JUDGMENT OF THE GENERAL COURT (Seventh Chamber)
18 January 2018 (*) (1)
(Research and technological development — EIT — Horizon 2020  framework programme for research and innovation — Call for proposals for the designation of a knowledge and innovation community — Rejection of the applicants’ tender — Regulation (EC) No 294/2008 — Regulation (EU) No 1290/2013 — Unlawful delegation of powers)
In Case T‑76/15,
Kenup Foundation, established in Kalkara (Malta),
Candena GmbH, established in Lüneburg (Germany),
CO BIK Center odličnosti za biosenzoriko, instrumentacijo in procesno kontrolo, established in Ajdovščina (Slovenia),
Evotec AG, established in Hamburg (Germany),
represented initially by U. Soltész, C. Wagner, H. Weiß and A. Richter, subsequently by U. Soltész, H. Weiß and A. Richter and finally by U. Soltész and H. Weiß, lawyers,
applicants,
supported by
Republic of Malta, represented by M.E. Perici Calascione, acting as Agent,
and by
Stiftung Universität Lüneburg, represented by F. Oehl, lawyer,
interveners,
v
European Institute of Innovation and Technology (EIT), represented by M. Kern, acting as Agent, and by P. de Bandt and M. Gherghinaru, lawyers,
defendant,
ACTION under Article 263 TFEU for annulment of the decisions of 9 December 2014, as notified by letter of 10 December 2014, by which the 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,
THE GENERAL COURT (Seventh Chamber),
composed of V. Tomljenović, President, A. Marcoulli, Rapporteur, and A. Kornezov, Judges,
Registrar: E. Coulon,
gives the following
Judgment
Background to the dispute
1        The Horizon 2020  framework programme for research and innovation (‘the Horizon 2020 framework programme’) was established, on the basis of Articles 173 and 182 TFEU, by Regulation (EU) No 1291/2013 of the European Parliament and of the Council of 11 December 2013 establishing Horizon 2020 — the Framework Programme for Research and Innovation (2014-2020) and repealing Decision No 1982/2006/EC (OJ 2013 L 347, p. 104), and by Regulation (EU) No 1290/2013 of the European Parliament and of the Council of 11 December 2013 laying down the rules for participation and dissemination in ‘Horizon 2020 — the Framework Programme for Research and Innovation (2014-2020)’ and repealing Regulation (EC) No 1906/2006 (OJ 2013 L 347, p. 81). Its general objective, as defined in Article 5 of Regulation No 1291/2013, is to contribute to building a society and an economy based on knowledge and innovation across the European Union by leveraging additional research, development and innovation funding and by contributing to attaining research and development targets, including the target of 3% of gross domestic product (GDP) for research and development across the European Union by 2020.
2        According to Article 5(5) of Regulation No 1291/2013, the European Institute of Innovation and Technology (EIT) is to contribute to the general objective of the Horizon 2020 framework programme, inter alia, via Knowledge and Innovation Communities (KICs). According to Article 2(2) of Regulation (EC) No 294/2008 of the European Parliament and of the Council of 11 March 2008 establishing the European Institute of Innovation and Technology (OJ 2008 L 97, p. 1), as amended by Regulation (EU) No 1292/2013 of the European Parliament and of the Council of 11 December 2013, KICs are autonomous partnerships of higher education institutions, research organisations, companies and other stakeholders in the innovation process, in the form of a strategic network, regardless of their precise legal form, based on joint mid- to long-term innovation planning.
3        In that context, by a notice of 14 February 2014, the EIT published a call for proposals as part of the second wave of KICs, for the purpose of selecting two new KICs, including one in the field of innovation for healthy living and active ageing. That call for proposals set out, inter alia, criteria for the exclusion, eligibility and selection of proposals. Those proposals were to be evaluated by panels of independent experts, in the light of three criteria, namely strategy, scored out of 30 points, operations, scored out of 35 points, and impact, also scored out of 35 points. Each selection criterion included three sub-criteria. Representatives of the three highest-ranked proposals were then to attend a hearing held by the EIT. Furthermore, a high-level independent observer was to be designated by the EIT. He was responsible for monitoring the progress of the evaluation process and providing the EIT, in particular by means of a report, with recommendations concerning the conduct of the evaluation process, the application of the selection criteria by the experts and ways of improving the procedures.
