Judgment of the General Court (Fifth Chamber) of 26 September 2014 — B&S Europe v Commission

(Case T‑222/13)

‛Public service contracts — Call for tenders — Short-term services in the exclusive interest of third countries benefiting from European Union external aid — Rejection of the application — Selection criteria — Contracts divided into tranches — Reference project — Duty to state reasons — Principle of sound administration — Legitimate expectations — Principle of impartiality — Audi alteram partem rule’

1. European Ombudsman — Code of good conduct — Binding effect — None (Art. 228 TFEU) (see para. 21)

2. 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; Charter of Fundamental Rights of the European Union, Art. 41(2)(c); Council Regulation No 1605/2002, Art. 100(2); Commission Regulation No 2342/2002, Art. 149(2)) (see paras 23-26)

3. EU law — General principles of law — Right to sound administration — Diligent and impartial consideration of the case — Decision of an institution on the award of public contracts — Substitution of the grounds for a decision rejecting a tender following a re-examination requested by the tenderer — Legality (Charter of Fundamental Rights of the European Union, Art. 41(1)) (see paras 38, 39, 43)

4. EU law — Principles — Protection of legitimate expectations — Conditions — Foreseeability of the adoption of an EU measure affecting the interests in question — Not possible to rely thereon (see para. 47)

5. EU public contracts — Tender procedure — Restricted procedure — No obligation on the awarding authority to gather the observations of the unselected tenderers before taking the decision not to award — No breach of the principle audi alteram partem (Charter of Fundamental Rights of the European Union, Art. 41(2)(c); Council Regulation No 1605/2002; Commission Regulation No 2342/2002) (see paras 55, 56)

6. EU public contracts — Conclusion of a contract following a call for tenders — Criteria for selecting candidates — Demonstration of the tenderer’s experience by means of a reference project — Concept of reference project — Scope — Realisation of a tranche of a contract for services — Included — Condition — Completion before the time-limit for submission of tenders (Council Regulation No 1605/2002; Commission Regulation No 2342/2002) (see para. 79)

7. 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 para. 87)

Re:

APPLICATION for annulment of the Commission decision, set out in its letters of 15 February and 2 April 2013, informing the applicant that it had not been included on the list of candidates invited to participate in the restricted call for tenders concerning lot 7 of the multiple framework contract for the provision of short-term services in the exclusive interest of third countries benefiting from European Union external aid (OJ 2012/S 105-174077).

Operative part

The Court:

1. Dismisses the action;

2. Orders Business and Strategies in Europe (B&S Europe) SA to pay the costs.

Judgment of the General Court (Fifth Chamber) of 26 September 2014 — B&S Europe v Commission

(Case T‑222/13)

‛Public service contracts — Call for tenders — Short-term services in the exclusive interest of third countries benefiting from European Union external aid — Rejection of the application — Selection criteria — Contracts divided into tranches — Reference project — Duty to state reasons — Principle of sound administration — Legitimate expectations — Principle of impartiality — Audi alteram partem rule’

1. European Ombudsman — Code of good conduct — Binding effect — None (Art. 228 TFEU) (see para. 21)

2. 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; Charter of Fundamental Rights of the European Union, Art. 41(2)(c); Council Regulation No 1605/2002, Art. 100(2); Commission Regulation No 2342/2002, Art. 149(2)) (see paras 23-26)

3. EU law — General principles of law — Right to sound administration — Diligent and impartial consideration of the case — Decision of an institution on the award of public contracts — Substitution of the grounds for a decision rejecting a tender following a re-examination requested by the tenderer — Legality (Charter of Fundamental Rights of the European Union, Art. 41(1)) (see paras 38, 39, 43)

4. EU law — Principles — Protection of legitimate expectations — Conditions — Foreseeability of the adoption of an EU measure affecting the interests in question — Not possible to rely thereon (see para. 47)

5. EU public contracts — Tender procedure — Restricted procedure — No obligation on the awarding authority to gather the observations of the unselected tenderers before taking the decision not to award — No breach of the principle audi alteram partem (Charter of Fundamental Rights of the European Union, Art. 41(2)(c); Council Regulation No 1605/2002; Commission Regulation No 2342/2002) (see paras 55, 56)

6. EU public contracts — Conclusion of a contract following a call for tenders — Criteria for selecting candidates — Demonstration of the tenderer’s experience by means of a reference project — Concept of reference project — Scope — Realisation of a tranche of a contract for services — Included — Condition — Completion before the time-limit for submission of tenders (Council Regulation No 1605/2002; Commission Regulation No 2342/2002) (see para. 79)

7. 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 para. 87)

Re:

APPLICATION for annulment of the Commission decision, set out in its letters of 15 February and 2 April 2013, informing the applicant that it had not been included on the list of candidates invited to participate in the restricted call for tenders concerning lot 7 of the multiple framework contract for the provision of short-term services in the exclusive interest of third countries benefiting from European Union external aid (OJ 2012/S 105-174077).

Operative part

The Court:

1. Dismisses the action;