1BY APPLICATION REGISTERED AT THE COURT ON 3 MAY 1977 THE APPLICANT , AGENCE EUROPEENNE D ' INTERIMS S.A ., CLAIMS ON THE ONE HAND THE ANNULMENT OF THE DECISION OF THE COMMISSION DATED 1 MARCH 1977 BY WHICH THE COMMISSION REJECTED THE APPLICANT ' S TENDER LODGED IN RESPONSE TO THE COMMISSION ' S INVITATION TO TENDER FOR THE SUPPLY OF TEMPORARY STAFF AND FURTHER AN ORDER THAT THE COMMISSION PAY COMPENSATION FOR THE DAMAGE THE APPLICANT SUFFERED AS A RESULT OF THE SAID DECISION AND BECAUSE OF THE CONDUCT OF CERTAIN OFFICIALS OF THE COMMISSION .
2IT APPEARS FROM THE FILE THAT AFTER THE COMMISSION HAD DECIDED IN NOVEMBER 1976 TO TERMINATE THE CONTRACTS WHICH IT HAD HAD WITH THE APPLICANT SINCE 1970 FOR THE SUPPLY OF TEMPORARY STAFF IT ISSUED ON 7 DECEMBER 1976 A RESTRICTED INVITATION TO TENDER FOR THE SUPPLY OF TEMPORARY STAFF WITHIN THE MEANING OF ARTICLE 59 ( 2 ) OF THE FINANCIAL REGULATION OF 25 APRIL 1973 APPLICABLE TO THE GENERAL BUDGET OF THE EUROPEAN COMMUNITIES ( OFFICIAL JOURNAL L 116 , P . 1 ) AND THAT THE APPLICANT DULY FOLLOWED THE PROCEDURE .
3ALTHOUGH NOT REQUIRED TO DO SO THE COMMISSION PREVIOUSLY SOUGHT AN OPINION FROM THE PURCHASES AND CONTRACTS ADVISORY COMMITTEE ON THE CONTENT AND WORDING OF THE TENDER AND THE PROCEDURE TO BE FOLLOWED .
4THE APPLICANT , ALONG WITH 18 OTHERS , LODGED A TENDER IN ACCORDANCE WITH THE CONDITIONS LAID DOWN IN THE INVITATION TO TENDER .
5IN ACCORDANCE WITH ARTICLE 62 OF THE FINANCIAL REGULATION THE TENDERS WERE SUBMITTED FOR THE OPINION OF THE PURCHASES AND CONTRACTS ADVISORY COMMITTEE . ON 25 FEBRUARY 1977 THE LATTER PRONOUNCED ITSELF IN FAVOUR OF THE CONCLUSION OF A CONTRACT WITH RANDSTAD S.A . FOR THE SUPPLY OF TEMPORARY STAFF TO THE COMMISSION .
6THE AUTHORIZING OFFICER ACCEPTED THE ASSESSMENT OF THE PURCHASES AND CONTRACTS ADVISORY COMMITTEE AND THE COMMISSION DECIDED TO ENTER INTO A CONTRACT WITH RANDSTAD AFTER OBTAINING AUTHORIZATION FROM THE FINANCIAL COMPTROLLER .
7BY LETTER DATED 1 MARCH 1977 THE COMMISSION INFORMED THE APPLICANT THAT ITS TENDER HAD NOT BEEN ACCEPTED .
8SUBSEQUENTLY THE MAJORITY OF THE TEMPORARY STAFF WHICH HAD PREVIOUSLY BEEN EMPLOYED BY THE APPLICANT OFFERED THEIR SERVICES TO RANDSTAD WHO THEREUPON SIGNED THEM UP .
9BY ORDER DATED 30 NOVEMBER 1977 THE COURT GAVE RANDSTAD LEAVE TO INTERVENE IN SUPPORT OF THE COMMISSION ' S CLAIM TO REJECT THE APPLICATION AS UNFOUNDED .
10THE APPLICANT IS SEEKING THE ANNULMENT OF THE COMMISSION ' S DECISION OF 1 MARCH 1977 BY WHICH THE COMMISSION REJECTED THE APPLICANT ' S TENDER AND ALLEGES DISREGARD OF ESSENTIAL PROCEDURAL REQUIREMENTS , INFRINGEMENT OF THE FINANCIAL REGULATION OF 25 APRIL 1973 AND OF THE MEASURES IMPLEMENTING IT AND MISUSE OF POWERS , ALL OF WHICH CLAIMS ARE CONTESTED BY THE COMMISSION .