4        The call for proposals specified that the cooperation established between the EIT and the KIC would take the form of a framework partnership, with an initial duration of seven years, in the course of which grants could be paid by the EIT on the basis of the conclusion of specific agreements.
5        On 10 September 2014, certain States, local communities, higher education institutions, research organisations and private companies, together in the form of a consortium named Kenup, submitted a proposal for the KIC on ‘Innovation for healthy living and active ageing’.
6        By decisions of 9 December 2014, the governing board of the EIT (‘the governing board’), inter alia, designated the proposal selected for the KIC on ‘Innovation for healthy living and active ageing’, namely the proposal entitled ‘InnoLife — Better, longer lives’, and rejected the other proposals which had been submitted to it. The EIT informed the second intervener, Stiftung Universität Lüneburg, in its capacity as coordinator of the Kenup consortium, of the outcome of those decisions by letter of 10 December 2014.
7        Already before the decisions referred to in paragraph 6 above were adopted, because the Kenup consortium’s proposal had not been selected for the hearings, Stiftung Universität Lüneburg had submitted a complaint concerning the irregularity of its exclusion to the European Ombudsman, by letter of 5 December 2014. On 11 December 2014, the Ombudsman decided to close the case. In essence, she considered, contrary to the arguments of the Kenup consortium, first, that no decision to select a KIC had been adopted on the day on which the complaint was filed and that, at that stage, such a decision was yet to be taken on the basis of the ranking established by experts, secondly, that the experts had been designated by the EIT in accordance with the rules in force, and, thirdly, that it was premature to rule on the transparency of a procedure which had not been completed on the day on which the complaint was filed.
8        Following the notification of the decisions of 9 December 2014, Stiftung Universität Lüneburg requested additional information from the EIT, via a set of questions to which the EIT replied by letter of 7 January 2015. Subsequently, by letter of 9 January 2015, it requested a review of the evaluation of the Kenup consortium’s proposal pursuant to the provisions of Article 16 of Regulation No 1290/2013. Its request was rejected by decision of the EIT of 16 March 2015.
Procedure and forms of order sought
9        By application lodged at the Court Registry on 18 February 2015, the applicants, Kenup Foundation, Candena GmbH, CO BIK Center odličnosti za biosenzoriko, instrumentacijo in procesno kontrolo (‘the research organisation’) and Evotec AG brought the present action.
10      On 1 June 2015, the EIT submitted a defence.
11      By decision of 6 July 2015, the President of the Eighth Chamber of the General Court granted the Republic of Malta leave to intervene in support of the form of order sought by the applicants.
12      By order of 19 October 2015, the President of the Eighth Chamber of the General Court granted Stiftung Universität Lüneburg leave to intervene in support of the form of order sought by the applicant.
13      The Republic of Malta’s statement in intervention was lodged on 16 November 2015.
14      The reply was lodged at the Court Registry on 16 November 2015.
15      The Stiftung Universität Lüneburg’s statement in intervention was lodged on 2 December 2015.
16      The rejoinder was lodged at the Court Registry on 27 January 2016.
17      As the composition of the Chambers had been altered, the present case was assigned to the Seventh Chamber, in which a new Judge-Rapporteur was designated.
18      By document of 10 May 2016, the applicants submitted new evidence, on which the EIT, the Republic of Malta and Stiftung Universität Lüneburg submitted their observations.
19      On 5 May 2017, the Court, by way of a measure of organisation of procedure, put written questions to the parties, to which they replied within the prescribed time limit.
