Language of document : ECLI:EU:T:2017:45

Provisional text

ORDER OF THE GENERAL COURT (Eighth Chamber)

20 January 2017 (*)

(Public supply contracts — Tendering procedure — Office furniture — Rejection of the tender submitted by a tenderer — Award criteria — Decision to cancel the tendering procedure — No need to adjudicate)

In Case T‑351/15,

Papapanagiotou AVEEA, established in Serres (Greece), represented by S. Pappas and I. Ioannidis, lawyers,

applicant,

v

European Parliament, represented by P. Biström and S. Toliušis, acting as Agents,

defendant,

APPLICATION pursuant to Article 263 TFEU seeking the annulment of Decision D(2015)12887 of the Parliament of 27 April 2015, adopted in the context of tendering procedure INLO.AO-2012-017-LUX-UAGBI‑02 regarding the supply of office furniture (OJ 2013/S 138-239094) and rejecting the tender submitted by Papapanagiotou,

THE GENERAL COURT (Eighth Chamber),

composed of A.M. Collins (Rapporteur), President, R. Barents and J. Passer, Judges,

Registrar: E. Coulon,

makes the following

Order

 Facts

1        By a contract notice of 18 July 2013, published in the Supplement to the Official Journal of the European Union (OJ 2013/S 138-239094), under reference INLO.AO-2012-017-LUX-UAGBI‑02, the European Parliament launched a call for tenders for the acquisition of standard, executive and high-end office furniture and accessories.

2        The contract notice stated that a framework agreement would be concluded for a duration of 48 months. The contract for which the call for tenders was launched comprised seven lots and was to be awarded to the tenderer offering the best value for money. The deadline for the submission of tenders, which was initially set at 10 September 2013, was later extended, first to 24 September 2013, by a first corrigendum published on 3 September 2013 (OJ 2013/S 170-294147), and subsequently to 4 November 2013, by a second corrigendum published on 14 September 2013 (OJ 2013/S 179-308019).

3        On 18 October 2013, the applicant, Papapanagiotou AVEEA, a Greek company which manufactures and markets domestic and office furniture, submitted a tender for Lots No 1, No 2 and No 4.

4        By letter of 23 April 2014, the Parliament informed the applicant of its decision to rank the applicant’s tender for Lots No 1, No 2 and No 4 in second place, on the ground that it had not been considered to offer the best value for money (‘the first rejection decision’).

5        On 30 April 2014, the applicant lodged a complaint against the first rejection decision before the evaluation committee. In particular, the applicant argued that it was ‘the only participating company that fulfilled exactly all the specifications of the tender’ and that it had ‘offered superior products, in terms of quality, materials, construction standards [and] innovative technological solutions, while the remaining participating companies [had] offered products that were either not to specifications, or chose cheaper material solutions’. With regard to each of the lots in question, the applicant requested a re-evaluation of all the furniture samples on the basis of the required specifications and the exclusion of those tenders which failed to meet them.

6        By letter of 7 July 2014 (‘the first annulment decision’), the Parliament informed the applicant that, following its complaint, the legal service of the Parliament had delivered a legal opinion which the authorising officer had decided to follow. Consequently, the Parliament informed the applicant that it had decided to annul the decision of 16 April 2014 awarding the contract in question (‘the first award decision’), to re-start the evaluation of the tenders from the award phase ‘in order to effect a new evaluation of the qualitative criteria provided for in article 15 “Award Criteria” of the Specifications-Administrative provisions’, and to nominate a new evaluation committee. In addition, it invited the applicant to inform the Parliament whether it wished to participate in the new evaluation using the same furniture samples that it had provided for the first evaluation, or using new samples, which had to be identical to the previous ones.

7        By letter of 14 July 2014, the applicant informed the Parliament that it would take part in the new evaluation procedure using the furniture samples which it had provided previously and confirmed that its tender would remain valid until 31 December 2014, as requested in the first annulment decision.

