C-56/77

JUDGMENT OF THE COURT OF 23 NOVEMBER 1978 1

Agence Européenne d'Interims S.A. v Commission of the European Communities

Case 56/77

Request for tenders — Conclusion of a contract following a request for tenders — Discretion of the administration — Judicial review — Limits (Financial Regulation No 73/91 (ECSC, EEC, Euratom), Art. 59 (2))

Although the Court has jurisdiction to assessing the factors to be taken into review the judgment of the departments account in the interests of the of the Commission to decide whether department with a view to taking a there is any misuse of powers or a decision to enter into a contract serious and manifest error of judgment it following a request for tenders under must, however, respect the discretion Article 59 (2) of the Financial Regulation given to the competent authorities in of 25 April 1973.

In Case 56/77

JUDGMENT OF 23. 11. 1978 — CASE 56/77

Randstad S.A., a company incorporated under Belgian law, whose registered office is at 184 Avenue de la Forêt, Brussels, represented and assisted by L. Jedid and X. Magnée, Advocates of the Brussels Bar, with an address for service in Luxembourg at the Chambers of E. Arendt, Centre Louvigny, 34/B/IV Rue Philippe II, intervener,

APPLICATION for annulment of the decision of the Commission dated 1 March 1977 by which the Commission rejected the applicant's offer to make temporary staff available and for an order that the defendant pay to the applicant the sum of Bfrs 26 600 000 as compensation for damage caused to the applicant by the said decision and by the acts of certain officials of the Commission.

THE COURT,

composed of: H. Kutscher, President, J. Mertens de Wilmars and Lord Mackenzie Stuart (Presidents of Chambers), A. M. Donner, P. Pescatore, M. Sørensen, A. O'Keeffe, G. Bosco and A. Touffait, Judges,

Advocate General: G. Reischl Registrar: A. Van Houtte

Article 59 (2) provides as follows: The tender must be accompanied by "A contract following a request for documents or references confirming tenders is a contract entered into by the the capacity of your firm to supply contracting parties following an the services required and: invitation to tender. In this case, the (a) information relating to the offer thought to be the most attractive company (articles of association, may be freely chosen, taking into paid-up capital, registered office, account the cost of performance, any other agencies in other running costs involved, technical merit, countries) and evidence that the the time for performance, together with company complies with all legal the financial guarantees and the provisions in force relating to the guarantees of professional competence regulation and admission of under­ put forward by each of the tenderers. takings providing temporary staff; A request for tenders ... is said to be (b) a copy of the standard contract restricted where it is addressed only to which the company sends its staff those whom it has been decided to (rights and duties); consult because of their special (c) a statement of the general clauses qualifications." proposed for this type of service. Although not required to do so the 4. ...

JUDGMENT OF 23. 11. 1978 — CASE 56/77

The Agence, along with 18 others, Commission's claims. By order dated 30 submitted a tender in accordance will the November 1977 the Court allowed the prescribed terms. intervention.

The tenders were submitted for the After hearing the report of the Judge- necessary opinion of the Purchases and Rapporteur and the views of the Contracts Advisory Committee (under Advocate General the Court decided to Article 62 of the Financial Regulation) open the oral procedure and to invite the which on 25 February 1977 pronounced parties' views at the hearing on the itself in favour of the conclusion of a admissibility of the application, especially contract with the company Randstad S.A. in the light of Articles 178 and 183 of for the following reasons: the Treaty. Further the Court invited the Commission to answer at the hearing the "— It is proposed that the tender should question set out in Section IV below. be accepted which, for all the cate­ gories of staff required, having regard to the reductions granted, II — Conclusions of the parties appears the lowest among those perfectly and unconditionally In its statement of claim the applicant meeting all the terms in the claims that the Court should: invitation to tender; Primarily — The salaries actually paid to the 1. Annul the contested decision; staff are among the highest in comparison with the prices paid by 2. Order the defendant to pay to the the Commission; applicant the sum of Bfrs 26 600 000 — The staff previously supplied from by way of damages; time to time by the firm in question 3. Order the Commission to pay the has always fully met requirements costs.

the circumstances in which Randstad III — Submissions and argu­ S.A. largely re-engaged the whole of ments of the parties the temporary staff which the applicant made available to the Facts Commission; The applicant observes that according to 3. Appoint an expert to determine the Annex I to the invitation to tender the extent of the damage suffered by the contract entered into between the applicant by reason of the fact that it Commission ard Randstad S.A. ought to has unlawfully been barred from the have taken effect from 1 April 1977. contract in question and forced to However, on 17 March 1977 Randstad reconstitute its staff in order to carry S.A. proceeded during a meeting held at on. the International Press Center in Brussels to sign up all the temporary staff which In its defence the Commission contends had previously been made available to that the Court should: the Commission by the Agence so that as 1. Dismiss the application; from 21 March the same temporary staff was put to work at the Commission by 2. Order the applicant to pay the costs. Randstad.

