Judgment of the General Court (Ninth Chamber) of 15 September 2016 —

European Dynamics Luxembourg and Evropaïki Dynamiki v EIT

(Case T‑481/14)

‛Public service contracts — Tender procedure — Supply of services for the development of a knowledge and information management platform — Software development services and maintenance of availability and efficiency of computer services — Refusal to rank the applicants in first place — Selection criteria — Award criteria — Obligation to state reasons — Manifest errors of assessment — Access to documents — Non-contractual liability’

1. European Union public contracts — Tender procedure — Award of contracts — Most economically advantageous tender — Award criteria — Observance of the principle of equal treatment of tenderers and of the principle of transparency — Later fixing by the adjudicating authority of the weighting coefficients for the sub-criteria of the award criteria laid down in the contract documents or in the contract notice — Lawfulness — Conditions (European Parliament and Council Regulation No 966/2012, Arts 102(1), 105 and 113; Commission Regulation No 1268/2012, Arts 138(3), and 149(3)) (see paras 35, 40-42, 46, 49, 55)

2. European Union public contracts — Tender procedure — Award of contracts — Award criteria — Method of assessment — Power of the assessment of the awarding authority — Judicial review — Limits (European Parliament and Council Regulation No 966/2012, Arts 102(1), and 110(2)) (see paras 60-65, 80)

3. 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 — Obligation on the awarding authority to notify, on written request, the characteristics and relative advantages of the tender accepted and the name of the successful tenderer — No obligation to provide a detailed summary as how every detail of the rejected tender was taken into account for assessment purposes, or a detailed comparative analysis of the accepted tender and the unsuccessful tender (Art. 296 TFEU; European Parliament and Council Regulation No 966/2012, Art. 113(2); Commission Regulation No 1268/2012, Art. 161) (see paras 71, 81-83, 104, 423, 477)

4. European Union public contracts — Conclusion of a contract following a call for tenders — Criteria for selecting candidates — Assessment of the candidates’ capacity to provide specified services — Award criteria — Comparative assessment of the particular characteristics and merits of individual tenders — Application of a criterion for assessing the capacity of the candidates to perform a contract during the contract attribution phase — Not permissible (European Parliament and Council Regulation No 966/2012, Art. 110(1); Commission Regulation No 1268/2012, Arts 148(1), and 149(2)) (see paras 252-256)

5. Actions for annulment — Actionable measures — Definition — Measures producing binding legal effects — Decision refusing to send an unsuccessful tenderer a list of members of the evaluation committee — Person concerned informed of the possibility of lodging a confirmatory application for access to documents — Exclusion (Art. 263 TFEU; European Parliament and Council Regulation No 1049/2001, Art. 8(1)) (see paras 449, 450, 452-454)

6. Actions for annulment — Actionable measures — Concept — Reply by an institution, in its capacity as awarding authority, to a request for additional information submitted by an unsuccessful tenderer in relation to the decision to award the contract — Exclusion (Art. 263 TFEU; European Parliament and Council Regulation No 966/2012, Art. 113(2); Commission Regulation No 1268/2012, Art. 161) (see para.456)

7. 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 — Unambiguous wording of the form of order sought by the applicant (Statute of the Court of Justice, Art. 21; Rules of Procedure of the General Court (1991), Art. 44(1)(c) and (d)) (see paras 459-461)

8. 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 464, 465)

9. Judicial proceedings — Measures of inquiry — Request for production of documents — Possibility of the EU judicature ordering production of a document already produced following a measure of organisation of procedure — Exclusion (Rules of Procedure of the General Court (2015), Arts 91(b), and 92(3)) (see paras 470, 471)

10. Judicial proceedings — Request for confidential treatment — Possibility of requesting, in relation to another main party, confidential treatment of documents submitted following a measure of organisation of procedure — Exclusion (Rules of Procedure of the General Court (2015), Arts 65 and 103) (see para. 472)

Re:

APPLICATION, firstly, on the basis of Article 263 TFEU for annulment of the EIT’s decision of 14 April 2014 ranking the tender submitted by the applicants in the context of an invitation to tender relating to computer and related services in second place, and for annulment of the EIT’s letter of 25 April 2014 by which it refused to communicate the names of the members of the evaluation committee and, secondly, on the basis of Article 268 TFEU, for damages.

Operative part

The Court:

1. Dismisses the action;