11NONE OF THE PARTIES HAS QUESTIONED THE LAWFULNESS OF THE EXTENT OF THE COMMISSION ' S RECOURSE TO THE EMPLOYMENT OF TEMPORARY STAFF TO PROVIDE THE NECESSARY STAFF FOR THE PERFORMANCE OF ITS NORMAL WORK .
12IN THE FIRST PLACE THE APPLICANT SAYS THE COMMISSION DISREGARDED ESSENTIAL PROCEDURAL REQUIREMENTS WHEN GIVING NOTICE OF REJECTION OF THE TENDER BY LETTER DATED 1 MARCH 1977 SINCE , CONTRARY TO THE OBLIGATION ON THE COMMISSION UNDER ARTICLE 190 OF THE TREATY TO STATE ITS REASONS , NO REASONS WERE GIVEN .
13SINCE THE REJECTION OF THE APPLICANT ' S TENDER WAS ONLY THE NECESSARY AND INEVITABLE CONSEQUENCE OF THE DECISION TO ACCEPT RANDSTAD ' S TENDER IT WAS UNNECESSARY FOR THE REASONS TO BE SEPARATELY STATED .
14IN THE SECOND PLACE THE APPLICANT ALLEGES THAT THE DECISION TAKEN IN FAVOUR OF THE INTERVENER INFRINGES THE PROVISIONS OF ARTICLE 59 ( 2 ) OF THE FINANCIAL REGULATION IN SO FAR AS IT INVOLVES THE REJECTION OF THE APPLICANT ' S TENDER WHEREAS
( A ) THIS TENDER WAS , FROM THE POINT OF VIEW OF THE FACTORS OF ASSESSMENT LISTED IN THAT PARAGRAPH , MORE ATTRACTIVE THAN THE TENDER WHICH WAS ACCEPTED ; AND
( B ) THE COMMISSION DID NOT SERIOUSLY CONSIDER THE TENDERS SUBMITTED AND MORE PARTICULARLY THE ONE WHICH IT ACCEPTED .
15ARTICLE 59 ( 2 ) OF THE FINANCIAL REGULATION PROVIDES :
' ' A CONTRACT FOLLOWING A REQUEST FOR TENDERS IS A CONTRACT ENTERED INTO BY THE CONTRACTING PARTIES FOLLOWING AN INVITATION TO TENDER . IN THIS CASE , THE OFFER THOUGHT TO BE THE MOST ATTRACTIVE MAY BE FREELY CHOSEN , TAKING INTO ACCOUNT THE COST OF PERFORMANCE , RUNNING COSTS INVOLVED , TECHNICAL MERIT , THE TIME FOR PERFORMANCE , TOGETHER WITH THE FINANCIAL GUARANTEES AND THE GUARANTEES OF PROFESSIONAL COMPETENCE PUT FORWARD BY EACH OF THE TENDERERS .
A REQUEST FOR TENDERS . . . IS SAID TO BE RESTRICTED WHERE IT IS ADDRESSED ONLY TO THOSE WHOM IT HAS BEEN DECIDED TO CONSULT BECAUSE OF THEIR SPECIAL QUALIFICATIONS . ' '
16ACCORDING TO THIS PROVISION OF THE FINANCIAL REGULATION THE ADMINISTRATION MAY FREELY CHOOSE THE OFFER THOUGHT TO BE THE MOST ATTRACTIVE ; THIS GIVES IT A CERTAIN DISCRETION .
17IT IS NOT STIPULATED THAT IN THE ASSESSMENT OF THE TECHNICAL AND FINANCIAL FACTORS THE PRICE MUST CONSTITUTE THE SOLE CRITERION .
18BY PROVIDING IN ARTICLE 62 THAT CONTRACTS INVOLVING AMOUNTS EXCEEDING 12 000 UNITS OF ACCOUNT SHALL , BEFORE THE AUTHORIZING OFFICER TAKES A DECISION , BE SUBMITTED FOR THE OPINION OF A PURCHASES AND CONTRACTS ADVISORY COMMITTEE THE FINANCIAL REGULATION ITSELF CONTAINS A PROCEDURE FOR REVIEW OF THE ADMINISTRATION ' S JUDGMENT .
