Case T-461/08

Evropaïki Dynamiki – Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE

v

European Investment Bank (EIB)

(Public service contracts – Tender procedure – Provision of services in the form of assistance in the maintenance, support and development of an information technology system – Rejection of a tenderer’s bid – Contract awarded to another tenderer – Action for annulment – Admissibility – Jurisdiction – Duty to state reasons – Right to an effective remedy – Transparency – Proportionality – Equal treatment and non-discrimination – Selection and award criteria – Action for damages – Admissibility – Loss of profit)

Summary of the Judgment

1. Actions for annulment – Actionable measures – Measures producing binding legal effects – Measures of the European Investment Bank

(Arts 225(1) EC, 230 EC and 237(b) and (c) EC)

2. Actions for damages – Autonomy in relation to the action for annulment – Limits –Application for compensation for damage caused by the European Investment Bank acting as contracting authority

(Arts 225(1) EC, 235 EC and 288, second para., EC)

3. Actions for annulment – Conditions for admissibility – Interest in bringing proceedings – To be considered of the Court's own motion – Application by analogy to actions which include an ancillary claim for damages

(Art. 230 EC; Rules of Procedure of the General Court, Art. 113)

4. Actions for annulment – Interest in bringing proceedings – Action against a decision which has been implemented

(Arts 230 EC and 233 EC)

5. European Communities’ public procurement – Tender procedure – Lawfulness of the terms of reference disputed

(Art. 230, fourth para., EC)

6. European Investment Bank – Public procurement procedures financed by the Bank utilising its own resources – Applicable provisions

(Arts 28 EC, 43 EC and 49 EC; Charter of Fundamental Rights of the European Union; Council Regulation No 1605/2002, Art. 88(1); European Parliament and Council Directive 2004/18)

7. Acts of the institutions – Statement of reasons – Obligation – Scope

(Arts 230, fifth para., EC and 253 EC)

8. European Communities’ public procurement – Tender procedure – Right of tenderers to effective judicial protection – Scope

(Arts 225(1) EC, 242 EC, 243 EC and 253 EC)

9. European Communities’ public procurement – Tender procedure – Right of tenderers to effective judicial protection – Right of appeal against the decision awarding a contract to another tenderer

10. European Investment Bank – Public procurement procedures financed by the Bank utilising its own resources – Award of contracts – Contract awarded to the tenderer submitting the most economically advantageous tender – Criteria – Choice of the contracting authorities – Limits

11. Actions for annulment – Pleas in law – Breach of the principles of equal treatment and transparency – Tender procedure

12. Non-contractual liability – Conditions – Causal link – Loss sustained by a tenderer as a result of the loss of a contract in a tender procedure – No evidence of the link between that loss and the unlawful decision awarding the contract to another tenderer

(Arts 266 TFEU and 340, second para., TFEU)

1. The need for full judicial review of Community acts dictates that Article 225(1) EC and Article 230 EC are to be interpreted as not precluding the General Court from hearing an action for annulment of an act connected with the management of the European Investment Bank’s current business by the Management Committee which has definitive legally binding effects vis-à-vis third parties.

Although it is not a Community institution, the Bank is none the less a Community body established and endowed with legal personality by the Treaty, and it is on that account that it is subject to judicial review by the Court of Justice, in particular as provided for in Article 237(b) EC. Acts formally adopted within the Bank by bodies other than those referred to in Article 237(b) and (c) EC, namely bodies other than the Board of Governors or the Board of Directors, must therefore be amenable to judicial review if they are final and produce legally binding effects vis-à-vis third parties.

(see paras 46, 50, 52)

2. While, under the system of legal remedies established by the Treaty, an action for damages constitutes an autonomous remedy, separate from the action for annulment, the fact nevertheless remains that account must be taken of the ‘direct link’ or ‘complementarity’ between the action for annulment and the action for damages – where such a link or complementarity exist – as well as the extent to which the latter is ancillary to the former, at the stage at which it is decided whether those actions are admissible, in order to avoid the outcome of the action for damages being artificially separated from that of the action for annulment, to which it is nevertheless merely ancillary or complementary.

In so far as the damage alleged to have been caused to an applicant by the European Investment Bank originates in the pursuit by the Bank of activities which are integral to the performance of the Community administration’s duties and relate to action taken by that administration as a contracting authority and that damage is not therefore the result of the Bank’s pursuit of its activities or operations in the financial domain, the General Court has jurisdiction to adjudicate on a claim for damages brought against the Bank, on the basis of Article 225(1) EC, Article 235 EC and the second paragraph of Article 288 EC, if that claim is ancillary to an admissible action for annulment of an act of the Bank having definitive legally binding effects vis-à-vis a third person.

(see paras 55-58)

3. Since the conditions of admissibility of an action, in particular whether there is a legal interest in bringing proceedings, concern an absolute bar to proceedings, it is for the Court to consider of its own motion whether applicants have an interest in obtaining annulment of the contested decision. That approach is applicable, by analogy, to applications for annulment brought in an action which includes an ancillary claim for damages.

(see para. 62)

4. Even where, in the context of a tendering procedure, a decision to award a contract has been fully implemented for the benefit of other competitors, a tenderer retains an interest in the annulment of such a decision; such interest consists either in the tenderer’s being properly restored by the contracting authority to his original position or in prompting that authority to make suitable amendments in the future to the tendering procedure if that procedure is found to be incompatible with certain legal requirements.

The fact that the agreement for the execution of a public contract has been signed and indeed implemented before a decision is delivered concluding the proceedings brought by an unsuccessful tenderer against the decision awarding that contract and that there is a contractual relationship between the contracting authority and the successful tenderer does not remove the requirement under Article 223 EC, if the main action is successful, for the contracting authority to take the measures necessary to ensure appropriate protection of the unsuccessful tenderer’s interests.

Where, following an action brought by an unsuccessful tenderer for a public contract, the decision awarding the contract is annulled but the contracting authority is no longer able to reopen the tendering procedure for the public contract in question, the interests of that tenderer may be protected, for example, by pecuniary compensation corresponding to the loss of the chance of securing the contract or, if it can be definitively established that the tenderer should have been awarded the contract, the loss of profit. In fact, an economic value can be attributed to the loss of chance of securing a contract suffered by an unsuccessful tenderer for the contract as a result of an unlawful decision.

(see paras 64-66)

5. A document relating to a call for tenders, such as the terms of reference, cannot be regarded as a measure which concerns each tenderer individually. Like each of the other documents relating to the call for tenders issued by the contracting authority, the terms of reference apply to objectively determined situations and produce legal effects with respect to categories of persons envisaged generally and in the abstract. They are therefore of a general nature and the fact that they are sent individually to the tenderers by the contracting authority cannot distinguish each tenderer individually from any other person for the purposes of the fourth paragraph of Article 230 EC. Terms of reference are therefore not acts which are capable of being the subject of a direct action under that provision. Consequently, the decision to reject a tenderer’s bid is the first measure which can be challenged and thus the first measure entitling the tenderer to dispute, indirectly, the lawfulness of the formula used in the comparative evaluation of the tenders which was set out by the contracting authority in the terms of reference.

(see paras 73-74)

6. A European Investment Bank public procurement procedure financed by the Bank’s own resources is not governed either by the provisions in Title IV of Part 2 of Regulation No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities, as amended, or, a fortiori, the provisions in Title III of Part 2 of Regulation No 2342/2002 laying down detailed rules for the implementation of the Financial Regulation, as amended. Those provisions are applicable only to the general budget of the European Communities and, as is apparent from Article 88(1) of the Financial Regulation, the only public contracts governed by that regulation are contracts which are financed, entirely or in part, by the Community general budget.

The fact nevertheless remains that the Bank’s public procurement procedures must comply with the fundamental rules of the Treaty and the general principles of law as well as the objectives of the Charter of Fundamental Rights of the European Union concerning, in particular, the free movement of goods (Article 28 EC), the right of establishment (Article 43 EC), freedom to provide services (Article 49 EC), non-discrimination and equal treatment, transparency and proportionality.

Moreover, even though the directives concerning the award of public works contracts, public supply contracts and public service contracts govern only contracts concluded by the bodies or contracting authorities of the Member States and are not directly applicable to public contracts concluded by the Community administration, the rules or principles laid down in or derived from those directives can be relied on against that administration when they themselves simply appear to be the specific expression of fundamental rules of the Treaty and of general principles of law which are directly applicable to the Community administration. In a community based on the rule of law, the uniform application of the law is a fundamental requirement and any person is required to comply with the principle of respect for legality. Moreover, the rules or principles laid down in or derived from those directives may be relied on against the Community administration if, in the exercise of its operational and institutional autonomy and within the limits of the powers conferred on it by the Treaty, it adopts a measure which expressly refers, for the purpose of governing the public contracts which it concludes for its own account, to certain rules or principles laid down in the directives, the effect of which is that those rules and principles are applicable in accordance with the principle patere legem quam ipse fecisti.

Furthermore, it is apparent from the Guide for the procurement of services, supplies and works by the European Investment Bank for its own account that, even though Directive 2004/18 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts is not applicable as such to the Bank, it provides an appropriate reference for establishing the Bank’s procedures. The Guide sets out rules of general application which produce legal effects in relation to third parties, in particular those who decide to bid for a public contract financed entirely or in part by the Bank’s own resources, and binds the Bank in law when it decides to conclude a public contract for its own account. Consequently, when the Bank takes steps by having recourse to the capital market or its own resources, in particular when it concludes public contracts for its own account, it is subject to both the fundamental rules of the Treaty, the general principles of law and the objectives of the Charter of Fundamental Rights of the European Union and to the provisions of the Guide, as interpreted in the light of the principles which those provisions are intended to put into effect and, where appropriate, the provisions of Directive 2004/18 to which those provisions refer.

