JUDGMENT OF THE COURT OF FIRST INSTANCE (Sixth Chamber)
20 May 2009 (*)
(Public service contracts – Community tender procedure – Transport for Members of the Parliament in chauffeur-driven cars and minibuses during part-sessions in Strasbourg – Rejection of a tenderer’s bid – Obligation to state the reasons on which the decision is based – Refusal to disclose the price offered by the successful tenderer – Action for damages)
In Case T‑89/07,
VIP Car Solutions SARL, established in Hoenheim (France), represented by G. Welzer and S. Leuvrey, lawyers,
applicant,
v
European Parliament, represented by D. Petersheim and M. Ecker, acting as Agents,
defendant,
ACTION, first, for annulment of the decision by which the Parliament refused to award the applicant the contract in tender procedure PE/2006/06/UTD/1 relating to transport for Members of the Parliament in chauffeur-driven cars and minibuses during part-sessions in Strasbourg and, secondly, for damages,
THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Sixth Chamber),
composed of A.W.H. Meij, President, V. Vadapalas (Rapporteur) and E. Moavero Milanesi, Judges,
Registrar: C. Kristensen, Administrator,
having regard to the written procedure and further to the hearing on 9 December 2008,
gives the following
Judgment
Legal context
1 Procedures for the award of service contracts by the European Parliament are subject to Title V of Part 1 of Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 248, p. 1) (‘the Financial Regulation’) and to Title V of Part 1 of Commission Regulation (EC, Euratom) No 2342/2002 of 23 December 2002 laying down detailed rules for the implementation of the Financial Regulation (OJ 2002 L 357, p. 1) (‘the Implementing Rules’). Those provisions are based on the Community directives in the field, in particular, as regards service contracts, on Council 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts (OJ 1992 L 209, p. 1), as amended in particular by Directive 97/52/EC of the European Parliament and of the Council of 13 October 1997 (OJ 1997 L 328, p. 1), now repealed and replaced by Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (OJ 2004 L 134, p. 114).
2 Article 100(2) of the Financial Regulation states:
‘The contracting authority shall notify all candidates or tenderers whose applications or tenders are rejected of the grounds on which the decision was taken, and all tenderers whose tenders are admissible and who make a request in writing of the characteristics and relative advantages of the successful tender and the name of the tenderer to whom the contract is awarded.
However, certain details need not be disclosed where disclosure would hinder application of the law, would be contrary to the public interest or would harm the legitimate business interests of public or private undertakings or could distort fair competition between those undertakings.’
3 Article 149(3) of the version of the Implementing Rules applicable to the facts of the case provides:
‘In the case of contracts awarded by the Community institutions on their own account, under Article 105 of the Financial Regulation, the contracting authority shall inform all unsuccessful tenderers or candidates, simultaneously and individually, as soon as possible after the award decision and within the following week at the latest, by mail and fax or e-mail, that their application or tender has not been accepted; specifying in each case the reasons why the tender or application has not been accepted.
The contracting authority shall, at the same time as the unsuccessful candidates or tenderers are informed that their tenders or applications have not been accepted, inform the successful tenderer of the award decision, specifying that the decision notified does not constitute a commitment on the part of the contracting authority.
Unsuccessful tenderers or candidates may request additional information about the reasons for their rejection in writing by mail, fax or e-mail, and all tenderers who have put in an admissible tender may obtain information about the characteristics and relative merits of the tender accepted and the name of the successful tenderer, without prejudice to the second subparagraph of Article 100(2) of the Financial Regulation. The contracting authority shall reply within no more than fifteen calendar days from receipt of the request.
...’
Facts
4 The applicant, VIP Car Solutions SARL, is a hire company providing chauffeur-driven vehicles.
5 In a contract notice published in the Supplement to the Official Journal of the European Union of 16 September 2006 (OJ 2006 S 177), the Parliament issued call for tenders PE/2006/06/UTD/1 for chauffeur-driven car and minibus service for Members of the European Parliament during part-sessions in Strasbourg (‘the call for tenders’).
6 Under point IV.2.1 of the invitation to tender the contract was to be awarded to the tender offering best value for money assessed on the following weighted criteria: price (55%), vehicle fleet provided (quantity and quality) (30%), measures taken or specific to the vehicles to meet environmental requirements (7%), staff social policy (6%) and tender presentation (2%).
7 The final date for receipt of tenders or requests to participate was 27 October 2006. Three tenders were deposited within the period prescribed, including that of the applicant. On 6 November 2006 the commission for the opening of tenders declared that the three tenders complied with the invitation to tender.
