Judgment — ECLI:EU:T:2018:714
Date: 2018-10-24
Language of the case: English
Court formation: Second Chamber
Subject matter: Research and technological development
Procedure: Action for damages - unfounded;Action for annulment - inadmissible;Arbitration clause - unfounded;Arbitration clause - application inadmissible
Origin: Greece

summary of the risks detected or the facts in question and information that could assist the authorising officer in carrying out the verification referred to in Article 108(4) of the Financial Regulation. 158 Having regard to the foregoing, the Court finds that the effects of registering an entity in the EDES database cannot remain purely internal to EU institutions, bodies, offices and agencies. Such a registration, in the light of the information transmitted, necessarily affects relations between the authorising officers concerned and the registered entity (see, to that effect and by analogy, order of 13 April 2011, Planet v Commission, T‑320/09, EU:T:2011:172, paragraph 44). 159 Nevertheless, this does not imply that the external effects are automatically such as to bring about a distinct change in the legal position of the entity concerned. The Court must, rather, ascertain on a case by case basis whether there is such a change (see, to that effect, judgment of 19 December 2012, Commission v Planet, C‑314/11 P, EU:C:2012:823, paragraph 44). 160 In the first place, it is apparent that the registration of an entity in the EDES database does not constitute, in itself, a decision that results in binding legal effects or consequences that automatically affect the position of the entity concerned. 161 It must be noted, first, that it is apparent from Article 108(4) of the Financial Regulation that the registration of an early detection case in the EDES database enables the competent authorising officers merely to carry out the necessary verification in respect of ongoing procurement procedures and existing contracts. It follows that such registration merely makes it possible for authorising officers to satisfy themselves that the rules of sound financial management have been observed and that the agreements have been properly performed, but does not result in an automatic measure or penalty. It does not therefore in itself produce any binding legal effects. 162 Secondly, registration does not in itself constitute a final measure that brings about a change in the legal position of the entities concerned, in contrast to the registration of an exclusion, provided for in Article 106(1) of the Financial Regulation, the automatic consequence of which is that the entity is excluded from participating in any tendering procedures or calls for proposals. The Commission points out in its defence that any legal effects that are binding on, and capable of affecting the interests of, the applicant by bringing about a distinct change in its legal position derive solely from the assessment made by the authorising officer once the verification has been carried out. Registration is therefore merely a measure preparatory to the decision of the authorising officer. Thus, only a decision that is the result of a verification constitutes an act that is open to challenge. 163 Thirdly, in carrying out verifications, the authorising officer is required to exercise his or her powers as set out in Article 66 of the Financial Regulation and must not go beyond what is provided for in the terms and conditions of the procurement documents and contractual provisions. 164 In the second place, it is apparent that the registration of the applicant in the EDES database did not, in the present case, bring about a distinct change in its legal position. 165 It should be borne in mind that, first, the legal effects alleged by the applicant have not arisen as a consequence of its registration in the EDES database. As is apparent from paragraphs 125 to 127 above, the payments were suspended pursuant to the contractual terms and were therefore purely contractual, irrespective of whether a decision to register was adopted. 166 Secondly, it is not disputed that the applicant was able to participate in new calls for tenders or new procurement or grant award procedures after its registration. It must be noted in this regard that Article 110(1)(b) of the Financial Regulation provides that contracts are awarded on the basis of award criteria provided that the contracting authority has verified that the candidate or tenderer is not excluded under Article 106 of the Financial Regulation or rejected under Article 107 thereof. 167 It follows that the applicant has not shown that its registration in the EDES database produced binding legal effects capable of directly and immediately affecting its interests by bringing about a distinct change in its legal position. 168 The contested decision does not therefore constitute an act adversely affecting the applicant within the meaning of Article 263 TFEU. 169 The Court therefore finds that the claim for annulment must be rejected as inadmissible and, as a result, that the related claim for damages must also be rejected. 170 It thus follows from all of the foregoing that the action must be dismissed in its entirety. Costs 171 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. 172 Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the Commission. On those grounds, THE GENERAL COURT (Second Chamber) hereby: 1. Dismisses the action; 2. Orders Epsilon International SA to pay the costs. Prek Schalin Costeira Delivered in open court in Luxembourg on 24 October 2018. E. Coulon H. Kanninen Registrar President * Language of the case: English.