Judgment of the General Court (Fourth Chamber) of 25 November 2014 —

Alfastar Benelux v Council

(Case T‑394/12)

‛Public service contracts — Tender procedure — Technical maintenance and help desk and on-site intervention services for the personal computers, printers and peripherals of the General Secretariat of the Council — Rejection of a tenderer’s bid and award of contract to another tenderer — Decision taken following the annulment by the General Court of an earlier decision — Action for damages’

1. Actions for annulment — Grounds — Lack of or inadequate statement of reasons — Ground to be raised of the court’s own motion — Raised late by the applicant — Irrelevant (Art. 296 TFEU) (see para. 25)

2. EU public contracts — Conclusion of a contract following a call for tenders — Discretion of the institutions — Judicial review — Limits (Council Regulation No 1605/2002; Commission Regulation No 2342/2002) (see paras 26, 71, 203, 204)

3. 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 (Art. 296 TFEU; Council Regulation No 1605/2002, Art. 100(2)) (see paras 27, 28, 193)

4. EU public contracts — Conclusion of a contract following a call for tenders — Criteria for selecting candidates — Criterion concerning the number of persons employed by the tenderer — Not permissible (Council Regulation No 1605/2002; Commission Regulation No 2342/2002) (see para. 35)

5. EU public contracts — Tender procedure — Substantial amendments made to the provisions of a public contract during its period of validity — Concept — Decision of the awarding authority in accordance with the tender specification, authorising a tenderer to replace certain members of its staff — Not included — No breach of the principle of equal treatment (Council Regulation No 1605/2002; Commission Regulation No 2342/2002) (see paras 38, 39, 41, 43)

6. EU public contracts — Conclusion of a contract following a call for tenders — Criteria for selecting candidates — No obligation on the awarding authority to provide for elimination of tenderers not attaining minimum marks for quality (Council Regulation No 1605/2002; Commission Regulation No 2342/2002) (see para. 123)

7. EU public contracts — Conclusion of a contract following a call for tenders — Criteria for selecting candidates — Candidates’ capacity to provide specified services — Award criteria — Characteristics and merits of individual tenders — Ability of candidates to perform a contract at the time of the contract award phase — Inadmissibility — Professional experience of a tenderer’s team members — Admissibility (Council Regulation No 1605/2002, Art. 97; Commission Regulation No 2342/2002, Arts 136, 137 and 138(2)) (see paras 154-159)

8. EU public contracts — Tender procedure — Award of contracts — Most economically advantageous tender — Award criteria — Choice of the contracting authorities — Limits — Compliance with the principles of transparency, equal treatment and non-discrimination (Council Regulation No 1605/2002, Arts 89 and 97; Commission Regulation No 2342/2002, Arts 135 to 138) (see paras 173, 174)

9. EU public contracts — Conclusion of a contract following a call for tenders — Criteria for selecting candidates — Obligation on the awarding authority to verify satisfaction of the criteria by tenderers — Review of compliance by the EU judicature (Council Regulation No 1605/2002; Commission Regulation No 2342/2002) (see para. 194)

10. Non-contractual liability — Conditions — Unlawfulness — Damage — Causal link — One of the conditions not satisfied — Claim for compensation dismissed in its entirety (Art. 340, second para., TFEU) (see para. 221)

Re:

APPLICATION, first, for annulment of the decision of the Council of 13 June 2012 not to select the tender submitted by the applicant in response to the restricted call for tenders UCA 218/07, for the provision of technical maintenance and help desk and on-site intervention services for the PCs, printers and peripherals of the General Secretariat of the Council and to award the contract to another tenderer and, secondly, application for compensation for the damage allegedly suffered as a result of the award of the contract to another tenderer.

Operative part

The Court:

1. Dismisses the action;