8 On 30 November 2006, the tender evaluation committee (‘the evaluation committee’) proposed to award the contract to a tenderer other than the applicant; that tenderer having received a total of 566 points, made up as follows: 290 points for the price, 180 points for the vehicle fleet, 42 points for environmental measures, 36 points for social policy and 18 points for tender presentation.
9 The applicant was placed second, with a total of 504 points, made up as follows: 343.5 points for the price, 135 points for the vehicle fleet, 0 points for environmental measures, 18 points for social policy and 8 points for tender presentation.
10 On 3 January 2007, the Parliament awarded the contract to the tenderer proposed by the evaluation committee (‘the successful tenderer’).
11 On 9 January 2007, the Parliament sent the following e-mail to the applicant:
‘Please find attached the letter regarding your tender. You will receive the original of this letter by registered post. Please acknowledge receipt of this [e-mail?].’
12 By means of this unsigned and undated letter attached to the e-mail, the Parliament informed the applicant of the decision not to accept its tender under the invitation to tender (‘the contested decision’).
13 The contested decision states, inter alia, the following:
‘The reasons for the rejection of your tender are as follows: tender not tender offering best value for money with regard to the award criteria.
You can obtain additional information on the reasons for the rejection of your tender, without prejudice to a possible legal challenge.
If you apply in writing, you will be able to obtain information on the characteristics and relative advantages of the successful tender and the name of the party to which the contract has been awarded.
However, certain details will not be disclosed where disclosure would hinder application of the law, would be contrary to the public interest or would harm the legitimate business interests of public or private undertakings or could distort fair competition between those undertakings ...’
14 By e-mail of 10 January 2007, the applicant replied as follows:
‘We acknowledge receipt of your [e-mail] regarding the rejection of our tender. However, as you propose, we wish to know the characteristics and relative advantages of the successful tender and the name of the tenderer to which the contract has been awarded. As our tender was not more advantageous in economic terms, could you indicate the hourly rate proposed by the successful company [?]’
15 By letter of 15 January 2007, the applicant again asked the Parliament to notify it of the characteristics and relative advantages of the successful tender, the name of the company to which the contract had been awarded and the price offered by the successful tenderer. It pointed out that at that date it had still not received the original of the registered letter stating that its tender had been rejected.
16 By letter of 23 January 2007, the Parliament replied to the applicant’s e-mail of 10 January 2007. Citing Article 100(2) of the Financial Regulation, it recalled the weighted award criteria laid down in the call for tenders and then stated the following:
‘As the successful tender received the highest marks ... for the above-mentioned criteria taken together (566), it was for that reason classified in first place.
In spite of offering a slightly lower price, your tender received 504 points, and was accordingly placed second.’
17 In that letter the Parliament also notified the applicant of the name of the tenderer to which the contract had been awarded.
18 On 24 January 2007, the Parliament sent the applicant the original of the letter informing it of the decision to reject its tender.
19 By e-mail of 31 January 2007, the Parliament asked the applicant if it had received that letter. By e-mail of the same day the applicant replied that it had not.
20 By letter of 1 March 2007, the applicant pointed out, via its lawyer, that it had offered an exceptional price in the call for tenders and asked for a copy of the bid submitted by the successful tenderer in order to know the price the latter had submitted.
21 By letter of 20 March 2007 addressed to the applicant’s lawyer, the Parliament rejected that request, citing the second subparagraph of Article 100(2) of the Financial Regulation, and added the following:
‘... We wish to point out that within 48 days of the signing of the contract the call for tender[s] will give rise to the publication, in the Official Journal of the European Union, of a contract award notice containing the essential information, such as the price paid.
We note that your “clients know that they had offered an exceptional price”.
At any event, we are bound to remind you that price was not the only award criterion. The qualitative and functional criteria are of particular importance for an institution such as ours and may justify a higher cost.
Our assessment “that in spite of offering a slightly lower price” related precisely to that aspect of the invitation to tender; we indicated in particular that although your clients’ tender had received the highest score with regard to price, the total score determined by the evaluation committee, which took into account all of the criteria listed in the specifications, did not enable them to win the contract. As they have already been informed, their tender received a total of 504 points, against 566 for that of the tenderer to which the contract has been awarded.’
22 By letter of 23 March 2007, the applicant stated that, since the price criterion counted for 55% in the evaluation of tenders, the award of the contract to a tenderer other than itself was impossible and the refusal to disclose the price offered by the successful tenderer prevented it from verifying the terms on which the contract had been awarded before expiry of the period for bringing proceedings before the Court of First Instance.
23 On 7 April 2007, the contract award notice was published in the Supplement to the Official Journal (OJ 2007 S 69). It indicated that the price offered by the successful tenderer was EUR 26 per hour outside the schedule and EUR 37.50 per hour in accordance with the schedule.