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17 March 1977. Further it must be month of March limited to the period stressed that the invitation to tender was from 1 to 18 March. The applicant made in respect of an average number of engaged the necessary staff to meet this 75 (between 50 and 100) persons. The request. effect of the procedure adopted was, Several of the temporary staff thereupon with the active collaboration of the asked the departments of the departments of the Commission, to Commission the reasons for such deprive the applicant for the benefit of limitation. The Directorate for Personnel Randstad of the whole of the staff which answered that the contract with the it had made available to the Commission. applicant was terminating and the The Commission outlines the course the Commission had just entered into a new contract with Randstad. procedure followed in the present case on the invitation to tender. It states in The Commission formally denies that its particular that the criteria for assessing departments and in particular the Direc­ the tenders as shown in the invitation torate for Personnel and its Recruiting, and in its annexes were as follows: Appointments, Promotion Division did — the price required including anything whatever to suggest or encourage the transfer of the applicant's "possibilities of reduction... on the staff to Randstad. It is possible that basis of the forecast of monthly turnover"; certain officials belonging to other departments advised the temporary staff — the remuneration offered to the concerning the measures allowing them temporary staff; to be made available to the Commission.

Since the contract expired on 19 March The Commission denies that other infor­ 1977, the Commission on 22 February mation was given by its officials at the 1977 sent the applicant a request for the meeting or on any other occasion.

AGENCE EUROPÉENNE D'INTERIMS v COMMISSION

In how the tenders must be drawn up and this respect the applicant repeats its offer the conditions which they must satisfy. to supply evidence as to the exact part played by Mr Desbois at that meeting. In the applicant's opinion assessment of the most attractive tender had to be Even if the pan played by Mr Desbois made in accordance with the criteria set was limited to what the Commission out in the Financial Regulation. alleges, the applicant considers that he failed in his duty not to become involved More serious however than this by taking part in a meeting organized by confusion was the introduction by the a private company. Commission into its defence of the "criterion" of the "size" of the tenderer The Commission denies having in relation to its capacity to supply staff introduced a new criterion of assessment in the other States in which the in relation to the invitation to tender. Commission has seats, places of business The latter stated that the tenderer was or offices.

with. It was only because it had the a factor, albeit ancillary, in assessing necessary temporary staff available that each tender. the applicant could comply with such requisitions. The fact that the applicant "had available the necessary temporary staff does not After also denying that the Commission mean what the applicant is attempting to was in fact its only important customer, imply, namely that it contracted with the the applicant refers to the Commission's temporary staff for employment outside allegation that Randstad S.A_ asked the the periods when the temporary staff was Commission to inform the temporary made available to the Commission. staff of the conditions under which they would work at the Commission. It is As regards the "size" of the applicant apparent from this admission that before company, the Commission observes that

the applicant was not able to show a the rejection of the other tenders may be single customer apart from the inferred a contrario. Commission in the references which it was invited to annex to its tender. 2. Infringement of the Financial Regu lation Regarding the facts the Commission refers to what it has already written on The applicant claims that the decision in its alleged involvement in the question infringes Article 59 (2) of the engagement of temporary staff by Financial Regulation in that it rejects the Randstad S.A_ It adds that the applicant's tender whereas engagement by Randstad as from 17 (a) this tender was, from the point of March 1977 of the applicant's former view of the factors of assessment temporary staff who applied to be listed in that article, more attractive engaged is in no way inconsistent with the fact that from the outset Randstad than the tender which was accepted; had available the staff necessary for the (b) the Commission did not seriously consider the tenders submitted and Commission without the necessity of engaging the applicant's temporary staff. more particularly the one which it

In the express reasons therefore infringes decision in question the latter Article 190 of the EEC Treaty and the expressly recognizes the value of the general principle of the right of defence services rendered and has moreover of which that provision is only one not questioned it. example. In this respect it is surprising that In the Commission's view the decision to Randstad could have offered better award the contract to Randstad has the services and guarantees than the reasons properly stated since the auth applicant since Randstad did not orizing officer followed the opinion have the necessary staff available at given by the Purchases and Contracts the time when it submitted its tender Advisory Committee. The objective of and it was able to obtain it only by the decision was to appoint the having recourse to the extensive contractor and not to oust the other signing up of the applicant's staff

