the costs of the tendering procedure'); - the costs incurred in bringing the various complaints before the Ombudsman and in obtaining evidence against the Commission, estimated at EUR 4 000 (the costs incurred in bringing the matter before the Ombudsman and in obtaining evidence'). | T-104/04
Adviesbureau Ehcon | 43-45 | ECT-288
ECS-46 | 43. It must be held that the loss suffered as a result of not being awarded the contract in question, the damage suffered as a result of the loss of the chance of securing the contract in question, the costs of the tendering procedure and the loss suffered as a result of the damage to its reputation, of the reduction in its workload, of its inability to extend its expertise in water-related research and of the development of its expertise in a new area materialised on the day on which the Commission rejected the applicant's tender. That rejection also constitutes the event giving rise to these proceedings to establish liability, within the meaning of Article 46 of the Statute of the Court of Justice.
44. Furthermore, it is common ground that the rejection occurred on the date of the Commission's decision, 7 January 1997, and that, at the applicant's request, the Commission set out the reasons for its decision in a letter of 13 March 1997. It must also be stated that the applicant knew those reasons by, at the latest, 20 March 1997, the date on which it wrote to the Commission referring to the Commission's letter of 13 March 1997.
45. It follows that, in respect of those losses, all the conditions for the applicant to assert its right to compensation were satisfied on 20 March 1997 at the latest and that, therefore, the five-year limitation period expired on 20 March 2002 at the latest. | T-104/04
Adviesbureau Ehcon | 46-48 | ECT-230
ECT-232
ECT-288
ECS-46 | 46. The fact that the applicant submitted two claims to the Commission, on 20 September 1999 and 12 November 2001, for compensation for the loss it claims to have suffered does not lead to a different result, since it is not disputed that those claims were not followed by proceedings under Article 230 EC or 232 EC.
47. In accordance with Article 46 of the Statute of the Court of Justice, the period of limitation is interrupted only if proceedings are instituted before the Court or if prior to the proceedings an application is made to the relevant institution of the Community; however, in the latter case, interruption only occurs if the application is followed by proceedings within the time-limit determined by reference to Article 230 EC or 232 EC (Giordano v Commission , paragraph 28 above, paragraph 6; Case T-222/97 Steffens v Council and Commission [1998] ECR II4175, paragraphs 35 and 42; and order in Jestädt v Council and Commission , paragraph 28 above, paragraph 47).
48. Consequently, since the application was lodged on 8 April 2004, that is, more than seven years after 20 March 1997, the point from which the five-year limitation period started to run, this action, in so far as it seeks compensation for those losses, must be declared time-barred and therefore inadmissible. | T-104/04
Adviesbureau Ehcon | 49-61 | ECT-288
ECS-46 | 49. None of the applicant's arguments can affect that conclusion.
50. In the first place, the applicant claims that it could not have known of the alleged illegality committed by the Commission until 2000, that is to say, when it managed to obtain another tenderer's tender, which was accepted at the end of the selection stage and which shows that that tenderer did not have experience in the design of water treatment facilities. Without specifying the day on which it actually managed to obtain that document, the applicant considers that logic and fairness call for the point from which the limitation period started to run to be set at 22 October 2001, the day on which the Ombudsman gave his decision on the basis of that document and of the inquiries made at the Commission, because before that date the applicant had no evidence and its action would therefore have failed.
51. It should be pointed out that the unlawfulness of the conduct for which the applicant criticises the Commission and of which it became aware only belatedly, consists essentially in the alleged application of a selection criterion, namely experience in the design of water treatment facilities, which was not included among the criteria contained in the invitation to tender and which was applied to the applicant in a discriminatory manner.
52. As regards the unlawfulness resulting from the application of the criterion at issue, a study of the documents before the Court shows that the applicant knew that its tender had been rejected on the basis of that criterion since the Commission's letter of 13 March 1997. It must further be stated that, in its letter of 20 March 1997, the applicant challenged the Commission's arguments, saying that it had extensive experience in water-related research and that experience in the design of water treatment facilities was not one of the selection criteria. The applicant therefore concluded that it had been wrongly excluded from the award procedure, reported a case of improper administration and threatened to bring proceedings if it had not received a reply by 10 April 1997. The applicant repeated those arguments in its claim for compensation sent to the President of the Commission on 20 September 1999, in which it stated that, if that claim were rejected, it would bring the matter before the Court of First Instance.
