Judgment of the General Court (Seventh Chamber) of 20 October 2011 – Alfastar Benelux v Council

(Case T-57/09)

Public service contracts – Tendering procedure – Provision of technical maintenance and help desk and on-site intervention services for the PCs, printers and peripherals of the General Secretariat of the Council – Rejection of a tender – Duty to state reasons

1.                     Acts of the institutions – Statement of reasons – Obligation – Scope – Decision, in the procedure for awarding a public services contract, to reject a tender – Assessment having regard to the information at the applicant’s disposal at the time the action was brought – Advantages of the successful tender not communicated – Inadequate statement of reasons (Art. 253 EC; Council Regulation No 1605/2002, Art. 100(2); Commission Regulation No 2342/2002, Art. 149(3)) (see paras 24-29, 36-43)

2.                     Non-contractual liability – Conditions – Unlawfulness – Injury/damage – Causal link – Annulment, for lack of reasoning, of a Council decision rejecting a tender in a public service contract procedure – Reality of the unlawfulness and the causal link depending on examination of pleas having to be directed against the decision replacing the annulled decision – Claim for compensation premature (Art. 288, second para., EC) (see paras 45-53)

Re:

APPLICATION, first, for annulment of the Council’s decision of 1 December 2008 to reject the tender submitted by the Alfastar-Siemens consortium, composed of Alfastar Benelux SA and Siemens IT Solutions and Services SA, in response to Call for Tenders UCA/218/07 for the provision of technical maintenance – help desk and on-site intervention services for the PCs, printers and peripherals of the General Secretariat of the Council (OJ 2008/S 91‑122796) and to award the contract to another tenderer and, secondly, for damages.

Operative part

The Court:

1. Annuls the Council’s decision of 1 December 2008 to reject the tender submitted by the consortium composed of Alfastar Benelux SA and Siemens IT Solutions and Services SA, in response to Call for Tenders UCA/218/07 for the provision of technical maintenance – help desk and on-site intervention services for the PCs, printers and peripherals of the General Secretariat of the Council and to award the contract to another tenderer;

2. Dismisses the claim for damages;

3. Orders the Council of the European Union to pay the costs.