AGENCE EUROPÉENNE D'INTERIMS v COMMISSION

(b) In the applicant's opinion a serious — Randstad, the size of which ensured comparative examination of the tenders from the outset that there would be would have shown Randstad's inability the necessary staff available to the to render the requisite services in due Commission without its being time. The Commission therefore disre­ necessary to engage the applicant's garded the rules of good administration temporary staff (it appears from by adopting the decision in question. Randstad's register that at the time The Commission in answer says that a Randstad was satisfying an average comparison based on the criteria of of 3 500 orders annually), had shown assessment set out in the invitation to in its tender 11 multi-national or tender between Randstad's tender and large-sized companies operating in that of the applicant revealed the Belgium to whom it normally made following: staff available. The applicant had supplied no information of this kind, — from the point of view of the prices for the Commission was in fact its for the whole of the requisite cate­ only important customer. gories of staff having regard to the reductions afforded Randstad's — unlike Randstad the applicant tender appears to be the lowest of supplied no reference to its capacity those perfectly and unconditionally to provide services in the other meeting all the specifications in the countries in which the Commission invitation to tender; has a seat, place of business or office. — the salaries actually paid to the staff The considerations which led the various by Randstad are among the highest relative to the prices paid by the departments of the Commission, after Commission. It is necessary to stress making a comparison, to choose in this respect that under the Belgian Randstad appear justified. They led to Law of 28 June 1976 on temporary the decision which was best suited to the

JUDGMENT OF 23. 11. 1978 — CASE 56/77

Purchases and Contracts Advisory that it may be ascertained whether Committee to the effect that "the salaries the salaries offered by Randstad were actually paid are among the highest in accordance with the Belgian Law. relative to the prices paid" is difficult to understand. According to the invitation to tender the tenders must provide that The applicant challenges seriatim the comments made in the "statement" the staff should enjoy the benefits of the provisions of the Belgian legislation (Annex 7 to the defence) regarding the concerning them. The applicant's tender unfavourable experience which the meets this condition (Annex 2 to the Commission had with the applicant.

be accepted; The applicant asks the Court to order — the basic rates of the Agence were the Commission to produce the list of less than the salaries paid by the temporary staff made available by Randstad from 21 March 1977 which Commission to its officials contrary to the position with Randstad. In this will enable it to be seen that they were case the review clause (Annex II to the same as the temporary staff supplied the tender of the Agence) would by the applicant. apply and the Commission ought to Further, in March 1977, Randstad have compared the revised rates of published advertisements in newspapers the Agence with those of Randstad; for staff whose qualifications exactly — neither of the two basic rates satisfied matched those which were the subject of the Commission's invitation to tender the requirements of the Law of 1976. It is therefore necessary to compare (Annex 9 to the reply). the two rates after correction. The above-mentioned facts permit the conclusion that at the time when The applicant asks the Court to order Randstad replied to the invitation to the Commission: tender it did not yet have sufficient staff.

As for the fact that the applicant had nature, vis-à-vis the applicant, of the supplied no information "on its capacity particulars relating to the other to provide services in the other countries tenderers. in which the Commission has a seat, The minutes of the Purchases and place of business or office" this absence of information was perfectly logical since Contracts Advisory, Committee (Annex 3 the invitation to tender was limited to to the defence) show that this report was the Commission's departments in considered by the consultative technical

Advisory Committee. from the discovery that the applicant is seeking that it is asking not only for a review of the lawfulness of the measure Factors leading to the choice of taken (as is its right) but also a review of Randstad's tender the genuineness, correctness and The rates relevance of the facts on which the Commission based its assessment. In The calculations made by the applicant order to assess their expediency the in Annex 3 to the reply are wholly applicant claims to re-examine the erroneous. They are based on the prices measures leading to the opinion of the proposed in the applicant's tender Purchases and Contracts Advisory without taking into account the clause Committee, the discussions held within providing for an increase. If the Belgian

Tenders"). It is the duty of the whereas the forecast depends on the Commission to protect the confidential Commission's assessment of its staff

