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

European Dynamics Luxembourg and Evropaïki Dynamiki v Commission

(Case T‑698/14)

‛Public service contracts — Public procurement procedure — External service provision for development, studies and support for information systems (ESP DESIS III) — Ranking of a tenderer in the cascade procedure — Obligation to state reasons — Abnormally low bids — Principle of free competition — Non-contractual liability’

1. European Union public contracts — Conclusion of a contract following a call for tenders — Discretion of the institutions — Judicial review — Limits (see paras 26, 60)

2. Acts of the institutions — Statement of reasons — Obligation — Scope — Decision, in the procedure for the award of a public service contract, not to accept a tender — Account taken, by way of reasoning, of the replies of an institution to the requests of a discarded tenderer — Conditions — No substitution of a new statement of reasons for the initial statement of reasons (Art. 296 TFEU; European Parliament and Council Regulation No 966/2012, Art. 113(2); Commission Regulation No 1268/2012, Art. 161(2)) (see paras 27-29)

3. Actions for annulment — Grounds — Lack of or inadequate statement of reasons — Error of assessment — Distinction (Arts 263 TFEU and 296 TFEU) (see para. 30)

4. Acts of the institutions — Statement of reasons — Obligation — Scope — Decision, in the procedure for the award of a public service contract, not to accept a tender — Obligation to communicate, following a written request, the characteristics and relative advantages of the tender accepted and the name of the tenderer — No obligation on the awarding authority to provide a detailed comparative analysis of the tender accepted and the tender of the unsuccessful tenderer (Art. 296 TFEU; European Parliament and Council Regulation No 966/2012, Art. 113(2), first para.; Commission Regulation No 1268/2012, Art. 161(2)) (see paras 31-33)

5. European Union public contracts — Conclusion of a contract following a call for tenders — Abnormally low offer — Obligation of the contracting authority to hear the tenderer — Examination by the awarding authority of the abnormally low character of the tender — Elements to be taken into consideration (Commission Regulation No 1268/2012, Art. 151(1)) (see paras 59, 65, 66)

6. Judicial proceedings — Application initiating proceedings — Formal requirements — Brief summary of the pleas in law on which the application based (Rules of Procedure of the General Court, Art. 44(1)(c)) (see para. 80)

7. European Union public contracts — Tender procedure — Award of contracts — Award criteria — Duty to comply with the principles of equal treatment of tenderers and transparency — Scope — Requirement of clarity and precision — Discretion of the awarding authority as to the choice of award criteria — Judicial review — Limits (European Parliament and Council Regulation No 966/2012, Arts 102 and 110(2); Commission Regulation No 268/2012, Art. 149) (see paras 87-89, 96)

8. Non-contractual liability — Conditions — Unlawfulness — Damage — Causal link — One of the conditions not satisfied — Claim for compensation dismissed in its entirety (Art. 340, second para., TFEU) (see paras 104, 105)

Re:

Firstly, application on the basis of Article 263 TFEU seeking the annulment of the Commission’s decisions to rank in third and fourth positions under the cascade mechanism the bids made by the applicants for lots Nos 1 and 3 under open call for tenders No DIGIT/R2/PO/2013/029 — ESP DESIS III concerning ‘External service provision for development, studies and support for information systems’ (OJ 2013/S 19-0380314) and to exclude their bid for lot No 2 under that call for tenders and, secondly, application on the basis of Article 268 TFEU seeking compensation for the loss allegedly suffered by the applicants.

Operative part

The Court:

1. Dismisses the action;