19IN THE PRESENT CASE THE PROPOSAL TO ENTER INTO A CONTRACT WITH RANDSTAD RECEIVED A FAVOURABLE OPINION FROM THE PURCHASES AND CONTRACTS ADVISORY COMMITTEE .
20ALTHOUGH THE COURT HAS JURISDICTION TO REVIEW THE JUDGMENT OF THE DEPARTMENTS OF THE COMMISSION TO DECIDE WHETHER THERE IS ANY MISUSE OF POWERS OR A SERIOUS AND MANIFEST ERROR OF JUDGMENT IT MUST , HOWEVER , RESPECT THE DISCRETION GIVEN TO THE COMPETENT AUTHORITIES , INCLUDING THE PURCHASES AND CONTRACTS ADVISORY COMMITTEE , IN ASSESSING THE FACTORS TO BE TAKEN INTO ACCOUNT IN THE INTERESTS OF THE DEPARTMENT FOR THE PURPOSE OF DECIDING TO ENTER INTO A CONTRACT FOR THE SUPPLY OF TEMPORARY STAFF TO AN INSTITUTION .
21BY PRODUCING A NUMBER OF COMPARATIVE TABLES OF FIGURES THE APPLICANT HAS ATTEMPTED TO SHOW THE OBVIOUSLY ERRONEOUS NATURE OF THE COMMISSION ' S FINDING THAT RANDSTAD ' S TENDER WAS THE LOWEST .
22ON THE OTHER HAND AT THE REQUEST OF THE COURT THE COMMISSION HAS FILED CALCULATIONS IN SUPPORT OF ITS CLAIM THAT THE PRICES OFFERED BY RANDSTAD WERE MORE ATTRACTIVE THAN THOSE PROPOSED BY THE APPLICANT .
23THE APPLICANT HAS FILED WRITTEN OBSERVATIONS ON THE COMMISSION ' S CALCULATIONS .
24PROVIDED THAT THE COMMISSION HAS ASSESSED THE TENDERS FAIRLY ON THE SAME BASIS AND ACCORDING TO THE SAME CRITERIA THE CHOICE OF METHODS WHICH IT HAS EMPLOYED TO COMPARE THE TENDERS CANNOT BE QUESTIONED .
25IT IS ACCORDINGLY NECESSARY TO CONSIDER THE METHODS OF COMPARISON EMPLOYED BY THE COMMISSION .
26THE COMMISSION HAS EXPLAINED THE BASIC PRINCIPLE OF THE CALCULATIONS MADE BY ITS DEPARTMENTS WHEN CONSIDERING THE PRICES OF THE TENDERS .
27ACCORDING TO ITS EXPLANATIONS IT DREW UP A SCALE OF THE NET HOURLY SALARIES OF ITS OFFICIALS AND OTHER SERVANTS DOING THE SAME WORK AS THAT REQUIRED OF THE TEMPORARY STAFF IN THE INVITATION TO TENDER .
28A NET FIGURE IN RESPECT OF THE GROSS SALARIES PROPOSED BY THE TENDERERS WAS OBTAINED BY ADDING 14.8 % FOR HOLIDAY PAY AND MAKING THE NORMAL DEDUCTIONS , INCLUDING SOCIAL SECURITY CONTRIBUTIONS FOR WHICH THE WORKER IS LIABLE .
29COMPARISON OF THE AMOUNTS SO CALCULATED WITH THE SCALE OF NET SALARIES OF OFFICIALS OR OTHER SERVANTS OF THE COMMISSION SHOWED THAT THE APPLICANT ' S TENDER DID NOT IN MOST CASES COMPLY WITH THE PROVISIONS OF ARTICLE 10 OF THE BELGIAN LAW OF 28 JUNE 1976 ( MONITEUR BELGE , 7 AUGUST 1976 ) WHICH CAME INTO FORCE ON 1 DECEMBER 1976 AND REQUIRES THAT THE SALARY OF TEMPORARY STAFF SHOULD NOT BE LESS THAN THAT TO WHICH SUCH STAFF WOULD HAVE BEEN ENTITLED IF THEY HAD BEEN EMPLOYED ON THE SAME TERMS AS A PERMANENT WORKER AND THE COMMISSION , THEREFORE , IN ACCORDANCE WITH THE REVIEW CLAUSE WHICH THE APPLICANT ' S TENDER CONTAINED CALCULATED THE NECESSARY COEFFICIENTS OF INCREASE AND APPLIED THEM TO THE PRICES SOUGHT BY THE APPLICANT .