Paragraph 3 of the invitation to tender The salary level for the temporary provided that the tender should be staff "accompanied by documents or Prices and all other conditions being references confirming the capacity ... to equal, it was undeniably in the provide the services required". Since Commission's interest to choose the Randstad, when it submitted its tender, tenderer who in relation to the prices was quite unable to provide the services asked, offered the staff some of the required, the Commission ought to have highest salaries. The relationship of price rejected its tender on the basis of the and salary was far and away more second paragraph of Article 61 of the attractive in Randstad's tender than in implementing regulation. that of the applicant. The Commission states that Randstad's tender was accompanied by references The unfavourable experience of the and documents showing that it was able applicant mentioned in the to provide the necessary services. Comparative Study of the Tenders The Commission considers seriatim the 4. Misuse of powers arguments advanced by the applicant in The applicant states that the procedure of the reply and provides for the file by way the invitation to tender was not used to of example a number of documents to provide the Commission with the best establish the validity of the criticism services of competing firms but contained in the Comparative Study of unlawfully to favour one of them, the Tenders. namely Randstad. This is apparent not It stresses that the fact that the applicant only from the fact that the price did not give full satisfaction in the past proposals which were made by the and the other negative aspects of its applicant were more advantageous than tender (such as the absence of a those of Randstad but also from the signature to the letter accompanying the signing up of staff which immediately tender, which letter is Annex No 4) was followed the invitation to tender and in only one of the factors taken into which the Commission's officials account in the overall assessment leading took part, which intervention was to the choice of Randstad's tender. indispensable for Randstad to be able to The Commission states that in any event, satisfy its contractual obligations towards in the context of an invitation to tender, the Commission.

In its application the applicant states that applicant has offered no proof at all of by rejecting its tender and accepting that the damage which it alleges it has of Randstad, although the latter was less suffered. Nor does it specify the attractive and in any event did not meet principles of law governing its claims in the requirements specified in the the present case. invitation to tender, the Commission has The applicant has offered no proof at all committed a wrongful act and is of its claim as regards the amount of accordingly liable to make good the damage which it alleges it has suffered. resulting damage to the applicant. The In its reply the applicant asks the Court wrongful nature of the Commission's act to order the Commission to produce the is corroborated by the unusual behaviour 19 tenders which would allow it to be of certain of its officials and in particular shown whether the applicant's tender the head of the Recruting, was the most attractive. Appointments, Promotion Division. Regarding the damage, the applicant Having regard to the fact that the states that from 1970 to 1976 its costs of invitation to tender provided that the recruitment and selection amounted to contract was to last for two years, the Bfrs 10 285 207 (Annex 11 to the reply). amount of business on average which the Its efforts were nullified by the behaviour applicant had done with the Commission of the Commission which collaborated in during the previous three years and the the signing up of this staff by Randstad. affront to its reputation by the signing up The assessment of the damage suffered of its staff as from 17 March 1977, the at Bfrs 6 500 000 is therefore very applicant assesses this damage at moderate. — Bfrs 20 000 000 for the loss of the Further the applicant's aggregate gross contract profits for the last three years amounted — Bfrs 6 500 000 for the loss of staff to Bfrs 31 545 000 before taxation. The and contract lost (having a minimum period — Bfrs 100 000 as general damages of two years) represents an average loss of 31 545 000 x 2 The Commission stresses in its defence /3 that even if the decision in question were more than Bfrs 20 000 000. annulled, the applicant could claim damages for the loss of the contract only The expert evidence sought is of the kind by showing that it alone would have which would confirm the scope of this been chosen from among the other damage. tenderers. In its rejoinder the Commission denies The Commission has previously stated that there is any damage whatsoever that it was not liable through the acts under the head of loss of staff. There

could have been such damage only if it working with the Commission, together had been impossible to meet obligations with temporary staff of the applicant, already contracted. The applicant had went to its offices in Brussels to sign on. not only failed to show that there were The Commission gave the intervener no any such obligations but it is established addresses of temporary staff. The that there were none since there were no applicant's staff, after learning that the customers other than the Commission. applicant's contract with the Commission Even if there could be damage in the was terminating on 19 March 1977 and abstract by reason of the applicant's not that the new approved supplier was to be being able to enter into new contracts, the intervener, signed on with the the loss of such contracts due to the loss intervener of their own accord before of the staff would be the direct result of being invited by letter to the meeting of

agencies. In particular for the period The Commission adds that the figure of from 1 December 1976 to 25 March Bfrs 6 500 000 claimed under this head 1977 489 registrations of temporary staff of damage does not take account of the were made by the intervener. fact that the expenses incurred by the The fact that 116 temporary staff of the applicant were incurred to perform the applicant were perfectly legally signed up contract which bound the applicant to the Commission from 1970 to 1977. by the intervener was not due to a shortage of temporary staff but for They were normal costs incurred to obvious human reasons, namely to avoid perform a current contract and not to the unemployment of numerous create "human capital" for the future. temporary staff.

