Judgment of the General Court (Eighth Chamber) of 5 October 2012 — Evropaïki Dynamiki v Commission

(Case T-591/08)

Public service contracts — Tendering procedure — Provision of information technology services — Selection of the tenderer as second contractor in the cascade procedure — Action for annulment — Grounds for exclusion from the tendering procedure — Conflict of interests — Duty to state reasons — Manifest error of assessment — Equal treatment — Non-contractual liability

1. EU public contracts — Tender procedure — Award of contracts — Exclusion of tenderers seriously in default of their obligations under another contract — Condition — Tenderers having been subject to an administrative penalty under Article 96(1) of the Financial Regulation (Council Regulation No 1605/2002, Arts 93(1)(f), 94(c) and 96(1)(b)) (see paras 34-37, 40)

2. EU public contracts — Tender procedure — Duty to comply with the principle of equal treatment of tenderers — Need to ensure equal opportunities and comply with the principle of transparency (Council Regulation No 1605/2002, Arts 89(1) and 97(1); Commission Regulation No 2342/2002, Arts 135 to 138) (see paras 53-55, 92, 93)

3. Proceedings — Application initiating proceedings — Formal requirements — Summary statement of pleas — Simple reference to annexes — Inadmissibility (Rules of Procedure of the General Court, Art. 44(1)) (see para. 66)

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 (Art. 253 EC; Council Regulation No 1605/2002, Art. 100(2); Commission Regulation No 2342/2002, Art. 149) (see paras 76-79, 130, 137, 157)

5. EU public contracts — Conclusion of a contract following a call for tenders — Criteria for selecting candidates — Assessment of the candidates’ capacity to provide specified services — Award criteria — Comparative assessment of the particular characteristics and merits of individual tenders — Distinct operations and different rules (Council Regulation No 1605/2002, Art. 97(1) and (2); Commission Regulation No 2342/2002, Art. 138) (see para. 110)

6. EU public contracts — Conclusion of a contract following a call for tenders — Discretion of the institutions — Judicial review — Limits (see para. 158)

7. Proceedings — Introduction of new pleas during the proceedings — Conditions — New plea — Concept (Rules of Procedure of the General Court, Arts 44(1)(c) and 48(2)) (see para. 190)

8. Non-contractual liability — Conditions — Unlawfulness — Damage — Causal link — One of the conditions not satisfied — Claim for compensation dismissed in its entirety (Art. 288, second para., EC) (see para. 199)

Re:

APPLICATION for (i) annulment of the Commission decisions of 17 October 2008 selecting the applicant’s tender as second contractor in the cascade for Lots 2 and 3 under the call for tenders launched in the field of ‘Statistical Information Technologies’, concerning advisory and development services relating to the format for the exchange of statistical data and metadata (SDMX) (OJ 2008/S 120-159017), and of all further related decisions, including the decisions awarding the contract to other tenderers, and (ii) damages.

Operative part

The Court:

1. Dismisses the action;