Judgment;Judgment (extracts) — ECLI:EU:T:2017:376
Date: 2017-06-07
Language of the case: Slovenian
Court formation: Third Chamber
Subject matter: Public procurement in the European Union
Procedure: Action for annulment - unfounded
Origin: Slovenia

Summary — Judgment of the General Court (Third Chamber), 7 June 2017 1. European Union public contracts — Conclusion of a contract following a call for tenders — Negotiated procedure without prior publication of a contract notice — Discretion of the institutions — Judicial review — Limits (European Parliament and Council Regulation No 966/2012, Arts 101 and 102; Commission Regulation No 1268/2012, Art. 134(1)(h)) 2. Actions for annulment — Pleas in law – Action brought against a decision rejecting a tender in the context of the award of a public contract by an EU institution – Plea claiming manifest error of assessment by the awarding authority — Burden of proof on the applicant (Art. 263 TFEU) 3. Actions for annulment — Interest in bringing proceedings — Natural or legal persons — Action capable of securing a benefit for the applicant — Concept — Action by a tenderer, discarded before the stage preceding the decision to award a public contract, against the decision to award the contract to another — Exclusion — Inadmissibility (Art. 263, fourth para., TFEU) 4. Actions for annulment — Action against a decision, in the procedure for award of a public service contract, not to accept a tender — Decision to award the contract closely linked to the decision to allocate the contract — Dismissal of the application for annulment of the award decision entailing dismissal of the application for annulment of the allocation decision (Art. 263 TFEU) 1. It is clear from Articles 101 and 102 of Regulation No 966/2012, on the financial rules applicable to the general budget of the Union, and of Article 134(1)(h) of Regulation No 1268/2012 on the rules of application of the Financial Regulation that, in the context of a negotiated procedure without prior publication of a contract notice, the contracting authority concerned has a broad discretion as to the information to be taken into consideration in deciding whether or not to award the building contract concerned and the choice of successful tenderer, since the award of the contract does not necessarily have to be put out on the broadest possible basis between the parties concerned. The same is true a fortiori in the phase of prospecting the local market which precedes the negotiation phase of the contract itself, in accordance with the principles of transparency, equal treatment and non-discrimination. That very broad discretion is also accorded to the contracting authority in the choice and evaluation of the selection criteria, where it has defined them in the contract documents relating to the negotiated procedure concerned. In those circumstances, the review by the EU judicature of the negotiated procedure for the award of the building contract itself and the phase of prospecting the local market which precedes it must be limited to verifying compliance with the procedural rules that the contracting authority intended to put in place, rules governing procedure and the statement of reasons, the material accuracy of the facts, and absence of manifest error of assessment or misuse of power. In the course of its review, the court is also required to check that contracting authority concerned has complied with the principles of transparency, proportionality, equal treatment and non-discrimination, as set out in Article 102 of Regulation No 966/2012. (see paras 18, 19) 2. In order to establish that, in the assessment of the facts, the contracting authority committed an error so obvious as to justify annulment of the decision rejecting a contract tender, the evidence adduced by the applicant must be sufficient to render implausible the assessments made in the decision at issue. In other words, the plea based on the manifest error must be rejected if, in spite of the evidence put forward by the applicant, the assessment challenged may be accepted as genuine or valid. That is particularly true where the decision at issue is vitiated by errors of assessment which, if they were taken as a whole, are minor decisions not likely to have been able to influence the administration in one way rather than another. (see paras 38, 39) 3. See the text of the decision. (see paras 66, 67) 4. See the text of the decision. (see para. 68)