8        By decision of 27 April 2015, with reference D(2015)12887, the Parliament rejected the applicant’s tender on the ground that it had not been considered to offer the best value for money (‘the second rejection decision’). In that decision, the Parliament informed the applicant that it had been ranked in fourth position as regards Lot No 1, with a total of 52.37 points out of 100, and in second position as regards Lots No 2 and No 4 with, respectively, a total of 60.25 and 66.19 points out of 100. The Parliament also stated that one of the qualitative sub-criteria set out in the administrative provisions, namely that regarding ‘construction (resistance to breakage, abrasion, scratching and decolouration)’, which was to count for 20 out of the 55 points awarded in relation to all the qualitative criteria, had not been taken into consideration and, therefore, no tender had been awarded any points for that sub-criterion.

9        By decision of 27 April 2015, with reference D(2015)12804, the Parliament awarded Lots No 1 to No 7 to tenderers other than the applicant (‘the second award decision’).

10      By letter of 6 May 2015 addressed to the Parliament, the applicant challenged the second rejection decision, asking that the tendering procedure not be finalised and that the relevant contracts not be signed. In particular, it claimed that the exclusion of the qualitative sub-criterion in question constituted an unlawful amendment of the award criteria subsequent to the publication of the procurement notice. In the opinion of the applicant, if that sub-criterion had been taken into account, its tender might possibly have been ranked first with regard to the three lots at issue. In addition, it requested the Parliament to provide it with, inter alia, the names of the successful tenderers for those lots and the number of points awarded to them.

11      By letter of 20 May 2015, the Parliament informed the applicant that it would be maintaining its position regarding the outcome of the call for tenders at issue, and that it would be neither suspending the procedure nor revising the second award decision. It also provided the applicant with the names and scores of the successful tenderers for the three lots in respect of which the applicant had submitted a tender.

12      On 22 September 2015, the Parliament adopted Decision D(2015)43617 (‘the second annulment decision’), annulling, ‘with immediate effect’, the second award decision, re-launching the public procurement procedure ‘as soon as possible’ and ‘[postponing] provisionally, and until the conclusion of the new procurement procedure, the termination of the contracts already signed, in order to ensure continuity of service’. The second annulment decision stated, inter alia, that the authorising officer had determined, following an opinion of the legal service of 17 September 2015, that the second award decision was vitiated by irregularities.

13      Following this ‘annulment’ of the second award decision, the Parliament abstained from signing the contract for Lot No 2 and postponed the termination of the contracts already signed in respect of Lots No 1 and No 4 pending the outcome of the new tendering procedure and the signing of new contracts.

14      By a contract notice of 2 July 2016, published in the Supplement to the Official Journal of the European Union (OJ 2016/S 126-224626), under reference 06B30/2015/M063, the Parliament launched a new call for tenders in relation to the contract at issue, thereby re-starting the procedure afresh.

 Procedure and forms of order sought

15      By application lodged at the Court Registry on 30 June 2015, the applicant brought the present action.

16      The applicant claims that the Court should:

–        annul the second rejection decision;

–        order the Parliament to pay the costs.

17      By document lodged at the Court Registry on 25 September 2015, the Parliament, making reference to the second annulment decision, requested the Court, primarily, (i) to declare, in accordance with Article 130(2) of its Rules of Procedure, that the action had become devoid of purpose and that there was, therefore, no longer any need to adjudicate on it and (ii) to give a decision as to costs in accordance with Article 137 of the Rules of Procedure. In the alternative, if the application for a declaration that there was no need to adjudicate were to be rejected or the decision on that application were to be reserved for final judgment, the Parliament requested the Court to prescribe new time limits for further steps in the proceedings.

18      In its observations on the application for a declaration that there was no need to adjudicate, filed at the Court Registry on 19 November 2015, the applicant requested the Court to reject that application as unfounded and to prescribe new time limits for further steps in the proceedings.

19      By order of the Court (Sixth Chamber) of 30 May 2016, adopted on the basis of Article 130(7) of the Rules of Procedure, the application for a declaration that there was no need to adjudicate was reserved for final judgment.

