Judgment — ECLI:EU:T:2014:927
Date: 2014-11-05
Language of the case: English
Subject matter: Public procurement in the European Union
Procedure: Action for annulment - unfounded
Origin: Luxembourg

Summary — Judgment of the General Court (Ninth Chamber), 5 November 2014 1. EU public contracts — Conclusion of a contract following a call for tenders — Discretion of the institutions — Judicial review — Limits 2. Acts of the institutions — Statement of reasons — Obligation — Scope — Decision, in the procedure for the award of a public service contract, not to accept a tender — Obligation to communicate, following a written request, the characteristics and relative advantages of the tender accepted and the name of the tenderer — Assessment having regard to information available to the applicant at the time the action brought (Art. 296, second para., TFEU; Council Regulation No 1605/2002, Art. 100(2); Commission Regulation No 2342/2002, Art. 149) 3. EU public contracts — Tender procedure — Decision to reject a tender — Obligation to state reasons — Scope (Commission Regulation No 2342/2002, Arts 147(3), and 149) 4. EU public contracts — Conclusion of a contract following a call for tenders — Abnormally low offer — Obligation of the contracting authority to hear the tenderer (Commission Regulation No 2342/2002, Art. 139(1)) 5. EU public contracts — Tender procedure — Tenderer prohibited from modifying its initial offer at the stage of evaluation by the contracting authority (Council Regulation No 1605/2002, Art. 99; Commission Regulation No 2342/2002, Art. 148) 6. Judicial proceedings — Introduction of new pleas during the proceedings — Plea raised for the first time at the reply stage — Inadmissibility (Rules of Procedure of the General Court, Arts 44(1)(c), and 48(2)) 7. Actions for annulment — Grounds — Misuse of powers — Concept (Art. 263 TFEU) 1. See the text of the decision. (see para. 20) 2. See the text of the decision. (see paras 24, 26-28) 3. Whilst Article 147(3) of Regulation No 2342/2002, laying down detailed rules for the implementation of Regulation No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities, sets out the particulars which must appear in the decision to award a contract, that provision does not lay down that those particulars must be set out in the letter communicating the tenor of that decision to the unsuccessful tenderers. The communication between the contracting authority and the tenderers, in particular those who were unsuccessful, as well as the content of that communication are governed by Article 149 of Regulation No 2342/2002. The said Article 147 is therefore irrelevant for the purposes of determining the content of the contracting authority’s obligation to state reasons, with regard to an unsuccessful tenderer, concerning the letter communicating to it the tenor of the contracting authority’s decision. (see para. 45) 4. See the text of the decision. (see para. 57) 5. In accordance with Article 99 of Regulation No 1605/2002 and Article 148 of the Regulation No 2342/2002, laying down detailed rules for the implementation of the said financial regulation, the contracting authority cannot accept modification of a tenderer’s offer at the evaluation stage, since those provisions prohibit modification of the terms of the initial offer. (see para. 87) 6. See the text of the decision. (see para. 94) 7. See the text of the decision. (see para. 110)