Keywords

Summary



Keywords

1 Procedure - Reference to the Court of Justice on the basis of an arbitration clause - Condition - Existence of a valid contract - Contract governed by Directive 92/50 requiring a written agreement - Requirement not fulfilled - Application inadmissible

(EC Treaty, Art. 181; Council Decision 88/591; Council Directive 92/50, Art. 1)

2 European Community public procurement contracts - Conclusion of a contract following an invitation to tender - Discretion of the institutions - Judicial review - Limits

3 Community law - Principles - Protection of legitimate expectations - European Community public procurement contracts - Tenderer encouraged, before the contract is awarded, to make irreversible investments - Community's non-contractual liability thereby incurred

4 European Community public procurement contracts- Tendering procedure - Obligation to comply with the principles of the equal treatment of tenderers and of transparency and to adopt a coherent line of conduct

5 European Community public procurement contracts - Tendering procedure - Expenses incurred by a tenderer - Right to compensation - None

Summary

6 The jurisdiction of the Court of First Instance, on the basis of the combined provisions of Decision 88/591, as amended, and Article 181 of the Treaty, to hear actions brought before it by natural or legal persons pursuant to an arbitration clause presupposes that the contract containing the clause is a valid contract.

An application made on the basis of an arbitration clause provided for in a framework contract forming part of an invitation to tender for the award of a contract by a Community institution is therefore inadmissible, where the framework contract has never been signed, in so far as such a contract is governed by Directive 92/50, which defines the contracts concerned as contracts concluded in writing. In that last regard, the existence of a valid contract cannot be inferred from the fact that a committee on procurements and contracts - an advisory body within the institution at issue - has given an opinion in favour of awarding the contract to the applicant, notwithstanding the importance generally accorded, in practice, to such an opinion in connection with an invitation to tender.

7 The institutions have a broad discretion in assessing the factors to be taken into account for the purpose of deciding to award a contract following an invitation to tender, and the Court's review should be limited to checking that there has been no serious and manifest error.

8 The right to rely on the principle of the protection of legitimate expectations extends to any individual who is in a situation in which it is apparent that the Community administration has led him to entertain justified expectations. Although it is true, in that regard, that traders must bear the economic risks inherent in their activities and that, in connection with a tendering procedure for a public procurement contract, those economic risks include, inter alia, the costs connected with the preparation of the bid, there may be a breach of the principle of the protection of legitimate expectations capable of giving rise to liability on the part of the Community where, before the contract in question is awarded to the successful tenderer, a tenderer is encouraged by the contracting institution to make irreversible investments in advance and thereby to go beyond the risks inherent in the business under consideration, consisting in making a bid.

9 In procedures for concluding public procurement contracts, the contracting institution must comply, at each stage of a tendering procedure, not only with the principle of the equal treatment of tenderers, but also with the principle of transparency. Therefore, a person who is closely involved in a tendering procedure and who has even been judged to be the successful tenderer, must receive, without any delay, precise information concerning the conduct of the entire procedure.

Furthermore, the institution is obliged to show a coherent and consistent attitude towards its tenderers. Any interventions by various administrative and political bodies within that institution cannot therefore justify the failure to comply with its obligations to the tenderers.

10 It is clear from the General Terms and Conditions applicable to the Communities' public procurement contracts that the contracting institution is not liable for any compensation with respect to tenderers whose tenders have not been accepted. It follows that the charges and expenses incurred by a tenderer in connection with his participation in a tendering procedure cannot in principle constitute damage capable of being remedied by the award of damages.