20      By document of 4 July 2017, the applicants submitted a new plea in law as well as new evidence, on which the EIT and the Republic of Malta submitted their observations.
21      The Court (Seventh Chamber) decided, pursuant to Article 106(3) of the Rules of Procedure of the General Court, to rule on the action without an oral part of the procedure.
22      The applicants, supported by the Republic of Malta and by Stiftung Universität Lüneburg, claim that the Court should:
–        annul the decisions of 9 December 2014, notified by letter of 10 December 2014 (‘the contested decisions’), by which the EIT designated the KIC on ‘Innovation for healthy living and active ageing’ and rejected the proposal submitted by the Kenup consortium;
–        order the EIT to pay the costs.
23      The EIT contends that the Court should:
–        dismiss the action;
–        order the applicants to pay the costs, including the costs incurred by the EIT.
Law
Admissibility
24      Without formally raising an objection of inadmissibility, the EIT claims that the applicants do not have an interest in bringing the present action, since no advantage could result from the annulment of the contested decisions, including as regards financial compensation for any harm.
25      The EIT claims that the action is inadmissible on two grounds. First, since the action was brought by the applicants in their own name and in the name of the Kenup consortium, they cannot be designated as the KIC, in so far as Kenup Foundation did not exist on the day on which the proposal was filed and the three other applicants represent only a minor part of the members of the consortium. Secondly, according to the EIT, the applicants have failed to establish that the Kenup consortium could have been designated as the KIC given the considerable difference in scores between the proposal of that consortium and the proposal selected. Thus, they do not have a legitimate interest in the annulment of the decision rejecting the Kenup consortium’s proposal, since, if that an annulment were granted, an identical decision would once again be taken.
26      The applicants consider, on the contrary, that they have an interest in seeking annulment of the contested decisions.
27      In that regard, it should be noted that, according to settled case-law, an action for annulment brought by a natural or legal person is admissible only in so far as that person has an interest in the annulment of the contested measure, which presupposes that annulment of that measure must of itself be capable of having legal consequences and that the action must be likely, if successful, to procure an advantage for the party who brought it (see judgment of 10 December 2009, Antwerpse Bouwwerken v Commission, T‑195/08, EU:T:2009:491, paragraph 33 and the case-law cited).
28      An applicant’s legal interest in bringing proceedings must exist on the day on which they are brought, failing which they will be inadmissible. In addition, the subject matter of the case must continue to exist, like the interest in bringing proceedings, until the final decision, otherwise there will be no need to adjudicate (see order of 5 March 2009, Commission v Provincia di Imperia, C‑183/08 P, not published, EU:C:2009:136, paragraph 30 and the case-law cited).
29      In the present case, in order to evaluate the applicants’ legal interest in bringing proceedings, it is necessary to analyse the advantage which they might obtain from the annulment of the contested decisions.
30      In the first place, the application was lodged, on the one hand, by three members of the Kenup consortium, namely Candena, Evotec and the research organisation, and, on the other hand, by Kenup Foundation. That foundation governed by Maltese law, established on 6 November 2014, was not a member of the Kenup consortium. It was to act as the sole shareholder of a European company, Kenup, which was to be established as the KIC legal entity.
31      In the second place, it should be noted that the applicants had an interest in the Kenup consortium’s proposal being selected and, consequently, in challenging the rejection of that proposal (see, to that effect, order of 5 March 2009, Commission v Provincia di Imperia, C‑183/08 P, not published, EU:C:2009:136, paragraph 20). Annulment of the contested decisions would, at least, give Candena, Evotec and the research organisation, an additional opportunity to be selected as members of the KIC (see, to that effect, judgment of 14 February 2008, Provincia di Imperia v Commission, T‑351/05, EU:T:2008:40, paragraph 33). Failing that, that annulment could constitute the basis of an action for damages.