(see paras 87-90, 92-93)

7. Where the Community administration enjoys a wide power of appraisal, respect for the rights guaranteed by the Community legal order in administrative procedures is of fundamental importance. Those guarantees include in particular the requirement that the Community administration should give adequate reasons for its decisions.

It is apparent from the Guide for the procurement of services, supplies and works by the European Investment Bank for its own account that, on request from the party concerned, the Bank is required, within 15 days from receipt of the written request, to inform any tenderer who has made an admissible tender of the characteristics and relative advantages of the tender selected as well as the name of the successful tenderer or the parties to the framework agreement.

Such a manner of proceeding satisfies the purpose of the obligation to state reasons laid down in Article 253 EC. In tendering procedures, the fact that interested tenderers receive a reasoned decision only if they make an express request to that effect does not restrict their ability to assert their rights before the Court. The period for bringing proceedings laid down in the fifth paragraph of Article 230 EC does not begin to run until the reasoned decision is notified, subject to the tenderer having made his request for a reasoned decision within a reasonable time after he was apprised of the rejection of his tender.

However, in view of the wide power of appraisal it enjoys in tendering procedures, the contracting authority is required to provide an adequate statement of reasons to unsuccessful tenderers who so request, which presupposes that it will take particular care to ensure that the grounds communicated by it set out all the factors on which its decision is based.

While a letter from the Bank to the unsuccessful tenderer communicating the name of the successful tenderer, the weighting applied to the award criteria and the breakdown of the points awarded might amount to an attempt to explain, it cannot, in any event, be regarded as sufficient in the light of the requirement that the reasoning followed by the authority which adopted the measure in question must be disclosed in a clear and unequivocal fashion. Such a decision to reject the tenderer’s bid is, in those circumstances, vitiated by a failure to state adequate reasons and therefore infringes the provisions of the Guide and, more generally, the obligation to state reasons laid down in Article 253 EC.

(see paras 100, 106-108, 112, 114, 116)

8. In tendering procedures, tenderers must be protected against arbitrary decisions by the contracting authority by ensuring that unlawful decisions taken by that authority may be reviewed effectively and as rapidly as possible.

First, full legal protection against arbitrary decisions on the part of the contracting authority presupposes the obligation to inform all the tenderers of the decision to award the contract before the contract is concluded, so that they may have a real possibility of initiating proceedings for annulment of that decision, where the requisite conditions are met. Next, such full legal protection requires that the unsuccessful tenderer should have the opportunity to examine in sufficient time the validity of the award decision, which means that there must be a reasonable period of time between communication of the award decision to the unsuccessful tenderers and the signature of the contract, in order inter alia to enable the latter to lodge an application for interim measures, under Articles 242 EC and 243 EC in conjunction with Article 225(1) EC, so that the judge hearing the application for interim measures may order suspension of the operation of the decision rejecting the bids of the unsuccessful tenderers until the court adjudicating on the substance rules on the main action for annulment of that decision. The right to full and effective judicial protection means that individuals must be granted interim protection if this is necessary to ensure the full effectiveness of the judgment to be given in the main proceedings, in order to prevent a lacuna in the legal protection afforded by the courts having jurisdiction. Lastly, in order to ensure that the requirement of effective judicial protection is satisfied, the contracting authority must comply with its duty to give reasons by providing an adequate statement of reasons to any unsuccessful tenderer who so requests, so as to ensure that the latter may rely on that right under the best possible conditions and have the possibility of deciding, with full knowledge of the facts, if there is any point in his applying to the court having jurisdiction.

(see paras 119-122)

9. In public procurement procedures, the right of an unsuccessful tenderer to an effective remedy against the decision awarding the public contract to another tenderer and the corresponding obligation on the contracting authority to communicate to the unsuccessful tenderer, upon request, the grounds of the decision must be regarded as essential procedural requirements, in so far as those requirements dictate that safeguards be attached to the award decision so as to enable the impartiality of the tendering procedure which resulted in the decision to be effectively reviewed. The contracting authority’s failure to have regard for those essential procedural requirements must lead to the annulment of the decision in question.

(see paras 130-131)

10. The European Investment Bank’s power to freely choose the award criteria on the basis of which it intends to award the public contracts which it enters into, for its own account, enables it to take account of the nature, subject‑matter and specific features particular to each contract.

However, account should be taken of the rules applicable to the conduct of the tender procedure set out in the Guide for the procurement of services, supplies and works by the European Investment Bank for its own account, which are designed to ensure that the discretion enjoyed by the Bank as to the choice of award criteria is exercised in accordance with the principles of equal treatment and transparency during the stage at which the tenders are evaluated for the purpose of awarding the contract. The purpose of those provisions is, first, to enable all reasonably well-informed and normally diligent tenderers to interpret the award criteria in the same way and, as a consequence, to have an equal chance in the formulation of the terms of their tender and, second, to ensure compliance with the principle of proportionality.

While that Guide does not set out an exhaustive list of the criteria which may be chosen by the contracting authority when awarding the contract to the most economically advantageous tender, and leaves it open to the contracting authority to choose the award criteria which it considers most appropriate, that choice is limited to criteria aimed at identifying the tender which is economically the most advantageous. Therefore, award criteria do not include criteria that are not aimed at identifying the tender which is economically the most advantageous, but are instead essentially linked to the evaluation of the tenderers’ ability to perform the contract in question, which are applicable at the stage of selecting tenderers and cannot be taken into account for the purpose of the comparative evaluation of the tenders.

If the bid of a tenderer who has not been excluded from the tendering procedure and satisfies the selection criteria set out in the contract notice or the terms of reference does not appear, from the contracting authority’s point of view, to be the most economically advantageous, in the light of the award criteria set out in the contract notice or the terms of reference, it must be rejected by the contracting authority; the latter has no authority, however, to alter the general scheme of the contract by changing one of the essential conditions on which it is to be awarded. If, during the tendering procedure, the contracting authority was authorised to amend at will the very conditions of the invitation to tender, such as the weighting applied to the award criteria, where there was no express authorisation to that effect in the relevant provisions, the terms governing the award of the contract, as originally laid down, would be distorted. Furthermore, a practice of that kind would inevitably lead to infringement of the principles of transparency and equal treatment as between tenderers, since the uniform application of the conditions of the invitation to tender and the objectivity of the procedure would no longer be guaranteed.

(see paras 137-138, 141-142, 160)

11. If, in proceedings for annulment of a decision by the European Investment Bank awarding a public contract, the Court does not have before it any evidence enabling it to conclude, or to rule out the possibility, with any certainty, that the alterations to the successful tenderer’s bid and the weightings applied to the technical criteria and the financial criterion, after the adoption of the contested decision, were capable of distorting the comparative evaluation of the tenders to the detriment of the unsuccessful tenderers, in such a way that the outcome of the tendering procedure was affected by it, such uncertainty must be construed against the Bank as contracting authority.

(see para. 181)

12. Where, in an action for damages, it is impossible to establish the existence of a causal link between the contracting authority’s adoption of a decision excluding a tenderer from a public procurement procedure which is unlawful, and the damage alleged by the applicant, which results from the loss of the contract itself, there is no basis for the applicant’s claim for damages to compensate for the loss resulting from the fact that it did not conclude a contract with the contracting authority or, a fortiori, implement the contract.

That finding is without prejudice to the compensation to which the applicant may be entitled, under Article 266 TFEU, by being restored sufficiently to its original position, following the annulment of the contested decision.

(see paras 212, 214)

JUDGMENT OF THE GENERAL COURT (Fourth Chamber)

20 September 2011 ( )

(Public service contracts – Tender procedure – Provision of services in the form of assistance in the maintenance, support and development of an information technology system – Rejection of a tenderer’s bid – Contract awarded to another tenderer – Action for annulment – Admissibility – Jurisdiction – Obligation to state reasons – Right to an effective remedy – Transparency – Proportionality – Equal treatment and non-discrimination – Selection and award criteria – Action for damages – Admissibility – Loss of profit)

In Case T‑461/08,

Evropaïki Dynamiki – Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE, established in Athens (Greece), represented by N. Korogiannakis and P. Katsimani, lawyers,

applicant,

v

European Investment Bank (EIB), represented by C. Gómez de la Cruz and T. Pietilä, acting as Agents, and J. Stuyck, lawyer,

defendant,

APPLICATION, first, for annulment of the EIB’s decision of 31 January 2008 not to accept the tender submitted by the applicant in connection with an open call for tenders for the provision of services in the form of assistance in the maintenance, support and development of an information technology system and to award the contract to another tenderer, on the basis of Articles 225 EC and 230 EC, and, second, for damages, on the basis of Articles 225 EC, 235 EC and 288 EC,

THE GENERAL COURT (Fourth Chamber),

composed of I. Pelikánová (Rapporteur), President, K. Jürimäe and M. van der Woude, Judges,

Registrar: N. Rosner, Administrator,

having regard to the written procedure and further to the hearing on 17 November 2010,

gives the following

Judgment

Background to the dispute

1 The applicant, Evropaïki Dynamiki – Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE, is a company governed by Greek law operating in the field of information technology and communications.

2 By a contract notice of 13 September 2007, published in the Supplement to the Official Journal of the European Union (OJ 2007 S 176) under reference 2007/S 176-215155, the European Investment Bank (EIB) launched a call for tenders relating to the provision of services in the form of ‘[a]ssistance in the maintenance, support and development of the Loans Front Office system (Serapis)’. According to the description in the contract notice and the terms of reference relating to the call for tenders, the ‘Système efficace et rapide d’accès aux prêts et aux informations de support’ (Serapis) is the hyperlink of the EIB’s Front Office application in the lending area. It is designed as an all-in-one information management portal in the lending area for the EIB’s relevant departments, which include the ‘Directorate for Finance within Europe’, the ‘Directorate for Finance outside Europe’, the ‘Risk Management Directorate’, the ‘Projects Directorate’ and the Legal Service. It provides support to the internal lending process, from the creation of an operation, through its appraisal until the submission of the ‘Note conjointe’ (signature), which then triggers the process dealt with by the part of the EIB’s software known as ‘Force prêts’, which enables those responsible for the system to administer and manage the loan (Back Office).

