Judgment;Abstract — ECLI:EU:T:2020:319
Date: 2020-07-08
Language of the case: French
Court formation: Fourth Chamber
Subject matter: Public procurement in the European Union
Procedure: Action for annulment - unfounded;Action for annulment - successful
Origin: Luxembourg

summary of the pleas in law and the content thereof, which must be provided in accordance with Article 76(d) of the Rules of Procedure, must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the application, if necessary without any further information (see judgment of 25 January 2018, BSCA v Commission, T‑818/14, EU:T:2018:33, paragraph 95 and the case-law cited). 97 In order to guarantee legal certainty and the sound administration of justice, it is necessary, if an action is to be admissible, that the essential facts and points of law relied on be indicated, at least in summary form, coherently and intelligibly in the text of the application itself (see judgment of 25 January 2018, BSCA v Commission, T‑818/14, EU:T:2018:33, paragraph 95 and the case-law cited). 98 That rule concerning the pleas in law relied on in the application also applies to new pleas in law relied on in the reply, provided that they are based on matters of law or fact which have come to light in the course of the procedure. 99 In the present case, the argument at issue, as it appears from the reply, is sufficiently clear to enable the Commission and the Court to understand that the applicant disputes the option afforded candidates to show that they fulfil the training criterion (provided for in point III.3.2.B of the tender specifications) by making a solemn declaration, in so far as it does not enable the contracting authority to ensure that the successful tenderer fulfils that selection criterion before the contract is signed, and gives rise to the risk that the contract may be awarded to a tenderer that lacks the technical capacity to perform it. 100 For those reasons, it must be held that the third part of the present plea is admissible. 101 As to the substance, the Commission contends that the clause in point III.3.2.B of the tender specifications must be regarded as valid in that it allows candidates to make a solemn declaration of their commitment to obtain Nedap training certification, if the contract is awarded to them, within five days of signing the contract. 102 In that regard, it should be noted that funds from the EU budget must be used in such a way as to ensure that the resources allocated to the institutions are optimised. 103 Under Article 102(1) of the Financial Regulation, all public contracts financed in whole or in part by the budget are to respect the principles of transparency, proportionality, equal treatment and non-discrimination. 104 By that provision, the EU legislature sought to establish a framework for public procurement, under which tenders submitted by duly selected undertakings are to be compared in order to choose which undertaking is best placed to perform the contract. 105 Under those public procurement requirements, the contracting authority has the obligation to verify, at the latest when the contract is awarded, whether the tenderer which submitted the best tender actually satisfies the conditions laid down in the tender specifications. 106 That obligation is not fulfilled where, as in the present case, the tender specifications allow the contract to be awarded on the basis of a declaration provided by a tenderer and containing a commitment to fulfil, after the contract has been signed, a condition relating to technical and professional capacity, where that condition is a ‘minimum’ requirement for the performance of the contract. 107 In defining that condition as a ‘minimum’ requirement in the tender specifications, the contracting authority indicated that, in order for tenderers to be able to perform the contract in question in a satisfactory manner, it was essential for them to have the relevant certificate and, therefore, to have completed the necessary training to obtain that certificate. 108 In that regard, it should be held, as noted by the applicant, that a clause providing for the option not to complete professional training – defined in the tender specifications as a ‘minimum’ requirement – until after the contract is signed cannot be held to comply with the principle of equal treatment, because it could lead to the contract’s being awarded to a tenderer which does not fulfil that requirement, while other participants which have already completed that training at the time of the award are unsuccessful. 109 Moreover, not verifying that the successful tenderer actually has the required professional skills to perform the contract until after the contract has been awarded, could have the result, contrary the principle of legal certainty, that, should that tenderer be unable to provide the certificate concerned, the contract would have to be terminated and another procedure organised, in order to ensure that the project which is the subject matter of the contract at issue could be delivered. 110 In that regard, it should be noted that, during the hearing, doubts were expressed as to, first, whether the document which the successful tenderer submitted to the Commission after the contract was signed complies with the conditions laid down in the tender specifications, and secondly, whether the time limit of 5 days provided for in the tender specifications was complied with, since it took the successful tenderer 15 days to take the necessary steps and 2 months to provide the required certificate. 111 In any event, the obligation to verify, at the award stage, whether the successful tenderer meets the capacity requirements set out in the tender specifications is laid down in the legislation itself. 112 Indeed, according to Article 110(1) of the Financial Regulation, contracts are to be awarded provided that the contracting authority has verified, inter alia, that the candidate or tenderer meets the selection criteria specified in the procurement documents. 113 It is clear from that provision that a contract may not be awarded unless it has been duly verified and established that the tenderer meets the capacity requirements set out in the tender specifications. 114 Consequently, in so far as it allows verification of the Nedap training requirement to take place after the contract has been awarded, the clause contained in point III.3.2.B of the tender specifications is unlawful. 115 The Commission puts forward a number of arguments against that position. 116 In the first place, it contends, as stated in paragraph 3 above, that the tender specifications allowed tenderers to prove that they met the training requirement laid down in the clause either by producing a certificate of training or by way of a solemn declaration that that certificate would be obtained with five days of signing the contract. The Commission asserts that, accordingly, the option to make a declaration was provided for in the tender specifications as a selection criterion. At the end of the procedure, the Commission verified whether the successful tender complied with the requirements in the tender specifications. Since the option to make that declaration was provided for in the tender specifications, it considered that the contract could be awarded to the successful tenderer. 