Judgment (extracts) — ECLI:EU:T:2018:9
Date: 2018-01-18
Language of the case: English

summary of the evaluation reports drawn up by the panel of experts relating solely to the proposals selected for the hearings. In addition, it does not follow from the procedure for the call for proposals, nor is it claimed, that members of the governing board attended the experts’ working sessions. 63 It is true, as the EIT maintains in its defence, that members of the governing board were free to raise questions and to request additional information concerning all the proposals and their evaluation by the experts. However, as stated in paragraph 62 above, the members of the governing board did not possess any of the evaluations or a summary of the evaluations carried out by the panel of experts concerning the two proposals not selected for the hearings. 64 In any event, any initiatives of the governing board were unlikely to call into question the fact that only the three proposals with the best scores awarded by the experts could have been designated as the KIC on ‘Innovation for healthy living and active ageing’. The procedure established by the call for proposals entirely ruled out any possibility of the governing board’s selecting the Kenup consortium’s proposal and inviting its representatives to participate in the hearings, since that proposal was ranked in fourth position by the independent experts. That finding is confirmed by the wording of the letter of 10 December 2014 informing the coordinator of the Kenup consortium that its proposal had been rejected, which clearly links that exclusion with the ranking of the consortium’s proposal below third place. On that point, it may be noted, as the applicants claim, that, in its reply to their request for further information, the EIT stated that the experts had been granted, by the call for proposals, a delegated power to preselect proposals. 65 Therefore, in accordance with the procedure defined in the call for proposals, the governing board could, following the hearings, only alter the ranking of the three best proposals selected by the experts, as the EIT indicates, moreover, in point 63 of its defence. The fact that, according to Article 15 of Regulation No 1290/2013, the selection of a KIC is made on the basis of the ranking of the proposals, in accordance with the evaluation carried out by independent experts, cannot mean that the EIT is bound, even in part, as regards the order of the proposals thus selected. 66 In that regard, the fact that the members of the Kenup consortium did not challenge the wording of the call for proposals before its closure cannot deprive them of the possibility of claiming, in the present action, that the selection procedure defined by that call for proposals was irregular. On that point, it may be noted that a procurement document, such as, in the present case, the call for proposals, is not a measure that can be subject to an action for annulment on the basis of the fourth paragraph of Article 263 TFEU. The contested decisions were therefore the first measures which the applicants could challenge and thus the first measures entitling them to dispute, indirectly, the lawfulness of the KIC selection procedure determined by the EIT (see, to that effect, judgment of 20 September 2011, Evropaïki Dynamiki v EIB, T‑461/08, EU:T:2011:494, paragraphs 73 and 74 and the case-law cited). Accordingly, the EIT cannot reasonably claim that the Kenup consortium’s exclusion results from the strict application of the call for proposals procedure defined by the governing board. 67 It follows from all the foregoing considerations that the applicants are justified in maintaining that the governing board failed fully to exercise its powers in respect of the selection of proposals, in breach of the provisions of Article 4 of Regulation No 294/2008, those powers having been delegated in part to experts without that board having, at any time, had the opportunity to make a proper assessment of the work they carried out on the proposals which were not ranked in the first three places. 68 The fact that the governing board adopted the wording of the call for proposals, the KIC selection criteria and the selection criteria for the experts responsible for the evaluation of the proposals, and that it monitored the full procedure leading to their selection cannot call into question that finding. 69 It follows that it is necessary to uphold the second part of the first plea in law and to annul, on that ground, both the decision by which the EIT rejected the Kenup consortium’s proposal and the decision, which is closely linked thereto, by which it designated the proposal identified as ‘InnoLife — Better, longer lives’, without there being any need to rule on the other nine pleas in law of the application, in particular, that alleging the existence of a conflict of interests as regards the members of the governing board, especially concerning whether the EIT took all due care to ensure the impartial and objective exercise of the functions of those members, when, first, the requirement of impartiality encompasses both their subjective and objective impartiality, in so far as an institution, body, office or agency of the European Union must offer sufficient guarantees to exclude any legitimate doubt in that regard (see, by analogy, judgment of 11 July 2013, Ziegler v Commission, C‑439/11 P, EU:C:2013:513, paragraph 155) and, second, such review must be carried out independently of any assessment concerning their level of expertise. Costs 70 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. 71 In the present case, since the EIT has been unsuccessful, it must be ordered to bear its own costs and to pay those incurred by the applicants, in accordance with the form of order sought. On those grounds, THE GENERAL COURT (Seventh Chamber) hereby: 1. Annuls the decisions of 9 December 2014, as notified by letter of 10 December 2014, by which the European Institute of Innovation and Technology (EIT) designated the Knowledge and Innovation Community (KIC) on ‘Innovation for healthy living and active ageing’ and rejected the proposal submitted by the Kenup consortium; 2. Orders the EIT to bear its own costs and to pay those incurred by Kenup Foundation, Candena GmbH, CO BIK Center odličnosti za biosenzoriko, instrumentacijo in procesno kontrolo and Evotec AG. Tomljenović Marcoulli Kornezov Delivered in open court in Luxembourg on 18 January 2018. E. Coulon Registrar President * Language of the case: English. 1 This judgment is published in extract form.