3 The contract notice envisaged that a framework agreement would be concluded with the successful tenderer for a period of four years and that that tenderer would be awarded contracts based on the framework agreement corresponding to individual work orders for specific projects. The contract notice and the terms of reference stated that the contract would be awarded to the tenderer submitting the most economically advantageous tender, evaluated in accordance with the award criteria set out in the terms of reference. The latter set out the weightings to be applied to the award criteria, namely 75% for technical criteria, made up of 15% for the ‘quality management process’ criterion, 45% for the ‘level of conformity of the skills and qualifications of the staff proposed’ criterion and 15% for the ‘ability to provide a pool of staff from own resources’ criterion, and 25% for the financial criterion.

4 By letter of 31 October 2007, the EIB sent to all the tenderers who had submitted requests for clarification concerning the tendering procedure a list of ‘Questions and Answers’ relating to the tendering procedure in question.

5 On 9 November 2007, the closing date for receipt of tenders (point IV.3.4 of the contract notice), the applicant submitted a tender.

6 A total of seven tenders were received by the EIB and examined by the evaluation committee. During the first two stages of the procedure, namely the exclusion phase (section 6.1 of the terms of reference) and the selection phase (section 6.2 of the terms of reference), all the tenderers were retained. During the last stage, the comparative evaluation of tenders and award of the contract phase (section 7 of the terms of reference), at which the bids of the retained tenderers were first examined in the light of the technical criteria alone, those not reaching the minimum threshold defined in the terms of reference being rejected, the bids which had not been rejected during the technical evaluation then being examined in the light of the financial criterion, only five tenders, including the applicant’s, were examined in the light of that criterion, the two other tenders having failed to reach the minimum thresholds defined in the terms of reference during the technical evaluation. Following the comparative evaluation of the tenders, the evaluation committee gave the best overall score to Sybase BVBA (‘the successful tenderer’), while the applicant’s tender was placed second. On the basis of the evaluation carried out by the evaluation committee, the EIB decided on 31 January 2008 not to accept the applicant’s tender and to award the contract to the successful tenderer (‘the contested decision’), after discussing certain aspects of the latter’s tender with it at a meeting held on 29 January 2008.

7 On 18 February 2008, the EIB wrote to all the tenderers, with the exception of the applicant, informing them that the contract had been awarded to the successful tenderer.

8 On 12 and 17 June 2008 respectively, the framework agreement was signed by the EIB and the successful tenderer and took effect on 16 June 2008.

9 By letter of 31 June 2008, after having learnt of the notice of the award of contract published in the Supplement to the Official Journal (OJ 2008 S 144) under reference 2008/S 144‑192307, the applicant complained to the EIB that there had been a breach of the tender specifications and the law applicable to tendering procedures in that it had not been informed in a timely manner of the contested decision. The applicant requested the EIB to suspend the award procedure and the signature of the framework agreement or, if necessary, to cancel that agreement. The applicant also requested information relating to the tendering procedure and, in particular, the name of the successful tenderer, the names of its consortium partners and subcontractors (if any), the scores given, for each award criterion, to the applicant’s tender and that of the successful tenderer, the factors for comparison between the applicant’s tender and that of the successful tenderer, in particular the financial factors, and a detailed copy of the evaluation committee’s reports relating to its tender and that of the successful tenderer.

10 In a letter of 1 August 2008, the EIB provided the applicant with information concerning the weighting applied to the award criteria. It also stated that the contract had been awarded to the successful tenderer and, for each of the award criteria, gave a breakdown of the points awarded to the applicant’s tender and those awarded to that of the successful tenderer. It indicated that the applicant’s tender had received 22.03 points (out of 35), while the successful tenderer’s bid had received 29.36 points (out of 35).

11 On the same date, the applicant, being of the view that it had received only a small part of the information requested, wrote to the EIB again, requesting it to answer all the questions raised in its letter of 31 July, to provide it with the reasons for the contested decision and to inform it whether the framework agreement had already been signed with the successful tenderer. If it had not, the applicant requested the EIB to suspend the signature of the contract pending a detailed examination of its action.

12 The EIB acknowledged receipt of the applicant’s letter on 6 August 2008. By letter of 14 August 2008, it acknowledged that the failure to send the applicant an official letter informing it of the results of the comparative evaluation of the tenders was an ‘administrative error’, and offered its apologies. The EIB added that the tendering procedure as a whole was valid and that the administrative error did not constitute a substantial irregularity that would justify the suspension or cancellation of the framework agreement concluded with the successful tenderer.

13 On 1 September 2008, the applicant again wrote to the EIB, pointing out a number of irregularities which, in its view, vitiated the tendering procedure. The applicant maintained that the EIB had confused the criteria for the selection of tenderers and the criteria for the award of the contract. Moreover, it claimed that the EIB had used discriminatory or imprecise award criteria, failed to fulfil its obligation to inform tenderers in good time of the decision to award the contract and to offer them a ‘standstill’ period in which to exercise their right of appeal, failed to follow a sufficiently transparent procedure, infringed the principle of equal treatment, failed to state the reasons on which the contested decision was based and used a formula in the comparative evaluation of the tenders which had the effect of neutralising the principle of the ‘best value for money’, giving preference to the highest-priced tenders.

14 On 10 September 2008, the EIB acknowledged receipt of the applicant’s letter of 1 September 2008, informing it that its letter had been forwarded to the EIB’s complaints office for review and that a reply would be given by no later than 27 October 2008.

15 On 27 October 2008, the EIB wrote to the applicant and informed it that the EIB was no longer in a position to deal with the complaint as the applicant had initiated proceedings before this Court on 6 October 2008.

Procedure and forms of order sought by the parties

16 By application lodged at the Court Registry on 6 October 2008, the applicant brought the present action.

17 The EIB lodged its defence on 30 January 2009.

18 The reply and the rejoinder were lodged on 15 April and 15 June 2009 respectively.

19 Acting on a proposal from the Judge-Rapporteur, the General Court (Second Chamber), by way of measures of organisation of procedure provided for in Article 64 of its Rules of Procedure, invited the EIB to specify which authority within the EIB had adopted the contested decision and to provide the Court with a copy of that decision or any other document in lieu thereof.

20 The EIB complied with that request within the prescribed period. By letter lodged on 15 December 2009, it stated that, in accordance with its internal rules and the practices prevailing at the material time, the contested decision had been adopted by the Director of the Information and Technology Department, which has since been incorporated within the Directorate-General for Strategy, and then confirmed by the President of the EIB before the framework agreement with the successful tenderer was signed. In addition, the EIB produced a ‘Note to File’ dated 31 January 2008, bearing the reference SCC/IT/FLA/2008‑015/kr (‘the note of 31 January 2008’) and containing the decision of that director to award the contract to the successful tenderer and also the consolidated evaluation sheet of the evaluation committee annexed to that note.

21 By letter lodged on 8 January 2010, the applicant submitted its observations on the note of 31 January 2008. In the light of the information in that note, the applicant raised a new plea.

22 By letter lodged on 26 January 2010, the EIB submitted its observations on the new plea raised by the applicant in its letter lodged on 8 January 2010.

23 Owing to a change in the composition of the chambers of the Court, the Judge‑Rapporteur was assigned to the Fourth Chamber, to which, in consequence, the present case was assigned.

24 Upon hearing the Judge-Rapporteur, the General Court (Fourth Chamber) decided to open the oral procedure.

25 The parties presented oral argument and their answers to the questions put by the Court at the hearing on 17 November 2010.

26 The applicant claims that the Court should:

– annul the contested decision;

– order the EIB to pay compensation for the damage suffered in the tendering procedure as a result of the unlawful nature of the contested decision, assessed at EUR 1 940 000;

– order the EIB to pay the costs, even if the application is dismissed.

27 The EIB contends that the Court should:

– declare that the application for annulment is unfounded;

– declare that the claim for damages is inadmissible or, in the alternative, unfounded;

– order the applicant to pay the costs.

Law

1. Admissibility of the action

28 First, it should be noted that, as regards the specific question of the temporal application of the rules laying down the conditions of admissibility of an action, it is settled case-law, first, that in accordance with the maxim tempus regit actum, the question of the admissibility of an action must be resolved on the basis of the rules in force at the date on which it was brought (Case 60/72 Campogrande v Commission [1973] ECR 489, paragraph 4; see also, to that effect and by analogy, order of the President of the Court of Justice of 22 February 2008 in Case C‑66/08 Kozlowski, not published in the ECR, paragraph 7) and, second, that the conditions of admissibility of an action are judged at the time of bringing the action, that is, the lodging of the application (Joined Cases C‑61/96, C‑132/97, C‑45/98, C‑27/99, C‑81/00 and C‑22/01 Spain v Council [2002] ECR I‑3439, paragraph 23; Case T‑131/99 Shaw and Falla v Commission [2002] ECR II‑2023, paragraph 29; and Case T‑301/01 Alitalia v Commission [2008] ECR II‑1753, paragraph 37).

29 Since the present action was brought on 6 October 2008, the questions pertaining to its admissibility must be considered in the light of the provisions in force at that date, namely those of the EC Treaty and not the new corresponding provisions of the FEU Treaty, which entered into force on 1 December 2009.

