Case T-195/08

Antwerpse Bouwwerken NV

v

European Commission

(Public procurement – Community tendering procedure – Construction of a reference materials production hall – Rejection of a tender – Action for annulment – Interest in bringing proceedings – Admissibility – Interpretation of a condition laid down in the contract documents – Compliance of a tender with the conditions laid down in the contract documents – Exercise of the power to request clarification of tenders – Action for damages)

Summary of the Judgment

1.      Actions for annulment – Actionable measures – Concept – Measures producing binding legal effects – Preparatory measures – Not included

(Art. 230 EC)

2.      Actions for annulment – Interest in bringing proceedings – Natural or legal persons

(Art. 230, fourth para., EC)

3.      European Communities’ public procurement – Conclusion of a contract following a call for tenders – Discretion of the institutions – Judicial review – Limits

4.      European Communities’ public procurement – Conclusion of a contract following a call for tenders – Obligation on an institution to exercise its power to contact a tenderer after opening of the bids – Condition

(Commission Regulation No 2342/2002, Art. 148(3))

5.      European Communities’ public procurement – Tender procedure

(Council Regulation No 1605/2002, Arts 89(1) and 100(2), second para.; European Parliament and Council Directive 2004/18, Art. 2)

6.      Non-contractual liability – Conditions – Unlawfulness – Damage – Causal link – One of the conditions not present – Dismissal of the action for damages in its entirety

(Art. 288, second para., EC)

1.      As provisional measures intended to pave the way for a decision awarding a public procurement contract, which is a decision drawn up under an internal procedure involving several stages, evaluation reports cannot themselves be contested in an action for annulment. Such an action can be brought only against the measures which definitively lay down the position of the Commission upon the conclusion of that internal procedure.

(see para. 28)

2.      An action for annulment brought by a natural or legal person is admissible only in so far as that person has an interest in the annulment of the contested measure. In order for such an interest to be present, the annulment of the contested measure must of itself be capable of having legal consequences and the action must be likely, if successful, to procure an advantage for the party who has brought it.

(see para. 33)

3.      The Commission has a broad discretion with regard to the factors to be taken into account for the purposes of deciding to award a contract following an invitation to tender. It also has a broad discretion in determining both the content and the application of the rules applicable to the award of a contract following a call for tenders. In addition, although a contracting authority is required to draft the conditions relating to a call for tenders clearly and with precision, it is not required to make advance provision for all the situations, however rare, which could in practice arise. A condition laid down in the contract documents must be interpreted in the light of its subject-matter, broad logic and wording. Where there is doubt, the contracting authority concerned may gauge the applicability of such a condition by conducting an examination of each individual case, taking into account all the relevant factors. Given the broad discretion enjoyed by the Commission, review by the Courts must be limited to checking that the rules governing the procedure and the stating of reasons have been complied with; that the facts are correct; and that there has been no manifest error of assessment or misuse of powers. In the context of such a review, it is for the Community Courts to determine, inter alia, whether the interpretation attributed by the Commission, as contracting authority, to a condition laid down in the contract documents is correct.

(see paras 49-53)

4.      Article 148(3) of Regulation No 2342/2002, laying down detailed rules for the implementation of the Financial Regulation, empowers the institutions to contact tenderers in the event that some clarification is required in connection with a tender, or if clerical errors contained in the tender must be corrected. It follows that that provision cannot be interpreted as imposing, in the exceptional, limited circumstances which it identifies, a duty on the institutions to contact tenderers.

It can be otherwise only if, by virtue of the general principles of law, that power has evolved into an obligation on the part of the Commission to contact a tenderer. That is the position, inter alia, where a tender has been drafted in ambiguous terms and the circumstances of the case, of which the Commission is aware, suggest that the ambiguity probably has a simple explanation and is capable of being easily resolved. In principle, it would be contrary to the requirements of sound administration for the Commission to reject the tender in such circumstances without exercising its power to seek clarification. It would be contrary to the principle of equal treatment to accept that, in such circumstances, the Commission enjoys an unfettered discretion.

In addition, the principle of proportionality requires that measures adopted by the Community institutions do not exceed the limits of what is appropriate and necessary in order to attain the objectives legitimately pursued, it being understood that, where there is a choice between several appropriate measures, recourse must be had to the least onerous and that the disadvantages caused must not be disproportionate to the aims pursued.

However, it is also essential, in the interests of legal certainty, that the Commission be able to ascertain precisely what a tender submitted in the course of a procurement procedure means and, in particular, to determine whether the tender complies with the conditions set out in the contract documents. Thus, where a tender is ambiguous and the Commission is not in a position to establish, quickly and efficiently, what it actually means, that institution has no choice but to reject the tender.

It is ultimately for the Community Courts to determine whether a tenderer’s replies to requests from the contracting authority for clarification can be regarded as explanations of the terms of the tender or whether those replies go beyond clarification and modify the substantive terms of the tender in relation to the conditions laid down in the contract documents.

(see paras 54-59)

5.      The principle of transparency, referred to in both Article 89(1) of Regulation No No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities, and Article 2 of Directive 2004/18 on the coordination of procedures for the award of public works contracts, must be reconciled with the protection of the public interest, of 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 the Financial 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.

(see para. 84)

6.      In order for a claim for damages brought under the second paragraph of Article 288 EC to be well founded, a number of conditions must be satisfied: the alleged conduct on the part of the institutions must be unlawful, actual damage must have been suffered and there must be a causal link between the conduct and the purported damage. If any one of those conditions is not satisfied, the action must be dismissed in its entirety and it is unnecessary to consider the other conditions.

(see para. 91)