Judgment — ECLI:EU:T:2015:820
Date: 2015-10-29
Language of the case: French
Court formation: Sixth Chamber
Subject matter: Public procurement in the European Union
Procedure: Action for damages - successful;Action for damages - unfounded;Action for annulment - successful
Origin: Belgium

Summary — Judgment of the General Court (Sixth Chamber), 29 October 2015 1. European Union public contracts — Tender procedure — Obligation to comply with the principle of equal treatment of tenderers — Scope — Contracting authority permitting a broker to act as single tenderer instructed by insurance companies without checking compliance by the latter with the selection criteria set out in the tender specifications — Infringement (European Parliament and Council Regulation No 966/2012, Art. 102(1) and (2); Commission Regulation No 1268/2012, Art. 146(1)) 2. Non-contractual liability — Conditions — Unlawfulness — Sufficiently serious breach of EU law — Requirement that the institutions manifestly and seriously disregard the limits of their discretion — Infringement by an institution, in its capacity as contracting authority, of the principle of equal treatment of tenderers (Art. 340, second para., TFEU) 3. Non-contractual liability — Damage — Assessment — Insufficient evidence for the EU judicature to rule in the context of the judgment finding the existence of unlawful conduct by the Union — Determination of the compensation deferred to a later stage of the proceedings (Art. 340 TFEU) 1. Under the principle of equal treatment of tenderers, the aim of which is to promote the development of healthy and effective competition between undertakings taking part in a public procurement procedure, all tenderers must be afforded equality of opportunity when formulating their tenders, which therefore implies that the tenders of all competitors must be subject to the same conditions. Tenderers must therefore be in a position of equality both when they formulate their tenders and when those tenders are being assessed by the contracting authority. The latter is required to comply, at each stage of the procedure, with the principle of equal treatment and, in consequence, with the principle of equality of opportunity for all tenderers. The contracting authority must, to that end, check that the tenders comply with the requirements of the contract and may not accept a tender and sign a contract if it has, or ought reasonably to have, grounds for believing that the tender which is under examination or has already been accepted does not comply with the requirements of the contract. In the case of a tender lodged by a broker, acting as a single tenderer instructed by insurance companies, the submission of such a tender has different implications, in terms of checking whether the tender is in order, from those flowing from a tender submitted by an insurance company acting as a single tenderer. Nonetheless, in both cases, the contracting authority is under the obligation to satisfy itself that the tender complies with the contract documents. Consequently, the contracting authority must be able to be in a position to carry out that task. Therefore, where assessment of the selection criteria, of which the economic and financial criteria form part, has been carried out exclusively having regard to the situation of the broker, and not that of the represented insurance companies, the contracting authority infringes the principle of equal treatment of tenderers. Permitting a broker to participate in a call for tenders as a single tenderer instructed by a number of insurance companies, first, makes the assessment by the evaluation committee illusory when it examines the merits of a tender in relation to the conditions set out in the contract documents; secondly, in some circumstances, gives that broker a competitive advantage over the other tenderers; and, thirdly, entails unequal treatment in favour of the tenderer-broker in relation to, in particular, a competitor who submits a joint tender together with one or more insurers. (see paras 64, 65, 80, 87, 88, 99, 102) 2. For the Union to be held non-contractually liable, for the purposes of the second paragraph of Article 340 TFEU, the condition relating to unlawful conduct requires the establishment of a sufficiently serious breach of a rule of law designed to confer rights on individuals. The decisive test for finding that a breach is sufficiently serious is whether the EU institution or body concerned manifestly and seriously disregarded the limits on its discretion. In the case of an infringement by an institution, in its capacity as contracting authority, of the principle of equal treatment, the observance of which is essential for the lawfulness of public procurement procedures, the institution concerned infringes a rule of law whose purpose is to confer rights on individuals. (see paras 179, 180) 3. See the text of the decision. (see para. 217)