Whether the General Court has jurisdiction

Arguments of the parties

30 The applicant submits that the application for annulment of the contested decision, brought on the basis of Article 230 EC, is admissible. The Protocol on the Statute of the EIB annexed to the EC Treaty (‘the Statute’) does not provide any comprehensive mechanism for reviewing the legality of the acts of the EIB. However, that does not mean that such review is not possible. In Case 294/83 Les Verts v European Parliament [1986] ECR 1339, paragraphs 23 to 25, the Court of Justice declared that, as the European Community is a community based on the rule of law, the acts of all its bodies must be amenable to judicial review where they produce legal effects vis-à-vis third parties. Under the EC Treaty and the Statute, the EIB is a body, indeed an institution, of the Community and, where they produce legal effects vis-à-vis third parties, its acts must be amenable to judicial review by the Court of Justice. The fact that the acts of the EIB are not expressly referred to in Article 230 EC is not an obstacle in that regard. The Court of Justice has established a dual test to be applied for the purpose of determining whether Article 230 EC is applicable to the acts of Community authorities and agencies, namely whether or not the authority in question is referred to in Article 230 EC and whether or not its acts are amenable to adequate judicial review.

31 The EIB is also of the view that the applicant’s application for annulment is admissible. It invites the Court to state clearly that it has jurisdiction to hear an application for annulment of a decision of the EIB rejecting a tender submitted by a person and awarding the public contract in question to another person and to hear the claim for compensation for the loss alleged to have been sustained as a result of that decision, since, in Luxembourg, the Tribunal administratif was wrong to assert that it had jurisdiction in such a matter, by judgment of 26 September 2007 (registered as Case No 22447), confirmed on appeal by judgment of the Cour administrative (Administrative Appeal Court) of 21 February 2008 (registered as Case No 23620C). In Case C‑370/89 SGEEM and Etroy v EIB [1992] ECR I‑6211, the Court of Justice confirmed that it had jurisdiction to adjudicate on an action for damages brought by a company on the basis of the purported unlawfulness of the EIB’s decision not to award it a public works contract. Moreover, in Case T‑411/06 Sogelma v EAR [2008] ECR II‑2771, paragraphs 42 and 43, this Court held, referring to the decision in Les Verts v European Parliament (see paragraph 30 above), that, where they produce legal effects vis-à-vis third parties, the decisions taken by a Community body, in that case the European Agency for Reconstruction (EAR), are open to challenge before the General Court. According to the EIB, as a Community administrative body, it should therefore be treated in the same way when it adopts decisions producing legal effects vis-à-vis third parties in the context of public procurement procedures or requests for access to its documents. Conversely, the EIB maintains that it does not come within the jurisdiction of the General Court where it exercises its lending activities, namely where it intervenes on the financial markets in the same way as any other bank (order in Case T‑460/93 Tête and Others v EIB [1993] ECR II‑1257, paragraph 20).

Findings of the Court

32 The parties to the present proceedings agree, in the circumstances of the case, that this Court has jurisdiction to hear the present action for annulment. However, as the jurisdiction of the General Court is an issue involving an absolute bar to proceedings, the matter may be examined by the Court of its own motion (see Case T‑29/02 GEF v Commission [2005] ECR II‑835, paragraphs 72 to 74 and the case-law cited; see also, to that effect, Case 92/78 Simmenthal v Commission [1979] ECR 777, paragraphs 21 and 22). The General Court is therefore not bound by the parties’ position as regards its jurisdiction to hear the present action and, after hearing the parties, it must consider whether it is required to raise of its own motion the issue of inadmissibility based on its lack of jurisdiction to hear, in whole or in part, the action. That is particularly necessary in the circumstances of this case because a national court has asserted that it has jurisdiction to adjudicate on the lawfulness of a decision of the EIB rejecting a tender submitted by a person and awarding to another person the public contract in question, entered into by the EIB for its own account.

33 Under Articles 5 EC, 10 EC, 297 EC, the first paragraph of Article 307 EC and the EU Treaty, in particular Article 5 EU, the Court of Justice exercises its powers under the conditions and for the purposes provided for by the provisions of the EC and EU Treaties. The jurisdiction of the General Court is set out in Articles 225 EC and Article 140a EA, as specified in Article 51 of the Statute of the Court of Justice.

34 The question whether this Court has jurisdiction to hear an action covering both an application for annulment of an act of the EIB adversely affecting a third party and a claim for damages for the loss sustained by that party as a result of the EIB’s alleged unlawful conduct must be resolved by reference to the Statute, in the version applicable at the material time, in particular the first paragraph of Article 29 of the Statute and Article 225(1) EC, Article 235 EC, Article 237 EC and the second paragraph of Article 288 EC and, where appropriate, Article 230 EC.

35 The first paragraph of Article 29 of the Statute provides that ‘[d]isputes between the [EIB] on the one hand, and its creditors, debtors or any other person on the other, shall be decided by the competent national courts, save where jurisdiction has been conferred on the Court of Justice’. Moreover, the Court of Justice has recognised that neither the EC Treaty nor Article 29 of the Statute constitute a restriction on the jurisdiction of that Court to hear disputes concerning the EIB and that the latter provision makes an express exception for the jurisdiction conferred on it by the EC Treaty (see, to that effect, SGEEM and Etroy v EIB, paragraph 31 above, paragraphs 17 and 18).

36 The present dispute is between the EIB and a company governed by Greek law which is not subject to its control and must therefore be regarded as another person within the meaning of the first paragraph of Article 29 of the Statute. According to the wording of that provision, in order to determine whether a dispute such as the present comes within the jurisdiction of the Court of Justice or the national courts and, where appropriate, whether it comes within the jurisdiction of the Court of Justice or the General Court, it is necessary to refer to the provisions of the EC Treaty.

37 As regards, first, the action for annulment of the contested decision, whether the General Court has jurisdiction to hear it is, first and foremost and to the extent that it is a special provision, a matter of interpretation of Article 237 EC, read in conjunction with Article 225(1) EC.

38 Article 237 EC is worded as follows:

‘The Court of Justice shall, within the limits hereinafter laid down, have jurisdiction in disputes concerning:

(a) the fulfilment by Member States of obligations under the [Statute]. In this connection, the Board of Directors of the [EIB] shall enjoy the powers conferred upon the Commission by Article 226 [EC relating to failure by a Member State to fulfil one of its obligations under the EC Treaty];

(b) measures adopted by the Board of Governors of the [EIB]. In this connection, any Member State, the Commission or the Board of Directors of the [EIB] may institute proceedings under the conditions laid down in Article 230 [EC];

(c) measures adopted by the Board of Directors of the [EIB]. Proceedings against such measures may be instituted only by Member States or by the Commission, under the conditions laid down in Article 230 [EC], and solely on the grounds of non-compliance with the procedure provided for in Article 21(2), (5), (6) and (7) of the [Statute];

…’

39 It is also apparent from Article 225(1) EC that only the Court of Justice has jurisdiction to hear and determine actions or proceedings referred to in Article 237 EC.

40 In order to determine whether the contested decision falls within the scope of Article 237 EC, it is necessary to refer to the powers of the various bodies of the EIB.

41 Article 8 of the Statute provides that the EIB is to be directed and managed by a Board of Governors, a Board of Directors and a Management Committee.

42 Under Article 9 of the Statute, the Board of Governors is to lay down general directives for the credit policy of the EIB and, inter alia, decide whether to increase the subscribed capital of the EIB, approve the annual report of the Board of Directors and the annul balance sheet and profit and loss account and approve the Rules of Procedure of the Bank, so that it alone has the power to organise the internal operation of the services in the interests of good administration (Case C‑15/00 Commission v EIB [2003] ECR I‑7281, paragraph 67 et seq.). Under Article 11 of the Statute, the Board of Directors has power to take decisions in respect of granting loans and guarantees and raising loans, fix the interest rates on loans granted and the commission on guarantees, see that the EIB is properly run and ensure that the EIB is managed in accordance with the EC Treaty and the Statute and with the general directives laid down by the Board of Governors. The seventh subparagraph of Article 11(2) of the Statute provides that the President of the EIB or, in his absence, one of the Vice-Presidents of the Management Committee, is to preside over meetings of the Board of Directors but cannot vote. In accordance with Article 13 of the Statute, the Management Committee is the permanent executive collegiate body of the EIB. Acting under the authority of the President and the supervision of the Board of Directors, it is responsible for the current business of the EIB and prepares the decisions of the Board of Directors, subsequently ensuring that such decisions are implemented. The President of the EIB is to preside over meetings of the Management Committee. The members of the Management Committee are responsible only to the EIB. They are appointed by the Board of Governors on a proposal from the Board of Directors for a period of six years, which is renewable.

43 It is clear from the EIB’s reply to the question put by the Court and from the note of 31 January 2008 that the contested decision was taken by the Director of the Information and Technology Department, which has since been incorporated within the EIB’s Directorate-General for Strategy. According to the EIB, the decision was subsequently confirmed by the President of the EIB, prior to the signature of the framework agreement with the successful tenderer on 12 and 17 June 2008 (see paragraph 20 above). Although there is no evidence on the file that the President of the EIB confirmed the contested decision, it must be assumed to be an established fact for the purposes of these proceedings, since it is not disputed by the applicant. While the contested decision was thus adopted ‘under the authority’ of the President of the EIB, it can be inferred from this that the decision forms part of the ‘current business’ of the EIB within the meaning of Article 13(3) of the Statute and, therefore, falls within the ambit of the competences of the Management Committee (see, to that effect, Commission v EIB, paragraph 42 above, paragraph 66), whose task is specifically to manage the current business of the EIB, under the authority of its President. There is no reason to doubt in the present case that the award of a public contract entered into for its own account forms part of the ‘current business’ of the EIB.