30ONCE THE REVIEW CLAUSE WAS APPLIED IT WAS APPARENT THAT THE APPLICANT ' S PRICES WERE ALMOST ALL HIGHER THAN RANDSTAD ' S PRICES ALL OF WHICH WERE ALREADY ABOVE THE COMMISSION ' S SCALE .
31AFTER THE COMMISSION HAD MADE A FORECAST OF THE USE OF TEMPORARY STAFF ACCORDING TO THE STAFF POLICY WHICH IT CONTEMPLATED PURSUING IT COMPARED THE COSTS OF THE TENDERS BY MULTIPLYING THE HOURLY RATES PROPOSED BY THE TENDERERS , AFTER APPLYING THE REVIEW CLAUSE IN THE CASE OF THE APPLICANT , BY THE NUMBER OF HOURS STATED IN THE SAID FORECAST AND TAKING ACCOUNT OF ANY EFFECT THE INDEX AND REDUCTIONS MIGHT HAVE .
32AS REGARDS THE INDEX THE VARIATIONS IN 1976 WERE TAKEN .
33AS A RESULT OF THE ABOVE-MENTIONED OPERATIONS THE APPLICANT ' S PRICES WERE HIGHER THAN THOSE OF RANDSTAD .
34THE OBJECTIONS RAISED BY THE APPLICANT AGAINST THE METHODS OF CALCULATION ADOPTED BY THE COMMISSION BASICALLY CONCERN THE FACTORS OF ASSESSMENT WHICH THESE INVOLVE AND IN PARTICULAR THE CHOICE OF THE NET SALARIES OF THE OFFICIALS OF THE COMMISSION APPLICABLE ON 31 DECEMBER 1976 AS A CRITERION OF CONFORMITY WITH ARTICLE 10 OF THE BELGIAN LAW , THE FORECAST OF THE USE OF TEMPORARY STAFF AND REFERENCE TO THE VARIATIONS IN THE INDEX IN 1976 AS A CRITERION FOR THE INFLUENCE OF THE INDEX ON THE PRICES PROPOSED .
35IN VIEW OF THE FACT THAT WHEN THE COMMISSION HAD TO APPLY THE BELGIAN LAW FOR THE PURPOSE OF ITS CALCULATIONS THAT LAW HAD JUST ENTERED INTO FORCE AND HAVING REGARD TO THE ABSENCE OF PRECISE INDICATIONS IT IS NOT POSSIBLE TO REPROACH THE COMMISSION FOR HAVING ADOPTED AS A CRITERION OF THE CONFORMITY OF THE TWO TENDERS WITH THE PROVISIONS OF ARTICLE 10 OF THE BELGIAN LAW THE NET HOURLY SALARY AS AT 31 DECEMBER 1976 OF OFFICIALS OF THE COMMISSION DOING THE SAME WORK AS THAT STATED IN THE INVITATION TO TENDER FOR TEMPORARY STAFF .
36FURTHER , THE COMMISSION HAD TO JUDGE THE TENDERS ON THE BASIS OF AN ASSESSMENT OF ITS FUTURE NEEDS AND IN PARTICULAR OF THE NUMBER OF HOURS OF USE OF THE TEMPORARY STAFF AND THE ALLOCATION OF THESE ACCORDING TO OCCUPATIONS AND ONLY THE COMMISSION IS IN A POSITION TO MAKE THIS ASSESSMENT .
37IT IS APPARENT FROM THE COMMISSION ' S CALCULATIONS THAT THIS ASSESSMENT RELATES IN TURN TO THE CALCULATION OF THE AMOUNT OF REDUCTIONS OFFERED RESPECTIVELY BY THE APPLICANT AND BY RANDSTAD .