Procedure and forms of order sought
24 The applicant brought the present action by application lodged at the Registry of the Court of First Instance on 23 March 2007.
25 As one member of the Chamber was unable to sit in the present case, the President of the Court of First Instance designated another judge to complete the Chamber pursuant to Article 32(3) of the Rules of Procedure.
26 Upon hearing the report of the Judge-Rapporteur, the Court of First Instance (Sixth Chamber) decided to open the oral procedure and, in the context of the measures of organisation of procedure laid down in Article 64 of the Rules of Procedure, requested the parties to produce documents. The parties complied with that request within the period prescribed.
27 The parties submitted oral argument and replied to the questions put by the Court at the hearing on 9 December 2008.
28 In its application, the applicant claims that the Court should:
– declare the action admissible;
– annul the contested decision;
– annul all measures adopted subsequently to the contested decision;
– order the Parliament to pay the sum of EUR 500 000 by way of damages;
– order the Parliament to pay one-off costs amounting to EUR 5 000;
– order the Parliament to pay the costs.
29 In its reply, the applicant claims in addition that the Court should:
– instruct the Parliament to organise a proper procedure for calls for tenders.
30 In its defence the Parliament contends that the Court should:
– dismiss the action for annulment;
– dismiss the claim for damages;
– dismiss the application to order the Parliament to pay one-off costs amounting to EUR 5 000;
– order the applicant to pay the costs.
31 In its rejoinder, the Parliament contends in addition that the Court should:
– dismiss the application to instruct it to organise a proper procedure for calls for tenders.
32 At the hearing, in reply to a question from the Court, the applicant withdrew the head of claim in which it had applied for the Parliament to be ordered to pay one-off costs amounting to EUR 5 000; this withdrawal was noted in the minutes of the hearing.
Law
The application for annulment of the contested decision
33 The applicant essentially raises two pleas in law, alleging first infringement of the obligation to provide an adequate statement of reasons and secondly that the refusal to disclose the price offered by the successful tenderer is improper.
The first plea, based on infringement of the obligation to provide an adequate statement of reasons
– Arguments of the parties
34 In its application the applicant notes that in the call for tenders the price criterion counted for 55%, in other words more than half of the total for the award criteria. It emphasises that it offered the lowest price, EUR 31.70 per hour. However, it received only 504 points compared with 566 points for the successful tenderer. The applicant states that it cannot understand this difference in the number of points when it submitted the best tender from the point of view of price. In its view, on mathematical grounds the contract could not be awarded to another tenderer.
35 In its reply, the applicant points out that the Parliament admitted having made a mistake in calculating its total points, which demonstrates that the evaluation committee failed to undertake its duties properly.
36 As regards the criterion of the vehicle fleet, the applicant states that the Parliament had arbitrarily allocated two-thirds of the points to the quantitative aspect and only one-third to the qualitative aspect. It asserts that it had never been informed of that apportionment, which it considers unjustified, as the ownership of the vehicles is not more important than their quality. Since the tenderers all received the same score for the quality criterion, the difference in the number of points between the applicant and the successful tenderer should have been smaller.
37 As regards the criterion relating to environmental measures, the applicant considers it impossible for it to have received a zero score. In fact, like the successful tenderer, it is subject to French legislation on chauffeur-driven transport companies, which requires vehicles to be in an excellent state of mechanical repair and to undergo annual checks. Hence, it maintains that all its vehicles are recent models fitted with particle filters. In its opinion, the difference of 42 points cannot therefore be justified on the sole ground that the tenderer had signed the anti-pollution charter of the Mairie de Paris.
38 With regard to the social policy criterion, one of the two open-ended contracts of the successful tenderer was, according to the applicant, in fact a fixed-term contract for additional work, or even a temporary contract. The contract in question was entitled ‘Intermittent employment contract for an unlimited period’, two terms which, in the opinion of the applicant, are antonyms. Moreover, according to the applicant, the employment contracts of both the applicant and the successful tenderer come from the national association of chauffeur-driven vehicle undertakings. Hence the difference in the number of points between the two tenderers was not objectively justified.
39 Finally, the applicant maintains that the tender presentation criterion related to the form of the tender and not to its substance. The tender of the successful tenderer could therefore not be ‘unquestionably better’ on the basis of that criterion. Furthermore, the applicant was the only one to submit its tender in the form of a DVD in addition to a presentation which complied with all the required formalities. Nevertheless, it received a lower score than the successful tenderer.
40 It its defence, the Parliament states that the award criteria other than the price had a weighting of 45% and could therefore affect the outcome of the evaluation of the various tenders. It maintains that it operated objectively when examining the tenders.
