ORDER OF THE GENERAL COURT (Eighth Chamber)
24 October 2012 (*)
(Action for annulment and damages – Public service contracts – Exclusion of the applicant from the tender procedure – Annulment of the tender procedure after the action was brought – No need to adjudicate)
In Case T‑219/12,
Saobraćajni institut CIP d.o.o., established in Belgrade (Serbia), represented by A. Lojpur, lawyer,
applicant,
v
European Commission, represented by F. Erlbacher and E. Georgieva, acting as Agents,
defendant,
APPLICATION for (i) annulment of a contract notice published on 27 March 2012 concerning the preparation of technical documentation for a rail modernisation project, excluding the applicant from participating in the tender procedure and (ii) damages,
THE GENERAL COURT (Eighth Chamber),
composed of L. Truchot, President, M.E. Martins Ribeiro (Rapporteur) and A. Popescu, Judges,
Registrar: E. Coulon,
makes the following
Order
Background to the dispute
1 On 27 March 2012, a contract notice concerning the preparation of technical documentation relating to a project for modernisation of the ‘Novi Sad-Subotica-Hungarian Border’ railway line was published in the Supplement to the Official Journal of the European Union (OJ 2012/S 60‑096517), under the reference EuropeAid/131837/C/SER/RS. The contracting authority consisted of the European Union, represented by the European Commission, acting in the name of and on behalf of the beneficiary country, the Republic of Serbia.
2 That notice contained the following statement: ‘The … Saobraćajni institut CIP d.o.o … is excluded from participation in this tender due to a conflict of interest [caused by it] being a subsidiary of the beneficiary’.
3 By letters of 5 April, 17 April and 11 May 2012 addressed to the Commission and the European Union Delegation in Serbia, the applicant challenged the terms of the contract notice at issue, objecting that its exclusion from the tender procedure was unlawful, and requested the annulment or the amendment of that notice in such as way as to allow it to participate in the procedure.
4 By letter of 18 May 2012, the European Union Delegation in Serbia informed the applicant that its direct commercial relationship with the beneficiary of the project, Serbian railways, placed it in a position of ineligibility and that, therefore, the contract notice would not be annulled and the procurement procedure would continue.
Procedure
5 By application lodged at the Registry of the General Court on 28 May 2012, the applicant brought the present action.
6 By separate document dated 13 June 2012, the applicant submitted an application for interim measures seeking to obtain the suspension of the tender procedure.
7 The applicant claims that the Court should:
– annul the contract notice concerning the preparation of technical documentation relating to a project for modernisation of the ‘Novi Sad-Subotica-Hungarian Border’ railway line, published on 27 March 2012;
– order the Commission to pay it the sum of EUR 6 800 000, plus interest calculated at the European Central Bank (ECB) reference rate, from 27 May 2012 until payment;
– order the Commission to pay the costs.
8 By document lodged at the Court Registry on 19 July 2012, the Commission applied to the Court for an order that there was no further need to adjudicate on the action and that the applicant should pay half of its own costs in the main proceedings and all of its own costs in the interim proceedings.
Law
9 By its application for an order that there is no need to adjudicate, the Commission is raising a procedural issue on which, under Article 114(3) of the Rules of Procedure of the General Court, it is appropriate to rule without opening the oral procedure, as the Court considers that it has sufficient information from the documents in the file.
10 The present action concerns, first, an application for annulment of a contract notice, published on 27 March 2012, excluding the applicant from participating in the tender procedure at issue and, secondly, an application for damages.
11 After this action was brought, the contracting authority, on 10 July 2012, annulled that procedure in accordance with Article 103 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).
12 It must be noted that the applicant has indicated, in its observations lodged at the Court Registry on 1 August 2012, that it supports the Commission’s application for an order that there is no need to adjudicate.
13 It follows that this action has become devoid of purpose.
14 In those circumstances, it must be held that there is no further need to adjudicate on the present action.
Costs
15 Under Article 87(6) of the Rules of Procedure, where a case does not proceed to judgment, the costs are to be in the discretion of the Court.
16 It must be pointed out in the present case that, under Article 103 of Regulation No 1605/2002, where it is apparent that the contract award procedure is vitiated by substantial errors or irregularities or by fraud, the institutions are to suspend it and to take all necessary measures, including the annulment of the procedure.
17 In the application for an order that there is no need to adjudicate, the Commission clearly indicated that the contracting authority had decided to annul the contested tender procedure because of ‘irregularities related to inclusion in the Service Procurement Notice of a clause [excluding the applicant from participating]’, in the procedure on account of an alleged conflict of interests.
18 However, it is precisely because of that clause that the applicant challenged the validity of the contract notice, the contracting authority’s initial refusal to annul or amend the notice by removing that clause having forced it to bring legal proceedings.
19 Since the contested tender procedure was annulled only after the present action was brought, the Commission must be ordered to pay the costs of the main proceedings. Since the interim proceedings are currently pending, there is no need to adjudicate on the costs relating to those proceedings.
20 The applicant’s request that the Commission be ordered to pay it the sum of EUR 11 870 in respect of recoverable costs relating to these proceedings must, however, be rejected, since that claim falls within the specific procedure for the taxation of costs provided for in Article 92(1) of the Rules of Procedure.
On those grounds,
THE GENERAL COURT (Eighth Chamber)
hereby orders:
1. There is no further need to adjudicate on the action.
2. The European Commission is ordered to bear its own costs and to pay those incurred by the applicant in these proceedings.
Luxembourg, 24 October 2012.