44 Accordingly, it must be concluded that the contested decision did not fall within the ambit of competence of the Board of Governors or that of the Board of Directors, cannot therefore be attributed to either of those EIB bodies and is thus not covered by the special provisions in Article 237 EC.

45 It therefore remains to be considered whether the General Court can hear an action for annulment of a definitive act of the EIB which produces legal effects vis-à-vis third parties, on the basis of Articles 225 EC and 230 EC.

46 It should be recalled, first, that the Community is based on the rule of law, inasmuch as neither its Member States nor its institutions can avoid review of the question whether the measures adopted by them are in conformity with the basic constitutional charter, the EC Treaty, which established a complete system of legal remedies and procedures designed to enable the Court of Justice to review the legality of measures adopted by the institutions (see Commission v EIB, paragraph 42 above, paragraph 75 and the case-law cited). That is also consistent with the objective pursued by Article 47 of the Charter of Fundamental Rights of the European Union, proclaimed on 7 December 2000 in Nice (OJ 2000 C 364, p. 1) (‘the Charter’), which, although it did not have legally binding force until the entry into force of the Treaty of Lisbon on 1 December 2009, does show the importance of the rights it sets out in the Community legal order (Joined Cases T‑377/00, T‑379/00, T‑380/00, T‑260/01 and T‑272/01 Philip Morris International and Others v Commission [2003] ECR II‑1, paragraph 122). Under that provision, any person whose rights and freedoms guaranteed by Community law are infringed has the right to an effective remedy and to a fair trial. Although it is not a Community institution, the EIB is none the less a Community body established and endowed with legal personality by the EC Treaty, and it is on that account that it is subject to judicial review by the Court of Justice, in particular as provided for in Article 237(b) EC (see Commission v EIB, paragraph 42 above, paragraph 75 and the case-law cited).

47 Second, account must be taken of the fact that Article 237 EC contains a special provision which relates only to certain disputes involving the EIB and whose scope is therefore limited and supplementary vis-à-vis other articles of the EC Treaty, such as Article 236 EC (Case 110/75 Mills v EIB [1976] ECR 955, paragraphs 16 and 17, and SGEEM and Etroy v EIB, paragraph 31 above, paragraph 17). Moreover, Article 237 EC and the first paragraph of Article 29 of the Statute are to be understood in the light of Article 267 EC, which provides that the task of the EIB is ‘to contribute, by having recourse to the capital market and utilising its own resources, to the balanced and steady development of the common market in the interests of the Community’ and, ‘operating on a non-profit basis, grant loans and give guarantees which facilitate the financing of … projects in all sectors of the economy’, as well as the provisions of the Statute cited at paragraph 37 above, from which it is apparent that the essential task of the Management Committee is to prepare and implement decisions concerning granting loans and guarantees and raising loans which are adopted by the Board of Directors in accordance with the general directives of the Board of Governors (see, to that effect and by analogy, the Opinion of Advocate General Jacobs in Commission v EIB, paragraph 42 above, points 75 to 78). While the Statute does not entirely preclude the possibility that the Management Committee might, as part of the management of the current business of the EIB, take legally binding decisions with effect for third parties, it is nevertheless clear from its provisions that such decisions are adopted or should normally be adopted by either the Board of Governors or the Board of Directors.

48 The absence of a reference in Article 237 EC to the Management Committee reflects this division of competence within the EIB. In so far as the Management Committee is as a general rule supposed to prepare – rather than adopt – legally binding decisions with effect for third parties for the purpose of the first paragraph of Article 29 of the Statute, the draftsmen of the EC Treaty did not take the view that judicial scrutiny of Management Committee action was necessary. A parallel may be drawn here with Article 230 EC, which provides for review of final and legally binding acts with effect for third parties of the institutions and the ECB, not of steps which merely prepare for the adoption of such acts. To that effect, the General Court stated, at paragraph 18 of the order in Tête and Others v EIB, paragraph 31 above, that ‘the EIB has retained its original role, which is to grant loans and guarantees (see Articles 129 and 130 [EEC] and Article 198d and 198e [EC])’, and that, ‘[t]he EIB therefore does not adopt decisions having legal effects vis-à-vis third parties who are not in receipt of EIB loans or guarantees’. However, that reasoning can be applied only if, as in the present case, the Management Committee has in fact adopted a decision which has definitive legal effects vis-à-vis a third party. In a community based on the rule of law, such as the European Community, it must be possible for the person concerned to be able to challenge such a decision.

49 To that extent, the general provision constituted by Article 230 EC must be regarded as being supplemented by the special provision in Article 237 EC, which has only limited application and does not cover acts producing definitive legal effects vis-à-vis a third party which the Management Committee finds it necessary to adopt as part of the management of the current business of the EIB, in accordance with Article 13(3) of the Statute, such as the contested decision or a decision refusing access to the EIB’s administrative documents.

50 Third, it would be unacceptable if the EIB were able – by a creative organisation of its internal decision-making process – to evade the judicial scrutiny intended by Article 237 EC as regards the acts of the institutions or any Community body which, like the EIB, was established and endowed with legal personality by the EC Treaty (see, to that effect and by analogy, the Opinion of Advocate General Jacobs in Commission v EIB, paragraph 42 above, point 71). Acts formally adopted within the EIB by bodies other than those referred to in Article 237(b) and (c) EC, namely bodies other than the Board of Governors or the Board of Directors, must therefore be amenable to judicial review if they are final and produce legally binding effects vis-à-vis third parties. Under Articles 225 EC, 230 EC and 237 EC, jurisdiction is conferred on the Court of Justice and, in the present case, the General Court inter alia to review the lawfulness of any administrative decision taken by the EIB, that is any unilateral measure adopted by the EIB which produces definitive legally binding effects vis-à-vis third parties.

51 Fourth, it is imperative that the EIB’s operational and institutional autonomy and its reputation as an independent body on the financial markets, as provided for by the EC Treaty, should not be undermined (Case 85/86 Commission v EIB [1988] ECR 1281, paragraphs 27 to 30, and Case C‑15/00 Commission v EIB, paragraph 42 above, paragraph 101 et seq.). However, the adoption of the contested decision is connected with the pursuit by the EIB of activities which form part of the Community administration and relate, in particular, to that administration’s activities as a contracting authority, not the pursuit by the EIB of its activities or operations in the financial domain or on the financial markets. The power of the General Court to review the legality of a measure on the basis of Article 225(1) EC and Article 230 EC, albeit a priori more extensive than that exercised by the Court of Justice over decisions adopted by the EIB’s Board of Directors on the basis of Article 237(c) EC, cannot in any event be regarded as being capable of adversely affecting the operational and institutional autonomy enjoyed by the EIB for the purpose of granting loans and guarantees and financing these, inter alia by having recourse to the capital market, or of affecting the EIB’s reputation or its credibility as an independent body on the financial markets. Moreover, it should be noted that the EIB itself maintains that the General Court has jurisdiction to hear the present action for annulment on the basis of Article 225(1) EC and Article 230 EC. It does not therefore take the view that the General Court’s power of judicial review in such a context might undermine the operational and institutional autonomy which the EIB enjoys under the EC Treaty and the Statute.

52 Accordingly, the need for full judicial review of Community acts dictates that Article 225(1) EC and Article 230 EC are to be interpreted as not precluding the General Court from hearing an action for annulment of an act connected with the management of the EIB’s current business by the Management Committee which has definitive legally binding effects vis-à-vis third parties.

53 On the other hand, as regards the present claim for damages, it should be noted that no specific answer is to be found in the texts as to whether the judicature of the European Union, in this case the General Court, has jurisdiction to hear an action based on non-contractual liability brought against the EIB. In the absence of specific provisions, the question whether the Court of Justice and, in the present case, the General Court has jurisdiction to hear the present claim for damages brought against the EIB is a matter of interpretation of Article 225(1) EC, Article 235 EC and the second paragraph of Article 288 EC.

54 It should be noted, first, that the Court of Justice has already recognised that it has jurisdiction to determine an action for damages brought against the EIB on the basis of Article 178 of the EEC Treaty and the second paragraph of Article 215 of the EEC Treaty (now Article 235 EC and the second paragraph of Article 288 EC). It established its jurisdiction on the basis of the fact that the purportedly unlawful act was the result of the implementation of a financing contract concluded by the EIB acting as the authorised agent and on behalf of the Community in the exercise of powers conferred upon it by certain provisions concerning the granting and management of risk capital financed by the Community budget, that the EIB was itself a body which, by virtue of the EC Treaty, formed part of the framework of the Community and that the acts and omissions of the EIB in the implementation of the financing contract were attributable to the Community (see, to that effect, judgment of 2 December 1992 in SGEEM and Etroy v EIB, paragraph 31 above, paragraphs 4 to 12 and 15, and Case C‑370/89 SGEEM and Etroy v EIB [1993] ECR I‑2583, paragraph 24). In that context, the Court of Justice has observed that the ‘the term “institution” employed in the second paragraph of Article 215 of the [EEC] Treaty must … not be understood as referring only to the institutions of the Community listed in Article 4(1) of the [EEC] Treaty but as also covering, with regard to the system of non-contractual liability established by the [EEC] Treaty, Community bodies such as the [EIB] (judgment of 2 December 1992 in SGEEM and Etroy v EIB, paragraph 31 above, paragraph 16).