53. As regards the claim that the criterion in question was also applied in a discriminatory manner, the applicant submits that it was not aware of that fact until 2000, when it managed to obtain, through its own efforts, the tender of another tenderer, namely the company EDC, whose tender was selected at the end of the first stage even though that tenderer likewise did not satisfy that criterion.
54. Apart from the fact that the applicant does not adduce proof of that fact, it should first be pointed out again that, in its letter of 20 September 1999, it was already complaining that the criterion in question was not applied to the other tenderers, as is apparent from the report of the Advisory Committee on Procurement and Contracts (the ACPC'), and that the Commission had thus infringed the principle of non-discrimination laid down in Article 3(2) of Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts (OJ 1992 L 209, p. 1). It should also be pointed out that, in its letter to the Ombudsman of 30 March 1998, to which it refers in its letter of 12 January 1999, the applicant already complained of fraud, favouritism and improper administration on the part of the Commission. Therefore, the applicant's assertion that it had not been aware until 2000 of the discriminatory application by the Commission of the criterion in question is incorrect.
55. In any event, it is apparent from paragraph 52 above that the applicant had known since 1997 the fundamental reason for the rejection of its tender, namely, its lack of experience in the design of water treatment facilities, a reason which it has always disputed, both before the Commission and the Ombudsman as well as in these proceedings, inasmuch as that criterion was not included in the invitation to tender.
56. Therefore, even if the applicant could not have known until 2000, or even 22 October 2001, that the criterion in question was allegedly applied in a discriminatory manner, that fact cannot postpone until that date the point from which the limitation period for the action for compensation started to run.
57. 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 (order in Autosalone Ispra dei Fratelli Rossi v Commission , paragraph 28 above, paragraph 28).
58. Thus, it has been held that the argument that the limitation period cannot begin until the victim has specific and detailed knowledge of the facts of the case is misconceived, since knowledge of the facts is not one of the conditions which must be met in order for the limitation period to run (order in Autosalone Ispra dei Fratelli Rossi v Commission , paragraph 28 above, paragraph 31).
59. Similarly, in the present case, the fact that the applicant allegedly became aware of additional information in support of its action after the rejection - for which the Commission stated its reasons on 13 March and 10 April 1997 - of its offer, even though it had since the beginning disputed the fundamental reason for that rejection, which also constitutes the event giving rise to the damage, cannot place the point from which the limitation period started to run at the date on which the applicant became aware of that information.
60. This applies a fortiori because in 2000, on the day on which the applicant claims to have received the tender documents of one of the tenderers accepted at the end of the selection stage, and even on the day on which the applicant itself considers that it had enough evidence to bring proceedings for compensation, that is, when the Ombudsman adopted his decision of 22 October 2001 which was critical of the Commission, the five-year limitation period had not yet expired.
61. It follows that, in this case, unlike the situation in which an applicant is prevented from bringing proceedings within a reasonable time because he only belatedly became aware of the event giving rise to the damage, expiry of the limitation period cannot be fixed at a date later than the normal date of expiry of that period (see, to that effect, Case 145/83 Adams v Commission [1985] ECR 3539, paragraphs 50 and 51, and the order in Autosalone Ispra dei Fratelli Rossi v Commission , paragraph 28 above, paragraph 32). | T-104/04
Adviesbureau Ehcon | 62-66 | ECT-288
ECS-46 | 62. In the second place, the applicant's argument that the Commission is responsible for the limitation of the action inasmuch as it provided the applicant with incorrect information in order to conceal the alleged unlawfulness of the tendering procedure likewise cannot be accepted.
