Judgment of the General Court (Second Chamber) of 29 January 2014 — European Dynamics Belgium and Others v EMA

(Case T‑158/12)

‛Public service contracts — Community tender procedure — External service provision for software applications — Decision to classify the applicant’s tender in second place for the purposes of a cascading contract — Award criteria — Addition of award criterion not provided for by the contract documents — Assessment of a selection criterion at the award stage — Transparency’

1. EU public contracts — Conclusion of a contract following a call for tenders — Discretion of the institutions — Judicial review — Limits (see para. 18)

2. EU public contracts — Tender procedure — Award of contracts — Most economically advantageous tender — Award criteria — Observance of the principle of equal treatment of tenderers and of the principle of transparency — Later fixing by the adjudicating authority of the weighting coefficients for the sub-criteria of the award criteria laid down in the contract documents or in the contract notice — Lawfulness — Conditions (Council Regulation No 1605/2002, Art. 97(2); Commission Regulation No 2342/2002, Art. 138(1), (2) and (3)) (see paras 19-22)

3. EU public contracts — Conclusion of a contract following a call for tenders — Criteria for selecting candidates — Assessment of the candidates’ capacity to provide specified services — Award criteria — Comparative assessment of the particular characteristics and merits of individual tenders — Application of a criterion designed to assess the ability of candidates to perform a contract at the time of the contract award phase — Inadmissibility (Council Regulation No 1605/2002, Art. 97(1) and (2); Commission Regulation No 2342/2002, Art. 138(2)) (see paras 37-43, 52)

4. EU public contracts — Tender procedure — Award of contracts — Assessment of tenders on the basis of their content and not on the basis of previous experience with the same awarding authority (see paras 56, 57)

5. EU public contracts — Tender procedure — Duty to comply with the principle of equal treatment of tenderers — Need to ensure equal opportunities and comply with the principle of transparency — Scope (Council Regulation No 1605/2002, Art. 89(1)) (see paras 59-62)

6. EU public contracts — Tender procedure — Award of contracts — Most economically advantageous tender — Award criteria — Choice of the contracting authorities — Criteria not exclusively quantitative — Lawfulness (Council Regulation No 1605/2002, Art. 97(1) and (2); Commission Regulation No 2342/2002, Art. 138(2) and (3)) (see paras 63, 64, 71)

Re:

APPLICATION (i) for annulment of European Medicines Agency decision EMA/67882/2012 of 31 January 2012 to classify the applicants’ tender in second place for signing a framework-contract, following the call for tender EMA/2011/17/ICT on the external service provision for software applications, and (ii) for damages.

Operative part

The Court:

1. Dismisses the action;

2. Orders European Dynamics Belgium SA, European Dynamics Luxembourg SA, Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai and European Dynamics UK Ltd to pay the costs.

Judgment of the General Court (Second Chamber) of 29 January 2014 — European Dynamics Belgium and Others v EMA

(Case T‑158/12)

‛Public service contracts — Community tender procedure — External service provision for software applications — Decision to classify the applicant’s tender in second place for the purposes of a cascading contract — Award criteria — Addition of award criterion not provided for by the contract documents — Assessment of a selection criterion at the award stage — Transparency’

1. EU public contracts — Conclusion of a contract following a call for tenders — Discretion of the institutions — Judicial review — Limits (see para. 18)

2. EU public contracts — Tender procedure — Award of contracts — Most economically advantageous tender — Award criteria — Observance of the principle of equal treatment of tenderers and of the principle of transparency — Later fixing by the adjudicating authority of the weighting coefficients for the sub-criteria of the award criteria laid down in the contract documents or in the contract notice — Lawfulness — Conditions (Council Regulation No 1605/2002, Art. 97(2); Commission Regulation No 2342/2002, Art. 138(1), (2) and (3)) (see paras 19-22)

3. EU public contracts — Conclusion of a contract following a call for tenders — Criteria for selecting candidates — Assessment of the candidates’ capacity to provide specified services — Award criteria — Comparative assessment of the particular characteristics and merits of individual tenders — Application of a criterion designed to assess the ability of candidates to perform a contract at the time of the contract award phase — Inadmissibility (Council Regulation No 1605/2002, Art. 97(1) and (2); Commission Regulation No 2342/2002, Art. 138(2)) (see paras 37-43, 52)

4. EU public contracts — Tender procedure — Award of contracts — Assessment of tenders on the basis of their content and not on the basis of previous experience with the same awarding authority (see paras 56, 57)

5. EU public contracts — Tender procedure — Duty to comply with the principle of equal treatment of tenderers — Need to ensure equal opportunities and comply with the principle of transparency — Scope (Council Regulation No 1605/2002, Art. 89(1)) (see paras 59-62)

6. EU public contracts — Tender procedure — Award of contracts — Most economically advantageous tender — Award criteria — Choice of the contracting authorities — Criteria not exclusively quantitative — Lawfulness (Council Regulation No 1605/2002, Art. 97(1) and (2); Commission Regulation No 2342/2002, Art. 138(2) and (3)) (see paras 63, 64, 71)

Re:

APPLICATION (i) for annulment of European Medicines Agency decision EMA/67882/2012 of 31 January 2012 to classify the applicants’ tender in second place for signing a framework-contract, following the call for tender EMA/2011/17/ICT on the external service provision for software applications, and (ii) for damages.

Operative part

The Court:

1. Dismisses the action;