Judgment of the General Court (Third Chamber) of 15 October 2013 — Evropaïki Dynamiki v Commission

(Case T-457/10)

‛Public service contracts — Tender procedure — External service provision for development, studies and support for information systems (ESP DESIS II) — Classification of a tenderer — Award of the contract — Tendering consortium — Admissibility — Obligation to state reasons — Transparency — Equal treatment — Manifest error of assessment — Non-contractual liability’

1. Actions for annulment — Natural or legal persons — Locus standi — Tender procedure — Decision of the awarding authority addressed to a tendering consortium without legal personality — Action by a company member of that consortium — Admissibility (Art. 263, fourth para., TFEU) (see paras 36, 37)

2. EU public contracts — Tender procedure — Duty of the awarding authority to exclude a tenderer having committed a serious professional fault — Tenderer claiming serious professional misconduct by the parent company of a member of the consortium to which the contract was awarded — Examination by the awarding authority of the facts relied upon and the question of attribution of the fault of the parent company to its subsidiaries (Council Regulation No 1605/2002, Art. 93(1)(c)) (see paras 49, 53, 54)

3. EU public contracts — Tender procedure — Award of contracts — Most economically advantageous tender — Award criteria — Choice of the contracting authorities — Limits — Compliance with the principles of transparency, equal treatment and non-discrimination (Council Regulation No 1605/2002, Arts 89 and 97; Commission Regulation No 2342/2002, Art. 138) (see paras 78, 110-112, 115-117)

4. EU public contracts — Conclusion of a contract following a call for tenders — Discretion of the institutions — Judicial review — Limits (see paras 84, 143, 220)

5. 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 — Assessment of the information available to the applicant at the time the action was brought (Art. 296 TFEU; Council Regulation No 1605/2002, Art. 100(2); Commission Regulation No 2342/2002, Art. 149(3)) (see paras 85-92)

6. Actions for annulment — Subject-matter — Application for annulment of a decision closely linked to an earlier decision — Dismissal of the application for annulment of the earlier decision entailing dismissal of the application for annulment of the subsequent decision (see para. 223)

7. 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 para. 226)

Re:

APPLICATION, first, for annulment of the Commission’s decision of 16 July 2010 to classify the applicant’s tender submitted in the context of the call for tenders DIGIT/R2/PO/2009/045, concerning ‘External service provision for development, studies and support for information systems’ (ESP DESIS II) (OJ 2009/S 198 283663), for Lot 2 ‘Off site development projects’, in third, and not first, place and to award the first and second places to other tenderers, and also of all the related decisions of the Commission’s Directorate General for Informatics, including the decisions to award the respective contracts to the tenderers classified in first and second places; and, second, for damages.

Operative part

The Court:

1. Dismisses the action;