63. It is true that the Court of Justice has already held, in connection with the implementation of Council Directive 75/117/EEC of 10 February 1975 on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women (OJ 1975 L 45, p. 19) that Community law precludes the application of a rule of national law which time-bars an action brought by an employee for arrears of remuneration or damages for breach of the principle of equal pay, there being no possibility of extending that period, where the delay in bringing a claim is attributable to the fact that the employer deliberately supplied the employee with incorrect information (Levez , paragraph 34 above, paragraph 34).
64. However, even assuming that the Court of Justice has thus laid down a general rule, the rule is not applicable in the present case.
65. Indeed, contrary to the situation in the above case, the fact that, in the present case, the Commission may have deliberately misled the applicant by informing it that the main reason that its tender had been rejected was that it did not have experience in the design of water treatment facilities, if proved, was not such as to prevent the applicant from bringing proceedings in good time.
66. First, it is clear from the foregoing that the applicant knew, from the time the Commission gave the reasons for its decision on 13 March 1997, that its tender had been rejected on the ground that it did not satisfy the criterion relating to experience in the design of water treatment facilities and that it has from the beginning disputed the lawfulness of the application of that criterion, a complaint which it maintains in these proceedings. Second, even if it were conceded that the Commission's conduct might have prevented the applicant from being fully aware that the Commission had allegedly treated it differently, it must be stated that the applicant was already making that complaint, on the basis of the ACPC report, in its letter to the Commission of 20 September1999, and itself acknowledges that it became aware of the fact in 2000 after obtaining EDC's tender. By that time at the latest, the applicant therefore had the evidence it claims it needed in order to bring its action. It therefore cannot be accepted that the delay in bringing this action is solely, or even largely, due to the Commission's attitude, because the applicant still had an opportunity to bring its action, within the time-limit, after the Ombudsman's decision. | T-104/04
Adviesbureau Ehcon | 67 | ECT-288
ECS-46 | 67. In the third place, contrary to what the applicant claims, it cannot be considered that the loss allegedly suffered as a result of the damage caused to its reputation, of the reduction in its workload, of its inability to extend its expertise in water-related research and of the development of its expertise in a new area was suffered continuously. Although, according to settled case-law, the time bar applies only to the period preceding by more than five years the date of the act stopping time from running and does not affect rights which arose during subsequent periods (see, to that effect, Case T-20/94 Hartmann v Council and Commission [1997] ECR II-595, paragraph 132, and Case T-201/94 Kustermann v Council and Commission [2002] ECR II-415, paragraph 64), this is only in the exceptional situation in which it is established that the damage in question was repeated on a daily basis after the occurrence of the event which caused it. That is not the position in the present case, in which the loss described above, if proved, even though its full extent may not have been appreciated until after the rejection of the applicant's tender for the contract in question, was nevertheless caused instantly by that rejection. | T-104/04
Adviesbureau Ehcon | 68-70 | ECT-288
ECS-46 | 68. Finally and in the fourth place, the applicant's argument that it was not in a financial position to bring an action against the Commission before it initiated these proceedings obviously does not support the conclusion that this action is admissible.
69. Indeed, it should be pointed out that, under Article 94(1) of the Rules of Procedure, a party who is wholly or in part unable to meet the costs of the proceedings may at any time apply for legal aid. The applicant's alleged poverty cannot therefore be a reason justifying the late submission of the application.
70. It should also be noted that the applicant was familiar with that procedure and that it has not established that it is entitled to legal aid, since, on 25 March 2002, it submitted an application for legal aid which the Court of First Instance dismissed by order of 13 December 2002. | T-104/04
Adviesbureau Ehcon | 71 | ECT-288
ECS-46 | 71. It follows that, in accordance with paragraphs 43 and 48 above, the action is time-barred and therefore inadmissible, in so far as it seeks compensation for the loss suffered as a result of the applicant's not being awarded the contract in question, the damage suffered as a result of the loss of the chance of securing the contract in question, the costs of the tendering procedure and the loss suffered as a result of the damage to its reputation, of the reduction in its workload, of its inability to extend its expertise in water-related research and of the development of its expertise in a new area. |
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