41 In that regard, the Parliament states that the evaluation committee awarded a score in respect of each criterion from 0 to 10, the score obtained then being multiplied by the percentage for the criterion. As regards the two main criteria, namely the price and the quantitative aspect of the vehicle fleet, in order to be objective the evaluation committee decided to evaluate the score of the current contract, which was neutral in relation to the contract to be awarded, and to multiply this first objective score by the ratio between the services provided by the preceding contractor and those offered by each of the tenderers.
42 For the score relating to the price the evaluation committee thus considered that the price under the existing contract, that is to say EUR 33, should be regarded as reasonable and it awarded it a mark of 6. As the prices offered by the applicant and the successful tenderer were respectively EUR 31.70 and EUR 37.50 per hour, the following results were obtained:
– for the applicant: 33: 31.70 x 6 x 55 = 343.5 points;
– for the successful tenderer: 33: 37.5 x 6 x 55 = 290.4 points.
43 With regard to the vehicle fleet criterion, according to the Parliament the evaluation committee considered that the quantitative aspect took precedence and allocated two thirds of the score to it, in other words 20 points. A score of 6 was awarded to the fleet of 60 vehicles offered by the previous contractor. For the applicant the evaluation committee recorded a fleet of 70 vehicles (60 cars and 10 minibuses) and for the successful tenderer a fleet of 60 vehicles. According to the Parliament, for the sake of comparability, account was also taken of the direct availability of the vehicles. In that regard, a coefficient of 0.5 was applied to the applicant’s vehicle fleet because 67 of the 70 vehicles were to be leased from another company. This evaluation therefore produced the following results:
– for the applicant: 70: 60 x 6 x 0.5 x 20 = 70 points;
– for the successful tenderer: 60: 60 x 6 x 1 x 20 = 120 points.
44 As regards the criterion relating to the quality of the vehicle fleet, the applicant and the successful tenderer both received a score of 10, which after weighting for this criterion led to the award of the following points:
– for the applicant: 6 x 10 = 60 points;
– for the successful tenderer: 6 x 10 = 60 points.
45 The Parliament admits that the evaluation committee made a mistake in recording 135 points for the criterion relating to the applicant’s vehicle fleet. In fact, the number of points was 130, which means that the applicant received a total of 499 points and not 504 points.
46 The Parliament maintains that only the successful tenderer submitted information for the criterion relating to environmental measures, namely that it complied with the anti-pollution charter of the Mairie de Paris and that its vehicles, of recent manufacture, were fitted with particle filters, which led to the award of the following points:
– for the applicant: 0 x 7 = 0 points;
– for the successful tenderer: 6 x 7 = 42 points.
47 With regard to the social policy criterion, the Parliament asserts that the successful tenderer proposed two types of open-ended employment contracts, one of which was for intermittent staff, whereas the applicant’s drivers had only fixed-term employment contracts. The Parliament argues that, taking account of the weighting applied to this criterion, the difference between the two tenders was reflected in the following allocation of points:
– for the applicant: 3 x 6 = 18 points;
– for the successful tenderer: 6 x 6 = 36 points.
48 Finally, as regards the tender presentation criterion, in the opinion of the Parliament the successful tenderer’s presentation was undeniably better, so that, having regard to the weighting attached to this criterion, the following points were awarded:
– for the applicant: 4 x 2 = 8 points;
– for the successful tenderer: 9 x 2 = 18 points.
49 The total number of points awarded to each tender was therefore made up as follows:
– for the applicant: 343 + 70 + 60 + 0 + 18 + 8 = 499 points;
– for the successful tenderer: 290 + 120 + 60 + 42 + 36 + 18 = 566 points.
50 The Parliament states that, upon verification, the authorising officer realised that the vehicle fleet of the successful tenderer consisted of 70 vehicles, leading in fact to the award of a total of 586 points.
51 The Parliament thus maintains that the tender of the successful tenderer offered distinct qualitative advantages over that of the applicant, whose tender was better only on price. In that regard, the Parliament notes that the contract was to be awarded to the tenderer offering best value for money. Since the procedure did not involve tenderers being classified solely on the basis of price, the contract could not be awarded directly to the financially lowest tender.
52 In its reply, the Parliament adds that the applicant appears to confuse a lack of objectivity with the discretion of the contracting authority, with regard to which review by the Court of First Instance must be confined to verifying that no manifest error of assessment has been committed.
53 As regards the criterion relating to the vehicle fleet, the Parliament, citing the case-law of the Court of Justice, argues that an evaluation committee may decide to attach specific weight to the subheadings of an award criterion which are defined in advance, by dividing among those headings the points awarded for that criterion by the contracting authority when the contract documents or the notice were prepared, provided first that that decision does not alter the criteria for the award of the contract set out in the contract documents or the contract notice, secondly that it does not contain elements which, if they had been known at the time the tenders were prepared, could have affected that preparation, and thirdly that it was not adopted on the basis of matters likely to give rise to discrimination against one of the tenderers. According to the Parliament, the applicant has not shown that these conditions were not met in the present case.