32      In that regard, first, the EIT maintains that Candena, Evotec and the research organisation are merely individual members of the Kenup consortium which, since they do not, in themselves, fulfil the minimum requirements of the selection criteria, could not be designated as the KIC. That fact, however, does not affect the admissibility of the action, given the ergaomnes effect of the annulment of the contested decision, which would benefit, inter alia, all the members of the Kenup consortium.
33      Secondly, while it is common ground that, on 10 September 2014, the date of submission of the Kenup consortium’s proposal, Kenup Foundation did not have legal personality, that fact does not affect that foundation’s interest in bringing proceedings, which is assessed on the day the action was brought. On that date, that is to say 18 February 2015, Kenup Foundation, which, as has been noted, was to be the sole shareholder of the company managing the KIC, had legal personality, which was conferred on it on 6 November 2014.
34      Thirdly, the EIT cannot make recognition of the applicants’ interest in bringing proceedings dependent on the submission by the applicants of evidence that if the alleged illegalities and manifest errors of assessment in particular had not taken place there would have been a genuine chance that their proposal would have been selected as the KIC and that, consequently, a claim for compensation is justified. It follows from what was stated in paragraph 31 above that the applicants have an interest in challenging the contested decisions without it being necessary to assess whether or not the pleas in law relied on are well founded. In that regard, whereas the EIT maintains that applicants do not have a legitimate interest in the annulment of a decision where it is already certain that that decision could only be taken again in an identical form, it should be noted that, in the present case, on the one hand, it cannot be concluded, before examining the pleas in law supporting the form of order sought by the applicants, that, if the contested decisions were annulled, they could only be taken again in an identical form, and, on the other hand, the lack of legitimate interest relates to the admissibility of the grounds of the action and concerns a question which differs from the interest an applicant may have in bringing an action (see, to that effect, order of 2 July 2009, Evropaïki Dynamiki v ECB, T‑279/06, not published, EU:T:2009:241, paragraph 98 and the case-law cited)
35      In these circumstances, the objection of inadmissibility raised by the EIT cannot be upheld.
Substance
36      In support of the action, the applicants rely on 10 pleas in law.
37      The first alleges that the author of the contested decisions lacked competence to take them.
38      By the second plea in law, the applicants must be regarded as invoking the infringement of the provisions of Article 204(2) of Commission Delegated Regulation (EU) No 1268/2012 of 29 October 2012 on the rules of application of Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council on the financial rules applicable to the general budget of the Union (OJ 2012 L 362, p. 1, ‘the delegated regulation’).
39      The third plea in law and part of the fourth and fifth pleas in law allege, in essence, failure to state reasons in respect of the contested decisions.
40      The fourth plea in law relates, in essence, to infringement of the principle of equality of tenderers.
41      Several arguments submitted in the context of the fourth and the second part of the fifth plea in law allege infringement of the principle of transparency in so far as the proposals were evaluated on the basis of unpublished criteria.
42      The sixth plea in law is based on the infringement of the provisions of Article 14 of Regulation No 1290/2013 concerning ethical review.
43      By the seventh plea in law, the applicants claim that the contested decisions are vitiated by manifest errors of assessment.
44      The eighth plea in law alleges conflicts of interests found concerning the members of the governing board, the director of the EIT and the independent experts.
45      The ninth plea in law alleges that the call for proposals notice is unlawful in so far as it infringes the exclusive competence of the governing board to designate the KIC, the rules governing the selection of calls for proposals in two stages and the principle of equal treatment of tenderers.