117 In that regard, it should be noted that, in its plea of illegality, the applicant does not call into question the compatibility of the award decision with the tender specifications, but rather the legality of a clause within those tender specifications under which a contract may be awarded on the basis of a declaration provided by a tenderer and containing a commitment, or a promise, to provide, after the contract has been signed, a certificate confirming that it has completed the training to acquire a skill deemed to be a ‘minimum’ requirement for the performance of the contract. 118 First, such a commitment does not provide the reliability needed in order for a contract to be awarded in circumstances that guarantee the legal certainty required to ensure the proper use of EU funds and, secondly, it does not ensure equal treatment of the participants, since a commitment to provide a certificate of training cannot be regarded as equivalent, in the context of an objective comparison, to the skill acquired from that training. 119 In the second place, the Commission contends that the clause at issue was intended to open the contract up to candidates that were not yet in possession of a Nedap training certificate when they submitted their requests to participate. Moreover, since that training has a cost, it was not appropriate to compel candidates whose tenders may not have been successful to incur such an expense. 120 In that regard, it should be pointed out that derogation from the principles of equal treatment and legal certainty in the interests of avoiding costs to the candidates is not justifiable: the contract must be awarded to the undertaking whose tender offers the best value for money and which has proved its technical capacity to perform it. Where the contracting authority wishes to increase the number of participants in a public procurement procedure, it may use the mechanisms at its disposal which are admissible under the applicable rules and principles. In particular, it may provide for broader technical and professional capacity requirements which are likely to be fulfilled by a greater number of undertakings. 121 In the third place, the Commission contended at the hearing that, in the judgment of 25 November 2014, Alfastar Benelux v Council (T‑394/12, not published, EU:T:2014:992), the Court had held that it was permissible for a selection criterion to be verified after the award of the contract. 122 In that regard, as stated by the Commission, the judgment it cited concerned a contract for which the tenderer was required, inter alia, to have security clearance, and that clearance could be replaced by a letter of intent to take the necessary steps to fulfil the security clearance (judgment of 25 November 2014, Alfastar Benelux v Council, T‑394/12, not published, EU:T:2014:992, paragraph 165). 123 In that case, the applicant criticised the Council for having stated that, at the selection stage, the undertakings could simply provide a letter of intent, without being required to show that all the staff concerned were actually already security-cleared at that stage (judgment of 25 November 2014, Alfastar Benelux v Council, T‑394/12, not published, EU:T:2014:992, paragraph 202). 124 In that context, the Court examined whether, at the selection stage, the acceptance of a letter of intent was legitimate in view of the contracting authority’s broad discretion, as recognised in the case-law, to determine and evaluate the criteria to be fulfilled by the participants at that stage in the procedure. 125 The issue arising in the present case is different, since it is not a question of determining whether a solemn declaration should have been accepted at the selection stage, but rather a question of determining whether the contract should have been be awarded, and ultimately signed, purely on the basis of a solemn declaration, and without verifying whether the successful tenderer actually had the technical capacity required by the tender specifications under the selection criteria. 126 On that point, in the judgment of 25 November 2014, Alfastar Benelux v Council (T‑394/12, not published, EU:T:2014:992), cited by the Commission, the Court did not take a position different to that adopted in the present case, as it stated that the Council had ‘found’, at the award stage, that the applicant ‘was already in possession of the clearance required’ (see paragraph 167 of the judgment), which implies that a check was carried out at that stage to verify whether the successful undertaking actually had the capacity required by the tender specifications to perform the contract. 127 In the fourth place, the Commission stated that, when the tender specifications were drafted, the products for which Nedap training was required had not yet been installed in the building concerned, so it was not necessary to have that training at the start of the performance of the contract. Furthermore, it was not certain that the products for which Nedap training was required would be installed during that contract, so the training relating to those products may not have been necessary. 128 In that regard, it is sufficient to note that public contracts must awarded in compliance with the conditions and requirements set out in the tender specifications. 129 The tender specifications at issue in this case stated, as indicated in paragraph 3 above, that, in line with ‘minimum capacity’ requirements, the tenderer’s ‘site manager’ technician was required to have a certificate of in-depth Nedap training. 130 Therefore, as indicated in paragraph 114 above, and in accordance with the provisions mentioned in paragraphs 103 and 112 above, the contracting authority should have verified whether that technical requirement was actually fulfilled by the successful tenderer before the contract was awarded and signed. 131 For those reasons, the arguments put forward by the Commission must be rejected. 132 Consequently, the third part of the second plea must be upheld and the contested decisions must be annulled, without it being necessary to examine the applicant’s other pleas. 133 In its second head of claim, the applicant requests that Court make ‘any such further orders as may be necessary’. 134 That claim, however, is not sufficiently precise, which is contrary to Article 76(d) and (e) of the Rules of Procedure. Furthermore, even if that claim were to be interpreted as an application for a direction to be issued to the Parliament, it must be borne in mind that, in the context of an action based on Article 173 of the Treaty, the Court has no power to issue directions to the institutions (see, to that effect, judgment of 11 July 1996, Bernardi v Parliament, T‑146/95, EU:T:1996:105, paragraph 27). Costs 135 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. 136 Since the Commission has been largely unsuccessful, it must be ordered to bear its own costs as well as those incurred by applicant, in accordance with the form of order sought by latter. On those grounds, THE GENERAL COURT (Fourth Chamber) hereby: 1. Annuls the European Commission’s decision of 7 September 2018 rejecting the tender submitted by Securitec for Lot No 4 of the contract which was the subject of restricted tender procedure HR/R1/PR/2017/059 relating to the ‘maintenance of security installations in buildings occupied and/or managed by the European Commission in Belgium and Luxembourg’, and the Commission’s decision of 17 September 2018 refusing to provide Securitec with the information it had requested concerning that tender procedure on 11 September 2018; 2. Dismisses the action as to the remainder; 3. Orders the Commission to pay the costs. Gervasoni Nihoul Martín y Pérez de Nanclares Delivered in open court in Luxembourg on 8 July 2020. [Signatures] * Language of the case: French