54 As to environmental measures, the Parliament notes that the applicant’s tender did not state how it satisfied that criterion, which explains its zero score.
55 Finally, as regards the last award criterion, the Parliament maintains that a presentation in the form of a DVD does not of itself justify considering the applicant’s tender as being better presented than that of the successful tenderer. The deciding factor, according to the Parliament, was the attractive and convincing nature of the tender and not the medium.
– Findings of the Court
56 It must be noted at the outset that the Parliament, in the same way as the other institutions, has a broad discretion with regard to the factors to be taken into account for the purpose of deciding to award a contract following an invitation to tender. The Court’s review of the exercise of that discretion is therefore limited to checking that the rules governing the procedure and statement of reasons are complied with, the facts are correct and there is no manifest error of assessment or misuse of powers (see, by analogy, Case T‑211/02 Tideland Signal v Commission [2002] ECR II‑3781, paragraph 33, and judgment of 10 September 2008 in Case T‑465/04 Evropaïki Dynamiki v Commission, not published in the ECR paragraph 45).
57 Under Article 1 of the administrative specifications of the invitation to tender, the award of the contract in question was governed by the Financial Regulation and the Implementing Rules.
58 Consequently, as regards the statement of reasons for the contested decision by which it rejected the applicant’s tender, the Parliament was under an obligation in the present case to apply Article 100(2) of the Financial Regulation and Article 149(3) of the Implementing Rules.
59 It follows from these articles and from the case-law of the Court of First Instance that the Parliament will meet its obligation to state reasons if it satisfies itself, first, that it has immediately notified all rejected tenderers of the reasons for the rejection of their tender and then provides tenderers who submitted an admissible tender and who expressly request it with the characteristics and relative advantages of the successful tender and the name of the tenderer to which the contract was awarded within fifteen calendar days of receipt of a written request (see, to that effect and by analogy, judgment of 10 September 2008 in Case T‑465/04 Evropaïki Dynamiki v Commission, cited in paragraph 56 above, paragraph 47).
60 Such a manner of proceeding satisfies the purpose of the duty to state reasons enshrined in Article 253 EC, according to which the reasoning followed by the authority which adopted the measure must be disclosed in a clear and unequivocal fashion so as, on the one hand, to make the persons concerned aware of the reasons for the measure and thereby enable them to defend their rights and, on the other, to enable the Court to exercise its supervisory jurisdiction (Case T‑465/04 Evropaïki Dynamiki v Commission, cited in paragraph 56 above, paragraph 48).
61 Moreover, it must be emphasised that where, as in the present case, a Community institution has broad powers of appraisal, respect for the rights guaranteed by the Community legal order in administrative procedures is of even more fundamental importance. Those guarantees include, in particular, the duty of the competent institution to provide adequate reasons for its decisions. Only in this way can the Court verify whether the factual and legal elements upon which the exercise of the power of appraisal depends were present (Case C‑269/90 Technische Universität München [1991] ECR I‑5469, paragraph 14; Case T‑241/00 Le Canne v Commission [2002] ECR II‑1251, paragraphs 53 and 54; and Case T‑465/04 Evropaïki Dynamiki v Commission, cited in paragraph 56 above, paragraph 54).
62 It should also be pointed out that the requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations (see Case C‑367/95 P Commission v Sytraval and Brink’s France [1998] ECR I‑1719, paragraph 63 and the case-law cited).
63 Finally, the obligation to state reasons is an essential procedural requirement, as distinct from the question whether the reasons given are correct, which goes to the substantive legality of the contested measure (Case C‑17/99 France v Commission [2001] ECR I‑2481, paragraph 35, and judgment of 12 November 2008 in Case T‑406/06 Evropaïki Dynamiki v Commission, not published in the ECR, paragraph 47).
64 In this regard, it must be considered that in its application the applicant essentially claims infringement of the obligation to state reasons, in that it was unable to understand why it was not awarded the contract, having offered the lowest price in circumstances where that criterion counted for 55% in the evaluation of tenders. It must also be noted that in its defence the Parliament understood the applicant’s line of argument as complaining that the Parliament had not stated reasons for the contested decision by which it refused to award the contract to the applicant.
