Joined Cases T‑339/10 and T‑532/10

Cosepuri Soc. Coop. pA

v

European Food Safety Authority (EFSA)

(Public service contracts — Tender procedure — Shuttle service in Italy and Europe — Tenderer’s bid rejected — Decision to award the contract to another tenderer — Non-contractual liability — Access to documents — Regulation (EC) No 1049/2001 — Bid of the successful tenderer — Access refused — Exception relating to the protection of the commercial interests of a third party)

Summary — Judgment of the General Court (Second Chamber), 29 January 2013

1.      Actions for annulment — Actionable measures — Measures altering the applicant’s legal situation — Contract concluded between the European Food Safety Authority and the successful tenderer following a tender procedure — No mandatory legal effect on the applicant — Inadmissibility

(Art. 263 TFEU)

2.      Actions for annulment — Judgment annulling a measure — Effects — Obligation to adopt implementing measures

(Art. 266 TFEU)

3.      Judicial proceedings — Application initiating proceedings — Formal requirements — Brief summary of the pleas in law on which the application is based — Lack of precision as to the measures contested — Inadmissibility

(Statute of the Court of Justice, Arts. 21 and 53, first para.; Rules of Procedure of the General Court, Art. 44(1))

4.      EU public contracts — Tender procedure — Lawfulness of the specifications and the refusal to grant access to the tenderers’ bids called into question — Observance of the principle of transparency — Whether compatible with the principle that tenders are confidential

(Art. 277 TFEU; Council Regulation No 1605/2002, Arts. 89(1), and 99; Commission Regulation No 2342/2002, Art. 148)

5.      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 — Information to be provided — Price offered by successful tenderer not disclosed — Lawfulness

(Art. 296 TFEU; Council Regulation No 1605/2002, Art. 100(2); Commission Regulation No 2342/2002, Art. 149)

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

7.      Non-contractual liability — Conditions — Unlawfulness — Damage — Causal link — Cumulative conditions — One of the conditions not satisfied — Action dismissed in its entirety

(Art. 340, second para., TFEU)

8.      Actions for annulment — Jurisdiction of the EU judicature — Claim seeking that directions be issued to an institution — Inadmissibility

(Art. 264 TFEU)

9.      EU public contracts — Tender procedure — Decision not to accept a tender — Request for disclosure of a copy of the evaluation report and of the contract signed with the successful tenderer — Applicability of Regulation No 1049/2001 regarding access to documents

(European Parliament and Council Regulation No 1049/2001; Council Regulation No 1605/2002, Art. 100(2))

10.    Institutions of the European Union — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Protection of commercial interests — Refusal to grant access — Obligation to state reasons — Scope

(European Parliament and Council Regulation No 1049/2001, Art. 4)

11.    EU public contracts — Tender procedure — Decision not to accept a tender — Request for disclosure of the bid of the successful tenderer — Applicability of Regulation No 1049/2001 regarding access to documents — Refusal to grant access — Exception relating to the protection of the commercial interests of the successful tenderer — Lawfulness — Compatibility with Regulation No 1605/2002

(European Parliament and Council Regulation No 1049/2001, Art. 4; Council Regulation No 1605/2002, Art. 100(2))

1.      See the text of the decision.

(see para. 26)

2.      See the text of the decision.

(see paras 26, 77)

3.      See the text of the decision.

(see para. 28)

4.      In an action for annulment in respect of a European Union public procurement procedure, the applicant has the right to challenge, as an incidental plea, the lawfulness of the specifications. A part of the specifications which provides that the procedure for the evaluation of the tenders is to be conducted in secret satisfies the requirement of preserving the confidentiality of the tenders and the need to avoid, in principle, contact between the contracting authority and the tenderers. The principle of transparency, referred to in Article 89(1) of Regulation No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities, must be reconciled with those requirements.

In any event, that principle must be reconciled with the requirements of protection of the public interest, of the legitimate business interests of public or private undertakings and of fair competition: that is the reason for the provision made in the second subparagraph of Article 100(2) of that regulation, under which it is possible to refuse to disclose certain details to a rejected tenderer, where non-disclosure is necessary to ensure that those requirements are satisfied. In any event, that provision does not provide that all the details of the successful tender are to be disclosed.

