Judgment of the General Court (Third Chamber) of 22 May 2012 —

Sviluppo Globale v Commission



(Case T‑6/10)

Public service contracts — Call for tenders — Support for the customs and tax authorities in Kosovo — Rejection of a tenderer’s bid — Act not amenable to review — Confirmatory act — Inadmissibility — Access to documents — Regulation (EC) No 1049/2001 — Documents relating to the call for tenders — Partial refusal of access — Exception concerning the protection of the commercial interests of a third party — Inadequate statement of reasons

1. 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 member of the consortium — Admissibility (Art. 263, fourth para., TFEU) (see para. 19)

2. Actions for annulment — Action against a decision confirming an earlier decision not challenged within the time-limits — Inadmissibility — Definition of confirmatory decision — Reexamination of an earlier decision in reply to a claim of new and substantial facts — Not included (see paras 22-24)

3. European Union — Institutions — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Mandatory exceptions — Taking into account a specific interest of the applicant — Not included (European Parliament and Council Regulation No 1049/2001, Arts 2(1), and 4(2) and (3)) (see paras 52-55)

4. European Union — Institutions — Right of public access to documents — Regulation No 1049/2001 — Objectives — Principle of the widest possible access — Strict interpretation of the exceptions to the principle of access — Observance of the principle of proportionality (European Parliament and Council Regulation No 1049/2001) (see para. 65)

5. European Union — Institutions — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Strict interpretation and application — Protection of the decision-making process — Scope — Documents drawn up by an evaluation committee in the context of a tendering procedure — Included — No obligation to disclose under the principle of transparency (European Parliament and Council Regulation No 1049/2001, Art. 4(3)) (see paras 78‑81, 88)

6. European Union — Institutions — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Overriding public interest justifying the disclosure of documents — Distinction from the principle of transparency (European Parliament and Council Regulation No 1049/2001, Art. 4(2) and (3)) (see para. 86)

Re:

APPLICATION, first, for annulment of the Commission’s decision of 10 November 2009 rejecting the tender submitted by the consortium of which the applicant is a member in call for tenders EuropAid/127843/D/SER/KOS for the provision of support services to the customs and tax authorities in Kosovo (OJ 2009/S 4‑003683) and, second, for annulment of the Commission’s decision of 26 November 2009 refusing the consortium access to certain documents relating to the call for tenders.

Operative part

The Court:

1. Dismisses the action as inadmissible in so far as it is directed against the Commission’s decision of 10 November 2009 rejecting the tender submitted by the consortium of which the applicant is a member in call for tenders EuropAid/127843/D/SER/KOS for the provision of support services to the customs and tax authorities in Kosovo;

2. Annuls the Commission’s decision of 26 November 2009 concerning access to certain documents relating to that call for tenders, in so far as it refuses to grant access, in the disclosed version of the evaluation report, to the scores awarded by the evaluation committee as set out on pages 3 to 5 of that report;

3. Dismisses the action as to the remainder;

4. Dismisses the applicant’s application for the instigation of measures of inquiry;

5. Orders Sviluppo Globale GEIE to bear its own costs relating to the main proceedings and to pay three quarters of the costs incurred by the Commission in those proceedings. Orders the Commission to bear one quarter of its costs relating to the main proceedings;