65 In any event, according to settled case-law, the statement of the reasons on which a decision adversely affecting a person is based must allow the Court to exercise its power of review as to its legality and must provide the person concerned with the information necessary to enable him to decide whether or not the decision is well founded. Accordingly, the fact that a statement of reasons is lacking or inadequate, hindering that review of legality, constitutes a matter of public interest which may, and even must, be raised by the Community judicature of its own motion (Case C‑166/95 P Commission v Daffix [1997] ECR I‑983, paragraphs 23 and 24, and judgment of 10 September 2008 in Case T‑272/06 Evropaïki Dynamiki v Court of Justice, not published in the ECR, paragraphs 27 and 28 and the case-law cited).
66 Hence, in the present case, as the applicant submitted an admissible tender within the meaning of Article 149(3) of the Implementing Rules, it is necessary to examine not only the contested decision but also the letter of 23 January 2007 sent to the applicant in reply to its express request for additional information on the decision to award the contract in question, in order to establish whether the Parliament met the requirement to state adequate reasons laid down in the Financial Regulation and in the Implementing Rules.
67 It must be found, first of all, that in the contested decision the Parliament confined itself, in accordance with the first subparagraph of Article 100(2) of the Financial Regulation, to stating the reasons for rejecting the applicant’s tender. It indicated that the applicant’s tender was ‘not the tender offering the best value for money with regard to the award criteria’.
68 Then, in its letter of 23 January 2007, the Parliament merely indicated the following:
‘As the successful tender received the highest marks ... for the above-mentioned criteria taken together (566), it was for that reason classified in first place.
In spite of offering a slightly lower price, your tender received 504 points, and was accordingly placed second.’
69 Hence, although the Parliament replied within the period laid down in Article 149(3) of the Implementing Rules, it did not give the applicant any information on the characteristics and relative advantages of the successful tender, except that the price proposed by the applicant was slightly lower, despite being required to provide such information under the Financial Regulation and the Implementing Rules.
70 Such a reply does not disclose in a clear and unequivocal fashion the reasoning followed by the Parliament so as, on the one hand, to make the applicant aware of the reasons for the measure and thereby enable it to defend its rights and, on the other, to enable the Court to exercise its power of review.
71 Moreover, in the circumstances of the case, that information was all the more necessary as the price offered by the applicant was lower than that offered by the successful tenderer and the price criterion was allocated a weight of 55% in the overall evaluation of the tenders. Hence, the applicant was not in possession of any fact that would enable it to understand why its tender had not been successful in the tendering procedure.
72 It should be added that the Parliament sent the applicant a further letter on 20 March 2007 in reply to its letter of 1 March 2007.
73 In that regard, according to the case-law, if the institution concerned sends a letter in response to a request from the applicant seeking additional explanations about a decision before instituting proceedings but after the date laid down in Article 149(3) of the Implementing Rules, that letter may also be taken into account when examining whether the statement of reasons in the case in question is adequate. The requirement to state reasons must be assessed in the light of the information which the applicant possessed at the time of instituting proceedings, it being understood, however, that the institution is not permitted to replace the original statement of reasons by an entirely new statement (see to that effect and by analogy, Case T‑465/04 Evropaïki Dynamiki v Commission, cited in paragraph 56 above, paragraph 59).
74 However, it must be stated that the letter of 20 March 2007 contains no information on the characteristics and relative advantages of the successful tender. In fact, the Parliament merely repeated what it had already told the applicant in its letter of 23 January 2007.
75 Finally, it must be noted that the Parliament provided information on the statement of reasons for the contested decision in the course of the court proceedings. In its defence statement it details the points awarded to the applicant and to the successful tenderer for each of the award criteria and the reasons which, in its opinion, justified those scores.
76 However, the fact that the Parliament provided the reasons for that decision in the course of the proceedings does not compensate for the inadequacy of the initial statement of reasons for the contested decision. It is settled case-law that the reasons for a decision cannot be explained for the first time ex post facto before the Court, save in exceptional circumstances which, in the absence of urgency, are not present in this case (see, to that effect, Case T‑61/89 Dansk Pelsdyravlerforening v Commission [1992] ECR II‑1931, paragraph 131, and judgment of 24 September 2008 in Case T‑264/06 DC-Hadler Networks v Commission, not published in the ECR, paragraph 34).
77 It follows from all of the foregoing that the decision by which the Parliament refused to award the contract to the applicant is vitiated by the absence of an adequate statement of reasons in accordance with Article 100(2) of the Financial Regulation and Article 149(3) of the Implementing Rules.
78 Accordingly, the first plea must be upheld.
The second plea, based on the impropriety of the refusal to disclose the price offered by the successful tenderer.
– Arguments of the parties
79 The applicant maintains that the refusal to disclose the price proposed by the successful tenderer is improper. First, according to the applicant, the price offered by that tenderer does not fall within the scope of the second subparagraph of Article 100(2) of the Financial Regulation. The applicant contends that its disclosure would not harm the successful tenderer. Moreover, in a context of transparency, it would be normal to know the precise reasons for the rejection of a tender for a contract of this size.