55 Second, account should be taken of the fact that while, under the system of legal remedies established by the EC Treaty, an action for damages constitutes an autonomous remedy, separate from the action for annulment, the fact nevertheless remains that there is in the present case a direct link between the action for damages and the action for annulment of the contested decision, in so far as the application states that ‘the … request for damages is based on Articles 235 and 288 [EC] on account of the contested illegal decision’, so that the action for damages appears to be ancillary to the action for annulment. Moreover, it is apparent from the application that the action for damages seeks payment of a sum corresponding exactly to the applicant’s ‘estimated gross profit … should the contract have been awarded to the applicant’, namely the rights which the applicant claims to have been deprived of as a result of the contested decision. The action for damages therefore, in actual fact, seeks to set aside the legal effects of the contested decision on the applicant and, if granted, would thus have the effect of neutralising those legal effects.

56 It is settled case-law (Case 175/84 Krohn Import-Export v Commission [1986] ECR 753, paragraphs 32 and 33; Case T‑514/93 Cobrecaf and Others v Commission [1995] ECR II‑621, paragraph 59; and Case T‑180/00 Astipesca v Commission [2002] ECR II‑3985, paragraph 139) that account must be taken of the ‘direct link’ or ‘complementarity’ which exists, in the present case, between the action for annulment and the action for damages, as well as the extent to which the latter is ancillary to the former, at the stage at which it is decided whether those actions are admissible, in order to avoid the outcome of the action for damages being artificially separated from that of the action for annulment, to which it is nevertheless merely ancillary or complementary.

57 Third, in so far as the damage alleged to have been caused to the applicant by the EIB originates in the pursuit by the EIB of activities which are integral to the performance of the Community administration’s duties and relate, in particular, to action taken by that administration as a contracting authority and that damage is not therefore the result of the EIB’s pursuit of its activities or operations in the financial domain or on the financial markets, it cannot be held that any review which this Court may find it necessary to carry out on the basis of Article 225(1) EC, Article 235 EC and the second paragraph of Article 288 EC is liable to affect the EIB’s operational and institutional autonomy or harm its reputation as an independent body on the financial markets. Moreover, the EIB itself maintains that this Court has jurisdiction to rule on the present action for damages brought against it, on the basis of Article 225(1) EC, Article 235 EC and Article 288 EC, and has not in any way claimed that review by this Court might have the effect of undermining its operational and institutional autonomy.

58 This Court therefore has jurisdiction to adjudicate also on the claim for damages brought against the EIB, on the basis of Article 225(1) EC, Article 235 EC and the second paragraph of Article 288 EC, if that claim is ancillary to an admissible action for annulment of an EIB act having definitive legally binding effects vis-à-vis a third person.

59 It follows that the General Court has jurisdiction to hear the present action in its entirety.

The applicant’s interest in bringing proceedings for annulment of the contested decision

Arguments of the parties

60 Questioned on this point at the hearing, the EIB confirmed that the contested decision had been implemented, since the framework agreement had been concluded with the successful tenderer and, in part, implemented. It therefore considered that it was no longer in a position to give any effect to any annulment of the contested decision, such as reopening the tendering procedure. However, it also made it clear that it did not intend to claim that the present action is inadmissible on the ground that the applicant does not have an interest in bringing proceedings for annulment of the contested decision. Moreover, it stated that, while it was possible in theory to envisage restoring the unsuccessful tenderer which brought the action sufficiently to its original position by paying compensation, the conditions for payment of such compensation were not met in the present case, since the applicant has suffered no actual loss as a result of the contested decision.

61 At the hearing, the applicant submitted that it had brought a number of successful actions for annulment, either in part or in full, of decisions awarding contracts but that the institutions which adopted those decisions had not responded in a satisfactory manner to the annulments. It also stated that it has a dual interest in bringing proceedings for annulment of the contested decision. First, in so far as it participates in public procurement procedures, it claims to have an interest in it being established that the acts which vitiate the contested decision are unlawful, in order to prevent a recurrence of such acts. Second, it claims that it has an interest in establishing that those acts are unlawful in order to obtain compensation.

Findings of the Court

62 According to settled case-law, an action for annulment brought by a natural or legal person is admissible only in so far as that person has an interest in the annulment of the contested measure. In order for such an interest to be present, the annulment of the contested measure must of itself be capable of having legal consequences and the action must be likely, if successful, to procure an advantage for the party who has brought it (Case T‑195/08 Antwerpse Bouwwerken v Commission [2009] ECR II‑4439, paragraph 33). Since the conditions of admissibility of an action, in particular whether there is a legal interest in bringing proceedings, concern an absolute bar to proceedings, it is for the Court to consider of its own motion whether the applicants have an interest in obtaining annulment of the contested decision (see order in Case T‑228/00 Gruppo ormeggiatori del porto di Venezia v Commission [2005] ECR II‑787, paragraph 22 and the case-law cited). That case-law is applicable, by analogy, to applications for annulment brought in an action which includes an ancillary claim for damages.

63 In the present case, the Court must ascertain of its own motion whether annulment of the contested decision is likely to procure an advantage for the applicant, even though the tendering procedure cannot be reopened and, in the present circumstances, the parties agree that, since the contract has been signed and implemented in part, there is no longer any chance that the applicant may be awarded the contract in question by the EIB.

64 It is settled case-law that, even where a decision to award a contract has been fully implemented for the benefit of other competitors, a tenderer retains an interest in the annulment of such a decision; such interest consists either in the tenderer’s being properly restored by the contracting authority to his original position or in prompting that authority to make suitable amendments in the future to the tendering procedure if that procedure is found to be incompatible with certain legal requirements (see, to that effect, Simmenthal v Commission, paragraph 32 above, paragraph 32, and Joined Cases T‑191/96 and T‑106/97 CAS Succhi di Frutta v Commission [1999] ECR II‑3181, paragraph 63).

65 The fact that the agreement for the execution of a public contract has been signed and indeed implemented before a decision is delivered concluding the main proceedings brought by an unsuccessful tenderer against the decision awarding that contract and that there is a contractual relationship between the contracting authority and the successful tenderer does not remove the requirement under Article 223 EC, if the main action is successful, for the contracting authority to take the measures necessary to ensure appropriate protection of the unsuccessful tenderer’s interests (see, to that effect, order of the President of the General Court in Case T‑303/04 R European Dynamics v Commission [2004] ECR II‑3889, paragraph 83).

66 Where, following an action brought by an unsuccessful tenderer for a public contract, the decision awarding the contract is annulled but the contracting authority is no longer able to reopen the tendering procedure for the public contract in question, the interests of that tenderer may be protected, for example, by pecuniary compensation corresponding to the loss of the chance of securing the contract or, if it can be definitively established that the tenderer should have been awarded the contract, the loss of profit (see, to that effect, the orders of the President of the General Court in Case T‑108/94 R Candiotte v Council [1994] ECR II‑249, paragraph 27; Case T‑169/00 R Esedra v Commission [2000] ECR II‑2951, paragraph 51; and European Dynamics v Commission, paragraph 65 above, paragraph 83). In fact, according to the most recent case-law, an economic value can be attributed to the loss of chance of securing a contract suffered by an unsuccessful tenderer for the contract as a result of an unlawful decision (see, to that effect, orders of the President of the General Court of 25 April 2008 in Case T‑41/08 R Vakakis v Commission, not published in the ECR, paragraphs 66 and 67 and the case-law cited, and of 20 January 2010 in Case T‑443/09 R Agriconsulting Europe v Commission, not published in the ECR, paragraphs 32 to 34 and the case-law cited).

67 In the present case, the applicant has an interest in bringing proceedings for annulment of the contested decision in order to be restored sufficiently to its original position by the EIB, in accordance with the obligation laid down in the first paragraph of Article 233 EC, which can be brought about, where appropriate, by pecuniary compensation corresponding to its loss of chance of securing the contract. While the applicant has brought a claim for damages which could result in payment of a sum of money, in the form of damages, that claim does not relate to the loss of the chance of securing the contract but to the loss of income corresponding to the profit it would have made if it had performed the contract (see paragraph 210 below). If follows that that claim for damages could be dismissed without thereby precluding the possibility for the applicant of obtaining, if appropriate, pecuniary compensation for the loss of the chance of securing the contract by way of restoring it sufficiently to its original situation, in accordance with the second paragraph of Article 266 TFEU.

68 It follows from the foregoing that the action for annulment can, if successful, procure a benefit for the applicant and it therefore has an interest in bringing proceedings for annulment of the contested decision.

The lack of any challenge to the formula used in the comparative evaluation of the tenders during the tendering procedure

Arguments of the parties

69 The EIB maintains that the applicant is barred from challenging the formula used during the comparative evaluation of the tenders since it failed to do so in due time, namely before the closing date for submission of tenders.

70 The applicant claims that the Court should reject the objection of inadmissibility raised by the EIB in this regard.

Findings of the Court

71 The present objection of inadmissibility relates, in fact, to the third and fourth pleas in the application for annulment, by which the applicant claims that the ‘ability to provide a pool of staff from own resources’ award criterion is unlawful, and the fifth plea in the application for annulment, by which the applicant claims that the weighting applied to the award criteria, namely 75% for the technical criteria and 25% for the financial criterion, is unlawful.

72 It is correct that, in claiming that the formula used during the comparative evaluation of the tenders is unlawful, the applicant is disputing, as an ancillary point, the lawfulness of the terms of reference. The question which therefore arises, in the present case, is whether a document relating to a call for tenders, such as terms of reference, is an act which is capable of being the subject of a direct action under the fourth paragraph of Article 230 EC and, accordingly, whether the applicant should have brought proceedings to challenge the terms of reference on the basis of that provision within the two-month period laid down under the fifth paragraph of Article 230 EC.

73 The terms of reference cannot be regarded as a measure which concerns each tenderer individually. Like each of the other documents relating to the call for tenders issued by the contracting authority, the terms of reference apply to objectively determined situations and produce legal effects with respect to categories of persons envisaged generally and in the abstract. They are therefore of a general nature and the fact that they are sent individually to the tenderers by the contracting authority cannot distinguish each tenderer individually from any other person for the purposes of the fourth paragraph of Article 230 EC (Case T‑495/04 Belfass v Council [2008] ECR II‑781, paragraphs 36 to 42).

