Judgment of the General Court (Sixth Chamber) of 24 April 2012 — Evropaïki Dynamiki v Commission

(Case T-554/08)

Public service contracts — Call for tenders — Provision of business, technical and project consultancy services for European Union computer applications in the customs, excise and taxation areas — Rejection of a tender — Decision to award the contract to another tenderer — Action for annulment — Inadmissibility — Claim in damages — Selection and award criteria — Duty to state reasons — Manifest error of assessment

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 a company member of that consortium — Admissibility (Art. 230, fourth para., EC) (see paras 31-33)

2. EU public contracts — Conclusion of a contract following a call for tenders — Discretion of the institutions — Judicial review — Limits (see paras 37, 80, 97)

3. EU public contracts — Conclusion of a contract following a call for tenders — Discretion of the institutions — Criteria for selecting candidates — Duty to comply with the principles of equal treatment of tenderers and transparency — No obligation to leave a margin between the minimum and maximum threshold of factors to be submitted to prove the capacity of tenderers (Council Regulation No 1605/2002, Arts 89 and 97(1); Commission Regulation No 2342/2002, Art. 135(1),(2) and (5)) (see paras 38, 41-45)

4. Union law — Principles — Protection of legitimate expectations — Conditions (see paras 51, 67)

5. EU public contracts — Tender procedure — Option conferred on the awarding authority to make contact with a tenderer after the opening of tenders — Duty to make contact where possible and where necessary to obtain further particulars concerning a tender — Compliance with the principle of equal treatment of tenderers (Council Regulation No 1605/2002, Arts 89(1) and 148(3); Commission Regulation No 2342/2002, Arts 146(3) and 148(3)) (see paras 52-53, 55-56, 58, 65)

6. Procedure — Introduction of new pleas during the proceedings — Conditions — New plea — Meaning (Rules of Procedure of the General Court, Art. 48(2), first para.) (see para. 119)

7. EU public contracts — Tender procedure — Duty of the awarding authority to exclude a tenderer having committed a serious professional fault — Tenderer alleging a serious professional fault by the company to which the contract awarded — Examination of the claims by the awarding authority — Prima facie assessment — Duty where fraud not proven to reject the claims and inform the author of the accusations (Council Regulation No 1605/2002, Arts 93(1)(c) and 94; Commission Regulation No 2342/2002, Art. 133) (see paras 124, 126-127, 132)

8. Acts of the institutions — Statement of reasons — Obligation — Scope — Decision, in a public contract award procedure, not to accept a tender — Assessment having regard to information available to the applicant at the time the action brought (Art. 253 EC; Council Regulation No 1605/2002, Art. 100(2); Commission Regulation No 2342/2002, Art. 149) (see paras 136-139)

9. Procedure — 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 — Action for compensation for damage caused by an EU institution (Rules of Procedure of the General Court, Art. 44(1)(c)) (see paras 162-163)

10. Non-contractual liability — Conditions — Unlawfulness — Damage — Causal link — One of the conditions not satisfied — Claim for compensation dismissed in its entirety (Art. 288, second para., EC) (see paras 167-168)

Re:

ACTION for annulment of the Commission’s decision of 26 September 2008 rejecting the tender submitted by the consortium formed by the applicant and other companies in response to call for tenders ‘TAXUD/2007/AO-005’ relating to the provision of business, technical and project consultancy services for Community computer applications in the customs, excise and taxation areas (‘TIMEA’), and all consequential decisions, including the decision to award the contract to the successful tenderer, brought pursuant to Articles 225 EC and 230 EC, and a claim in damages brought pursuant to Articles 225 EC, 235 EC and 288 EC.

Operative part

The Court:

1. Dismisses the action;