The court stated that there was no clear agreement on the part of the defendant that it would enter into a contract with the plaintiff if the defendant received the sub-contract. The project was very extensive and the timing of the tendering process was very tight. A pre-bid agreement was prepared and implemented by the members to ensure that everyone understood and agreed how the consortium would manage the tendering process in such a tight time frame. These included defining the terms of agreement on the guidelines of the proposed main contract, how negotiations with the contracting authority would be pre-selected, and how and when its own formal consortium agreements would be implemented. The plaintiff relied on emails that he said the existence of the pre-sworn agreement, especially an email from the defendant, which indicated that the defendant worked on the prior agreement for the plaintiff to cooperate with the defendant and HC and asked for the best offer from the plaintiff on the basis of such a pre-bid agreement. The Court stated that this agreement added nothing to the evidence. It was only an agreement between the defendant and HC on its own terms and conditions, which provides no obligation for the defendant or the plaintiff to enter into a subcontract. Even in the absence of prior agreement between the applicant and the defendant, according to the court, the defendant would equally have entered into the HC/defendant pre-bid agreement. In the Tribunal`s view, the facts relied upon by the applicant as evidence of the pre-emption agreement are consistent, with the defendant reflecting on whether the applicant is an appropriate subcontractor to be offered as a specialized subcontractor and to be included in the offer of the main contract and below the scope of the applicant`s work. In the Court`s view, the conduct is equally consistent, since there is no prior agreement between the parties.

The letter of 25/6 was not enough to tip the balance in favour of the existence of the prior agreement requested. It simply obliged the applicant to act as the main national supplier for the supply of prefabricated concrete parts. The defendant`s request for a letter of intent from the applicant was not conduct clearly applicable to the existence of the pre-offer agreement. According to the Court of Justice, the confidentiality agreement makes it clear that the parties are not bound by a current or future contract, with the exception of the continuation and continuation of negotiations on the applicant`s participation as a specialized subcontractor proposed in the tender for the main contract. The Tribunal found that the negotiations between the parties regarding the conditions for the applicant`s participation and appointment as a subcontractor and the applicant`s work after the subcontracting to the defendant were not clearly related to the fact that a binding sub-order had been concluded. This work was ultimately part of the ongoing process of due diligence and analysis of the defendant`s offer with respect to the appropriateness of the applicant`s appointment as a subcontractor. Preparing a pre-agreement can help members in their planning phase by addressing key issues before the bid date. In particular, it can help them decide on the most effective way to cooperate in order to obtain a tendering procedure and what process should be followed after the tendering process, without the time, effort and money to negotiate and finalize in advance the terms of a more detailed consortium agreement. In light of these explicit provisions and in light of the fact that the applicant has the burden of proving the existence of the pre-offer agreement, the Tribunal stated that very convincing and clear evidence was needed to accept that, despite the recognition made by the parties in the confidentiality agreement, they actually concluded and concluded the pre-auction agreement.