Judgment of the General Court (Fourth Chamber) of 5 March 2019 –

Yellow Window v EIGE

(Case T‑439/17)

(Public service contracts — Tender procedure — Provision of a service for the implementation of a study on female genital mutilation — Rejection of a tenderer’s bid — Obligation to state reasons — Coherence between comments and the numerical score — Non-contractual liability)

1. Judicial proceedings — Production of evidence — Time limit — Evidence lodged out of time — Conditions (Rules of Procedure of the General Court, Art. 85(3)) (see para. 26)

2. EU public contracts — Tender procedure — Duty to comply with the principles of equal treatment of tenderers and transparency — Scope — Obligation to specify the minimum number of tenderers — None (European Parliament and Council Regulation No 966/2012, Arts 102(1) and 112(1)) (see paras 37, 38)

3. EU public contracts — Tender procedure — Duty of care — Limits (European Parliament and Council Regulation No 966/2012, Art. 114) (see paras 44, 54)

4. 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 having regard to the information at the applicant’s disposal at the time the action was brought — Information provided to the applicant not clearly showing the reasons for rejecting the tender and not sufficiently explaining the characteristics and advantages of the tender accepted — Insufficient statement of reasons (Art. 296 TFEU; European Parliament and Council Regulation No 966/2012, Art. 113(2)) (see paras 60, 73, 74, 78)

5. EU public contracts — Tender procedure — Obligation to comply with the principle of equal treatment of tenderers — Scope (European Parliament and Council Regulation No 966/2012, Art. 102(1)) (see para. 106)

6. EU law — Principles — Proportionality — Scope — Discretion of the EU legislature — Judicial review — Limits (Art. 5(4) TEU) (see para. 111)

7. Action for annulment — Action against a decision, in the procedure for award of a public service contract, not to accept a tender — Decision to award the contract closely linked to the decision to allocate the contract — Dismissal of the application for annulment of the award decision entailing dismissal of the application for annulment of the allocation decision (see para. 124)

8. Non-contractual liability — Conditions — Unlawfulness — Injury — Causal link — One of those conditions not met — Action dismissed in its entirety (Art. 340, second para. TFEU) (see paras 126, 128)

Re:

Application (i) under Article 263 TFEU for annulment of the decision of the EIGE of 8 May 2017 rejecting the tender submitted by the applicant in procurement procedure EIGE/2017/OPER/04 and the decisions selecting as successful the tender submitted by Company Y and awarding that contract to it, (ii) under Article 268 TFEU for an award of damages in respect of those decisions and (iii) in the alternative, for compensation for irregularities in the award of that contract.

Operative part

The Court:

1. Annuls the decision of the European Institute for Gender Equality (EIGE) of 8 May 2017 rejecting the tender submitted by Yellow Window NV in the context of the EIGE/2017/OPER/04 tender procedure and the decisions of 8 May 2017 adopting the tender submitted by Company Y in the context of that procedure and awarding it that contract;

2. Dismisses the action as to the remainder;