46      The 10th plea in law alleges that the experts who assessed the proposals lacked sufficient expertise.
47      In the first place, the Court will examine the first plea in law.
48      The applicants, supported by the Republic of Malta and Stiftung Universität Lüneburg, claim that, by their assessment, the independent experts authorised by the EIT went beyond the merely advisory role legally attributed to them. According to the applicants, those experts were given the power to preselect proposals and, accordingly, were able to eliminate the proposal submitted by the Kenup consortium without a decision being taken by the governing board and without that board’s having examined it. Although experts play an important role in assessing KIC proposals, the selection and designation of those proposals fall within the sole competence of the governing board, with no possibility of delegation, on account of the fundamental importance of that decision. Still less can the preselection decision made by the experts be attributed to the governing board, since it did not, in breach of Regulation No 1290/2013, appoint the experts, who received no instruction, guidance or monitoring from the governing board, those tasks, in the present case, having been performed by the authorising officer, that is to say the director of the EIT. In that regard, the applicants claim that the director of the EIT exercised undue influence on the evaluation procedure. Finally, the applicants submit that, although the experts had broad discretion, the governing board was not entitled to rely on their evaluation without checking it.
49      The EIT disputes those arguments and claims that the decision designating the KIC was adopted by the governing board, following a procedure which took place in accordance with the rules applicable to the EIT and to the call for proposals. The EIT maintains that the organisation and administration of a call for proposals do not fall under the sole responsibility of the governing board, tasks being devolved both to independent experts and to the director of the EIT. On that point, it submits that, contrary to what the applicants claim, the selection of experts does not fall within the competence of the governing board. Furthermore, it maintains that the entire appointment process remained fully under the supervision of the governing board. Thus, it submits that the governing board adopted the selection criteria for the KIC, the text of the call for proposals and the overall evaluation approach. It also approved the profiles, criteria and selection procedure for the independent experts and the composition of the expert panels. In addition, the governing board was duly informed of the results of the evaluation process carried out by the experts. Finally, following the hearings, the governing board alone adopted the decision designating the KIC and rejecting the Kenup consortium’s proposal, the experts having taken no decision on that matter.
50      It must be held that there are two parts of the first plea in law of the application. By the first part, the applicants claim, in essence, that the decision rejecting the Kenup consortium’s proposal was taken by an authority not competent to do so, since it follows from a decision of the independent experts and not from a formal decision of the governing board. By the second part of the plea, the applicants invoke the unlawful delegation, to independent experts, of powers devolved to the governing board, without the latter’s directing or supervising their work.
51      As a preliminary point, it must, first, be noted that, in accordance with Article 1(2) of Regulation No 1290/2013, participation in indirect actions for implementation of the Horizon 2020 framework programme is governed by the provisions of Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council of 25 October 2012 on the financial rules applicable to the general budget of the Union and repealing Council Regulation (EC, Euratom) No 1605/2002 (OJ 2012 L 298, p. 1), and of the delegated regulation, subject to the specific rules laid down in Regulation No 1290/2013. According to Article 1(3) of Regulation No 1290/2013, Regulation No 294/2008 may also establish rules which depart from those laid down in Regulation No 1290/2013.
52      It follows that, when it carries out, as in the present case, the selection and designation of a KIC in order to implement the Horizon 2020 framework programme, the EIT must comply, first, with the rules defined by Regulation No 294/2008, next, with the rules for participation in the Horizon 2020 framework programme and, finally, with Regulation No 1605/2002 and the delegated regulation.
53      Next, it should be noted that, according to Article 4 of Regulation No 294/2008, in the version thereof applicable in the present case: ‘The EIT shall [have] a Governing Board composed of high-level members experienced in higher education, research, innovation and business [which is] responsible for steering the activities of the EIT, for the selection, designation and evaluation of the KICs, and for all other strategic decisions.’ Article 5 of that regulation provides that ‘in order to achieve its objective, the EIT shall […] select and designate KICs’. According to Article 7 of that regulation: ‘A partnership shall be selected and designated by the EIT to become a KIC following a competitive, open and transparent procedure. Detailed criteria for the selection of the KICs, based on the principles of excellence and innovation relevance, shall be adopted and published by the EIT’. That article also states that ‘external and independent experts shall be involved in the selection process’.