38IT IS NOT POSSIBLE FROM THE FACTS ADDUCED BY THE APPLICANT TO SHOW THAT THE METHODS OF CALCULATION OF THE COMMISSION OR THE CRITERIA WHICH IT HAS ADOPTED ARE SUCH AS TO DISTORT THE COMPARISON OF PRICES PROPOSED IN THE TWO TENDERS OR THE COMMISSION ' S CONCLUSION THAT RANDSTAD ' S TENDER WAS THE LOWEST .
39EVEN ASSUMING THAT IN A PROCEDURE FOR REQUEST FOR TENDERS THE COMMISSION CHOSE AN UNDERTAKING WHOSE OFFER WAS HIGHER IN PRICE THAN THE OTHERS , THIS IS NOT IN ITSELF DECISIVE .
40OTHER FACTORS REFERRED TO BY THE COMMISSION TO JUSTIFY ITS CHOICE , IN PARTICULAR THE REFERENCES OF RANDSTAD AND THE FACT THAT THE SALARY PAID BY IT TO TEMPORARY STAFF WAS , IN RELATION TO THE PRICES PAID BY THE COMMISSION , AMONG THE HIGHEST , CAME WITHIN THE CONSIDERATIONS OF A TECHNICAL NATURE WHICH IT COULD TAKE INTO ACCOUNT UNDER ARTICLE 59 ( 2 ) OF THE FINANCIAL REGULATION FOR THE PURPOSE OF MAKING ITS CHOICE .
41AS HAS ALREADY BEEN STATED , THE APPLICANT CLAIMS THAT THERE WAS A MISUSE OF POWERS IN THAT THE PROCEDURE FOR REQUEST FOR TENDERS WAS USED NOT TO SUPPLY THE COMMISSION WITH THE MOST ATTRACTIVE SERVICES OF COMPETING FIRMS BUT TO FAVOUR RANDSTAD .
42THIS IS APPARENT , ACCORDING TO THE APPLICANT , NOT ONLY FROM THE FACT THAT THE PRICE PROPOSALS MADE BY IT WERE MORE ATTRACTIVE THAN THOSE OF RANDSTAD BUT ALSO FROM THE FACT THAT RANDSTAD SIGNED UP THE APPLICANT ' S TEMPORARY STAFF IN MARCH 1977 IMMEDIATELY AFTER THE PROCEDURE FOR REQUEST FOR TENDERS AND THAT THE COMMISSION ' S OFFICIALS WERE INVOLVED IN THIS , AS WAS NECESSARY IF RANDSTAD WAS TO FULFIL ITS CONTRACTUAL OBLIGATIONS TOWARDS THE COMMISSION .
43ON 17 MARCH 1977 AT A MEETING HELD IN BRUSSELS RANDSTAD , WITH THE IMPROPER ASSISTANCE OF CERTAIN OFFICIALS OF THE COMMISSION , PROCEEDED TO SIGN UP ALMOST THE WHOLE OF THE TEMPORARY STAFF WHICH THE APPLICANT HAD MADE AVAILABLE TO THE COMMISSION .
44THIS WRONGFUL CONDUCT BY THE COMMISSION ' S OFFICIALS CORROBORATES THE APPLICANT ' S CLAIM THAT THE PROCEDURE FOR REQUESTS FOR TENDERS WAS USED TO FAVOUR ONE OF THE TENDERERS , NAMELY RANDSTAD .
45NEVERTHELESS , SUCH CONDUCT , WHICH , HOWEVER , IS DENIED BY THE COMMISSION , IS NO GROUND FOR CHALLENGING THE CHOICE OF RANDSTAD MADE PREVIOUSLY BY THE COMMISSION HAVING REGARD TO THE FACT THAT THE APPLICANT HAS NOT SUCCEEDED IN ESTABLISHING THE UNJUSTIFIED NATURE OF THE SAID CHOICE FOR THE REQUIREMENTS OF THE COMMISSION AND HAVING REGARD TO ARTICLE 59 ( 2 ) OF THE FINANCIAL REGULATION .
46ACCORDINGLY THE APPLICATION FOR ANNULMENT MUST BE DISMISSED .
