Judgment of the General Court (Second Chamber) of 20 September 2011 – Evropaïki Dynamiki v Commission

(Case T-298/09)

Public service contracts – Community tendering procedure – Supply of external services for educational programmes – Award of the contract to several tenderers – Tenderer’s ranking – Action for annulment – Duty to state reasons – Grounds for exclusion from the contract award procedure – Article 93(1)(f) of the Financial Regulation – Tender validity period – Non-contractual liability

1.                     Acts of the institutions – Statement of reasons – Obligation – Scope – Decision to give no further consideration to a tenderer in the award procedure for a public service contract – Assessment having regard to information at the applicant’s disposal at the time the action was brought – No infringement of the duty to state reasons (Art. 296 TFEU; Council Regulation No 1605/2002, Art. 100(2); Commission Regulation No 2342/2002, Art. 149(2) and (3)) (see paras 27-31, 54)

2.                     European Union public contracts – Tender procedure – Award of contracts – Principle of equal treatment of tenderers – Scope (Art. 18 TFEU; Council Regulation No 1605/2002, Art. 89(1)) (see para. 73)

3.                     Non-contractual liability – Conditions – Unlawfulness – Damage – Causal link – One of those conditions lacking – Claim for compensation dismissed in its entirety (Art. 340, second para., TFEU) (see paras 100-103)

Re:

APPLICATION, first, for annulment of two Commission decisions, communicated in two separate letters of 12 May 2009 ranking the applicant, for its tenders in response to the open call for tenders EAC/01/2008 for external service provision for educational programmes (ESP-ISEP) (OJ 2008/S 158-212752), for Lot No 1 (IS (information system) Development and Maintenance) and for Lot No 2 (IS (information system) Studies, Testing, Training and Support), as second contractor for each of those lots and, secondly, for damages.

Operative part

The Court:

1. Dismisses the action;

2. Orders Evropaïki Dynamiki – Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE to bear its own costs and to pay those incurred by the European Commission.