Judgment — ECLI:EU:T:2009:19
Date: 2009-01-28
Language of the case: Italian
Court formation: Second Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Public procurement in the European Union
Concepts: Admissibility and examination of applications, forms of order sought and pleas in law;Equal treatment and transparency;Refund of expenses;Scope of the legislation
Procedure: Action for annulment - unfounded;Action for damages - unfounded;Action for annulment - inadmissible;Application for measures of inquiry - unfounded
Origin: Italy

Summary of the Judgment 1. Procedure – Time-limits for commencing proceedings – Limitation periods (Statute of the Court of Justice, Art. 45) 2. Budget of the European Communities – Financial regulation – Provisions applicable to procedures for the award of public contracts – Scope (Council Regulation No 1605/2002, Art. 88; Commission Regulation No 2342/2002, Art. 116(7)) 3. European Communities’ public procurement – Tendering procedure – Duty to comply with the principles of equal treatment of tenderers and transparency 4. European Communities’ public procurement – Tendering procedure – Expenses incurred by a tenderer – Right to compensation – None (Council Regulation No 1605/2002, Art. 101) 1. The concepts of ‘force majeure’ and ‘unforeseeable circumstances’ within the meaning of Article 45 of the Statute of the Court of Justice contain both an objective element relating to abnormal circumstances unconnected with the person in question and a subjective element involving the obligation, on that person’s part, to guard against the consequences of the abnormal event by taking appropriate steps without making unreasonable sacrifices. In particular, the person concerned must pay close attention to the course of the procedure set in motion and, in particular, demonstrate diligence in order to comply with the prescribed time-limits. Thus, the concept of force majeure does not apply to a situation in which, objectively, a diligent and prudent person would have been able to take the necessary steps before the expiry of the period prescribed for instituting proceedings. (see para. 28) 2. It follows from Article 88 of Regulation No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities and Article 116(7) of Regulation No 2342/2002 laying down detailed rules for the implementation of the Financial Regulation that the provision of services is outside the ambit of the rules governing public contracts where it forms part of an administrative arrangement concluded between the departments of Community institutions. The Office for Infrastructure and Logistics (OIB) is a department of the Community institutions within the meaning of Article 116(7) of Regulation No 2342/2002. It follows that the Council was not required to comply with the rules governing public procurement when it decided to have recourse to the services of the OIB. (see paras 46-48) 3. The contracting institution must comply, at each stage of a tendering procedure, not only with the principle of the equal treatment of tenderers, but also with the principle of transparency. The principle of transparency implies an obligation upon the contracting authority to publish all precise information concerning the conduct of the entire procedure. However, the objectives of publicity with which the contracting authority must comply under the obligation of transparency are, first, to ensure that all tenderers are afforded equality of opportunity and, secondly, to protect the legitimate expectations of the tenderers, who have been encouraged to make irreversible investments in advance. (see paras 86-87, 89) 4. It is apparent from Article 101 Regulation No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities that the contracting authority is not under any obligation to compensate tenderers who have participated in a tendering procedure which has been cancelled. It follows that the charges and expenses incurred by a tenderer in connection with his participation in a tendering procedure cannot in principle constitute damage which is capable of being remedied by an award of damages. (see para. 102)