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Language of document : ECLI:EU:T:2018:9

Case T‑76/15

(published in extract form)

Kenup Foundation and Others

European Institute of Innovation and Technology

(Research and technological development — EIT — Horizon 2020 framework programme for research and innovation — Call for proposals for the designation of a Knowledge and Innovation Community — Rejection of the applicants’ tender — Regulation (EC) No 294/2008 — Regulation (EU) No 1290/2013 — Unlawful delegation of powers)

Summary — Judgment of the General Court (Seventh Chamber), 18 January 2018

1. Actions for annulment — Interest in bringing proceedings — Natural or legal persons — Action capable of securing a benefit for the applicant — Influence of the merits of the claims made by the applicant — None

(Art. 263 TFEU)

2. EU agencies — European Institute of Innovation and Technology (EIT) — Governing board — Powers — Selection and designation of Knowledge and Innovation Communities — Participation of external experts in the selection procedure — Obligation on the part of the governing board to assess the work of those experts — Scope — Delegation by the governing board of some of its powers to external experts without assessing the work of those experts — Not permissible

(European Parliament and Council Regulations No 294/2008, Arts 4, 5 and 7, and No 1290/2013, Arts 15 and 40)

3. Industry — Action necessary to ensure the competitiveness of industry — Research and technical development — ‘Horizon 2020’ framework programme for research and innovation — Call for proposals for the designation of a Knowledge and Innovation Community — Challenge by a tenderer — Call for proposals not a challengeable measure — Consequences — Admissibility of a plea of illegality raised in the context of an action against the decision rejecting the proposal

(Art. 263, fourth para., TFEU; European Parliament and Council Regulation No 1290/2013)

4. EU agencies — European Institute of Innovation and Technology (EIT) — Governing board — Powers — Selection and designation of Knowledge and Innovation Communities — Requirement of impartiality — Scope

(Charter of Fundamental Rights of the European Union, Art. 41(1); European Parliament and Council Regulations No 294/2008, Arts 4, 5 and 7, and No 1290/2013, Arts 15 and 40)

1. See the text of the decision.

(see paras 27, 28, 31, 34)

2. It follows from Article 4, 5 and 7 of Regulation No 294/2008 establishing the European Institute of Innovation and Technology (EIT), and from Article 15 of Regulation No 1290/2013 laying down the rules for participation and dissemination in ‘Horizon 2020’ — the Framework Programme for Research and Innovation (2014-2020), that, first, the selection and designation of Knowledge and Innovation Communities fall within the competence of the EIT governing board and that, second, independent experts participate in the selection procedure by evaluating proposals for the designation of such communities, in order to classify them. That governing board selects the Knowledge and Innovation Communities on the basis of that classification.

However, even when the EIT commissions external experts, it is not thereby exempted from assessing their work. In that regard, the governing board of the EIT has failed fully to exercise its powers in respect of the selection of proposals, in breach of the provisions of Article 4 of Regulation No 294/2008, where it has delegated some of those powers to experts without having, at any time, had the opportunity to make a proper assessment of the work they carried out on the proposals which were not ranked in the first three places. The fact that the governing board has adopted the wording of the call for proposals, the Knowledge and Innovation Community selection criteria and the selection criteria for the experts responsible for the evaluation of the proposals, and that it has monitored the full procedure leading to their selection cannot call into question that finding.

(see paras 55, 56, 67, 68)

3. As regards an action brought by a consortium against a decision of the European Institute of Innovation and Technology (EIT), in which the latter rejected the proposal submitted by that consortium in the context of a call for proposals for the selection of a new Knowledge and Innovation Community, the fact that the members of that consortium did not challenge wording of the call for proposals before its closure cannot deprive them of the possibility of claiming, in their action, that the selection procedure defined by that call for proposals was irregular. In that regard, a procurement document, such as the call for proposals, is not a measure that can be subject to an action for annulment on the basis of the fourth paragraph of Article 263 TFEU. The contested decision is therefore the first measure which the applicant could challenge and thus the first measure entitling it to dispute, indirectly, the lawfulness of the selection procedure for a Knowledge and Innovation Community determined by the EIT. Accordingly, the EIT cannot reasonably claim that the consortium’s exclusion results from the strict application of the call for proposals procedure defined by the governing board of the EIT.

(see para. 66)

4. See the text of the decision.

(see para. 69)