Judgment of the General Court (Second Chamber) of 26 September 2014 — Evropaïki Dynamiki v Commission

(Case T‑498/11)

‛Public service contracts — Tender procedure — Renovation of a website — Rejection of a tenderer’s tender — Award of contract to another tenderer — Action for annulment — Obligation to state reasons — Award criteria — Manifest errors of assessment — Claim for damages’

1. Actions for annulment — Interest in bringing proceedings — Natural or legal persons — Action capable of securing a benefit for the applicant — Action brought by a tenderer, rejected before the award phase, against a decision to award a contract — Inadmissibility (Art. 263, fourth para., TFEU) (see para. 26)

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 — Assessment in the light of information available to the applicant at the time the action brought — Subsequent communication of information designed to complement a statement of reasons already sufficient — No effect (Art. 296 TFEU; Council Regulation No 1605/2002, Art. 100(2); Commission Regulation No 2342/2002, Art. 149(3)) (see paras 34, 162)

3. Judicial proceedings — Introduction of new pleas during the proceedings — Conditions — Amplification of an existing plea — Lawfulness (Rules of Procedure of the General Court, Art. 48(2)) (see para. 38)

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 analysis of the tender accepted and the tender of the unsuccessful tenderer (Art. 296 TFEU; Council Regulation No 1605/2002, Art. 100(2); Commission Regulation No 2342/2002, Art. 149(3)) (see paras 43, 45, 58, 63, 77, 103)

5. EU public contracts — Tender procedure — Award of contracts — Most economically advantageous tender — Award criteria — Choice of the contracting authorities — Criteria not exclusively quantitative — Lawfulness — Criterion attaching importance to the presentation of the tenders — Lawfulness (Council Regulation No 1605/2002, Art. 97; Commission Regulation No 2342/2002, Art. 138(2)) (see paras 109, 110, 113)

6. EU public contracts — Tender procedure — Award of contracts — Most economically advantageous tender — Award criteria — Observance of the principle of equal treatment of tenderers and of the principle of transparency — Later fixing by the adjudicating authority of the weighting coefficients for the sub-criteria of the award criteria laid down in the contract documents or in the contract notice — Lawfulness — Conditions (Council Regulation No 1605/2002, Art. 97(2); Commission Regulation No 2342/2002, Art. 138(1) to (3)) (see paras 120-122)

7. EU public contracts — Conclusion of a contract following a call for tenders — Discretion of the institutions — Judicial review — Limits (see para. 123)

8. EU public contracts — Tender procedure — Obligation to communicate to unsuccessful tenderers elements concerning the successful tender — Compliance with the obligation not implying the realisation by the awarding authority of an assessment based on a comparative analysis of the tenders (Council Regulation No 1605/2002, Art. 100(2); Commission Regulation No 2342/2002, Art. 149(3)) (see para. 156)

9. 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 264-268)

Re:

APPLICATION (i) for annulment of the decision of the Publications Office of the European Union rejecting the tender submitted by the applicant concerning a supply of services relating to the revamping of the website of the European Anti-Fraud Office (OLAF) and of the decision to award the contract to another tenderer, and (ii) for damages.

Operative part

The Court:

1. Dismisses the action;

2. Orders Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE to bear its own costs and to pay those incurred by the European Commission.

Judgment of the General Court (Second Chamber) of 26 September 2014 — Evropaïki Dynamiki v Commission

(Case T‑498/11)

‛Public service contracts — Tender procedure — Renovation of a website — Rejection of a tenderer’s tender — Award of contract to another tenderer — Action for annulment — Obligation to state reasons — Award criteria — Manifest errors of assessment — Claim for damages’

1. Actions for annulment — Interest in bringing proceedings — Natural or legal persons — Action capable of securing a benefit for the applicant — Action brought by a tenderer, rejected before the award phase, against a decision to award a contract — Inadmissibility (Art. 263, fourth para., TFEU) (see para. 26)

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 — Assessment in the light of information available to the applicant at the time the action brought — Subsequent communication of information designed to complement a statement of reasons already sufficient — No effect (Art. 296 TFEU; Council Regulation No 1605/2002, Art. 100(2); Commission Regulation No 2342/2002, Art. 149(3)) (see paras 34, 162)

3. Judicial proceedings — Introduction of new pleas during the proceedings — Conditions — Amplification of an existing plea — Lawfulness (Rules of Procedure of the General Court, Art. 48(2)) (see para. 38)

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 analysis of the tender accepted and the tender of the unsuccessful tenderer (Art. 296 TFEU; Council Regulation No 1605/2002, Art. 100(2); Commission Regulation No 2342/2002, Art. 149(3)) (see paras 43, 45, 58, 63, 77, 103)

5. EU public contracts — Tender procedure — Award of contracts — Most economically advantageous tender — Award criteria — Choice of the contracting authorities — Criteria not exclusively quantitative — Lawfulness — Criterion attaching importance to the presentation of the tenders — Lawfulness (Council Regulation No 1605/2002, Art. 97; Commission Regulation No 2342/2002, Art. 138(2)) (see paras 109, 110, 113)

6. EU public contracts — Tender procedure — Award of contracts — Most economically advantageous tender — Award criteria — Observance of the principle of equal treatment of tenderers and of the principle of transparency — Later fixing by the adjudicating authority of the weighting coefficients for the sub-criteria of the award criteria laid down in the contract documents or in the contract notice — Lawfulness — Conditions (Council Regulation No 1605/2002, Art. 97(2); Commission Regulation No 2342/2002, Art. 138(1) to (3)) (see paras 120-122)

7. EU public contracts — Conclusion of a contract following a call for tenders — Discretion of the institutions — Judicial review — Limits (see para. 123)

8. EU public contracts — Tender procedure — Obligation to communicate to unsuccessful tenderers elements concerning the successful tender — Compliance with the obligation not implying the realisation by the awarding authority of an assessment based on a comparative analysis of the tenders (Council Regulation No 1605/2002, Art. 100(2); Commission Regulation No 2342/2002, Art. 149(3)) (see para. 156)

9. 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 264-268)

Re:

APPLICATION (i) for annulment of the decision of the Publications Office of the European Union rejecting the tender submitted by the applicant concerning a supply of services relating to the revamping of the website of the European Anti-Fraud Office (OLAF) and of the decision to award the contract to another tenderer, and (ii) for damages.

Operative part

The Court:

1. Dismisses the action;