(see paras 32, 33, 49)

5.      It is clear from Article 100(2) of Regulation No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities and Article 149 of the Regulation No 2342/2002 laying down detailed rules for the implementation of Regulation No 1605/2002 that the contracting authority fulfils its obligation to state reasons if, first of all, it immediately informs each unsuccessful tenderer of the reasons for the rejection of its tender and if, secondly, it informs tenderers who have submitted an admissible tender and who so request of the characteristics and the relative advantages of the selected tender, together with the name of the successful tenderer, within 15 calendar days of receiving a written request.

Such a manner of proceeding satisfies the purpose of the duty to state reasons enshrined in Article 296 TFEU, 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 power of review. Furthermore, the obligation to state reasons must be evaluated in accordance with the circumstances of the individual 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.

The obligation to state reasons must be regarded as having been satisfied where the institution has disclosed, by way of justification for the decision not to accept a tender submitted in a public procurement procedure, the reasons for the rejection of the tender, the characteristics and advantages of the successful tenderer’s bid and the name of that tenderer, and has provided a copy of the evaluation report and a copy of the contract signed with the successful tenderer. However, the failure to disclose the price offered by the successful tenderer cannot constitute a breach of that obligation if the applicant was in a position to ascertain that price.

(see paras 42-45, 47, 48)

6.      See the text of the decision.

(see para. 54)

7.      See the text of the decision.

(see paras 68-70)

8.      See the text of the decision.

(see para. 77)

9.      Even if Article 100(2) of Regulation No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities contained a specific rule concerning access to documents, that regulation and Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents have different objectives and do not contain any provision expressly giving one regulation primacy over the other. Therefore, it is appropriate to ensure that each of those regulations is applied in a manner which is compatible with the other and which enables a coherent application of them.

(see para. 85)

10.    If the institution concerned decides to refuse access to a document which it has been asked to disclose, it must, in principle, explain how disclosure of that document could specifically and effectively undermine the interest protected by the exception – among those provided for in Article 4 of Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents. Moreover, the risk of that undermining must be reasonably foreseeable and not purely hypothetical. However, it is, in principle, open to that institution to base its decisions in that regard on general presumptions which apply to certain categories of documents, as considerations of a generally similar kind are likely to apply to requests for disclosure relating to documents of the same nature. Furthermore, in the circumstances referred to in Article 4(2) of that regulation, the institution must ascertain whether there is any overriding public interest justifying disclosure of the document concerned.

(see paras 90, 91)

11.    In a public procurement procedure, economic and technical information to be found in the tenderers’ bids may justify the refusal on the part of the institution concerned to grant access to the successful tenderer’s bid. That is the case where such bids bear witness to the specific skills of the tenderers and contribute to the individual nature and appeal of their bids. Moreover, where the services covered by the public contract in question may be offered to other bodies, the possibility cannot be ruled out that the unsuccessful tenderer will once again be in competition with the other tenderers, in particular the successful tenderer, in connection with a new call for tenders relating to similar services.

Next, the requirement to protect tenderers’ bids is consistent with the relevant provisions of Regulation No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities, in particular Article 100(2) thereof, which does not provide for the disclosure of the tenders submitted, even after written application by the unsuccessful tenderers. That restriction is integral to the objective of EU rules on public procurement, which is based on undistorted competition. In order to attain that objective, it is important that the contracting authorities do not release information relating to contract award procedures which could be used to distort competition, whether in an ongoing procurement procedure or in subsequent procedures.

Furthermore, both by their nature and according to the scheme of EU legislation in that field, contract award procedures are founded on a relationship of trust between the contracting authorities and participating economic operators. Those operators must be able to communicate any relevant information to the contracting authorities in the procurement process, without fear that the authorities will communicate to third parties items of information whose disclosure could be damaging to them.

(see paras 95, 99, 100)