20      By way of measures of organisation of procedure pursuant to Article 89(3) of its Rules of Procedure, the Court put written questions to the Parliament and requested it to submit a copy of the second award decision. The Parliament complied with that request within the prescribed period.

21      On 20 July 2016, the Parliament lodged a statement of defence in which it asked the Court, once again, to declare that the action had become devoid of purpose and that there was no longer any need to adjudicate on it.

22      On 9 November 2016, the Court invited the parties to submit their observations as to whether or not it should be declared that the action had become devoid of purpose, pursuant to Article 131(1) of the Rules of Procedure, in view of the factors invoked by the Parliament in its defence.

23      In its observations, filed at the Court Registry on 21 November 2016, the applicant stated that it would leave it for the Court to decide whether it should be declared that the action had become devoid of purpose. It requested the Court to order the Parliament to pay all of the costs if it should decide that there was no longer any need to adjudicate.

24      In its observations, filed at the Court Registry on 25 November 2016, the Parliament stated that, in its view, there was no longer any need to adjudicate. It did not apply for costs.

25      Following a change in the composition of the Chambers of the Court as from the beginning of the judicial year, the Judge-Rapporteur was attached to the Eighth Chamber, to which this case has therefore been assigned.

 Law

26      Pursuant to Article 131(1) of the Rules of Procedure, if the Court declares that the action has become devoid of purpose and that there is no longer any need to adjudicate on it, it may at any time, of its own motion, on a proposal from the Judge-Rapporteur and after hearing the parties, decide to rule by reasoned order.

27      In the present case, the Court considers that it has sufficient information from the documents in the file and has decided to give a decision without taking further steps in the proceedings.

28      According to well-established case-law, the objective of the dispute must continue, like the interest in bringing proceedings, until the final decision, failing which there will be no need to adjudicate, which presupposes that the action must be liable, if successful, to procure an advantage to the party bringing it (see judgments of 7 June 2007, Wunenburger v Commission, C‑362/05 P, EU:C:2007:322, paragraphs 42 and 43 and the case-law cited, and of 22 March 2011, Access Info Europe v Council, T‑233/09, EU:T:2011:105, paragraph 33).

29      If the subject matter of the action disappears in the course of proceedings for annulment, the Court cannot rule on the substance, since such a Court decision cannot procure an advantage for the applicant. The disappearance of the subject matter of the proceedings can, inter alia, result from the withdrawal or replacement of the contested act in the course of the proceedings (see order of 12 January 2011, Terezakis v Commission, T‑411/09, EU:T:2011:4, paragraphs 14 and 15 and the case-law cited).

30      In that context, it should be pointed out that, while the legal effect of a repealed act expires, unless otherwise specified, on the date of its repeal, an act which is withdrawn and replaced disappears completely from the legal order of the Union. Withdrawal of an act therefore normally takes effect ex tunc (see order of 12 January 2011, Terezakis v Commission, T‑411/09, EU:T:2011:4, paragraph 16 and the case-law cited).

31      It should also be noted that an application for annulment may, exceptionally, not become devoid of purpose despite the withdrawal of the act the annulment of which is sought in circumstances where the applicant nevertheless retains a sufficient interest in obtaining a judgment formally annulling it (see order of 12 January 2011, Terezakis v Commission, T‑411/09, EU:T:2011:4, paragraph 17 and the case-law cited).

32      In the present case, the Parliament claims that the present action became devoid of purpose following the adoption of the second annulment decision.

33      The applicant, by contrast, is of the opinion that it retains sufficient legal interest in obtaining a judgment which formally annuls the second rejection decision.

34      In support of its position, first, the applicant, relying on paragraphs 70 to 72 of the judgment of 16 December 2010, Athinaïki Techniki v Commission (C‑362/09 P, EU:C:2010:783), criticises the fact that the second annulment decision does not indicate the nature of the illegality vitiating the second rejection decision, which alone could justify the withdrawal. It claims that, as a consequence, it is not possible to assess whether the second annulment decision, which includes no reasoning, was adopted in order to remedy the irregularities of the second rejection decision.