47THE APPLICANT CLAIMS FURTHER IN ITS APPLICATION THAT BY REJECTING ITS TENDER AND ACCEPTING THE LESS ATTRACTIVE TENDER OF RANDSTAD , THE COMMISSION ACTED WRONGLY AND THIS IS CORROBORATED BY THE ABOVE-MENTIONED CONDUCT OF ITS OFFICIALS WHICH RENDERS IT LIABLE TO MAKE GOOD THE DAMAGE ENSUING TO THE APPLICANT BY THE LOSS OF THE CONTRACT ENTERED INTO WITH RANDSTAD AND FOR THE LOSS OF STAFF .
48IN ITS REPLY THE APPLICANT STATES MORE PARTICULARLY THAT ITS RECRUITMENT EFFORTS AND SELECTION OF STAFF WERE LARGELY NULLIFIED BY THE CONDUCT OF THE COMMISSION WHICH ASSISTED IN THE SIGNING UP OF THIS STAFF BY RANDSTAD .
49SINCE IT HAS NOT BEEN ESTABLISHED THAT THE CHOICE OF RANDSTAD ' S TENDER WAS UNJUSTIFIED , THE APPLICANT ' S CLAIM FOR DAMAGES FOR THE LOSS OF THE CONTRACT MUST BE DISMISSED .
50AS REGARDS THE DAMAGE WHICH THE APPLICANT SUFFERED BY THE LOSS OF ITS TEMPORARY STAFF , IT APPEARS FROM THE FILE THAT THE CONTRACTUAL TIES BETWEEN THE APPLICANT AND SUCH STAFF DID NOT CONTINUE BEYOND THE DURATION OF A CONTRACT BETWEEN THE APPLICANT AND THE PERSON WHO USED THE SERVICES OF THE TEMPORARY STAFF .
51ACCORDINGLY THE APPLICANT CANNOT CLAIM ANY LEGALLY PROTECTED INTEREST IN RETAINING ITS TEMPORARY STAFF AFTER ITS CONTRACTUAL TIES WITH SUCH A PERSON HAVE BEEN TERMINATED .
52FURTHER IT APPEARS THAT THE APPLICANT DID NOT HAVE ANY IMPORTANT CUSTOMERS OTHER THAN THE COMMISSION SO THAT IT COULD NOT OFFER EMPLOYMENT PROSPECTS TO THE TEMPORARY STAFF WHICH HAD PREVIOUSLY BEEN ON ITS BOOKS .
53IN THESE CIRCUMSTANCES EVEN ASSUMING THAT CERTAIN OFFICIALS OF THE COMMISSION HAD ACTED IN SUCH A WAY AS TO BRING TO THE NOTICE OF THE TEMPORARY STAFF IN QUESTION THE DECISION OF THE COMMISSION TO TERMINATE THE CONTRACT WITH THE APPLICANT AND THE POSSIBILITY OF CONTINUING TO WORK FOR THE COMMISSION AS TEMPORARY EMPLOYEES OF RANDSTAD , SUCH CONDUCT , MOTIVATED BY CONSIDERATIONS OF THE INTERESTS OF THE SERVICE OR SOCIAL CONSIDERATIONS IS NOT AN ACT GIVING RISE TO LIABILITY ON THE PART OF THE COMMISSION TOWARDS THE APPLICANT .
54IT FOLLOWS FROM THE PREMISES THAT THE CLAIM FOR DAMAGES IN RESPECT OF THE APPLICANT ' S LOSS OF TEMPORARY STAFF MUST ALSO BE DISMISSED .
COSTS
55ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE PROVIDES THAT THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS .
56THE APPLICANT HAS FAILED IN ITS SUBMISSIONS .
57HOWEVER , IT IS RIGHT TO ORDER THE COMMISSION TO PAY THE COSTS RELATING TO THE FURTHER HEARING NECESSITATED BY ITS BELATED NOTIFICATION OF THE ABOVE- MENTIONED CALCULATIONS .
ON THOSE GROUNDS ,
THE COURT ,
HEREBY :
1 . DISMISSES THE APPLICATION ;
2 . ORDERS THE APPLICANT TO PAY THE COSTS , SAVE THOSE RELATING TO THE RE- OPENING OF THE HEARING WHICH ARE TO BE BORNE BY THE COMMISSION