74 In the present case, the contested decision was therefore the first measure which the applicant could challenge and thus the first measure entitling it to dispute, indirectly, the lawfulness of the formula used in the comparative evaluation of the tenders which was set out by the EIB in the terms of reference.

75 The EIB is therefore incorrect in claiming that the challenge made by the applicant, as an incidental plea, in the present action – to the effect that the formula used in the comparative evaluation of the tenders, as set out by the EIB in the terms of reference, was unlawful – is out of time.

76 Consequently, the third, fourth and fifth pleas in the application for annulment are admissible and the plea of inadmissibility raised by the EIB in that regard must be rejected.

The assertion that the claim for damages lacks clarity

Arguments of the parties

77 The EIB submits that it follows from the requirements under Article 44(1)(c) of the Rules of Procedure that the claim for damages is inadmissible, since the three conditions laid down in the second paragraph of Article 288 EC that must be satisfied for the Community to incur non-contractual liability are not referred to, in the present case, in the application and the applicant fails to assert that those conditions are met. In the view of the EIB, there is a lack of precision in the application with regard to the purported unlawful acts vitiating the tendering procedure, the causal link between those unlawful acts and the loss alleged by the applicant and the nature and precise amount of damages claimed. Accordingly, in the light of the case-law applicable (Case 5/71 Zuckerfabrik Schöppenstedt v Council [1971] ECR 975, and Case T‑461/93 An Taisce and WWF UK v Commission [1994] ECR II‑733, paragraphs 42 and 43), such a claim should be rejected as inadmissible.

78 The applicant argues essentially that there has been no infringement of Article 44(1)(c) of the Rules of Procedure and that evidence from which it is possible to identify the three conditions laid down in the second paragraph of Article 288 EC that must be satisfied in order for the Community’s non‑contractual liability to be incurred is set out in the application.

Findings of the Court

79 It must be borne in mind that, under Article 21 of the Statute of the Court of Justice and Article 44(1)(c) of the Rules of Procedure, every application must state the subject-matter of the proceedings and contain a summary of the pleas in law on which it is based. That statement must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the application, if necessary, without any further information. In order to guarantee legal certainty and sound administration of justice, it is necessary, in order for an action to be admissible, that the basic legal and factual particulars relied on be indicated, at least in summary form, coherently and intelligibly in the application itself (see Case T‑19/01 Chiquita Brands and Others v Commission [2005] ECR II‑315, paragraph 64 and the case-law cited).

80 In order to satisfy those requirements, an application seeking compensation for damage caused by a Community institution or any other Community body or agency must state the evidence from which the conduct which the applicant alleges against the institution, body or agency can be identified, the reasons for which the applicant considers that there is a causal link between the conduct and the damage it claims to have suffered, and the nature and extent of that damage (see Case T‑387/94 Asia Motor France and Others v Commission [1996] ECR II‑961, paragraph 107; Case T‑38/96 Guérin automobiles v Commission [1997] ECR II‑1223, paragraph 42; and Chiquita Brands and Others v Commission, paragraph 79 above, paragraph 65 and the case-law cited).

81 The application states that ‘the request for damages is based on Articles 235 and 288 [EC] on account of the contested illegal decision … attacked by the present application’. It follows that that claim is based on the alleged unlawful acts referred to in the application for annulment. The application also states that ‘the applicant … requests monetary compensation equal to 50% of EUR 3.88 million = EUR 1.94 million from the EIB, corresponding to its estimated gross profit from the … public procurement procedure, should the contract have been awarded to the applicant’. It follows that the application sets out the evidence from which the nature and extent of the loss alleged can be identified. Moreover, in the application, the applicant provides explanations of how that sum was calculated. Therefore, even though the applicant does not devote a specific part of the application to the issue of the causal link between the alleged unlawful acts and the loss pleaded, the application sets out the evidence from which it is possible to identify the reasons why the applicant considers there to be a causal link between the unlawful conduct and the loss it claims to have suffered, namely that in the present case the causal link arises, in its view, from the fact that the contested decision prevented it from being awarded the contract and concluding a framework agreement with the EIB for the implementation of the contract.

82 In those circumstances, the Court finds that the claim for damages is admissible and therefore rejects the objection of inadmissibility raised in that regard by the EIB.

2. Substance

The applicable law

Arguments of the parties

83 The applicant is of the view that, as a contracting authority, the EIB is required to act in accordance with the provisions of the ‘Guide to Procurement – Guide for the procurement of services, supplies and works by the EIB for its own account’, in the version applicable at the material time (‘the Guide’), and to comply with general principles and law applicable to procurement procedures. Moreover, while Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (OJ 2004 L 134, p. 114) is not applicable as such to the EIB’s tendering procedures, it is apparent from the introduction to the Guide that that directive provides an appropriate reference for the purpose of assessing the provisions of the Guide, from which it derived inspiration. Furthermore, the General Court has already accepted that it can review the lawfulness of a Commission decision awarding a public contract, in the light of Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts (OJ 1992 L 209, p. 1), as amended by European Parliament and Council Directive 97/52/EC of 13 October 1997, which also amends Directives 93/36/EEC and 93/37/EEC concerning the coordination of procedures for the award of public service contracts, public supply contracts and public works contracts respectively (OJ 1997 L 328, p. 1) (Case T‑345/03 Evropaïki Dynamiki v Commission [2008] ECR II‑341, paragraph 206).

84 The EIB objects that Directive 2004/18 does not apply to it and adds that the case‑law applicable to procurement procedures concerns it only in so far as it interprets provisions which are themselves applicable. It is clear from the case-law (Sogelma v EAR, paragraph 31 above, paragraph 115, and the judgment of 10 September 2008 in Case T‑59/05 Evropaïki Dynamiki v Commission, not published in the ECR, paragraphs 46 and 47) that Directive 2004/18, as well as Directive 92/50, which it repeals and replaces, are not applicable to public contracts concluded for its own account by a Community institution, body or agency unless the provisions therein are expressly stated to be applicable to those institutions, bodies or agencies.

Findings of the Court

85 The parties’ arguments raise the question as to which rules govern the award of public works contract, supply contracts and services contracts concluded by the EIB for its own account for consideration and utilising its own resources.

86 The EIB has financial autonomy in that it operates, in accordance with Article 267 EC, ‘by having recourse to the capital market and utilising its own resources’ (see, to that effect, Commission v EIB, paragraph 42 above, paragraphs 101 and 128), not the Community budget, even though it is required to manage funds from that budget acting as the authorised agent and on behalf of the Community and, therefore, part of its activities are carried out using Community funds. In the present case, however, the action concerns a tendering procedure financed by EIB own resources.

87 Such a procedure is not governed either by the provisions in Title IV of Part 2 of Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 248, p. 1), as amended (‘the Financial Regulation’), or, a fortiori, the provisions in Title III of Part 2 of Commission Regulation (EC, Euratom) No 2342/2002 of 23 December 2002 laying down detailed rules for the implementation of Regulation No 1605/2002 (OJ 2002 L357, p. 1), as amended (‘the Implementing Rules’). Those provisions are in fact applicable only to ‘the general budget of the European Communities’ and, as is apparent from Article 88(1) of the Financial Regulation, the only public contracts governed by that regulation are contracts which are financed, entirely or in part, by the Community general budget (Case T‑271/04 Citymo v Commission [2007] ECR II‑1375, paragraph 121).

88 The fact nevertheless remains that the EIB’s public procurement procedures must comply with the fundamental rules of the EC Treaty and the general principles of law concerning, in particular, the free movement of goods (Article 28 EC), the right of establishment (Article 43 EC), freedom to provide services (Article 49 EC), non-discrimination and equal treatment, transparency and proportionality. According to well established case-law on Community public procurement procedures, the contracting authority is subject to the fundamental rules of the EC Treaty, the general principles of law and the objectives of the Charter.

89 Moreover, even though the directives concerning the award of public works contracts, public supply contracts and public service contracts govern only contracts concluded by the bodies or contracting authorities of the Member States and are not directly applicable to public contracts concluded by the Community administration, the rules or principles laid down in or derived from those directives can be relied on against that administration when they themselves simply appear to be the specific expression of fundamental rules of the EC Treaty and of general principles of law which are directly applicable to the Community administration (see, to that effect, Case C‑25/02 Rinke [2003] ECR I‑8349, paragraphs 25 to 28). In a community based on the rule of law, the uniform application of the law is a fundamental requirement (Joined Cases C‑453/03, C‑11/04, C‑12/04 and C‑194/04 ABNA and Others [2005] ECR I‑10423, paragraph 104) and any person is required to comply with the principle of respect for legality. Thus, the institutions are required to comply with the rules of the EC Treaty and the general principles of law that are applicable to them, in the same way as any other person (see, to that effect, Case C‑185/95 P Baustahlgewebe v Commission [1998] ECR I‑8417, paragraphs 18 to 21, and Antwerpse Bouwwerken v Commission, paragraph 62 above, paragraph 55). Moreover, the rules or principles laid down in or derived from those directives may be relied on against the Community administration if, in the exercise of its operational and institutional autonomy and within the limits of the powers conferred on it by the EC Treaty, it adopts a measure which expressly refers, for the purpose of governing the public contracts which it concludes for its own account, to certain rules or principles laid down in the directives, the effect of which is that those rules and principles are applicable in accordance with the principle patere legem quam ipse fecisti (see, to that effect, Joined Cases 87/77, 130/77, 22/83, 9/84 and 10/84 Salerno and Others v Commission and Council [1985] ECR 2523, paragraphs 52, 56 and 57, and Case C‑496/99 P Commission v CAS Succhi di Frutta [2004] ECR I‑3801, paragraphs 113 to 115). Where it is necessary to interpret the measure in question, it must be interpreted, in so far as possible, with a view to uniform application of Community law and compliance with the provisions of the EC Treaty and the general principles of law (see Case C‑314/89 Rauh [1991] ECR I‑1647, paragraph 17 and the case-law cited, and Case C‑135/93 Spain v Commission [1991] ECR I‑1651, paragraph 37).