35      Secondly, the applicant notes that the contracts already signed on the basis of the second award decision have not been terminated. Accordingly, it must be considered that that decision remains their legal basis and continues to produce legal effects.

36      Thirdly, the applicant, referring, once again, to the fact that the termination of the contracts already signed has been postponed, claims that the annulment of the second award decision and the announcement of the launch of a new procurement procedure are merely pretences intended solely to deprive the applicant of its right to effective judicial protection. The applicant contends that, if the Court were to grant the application for a declaration that there is no need to adjudicate, the applicant would have no way of protecting its rights, while the Parliament and the tenderer with which the contracts had already been signed would continue to enjoy the benefits of the second award decision.

37      It is apparent from the second annulment decision that the Parliament declared, in the light of an opinion from its legal service, that the second award decision was vitiated by irregularities and it therefore decided to annul that decision ‘with immediate effect’, to re-launch the public procurement procedure ‘as soon as possible’ and ‘to postpone provisionally, and until the conclusion of the new procurement procedure, the termination of the contracts already signed, in order to ensure continuity of service’.

38      As the Parliament rightly notes in its reply to one of the written questions of the Court, the second annulment decision must be regarded as a withdrawal of the second award decision, which has, accordingly, disappeared with ex tunc effect from the legal order of the Union.

39      Furthermore, it must be held that the second annulment decision has produced the same legal consequences as regards the second rejection decision, which is the measure contested in the present action, in view of the fact that there is a very close connection between the second rejection decision and the second award decision. The second rejection decision is the direct consequence of the second award decision.

40      The finding that the second award decision and, consequently, the second rejection decision have disappeared with ex tunc effect from the legal order of the Union following the adoption of the second annulment decision is confirmed by the fact that the latter decision expressly provided that the public procurement procedure at issue was to be re-launched by way of a new call for tenders, and a new contract notice was indeed published on 2 July 2016 (see paragraph 14 above). The launch of that new public procurement procedure necessarily presupposed the ex tunc cancellation of the previous procedure and the decisions adopted within its framework since it was intended to replace that previous procedure in its entirety on account of the irregularities noted therein. The fact that, following the ‘annulment’ of the second award decision, the Parliament abstained from signing the contract for Lot No 2 also confirms that finding.

41      It should be pointed out that, as the Parliament also rightly notes in its reply to one of the written questions of the Court, the expression ‘with immediate effect’ in the second annulment decision was not intended to impose temporal restrictions on the withdrawal of the second award decision. By stating that that decision was to be annulled ‘with immediate effect’, the Parliament merely wished to point out, in view of the operational constraints of the unit in charge of the public procurement procedure at issue, the need immediately to implement the measures required as a result of that annulment, such as not signing the contracts that had not yet been signed, the termination of the contracts that had already been signed and the organisation of a new tendering procedure.

42      In the light of the foregoing considerations, it must be held that the withdrawal effected by the second annulment decision and the consequent launch of a new public procurement procedure have produced the result which the applicant sought to obtain by the present action, namely the elimination of the second rejection decision from the legal order of the Union. A judgment annulling that latter decision, which has now been withdrawn, would not entail any additional legal consequence by comparison with that withdrawal (see, to that effect, orders of 6 December 1999, Elder v Commission, T‑178/99, EU:T:1999:307, paragraph 20, and of 9 September 2010, Phoenix-Reisen and DRV v Commission, T‑120/09, not published, EU:T:2010:381, paragraph 23).

43      In addition, it must be held that the line of reasoning put forward by the applicant in support of its argument that it nevertheless retains an interest in obtaining the annulment of the second rejection decision cannot be upheld.

44      In that regard, first, the applicant cannot criticise the Parliament for failing to indicate, in the second annulment decision, the nature of the irregularities which justified the withdrawal of the second award decision and, consequently, of the second rejection decision. In particular, the applicant cannot claim that the second annulment decision is entirely unjustified.

