Judgment of the General Court (Fourth Chamber) of 4 July 2016 —

Orange Business Belgium v Commission

(Case T‑349/13)

‛Public service contracts — Tender procedure — Provision of ‘Trans-European Services for Telematics between Administrations — new generation (TESTA-ng)’ — Rejection of a tenderer’s bid — Award of the contract — Transparency — Equal treatment — Non-discrimination — Obligation to state reasons’

1. European Union public contracts — Conclusion of a contract following a call for tenders — Discretion of the institutions — Judicial review — Limits (see para. 45)

2. European Union public contracts — Tender procedure — Duty to comply with the principles of equal treatment of tenderers and transparency — Scope — Obligation to formulate clearly, precisely and unequivocally the conditions and procedures for awarding the contract (European Parliament and Council Regulation No 966/2012, Arts 102(1), and 112(1)) (see paras 47-51)

3. Judicial proceedings — Introduction of new pleas during the proceedings — Conditions — Amplification of an existing plea — Admissibility — Analogous solution for claims raised in support of a plea (Rules of Procedure of the General Court (1991), Art. 48(2), first para.) (see para. 93)

4. European Union public contracts — Tender procedure — Award of contracts — Award criteria — Method of assessment — Discretion of the awarding authority (see paras 100, 101)

5. Actions for annulment — Grounds — Misuse of powers — Definition (Art. 263 TFEU) (see para. 111)

6. European Union 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 — Awarding authority applying sub-criteria not previously brought to the attention of tenderers — Not permissible — Subsequent fixing by the awarding authority of the weighting coefficients for the sub-criteria of the award criteria — Lawfulness — Conditions (European Parliament and Council Regulation No 966/2012, Art. 110(2); Commission Regulation No 1268/2012, Art. 149(1) to (3)) (see paras 116-118, 142, 143)

7. European Union public contracts — Tender procedure — Duty to comply with the principles of equal treatment of tenderers and transparency — Scope — No obligation, before the submission of tenders, to communicate the assessment method of the awarding authority (European Parliament and Council Regulation No 966/2012, Arts 102(1), and 112(1)) (see paras 138, 139)

8. European Union public contracts — Tender procedure — Award of contracts — Rejection of tenders not complying with the technical requirements set out in the tender specifications — Lawfulness (European Parliament and Council Regulation No 966/2012, Art. 102(1)) (see paras 156, 160)

9. Actions for annulment — Interest in bringing proceedings — Natural or legal persons — Action capable of securing a benefit for the applicant — Admissibility (Art. 263, fourth para., TFEU) (see paras 230, 231)

Re:

APPLICATION for annulment of the Commission’s decision of 19 April 2013 rejecting the tender submitted by the applicant in the restricted call for tenders DIGIT/R2/PR/2011/039 ‘Trans-European Services for Telematics between Administrations — new generation (TESTA-ng)’, and awarding the contract to another tenderer.

Operative part

The Court:

1. Dismisses the action;