Judgment of the General Court (Eighth Chamber) of 23 May 2014 — European Dynamics Luxembourg v ECB

(Case T‑553/11)

‛Public service contracts — Tender procedure — Provision of services relating to IT infrastructure and applications for the ECB — Rejection of the application — Action for annulment — Act open to challenge — Admissibility — Criteria for selecting candidates — Compliance of an application with the conditions laid down in the call for applications — Obligation to state reasons — Failure to exercise the power to ask for clarification in relation to an application — Manifest errors of assessment — Misuse of powers — Action for damages’

1. 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 — Assessment in the light of information available to the applicant at the time the action brought (Art. 296 TFEU) (see para. 49)

2. Judicial proceedings — Application initiating proceedings — Formal requirements — Identification of the subject-matter of the dispute — Brief summary of the pleas in law on which the application is based — Unequivocal formulation of the applicant’s claims (Statute of the Court of Justice, Art. 21; Rules of Procedure of the General Court, Art. 44(1)(c) and (d)) (see paras 52-55)

3. Judicial proceedings — Application initiating proceedings — Pleadings — Alteration once proceedings have been started — Condition (Rules of Procedure of the General Court, Art. 48(2)) (see para. 57)

4. Judicial proceedings — Time limit for producing evidence — Article 48(1) of the Rules of Procedure of the General Court — Scope (Rules of Procedure of the General Court, Arts 44(1)(e), 48(1), and 66(2)) (see paras 72, 74)

5. Actions for annulment — Natural or legal persons — Locus standi — Tender procedure — Decision of the awarding authority addressed to a tendering consortium without legal personality — Action by an undertaking which is a member of that consortium — Admissibility (Art. 263(4) TFEU) (see paras 83-91)

6. Actions for annulment — Interest in bringing proceedings — Natural or legal persons — Action capable of securing a benefit for the applicant — Admissibility (Art. 263, fourth para., TFEU) (see para. 94)

7. Actions for annulment — Natural or legal persons — Interest in bringing proceedings — Action against a decision which has been implemented — Action of a tenderer, in a public contract award procedure, against an award decision implemented in favour of another tenderer — Admissibility (Art. 263, fourth para., TFEU) (see para. 95)

8. EU public contracts — Tender procedure — Decision of the European Central Bank laying down the rules for the award of contracts — Time limit challenging the content of the call for tender documents — Limitation of the right to an effective remedy — None — Interpretation in the light of the directives on the awarding of public contracts — Obligation that the duration of the period be foreseeable — Scope (European Parliament and Council Directives 89/665, Arts 1(1) and (4), and 6, and 2004/18, Art. 84; Decision of the European Central Bank laying down the rules for the award of contracts, Art. 21(2)) (see paras 101-120)

9. 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 (see paras 123, 124)

10. Acts of the institutions — Statement of reasons — Obligation — Scope (Art. 296 TFEU) (see paras 152-154)

11. Plea of illegality — Plea raised at the stage of the reply — Inadmissibility (Rules of Procedure of the General Court, Art. 48(2)) (see para. 191)

12. EU public contracts — Conclusion of a contract following a call for tenders — Discretion of the institutions — Judicial review — Limits (see paras 229, 297)

13. EU public contracts — Conclusion of a contract following a call for tenders — Obligation on an institution to exercise its option to make contact with a tenderer after the opening of tenders — Condition — Exercise in compliance with the principles of sound administration, equal treatment, proportionality and legal certainty (see paras 299-302)

14. Judicial proceedings — Application for measures of inquiry and organisation of procedure — Conditions (Rules of Procedure of the General Court, Arts 64(1), 65 to 67) (see paras 317, 318)

15. Actions for annulment — Pleas in law — Misuse of powers — Concept (see para. 323)

16. 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 paras 341, 342)

Re:

APPLICATION (i) for annulment of the decision of the ECB to reject the application of a temporary grouping of undertakings including the applicant to participate in a negotiated tendering procedure concerning information technology services, of the decision of the Procurement Review Body of the ECB to reject the appeal against that decision, and of all related decisions of the ECB and (ii) for damages.

Operative part

The Court:

1. Dismisses the action;