54      Finally, Article 15 of Regulation 290/2013 provides that ‘the proposals submitted shall be evaluated on the basis of [various] award criteria[, namely,] excellence[,] impact [and] quality and efficiency of the implementation’, that ‘[the] proposals shall be ranked according to the evaluation results’, and that ‘the evaluation shall be carried out by independent experts’. Article 40 of that regulation also provides that ‘the Commission and, where appropriate, funding bodies may appoint independent experts to evaluate proposals in accordance with Article 15 or to advise on or assist with [...] the evaluation of proposals [...]’.
55      It follows from all the provisions referred to in paragraphs 53 and 54 above that, first, the selection and designation of KICs fall within the competence of the governing board and that, secondly, independent experts participate in the selection procedure by evaluating proposals, in order to classify them. The governing board selects the KICs on the basis of that classification.
56      In that regard, it should be noted that it follows from the case-law that, even when the EIT commissions external experts, it is not thereby exempted from assessing their work (see, to that effect and by analogy, judgment of 8 July 2009, Zenab v Commission, T‑33/06, not published, EU:T:2009:250, paragraph 64 and the case-law cited).
57      The merits of each of the two parts of the first plea in law should be examined in the light of the provisions and the principle referred to in paragraphs 51 to 56 above.
The first part
58      First, it should be noted that the contested decisions were adopted in the course of the selection procedure for the KIC on ‘Innovation for healthy living and active ageing’, as defined in the call for proposals adopted by the EIT. According to the rules in point 7 of that call for tenders, which the parties agree were complied with both by the independent experts and by the EIT, eligible proposals were to be evaluated by high-level independent external experts. Each proposal was thus examined by five experts, that is to say three thematic experts and two ‘horizontal’ experts, each responsible for an evaluation report for each proposal. The panel of experts was then required to draw up a consolidated evaluation report for each proposal. Next, the three proposals with the best rankings were evaluated by a second panel of high-level independent experts responsible for making a final recommendation containing an overview of those three proposals as well as recommendations for their improvement or reinforcement. Finally, representatives of the three proposals with the best scores were to be heard by the governing board before it designated the selected KIC.
59      It follows from the foregoing that the independent experts restricted themselves to evaluating the proposals submitted and did not take any formal decision to eliminate offers classified below third place. Contrary to what the applicants claim, the formal decision rejecting the proposal submitted by the Kenup consortium was taken by the governing board at the same time as the decision to designate the proposal identified as ‘InnoLife — Better, longer lives’ as the KIC on ‘Innovation for healthy living and active ageing’.
60      Consequently, the first part of the plea must be rejected.
The second part
61      It follows from the evaluation process for the proposals, as described in paragraph 58 above, that the panel of experts responsible for the final recommendation only had to examine the three proposals with the best scores following the evaluation by the first panel of experts. In addition, only representatives of those three proposals were to be heard by the governing board. In that regard, it should be noted that the call for proposals clearly indicated that the KIC would be selected by the EIT on the basis, first, of the consolidated evaluation reports relating to the three best proposals, as established by the panel of experts, secondly, of the report drawn up by the panel responsible for the final recommendation and, thirdly, of the outcome of the hearings. Accordingly, the EIT was required to make its selection only on the basis of the work carried out by the independent experts on the three proposals with the best scores and the outcome of the hearings carried out with the representatives of those proposals.
62      In that regard, it is apparent from the documents in the case file that the members of the governing board had access, via a protected website, to all the proposals submitted for the KIC on ‘Innovation for healthy living and active ageing’, including the Kenup consortium’s proposal. Furthermore, before the hearings, the director of the EIT indicated to the governing board the various stages of the evaluation procedure, including the various scores awarded overall and for sub-criteria to the five proposals submitted. However, none of the analyses of the Kenup consortium’s proposal carried out by the independent experts were submitted to the members of the governing board. Annex 1 to the information note of 1 December 2014 drawn up by the director of the EIT for the members of the governing board, produced by the EIT at the Court’s request, included merely a 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.