Order — ECLI:EU:T:2004:248
Date: 2004-07-27
Language of the case: French
Court formation: President of the Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Financial provisions;Public procurement in the European Union
Concepts: Application for interim measures: suspension of operation of the contested measure and other interim measures;Provisional measures
Procedure: Action for annulment;Application for interim measures - unfounded;Action for damages;Application for measures of inquiry - unfounded
Origin: Belgium

Summary of the Judgment 1. European Communities’ public procurement – Conclusion of a contract following a call for tenders – Discretion of the institutions – Judicial review – Limits 2. European Communities’ public procurement – Conclusion of a contract following a call for tenders – Abnormally low offer – Obligation of the contracting authority to hear from the tenderer (Commission Regulation No 2342/2002, Art. 139) 3. European Communities’ public procurement – Conclusion of a contract following a call for tenders – Award of contracts – Award criteria – Choice of the contracting authorities – Limit – Use of criteria enabling identification of the economically most advantageous offer – Admissibility of criteria not purely economic in nature 4. European Communities’ public procurement – Conclusion of a contract following a call for tenders – Award of contracts – Evaluation of the offers on the basis of the offers themselves 1. The Commission enjoys a broad margin of assessment with regard to the factors to be taken into account for the purpose of deciding to award a contract following an invitation to tender, and review by the Court is limited to checking compliance with the procedural rules and the duty to give reasons, the correctness of the facts found and that there is no manifest error of assessment or misuse of powers. (see para. 47) 2. Regarding European Communities’ procurement contracts, Article 139 of Regulation No 2342/2002 laying down detailed rules on the implementation of the Financial Regulation, provides that the contracting authority is obliged to allow the tenderer to clarify, or even explain, the characteristics of its tender before rejecting it, if it considers that a tender is abnormally low. This should be interpreted in the sense that the obligation to check the seriousness of a tender arises where there are doubts beforehand as to its reliability. Thus, the main purpose of this article is to enable a tenderer not to be excluded from the procedure without having had an opportunity to explain the terms of its tender which appear abnormally low. (see para. 49) 3. For the purposes of identifying the economically most advantageous tender, in the context of the procedure for awarding a contract following an invitation to tender, each of the award criteria used by the contracting authority does not necessarily have to be of a purely economic nature, since it cannot be excluded that factors which are not purely economic may influence the value of a tender from the point of view of the contracting authority. (see para. 51) 4. In the context of the procedure for awarding a contract following an invitation to tender, the quality of tenders must be evaluated on the basis of the tenders themselves and not on that of the experience acquired by the tenderers with the contracting authority in connection with previous contracts or on the basis of the selection criteria (such as the technical standing of candidates) which were checked at the stage of selecting applications and which cannot be taken into account again for the purpose of comparing the tenders. (see para. 86)