9.2.2008   

EN

Official Journal of the European Union

C 37/2

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set aside the order of the Court of First Instance of 29 August 2007 in Case T-186/05, and refer the case back to the Court of First Instance for adjudication on the substance in the light of any guidance which it may please the Court of Justice to provide;

—

order the Commission to pay the costs incurred in the present proceedings, together with those incurred in Case T-186/05.

(a)

the legal expenses incurred in Case T-155/04 were wrongly excluded from the ambit of recoverable loss. In the appellant's submission, the Court of First Instance erred as follows:

(b)

the Court of First Instance erred in excluding from the ambit of recoverable loss the legal costs incurred in the administrative pre-litigation procedure. In the appellant's submission, that error consists in interpreting and applying Article 87 et seq of the Rules of Procedure to an individual action for damages, which is completely outside the scope of those provisions;

(c)

the clear sense of the evidence adduced by the appellant was distorted. The Court of First Instance did not correctly analyse the documentation produced by the applicant in Case T-186/05 or the annexes thereto;

(d)

the grounds stated are illogical and contradictory, and the Community case-law on damages was flouted. The Court of First Instance did not correctly apply the principles set out in Joined Cases C-104/89 and C-37/90 Mulder  (1) and Case C-243/05 P Agraz  (2);

(e)

Article 44 of the Rules of Procedure of the Court of First Instance was infringed. In the appellant's submission, the correct interpretation of that provision does not require that the application must ‘necessarily’ contain the evidence; on the contrary, that provision is based on the concept of ‘possibility’, that is to say, it requires the party to provide evidence only when that is possible;

(f)

the reasons stated are inadequate as regards the issue of compensation for the damage suffered by the appellant as a result of the infringement of the principle that the administrative procedure must be of reasonable duration. The Court of First Instance did not, in fact, state the grounds for its rejection of the claim for compensation in relation to the specific infringement alleged by the appellant;

(g)

the clear sense of the arguments and the evidence was distorted, and the reasoning is illogical and inconsistent with the Community case-law on compensation for non-material damage. For the purposes of rejecting the claim for damages in relation to breach of the principle that the administrative procedure must be of reasonable duration or of the Commission's duty of vigilance, the Court of First Instance was not entitled to use the arguments exclusively concerning exclusion from the public procurement procedures or failure to award a public supply contract.