80 The applicant also points out that the price offered by the successful tenderer had to be published in the Supplement to the Official Journal within 48 days of signature of the contract. Hence, disclosure of that price could not harm the legitimate business interests of the successful tenderer or distort fair competition.
81 The Parliament’s refusal to meet the applicant’s request also had the effect of shortening the period for bringing proceedings before the Court.
82 The Parliament replies that Article 100(2) of the Financial Regulation does not imply an absolute obligation to disclose the price offered by the successful tenderer. It contends that the ‘characteristics and relative advantages of the successful tender’ consist rather in a comparative description of the tenders. Accordingly, the contracting authority retains a degree of discretion as regards the information it is required to disclose to the unsuccessful tenderer.
83 Moreover, it is legitimate to regard the price as one of the factors whose disclosure would harm the business interests of an undertaking, within the meaning of the second subparagraph of Article 100(2) of the Financial Regulation. Such information should therefore be disclosed only as a last resort. The Parliament recognises, however, that the price offered by the successful tenderer was contained in the contract award notice published in the Supplement to the Official Journal.
84 Moreover, the refusal to disclose the price offered by the successful tenderer did not prevent the applicant from bringing proceedings before the Court within the prescribed period.
85 In reply to a question put by the Court at the hearing, the Parliament developed its line of argument by stating that, until publication of the award notice, the contract could still have been annulled as a result of challenges brought before signature of the contract. In that case, non-disclosure of the price would make it possible to prevent the other tenderers from knowing that aspect of the tender of the successful tenderer, which could therefore resubmit its tender on the same terms.
– Findings of the Court
86 As a preliminary matter, it must be pointed out that the Parliament, in response to the applicant’s request of 10 January 2007 for additional information, merely indicated that the price offered by the successful tenderer was slightly higher than the applicant’s. That price, that is to say, EUR 26 per hour outside the schedule and EUR 37.50 in accordance with the schedule, was disclosed publicly in the contract award notice of 7 April 2007.
87 However, pursuant to the first subparagraph of Article 100(2) of the Financial Regulation, the Parliament was required to notify the unsuccessful tenderer, upon written request, of the characteristics and relative advantages of the successful tender.
88 Hence, in response to the applicant’s written request the Parliament was obliged to inform it of the price offered by the successful tenderer, that price being one of the characteristics and one of the relative advantages of the successful tender, particularly as, in the circumstances of the case, this criterion counted for 55% in the evaluation of the tenders.
89 None of the arguments put forward by the Parliament is capable of calling that finding into question.
90 First, the argument that the contracting authority retains a degree of discretion does not justify its refusal to disclose to the unsuccessful tenderer who requests it in writing the price offered by the successful tenderer. In that regard, the Parliament cannot simply state that the price is not one of the characteristics and relative advantages of the tender of an undertaking to which a contract is awarded where, as indicated above, that criterion counted in the present case for 55% in the evaluation of the tenders.
91 Secondly, while it is true that pursuant to the second subparagraph of Article 100(2) of the Financial Regulation certain details need not be disclosed where disclosure would hinder application of the law, would be contrary to the public interest or would harm the legitimate business interests of public or private undertakings or could distort fair competition between those undertakings, in its statement of defence the Parliament does not explain how, in the present case, disclosure of the price offered by the successful tenderer would harm its business interests and, moreover, it notes that the price was mentioned in the contract award notice.
92 Thirdly, the argument that the contracting authority may decide, as it is permitted to do under Article 101 of the Financial Regulation, to abandon the procurement or cancel the award procedure before the contract is signed does not absolve the Parliament, in the circumstances of the case, from notifying the applicant of the price offered by the successful tenderer. To accept such an argument would be tantamount to rendering meaningless the obligation to provide a statement of reasons laid down in the first subparagraph of Article 100(2) of the Financial Regulation and in Article 149(3) of the Implementing Rules.
93 In these circumstances, the second plea must be upheld.
94 It follows from all of the foregoing that the contested decision must be annulled.
The application for annulment of measures adopted subsequently to the contested decision
95 In its third head of claim, the applicant asks the Court to annul all the measures adopted subsequently to the contested decision.
96 In this regard, It should be noted that, under the first paragraph of Article 21 of the Statute of the Court of Justice, which applies to the procedure before the Court of First Instance by virtue of the first paragraph of Article 53 of that statute, and under Article 44(1)(c) of the Rules of Procedure, all applications must indicate the subject-matter of the dispute and contain a summary of the pleas in law on which the application is based. That statement must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to exercise its power of review. In order to guarantee legal certainty and the sound administration of justice, it is necessary that the basic legal and factual particulars relied on be indicated, at least in summary form, coherently and intelligibly in the application itself (orders in Case T‑85/92 De Hoe v Commission [1993] ECR II‑523, paragraph 20, and Case T‑294/04 Internationaler Hilfsfonds v Commission [2005] ECR II‑2719, paragraph 23).