45      Thus, contrary to the Commission’s withdrawal decision in the case giving rise to the judgment of 16 December 2010, Athinaïki Techniki v Commission (C‑362/09 P, EU:C:2010:783), which did not appear to be seeking to remedy an illegality affecting the contested act, the second annulment decision expressly states that it was adopted on account of irregularities vitiating the second award decision.

46      It is also apparent from the second award decision that its adoption was based on, inter alia, Article 116(1) of Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council of 25 October 2012 on the financial rules applicable to the general budget of the Union and repealing Council Regulation (EC, Euratom) No 1605/2002 (OJ 2012 L 298, p. 1), which reads as follows:

‘Where the award procedure proves to have been subject to substantial errors, irregularities or fraud, the contracting authority shall suspend the procedure and may take whatever measures are necessary, including the cancellation of the procedure.

Where, after the award of the contract, the award procedure or the performance of the contract prove to have been subject to substantial errors, irregularities or fraud, the contracting authority may, depending on the stage reached in the procedure, refrain from concluding the contract, suspend its performance or, where appropriate, terminate it.

...’

47      It must be added that, in reply to a written question from the Court requesting it to specify the exact nature of the irregularities in question, the Parliament, referring to the second award decision and to the second rejection decision, stated that the second award decision had been adopted following the exclusion of the qualitative sub-criterion relating to ‘construction (resistance to breakage, abrasion, scratching and decolouration)’ set out in advance in the administrative provisions and that the tenders submitted had been ranked by the contracting authority on the basis of the remaining criteria.

48      Secondly, the applicant cannot rely on the fact that the termination of the contracts already signed on the basis of the second award decision has been postponed until the conclusion of the new tendering procedure. The basis for that postponement is not the second award decision, which has been withdrawn and has therefore disappeared with ex tunc effect from the legal order of the Union (see paragraphs 38 to 42 above), but the second annulment decision. Following the adoption of the second annulment decision, the termination of those contracts — which was, moreover, expressly permitted by Article II.16(1)(k) of the draft framework contract annexed to the contract notice of 18 July 2013 in the event of irregularities vitiating the public procurement procedure — has been fully effected but has merely been postponed with a view to ensuring continuity of service, with performance of those contracts being reduced to the strict minimum necessary. Thus, the tenderers concerned were notified of the planned termination of their contracts and any orders placed were essentially limited to the replacement of worn-out or broken furniture.

49      Third, it must be held that the applicant’s claim that the annulment of the second award decision and the announcement of the launch of a new procurement procedure are merely pretences intended solely to deprive it of its right to effective judicial protection is purely gratuitous. It follows from the considerations set out in paragraphs 37 and 44 to 48 above that the second annulment decision was clearly adopted with the sole objective of remedying the illegality vitiating the second award decision and, consequently, the second rejection decision, and that the provisional maintenance, limited to the necessary minimum, of the contracts already signed was motivated purely by the need to ensure continuity of service.

50      It must be added that, in any event, the applicant could have, within the prescribed time limits, either challenged the lawfulness of the second annulment decision by bringing a separate action for annulment, or modified its application, in accordance with Article 86 of the Rules of Procedure, so that the present proceedings would also be directed at that decision. The view cannot therefore be taken that the Parliament has, in any way, deprived the applicant of its right to effective judicial protection.

51      In the light of all of the foregoing, it must be held that the present action has become devoid of purpose and that, therefore, there is no longer any need to adjudicate on it.

 Costs

52      Under Article 137 of the Rules of Procedure, where a case does not proceed to judgment, the costs are to be in the discretion of the Court. In view of the circumstances of the present case, it is appropriate to decide that the Parliament shall bear its own costs and pay those incurred by the applicant.

On those grounds,

THE GENERAL COURT (Eighth Chamber)

hereby orders:

1.      There is no longer any need to adjudicate on the present action.

2.      The European Parliament shall bear its own costs and shall pay those incurred by Papapanagiotou AVEEA.

Luxembourg, 20 January 2017.

E. Coulon

 

       A.M. Collins

Registrar

 

      President


* Language of the case: English.