applicant. It considers, however, that it Whilst supporting the Commission's should make certain observations in argument that the calculations in Annex support of its application to intervene. 3 to the reply are without foundation in that they have been made on the basis of Facts prices (hourly rates) included in the The intervener states that at the end of tender and do not take into account the February 1977 when it had not yet been increase clause, the intervener provides informed that its tender had been additional particulars (tables showing the accepted by the Commission, several of difference between its own billing and its temporary staff who were already that of the applicant) on the errors which

appeared the lowest of those perfectly and unconditionally meeting all the 3. Misuse of powers specifications in the invitation to tender. If it is accepted, as the intervener alleges, The above-mentioned facts confirm and that from the end of February 1977 reinforce the submissions made by the before the result of the invitation to applicant in support of its claim. tender was officially known the applicant's temporary staff signed on at 1. Disregard of essential procedural agencies of the intervener this is because requirements they were apprised of the new approved supplier to the Commission. Such infor­ The fact that the intervener recognizes mation could come only from the that its offer was not lower than that of departments of the Commission itself. the applicant clearly shows that, the This fact, together with other facts reasons given by the Commission for already mentioned, reveals the lack of rejecting the applicant's tender were not objectivity which the Commission has well founded. shown in considering the invitations to tender to the applicant's detriment and 2. Infringement of the Financial Regu­ to the advantage of the intervener. lation While reaching the same conclusions and It is clearly apparent that contrary to the basically adopting the same arguments as requirement of Article 59 (2) of the those contained in the intervener's Financial Regulation it has not been the statement, the Commission observes

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nevertheless that the comparison of In reply to the written question put by prices in the "tables relating to the the Court the Commission gave explan­ difference between Randstad S.A.'s bills ations relating to the comparison of and those of the SA. Agence prices of the tenders made by the Européenne d'Interims", included in applicant and by the intervener and Annex 2 to the said statement, takes the stated that if the Court considered it prices actually charged by the intervener desirable the Commission was ready to against the applicant's prices as produce a document containing a contained in its tender without taking number of comparative tables which account of the clause providing for an document had been shown to the

represented by L. Jedid and X. Magnée, The Advocate General delivered his Advocates of the Brussels Bar, made oral opinion at the hearing on 11 October observations. 1978.

AGENCE EUROPÉENNE D'INTERIMS v COMMISSION

Decision

1 By application registered at the Court on 3 May 1977 the applicant, Agence Européenne 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.

2 It 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.

3 Although 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.

9 By 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.

10 The 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.

11 None 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.

12 In 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.

13 Since 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.

14 In 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 Regu­ lation in so far as it involves the rejection of the applicant's tender whereas

16 According 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.

17 It is not stipulated that in the assessment of the technical and financial factors the price must constitute the sole criterion.

18 By 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.

19 In the present case the proposal to enter into a contract with Randstad received a favourable opinion from the Purchases and Contracts Advisory Committee.

20 Although 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.

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27 According 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.

28 A 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.

29 Comparison 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

AGENCE EUROPÉENNE D'lNTERlMS v COMMISSION

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.

30 Once 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.

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36 Further, 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.

37 It 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.

38 It 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.

39 Even 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.

40 Other 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.

46 Accordingly the application for annulment must be dismissed.

47 The 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.

48 In 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.

49 Since 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.

so As 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.

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56 The applicant has failed in its submissions.

57 However, 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.

AGENCE EUROPÉENNE D'INTERIMS v COMMISSION

On those grounds,

THE COURT,

hereby:

J. Pompe J. Mertens de Wilmars Deputy Registrar President of the First Chamber

OPINION OF MR ADVOCATE GENERAL REISCHL DELIVERED ON 11 OCTOBER 1978 1

Mr President, to outline agreements. In November Members of the Court, 1976 the defendant resolved not to renew the contract with the applicant Regarding the facts of the case with after its expiry on 19 March 1977 and which we are concerned today allow me issued on 7 December 1976 a restricted to say the following: invitation to tender within the meaning Since 31 July 1970 the plaintiff, the of Article 59 (2) of the Financial Regu­ Belgian company Agence Européenne lation of 25 April 1973 (Official Journal d'Interims S.A. (hereinafter referred to as L 116 of 1 May 1973, p. 1) which is worded as follows: "the Agence"), has been supplying the Commission in Brussels with "personnel "A contract following a request for intérimaire" (temporary staff) pursuant tenders is a contract entered into by

I — Translated from the German.