97 In the present case, the applicant does not specify the measures to which its third head of claim relates and does not put forward any arguments in support of its request.
98 Accordingly, the third head of claim must be dismissed as inadmissible.
The claim for compensation
Arguments of the parties
99 In its application the applicant claims that the Parliament should be ordered to pay EUR 500 000 in damages.
100 In its reply, the applicant points out that it met all the conditions for award of the contract. Consequently, the Parliament infringed all of the rules of law governing the award of the contract and the applicant’s claim for damages is admissible.
101 With regard to the damage sustained, the applicant states that it suffered economically by not being the undertaking to which the contract was awarded. It was unable to benefit from the advantages that it was legitimately entitled to expect.
102 The Parliament contends that the applicant’s claim for damages is inadmissible.
Findings of the Court
103 According to settled case-law, an application seeking compensation for damage caused by a Community institution must state the evidence from which the conduct alleged against the institution can be identified, the reasons for which the applicant considers there to be a causal link between that conduct and the damage it claims to have suffered, and the nature and extent of that damage (Case T‑38/96 Guérin automobiles v Commission [1997] ECR II‑1223, paragraph 42, and Case T‑19/01 Chiquita Brands and Others v Commission [2005] ECR II‑315, paragraph 65).
104 In the present case, it must be found that the claim for damages contained in the application, which is merely the subject of a head of claim, lacks even the most basic details.
105 Even supposing that the application stated the evidence from which the conduct alleged against the Parliament can be identified, it is silent as to the nature and character of the alleged damage and the reasons for which the applicant considers there to be a causal link between that conduct and the damage.
106 Furthermore, and even supposing that it would have been admissible to do so, the applicant has not in fact attempted to remedy these omissions in its reply.
107 It follows that as far as the claim for damages is concerned the application does not meet the conditions laid down in Article 44(1) (c) of the Rules of Procedure.
108 In those circumstances, the claim for damages must be declared inadmissible.
The request to instruct the Parliament to organise a proper procedure for calls for tenders
109 At the stage of the reply, the applicant asked the Court to instruct the Parliament to organise a proper procedure for calls for tenders.
110 Under Article 44(1)(c) of the Rules of Procedure an applicant is required to state in the application the subject-matter of the proceedings and the form of order sought. Although Article 48(2) of those rules authorises, in certain circumstances, new pleas in law to be introduced in the course of proceedings, the provision cannot in any circumstances be interpreted as authorising the applicant to bring new claims before the Court and thereby to modify the subject-matter of the proceedings (Case T‑28/90 Asia Motor France and Others v Commission [1992] ECR II‑2285, paragraph 43, and Case T‑2/99 T. Port v Council [2001] ECR II‑2093, paragraph 34; see also, by analogy, Case 232/78 Commission v France [1979] ECR 2729, paragraph 3).
111 It follows that the head of claim requesting that the Court instruct the Parliament to organise a proper procedure for calls for tenders must be dismissed as inadmissible.
112 For the sake of completeness, it should be noted that in an action for annulment founded on Article 230 EC, the jurisdiction of the Community judicature is confined to reviewing the legality of the contested measure and that, according to settled case-law, the Court cannot, in the exercise of its jurisdiction, issue directions to the Community institutions (Case C‑5/93 P DSM v Commission [1999] ECR I‑4695, paragraph 36, and Case T‑145/98 ADT Projekt v Commission [2000] ECR II‑387, paragraph 83). If the contested measure is annulled, it is for the institution concerned to adopt, in accordance with Article 233 EC, the necessary measures to comply with the judgment annulling that measure (Case T‑67/94 Ladbroke Racing v Commission [1998] ECR II‑1, paragraph 200, and Evropaïki Dynamiki v Commission, cited in paragraph 56 above, paragraph 35).
Costs
113 Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Parliament has been unsuccessful, and the applicant has applied for costs, it must be ordered to pay the costs.
On those grounds,
THE COURT OF FIRST INSTANCE (Sixth Chamber)
hereby:
1. Annuls the decision by which the European Parliament refused to award the contract under tender procedure PE/2006/06/UTD/1 to VIP Car Solutions SARL;
2. Dismisses the action as to the remainder;
3. Orders the Parliament to pay the costs.
Meij | Vadapalas | Moavero Milanesi |
Delivered in open court in Luxembourg on 20 May 2009.
[Signatures]