90 The Guide states that it is in order to respect ‘the fundamental EU principles regarding public procurement, such as the principles of equal treatment, non‑discrimination and transparency’ that the EIB decided to implement tendering procedures allowing for ‘competition among qualified tenderers and … selection based both on cost and quality considerations’. Accordingly, the EIB considered that ‘[e]ven though [Directive 2004/18] [was] not applicable as such to the [EIB], it provide[d] an appropriate reference of establishing the [EIB’s] procedures’. Section 2.1 of the Guide states inter alia that ‘[t]he [EIB] follows the procedures described in [Directive 2004/18] for the award of contracts which are not excluded from the application of [Directive 2004/18] in accordance with its provisions and which have a total value exclusive of value added tax (VAT) estimated to be equal to or greater than the following thresholds: (a) EUR 206 000 for service … contracts …’. The Guide also makes numerous other references to Directive 2004/18.

91 Sections 2.4 and 2.5 of the Guide set out in detail the various stages of the tendering procedure referred to at Section 2.2.1 of the Guide.

92 The Guide sets out in that regard rules of general application which produce legal effects in relation to third parties, in particular those who decide to bid for a public contract financed entirely or in part by the EIB’s own resources, and binds the EIB in law when it decides to conclude a public contract for its own account (see, to that effect and by analogy, Citymo v Commission, paragraph 87 above, paragraph 122).

93 It follows from the foregoing considerations that, when the EIB takes steps by having recourse to the capital market or its own resources, in particular when it concludes public contracts for its own account, it is subject to both the principles referred to at paragraph 88 above and the provisions of the Guide, especially those set out at paragraph 91 above, as interpreted in the light of the principles which those provisions are intended to put into effect and, where appropriate, the provisions of Directive 2004/18 to which those provisions refer.

The application for annulment

94 The applicant puts forward five pleas in law in support of its application for annulment. The first plea alleges, in essence, infringement of Section 2.5.2 of the Guide, the principles of transparency and equal treatment and the right to an effective remedy. The second plea alleges, in essence, infringement of the principles of transparency and sound administration, of the duty to state reasons for decisions adversely affecting a third party and of the right to an effective remedy. The third plea alleges, in essence, infringement of the principle of proportionality and the obligation to choose award criteria which allow an objective comparative evaluation of the tenders. The fourth plea alleges infringement of the principle of equal treatment and the obligation to use, for the purpose of the comparative evaluation of the tenders, award criteria which are not confused with the selection criteria. The fifth plea alleges infringement of the law applicable to tendering procedures, on account of the fact that the weightings applied to the award criteria resulted in the neutralisation or minimisation of the ‘price effect’ in the contested decision.

95 By letter lodged on 8 January 2010 (see paragraph 21 above), the applicant raised a sixth plea for annulment of the contested decision, alleging infringement of Article 99 of the Financial Regulation and Article 148(1) and (2) of the Implementing Rules, which prohibit any discussion between the contracting authority and the candidates or tenderers leading to amendment of the conditions of the contract or the terms of the original tender, and infringement of the principles of equal treatment, transparency and non-discrimination, as enshrined in Article 89 of the Financial Regulation, read in conjunction with recital 18 in the preamble thereto.

96 First, it is necessary to examine together the first and second pleas, since they overlap in part. Next, it is appropriate to address the third and fourth pleas, which appear to be complementary, together. Lastly, for reasons of expediency, the sixth plea should be considered next, before going on to consider the fifth plea.

The first and second pleas

– Arguments of the parties

97 By the first and second pleas, the applicant submits that the EIB infringed Section 2.5.2 of the Guide, the principles of transparency, equal treatment and sound administration, its right to an effective remedy and the obligation to state reasons for decisions adversely affecting a third party. First of all, it claims that the EIB should have notified it as soon as possible, in writing, of the contested decision and sent on its own initiative the same information to all the tenderers without exception, giving them the time necessary to exercise their legitimate rights. Next, the EIB should have sent to it, within 15 days of being requested, the name of the successful tenderer and stated the reasons for rejecting its own tender and the reasons for the contested decision in its regard by providing it with the element of comparison contained in the evaluation report between the characteristics and advantages of the applicant’s own bid and those of the successful tenderer’s bid. Finally, the EIB should, at the very least, have provided to the applicant the reasons for the contested decision before the present action was brought, in order to enable it to secure its right to an effective legal remedy.

98 The EIB contends that the first plea should be rejected. In its view, the publication of the contract award notice in the Official Journal was an officially recognised means, in the Community legal order, of communicating the contested decision to the applicant. The fact that it did not notify the applicant individually of the contested decision is an administrative error on the part of the EIB’s own services. However, the EIB replied promptly, on 1 August 2008, to the applicant’s request for explanations of 31 July 2008. In any event, according to case-law, the complaint alleging failure to provide information cannot succeed, since on the date on which it brought the present action, namely 6 October 2008, the applicant was aware of the reasons on which the contested decision was based. Similarly, nor can any breach of the principle of equal treatment be established, since the alleged illegality had no influence on the contested decision, in view of the fact that, on the basis of the award criteria chosen, the evaluation committee had clearly come to the view that the successful tenderer’s bid was much better than the applicant’s.

99 The EIB contends that the second plea should also be rejected. It claims that it stated the reasons on which the contested decision was based to the requisite legal standard and followed a procedure consistent with the provisions of the Guide and the case-law applicable to tendering procedures. In accordance with case-law and Section 2.5.2 of the Guide, the applicant received, by letter of 1 August 2008, a reasoned explanation of the characteristics and relative advantages of the successful tender as well as the name of the successful tenderer, so that the contested decision contained a sufficient statement of reasons to enable the applicant to assert its rights and the Court to exercise its power of review, in the light of the particular circumstances of the case. That letter clearly shows that, for each award criterion with the exception of the financial criterion, the successful tenderer’s bid received a score twice as high as the applicant’s. Even if the applicant had obtained a higher score than the successful tenderer for the technical criterion, that would not have been decisive, since the financial criterion accounted for only 25% of the overall score.

– Findings of the Court

100 Where the Community administration enjoys a wide power of appraisal, respect for the rights guaranteed by the Community legal order in administrative procedures is of fundamental importance. Those guarantees include in particular the requirement that the Community administration should give adequate reasons for its decisions. Only in this way can the Court verify whether the factual and legal elements upon which the exercise of the power of appraisal depends were present (Case C‑269/90 Technische Universität München [1991] ECR I‑5469, paragraph 14, and Case T‑241/00 Le Canne v Commission [2002] ECR II‑1251, paragraph 53). According to established case-law, the Community administration enjoys a broad margin of assessment with regard to the factors to be taken into account for the purpose of deciding to award a contract following an invitation to tender (Case T‑211/02 Tideland Signal v Commission [2002] ECR II‑3781, paragraph 33, and Case T‑148/04 TQ3 Travel Solutions Belgium v Commission [2005] ECR II‑2627, paragraph 47; see also, to that effect, Case 56/77 Agence européenne d’interims v Commission [1978] ECR 2215, paragraph 20).

101 It is necessary to examine, first, the applicant’s complaints alleging infringement of the provisions of Section 2.5.2 of the Guide, in that the EIB failed to inform it as soon as possible of the adoption of the contested decision.

102 Section 2.5.2 of the Guide, relating to ‘[c]ontacts between the [EIB] and candidates and tenderers’, states that ‘[o]nce it has reached a decision regarding the tendering procedure, the [EIB] shall inform all parties concerned of the decision reached as soon as possible’.

103 The EIB acknowledged before the Court and in its letter to the applicant of 14 August 2008 that ‘the applicant did not receive an official letter in due time informing it of the outcome of the tendering procedure’ and explained that, ‘after detailed research following the applicant’s complaint, it found that its failure was due to an administrative error’. The EIB also acknowledged that all the tenderers ‘with the unfortunate exception of the applicant’, were informed of the adoption of the contested decision by letter of 18 February 2008. It is not disputed that the applicant became aware of the existence of the contested decision only when the award notice was published in the Supplement to the Official Journal on 26 July 2008, that is more than one month after the signature of the framework agreement, on 12 and 17 June 2008, and the date when it took effect, on 16 June 2008.

104 In the circumstances, the EIB therefore infringed the provisions of Section 2.5.2 of the Guide, in that it failed to inform the applicant, as soon as possible, of the adoption of the contested decision.

105 It is necessary to examine, second, the applicant’s complaints alleging infringement of the provisions of Section 2.5.2 of the Guide and the obligation to state reasons for decisions adversely affecting a third party, stemming from the fact that the EIB failed to provide to it the characteristics and relative advantages of the tender selected as well as the name of the successful tenderer within 15 days following receipt of its written request or, at the latest, before it brought its action.

106 Section 2.5.2 of the Guide provides, inter alia, that ‘[o]n request from the party concerned, the [EIB] will, within 15 days from receipt of the written request, inform: … any tenderer who has made an admissible tender of the characteristics and relative advantages of the tender selected as well as the name of the successful tenderer or the parties to the framework agreement’.

107 Such a manner of proceeding satisfies the purpose of the obligation to state reasons laid down in Article 253 EC, according to which the statement of the reasons on which a decision adversely affecting a third party are based must be such as to e