Case T-89/07

VIP Car Solutions SARL

v

European Parliament

(Public service contracts – Community tender procedure – Transport for Members of the Parliament in chauffeur-driven cars and minibuses during part-sessions in Strasbourg – Rejection of a tenderer’s bid – Duty to state reasons – Refusal to disclose the price offered by the successful tenderer – Action for damages)

Summary of the Judgment

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

2.      Acts of the institutions – Statement of reasons – Obligation – Scope – Decision, in an award procedure for a public service contract, to reject a tender

(Art. 253 EC; Council Regulation No 1605/2002, Art. 100(2); Commission Regulation No 2342/2002, Art. 149(3))

3.      Procedure – Application initiating proceedings – Formal requirements

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

4.      Procedure – Application initiating proceedings – Subject-matter of the dispute

(Rules of Procedure of the Court of First Instance, Arts 44(1)(c) and 48(2))

5.      Actions for annulment – Jurisdiction of the Community judicature – Claim seeking that directions be issued to an institution – Inadmissibility

(Arts 230 EC and 233 EC)

1.      The Parliament has a broad discretion with regard to the factors to be taken into account for the purpose of deciding to award a contract following an invitation to tender. The Court’s review of the exercise of that discretion is therefore limited to checking that the rules governing the procedure and statement of reasons are complied with, the facts are correct and there is no manifest error of assessment or misuse of powers.

(see para. 56)

2.      It follows 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(3) of Regulation No 2342/2002 laying down detailed rules for the implementation of the Financial Regulation that the Community institution will meet its obligation to state reasons for its decision, in an award procedure for a public services contract, to reject a tender, if it satisfies itself, first, that it has immediately notified all rejected tenderers of the reasons for the rejection of their tender and then provides tenderers who submitted an admissible tender and who expressly request it with the characteristics and relative advantages of the successful tender and the name of the tenderer to which the contract was awarded within 15 calendar days of receipt of a written request.

Where a Community institution has broad powers of appraisal, respect for the rights guaranteed by the Community legal order in administrative procedures is of even more fundamental importance. Those guarantees include, in particular, the duty of the competent institution to provide adequate reasons for its decisions. Only in this way can the Court verify whether the factual and legal elements upon which the exercise of the power of appraisal depends were present.

If the institution concerned sends a letter in response to a request from the applicant seeking additional explanations about a decision before instituting proceedings but after the date laid down in Article 149(3) of Regulation No 2342/2002, that letter may also be taken into account when examining whether the statement of reasons in the case in question is adequate. The requirement to state reasons must be assessed in the light of the information which the applicant possesses at the time of instituting proceedings, it being understood, however, that the institution is not permitted to replace the original statement of reasons by an entirely new statement.

However, the fact that the institution concerned provided the reasons for the decision to reject a tender in the course of the proceedings does not compensate for the inadequacy of the initial statement of reasons for that decision. The reasons for a decision cannot be explained for the first time ex post facto before the Court, save in exceptional circumstances.

(see paras 59, 61, 73, 76)

3.      Under the first paragraph of Article 21 of the Statute of the Court of Justice, which applies to the procedure before the Court of First Instance by virtue of the first paragraph of Article 53 of that statute, and under Article 44(1)(c) of the Rules of Procedure of the Court of First Instance, all applications must indicate the subject‑matter of the dispute and contain a summary of the pleas in law on which the application is based. That statement must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to exercise its power of review. In order to guarantee legal certainty and the sound administration of justice, it is necessary that the basic legal and factual particulars relied on be indicated, at least in summary form, coherently and intelligibly in the application itself.

In that context, an application seeking compensation for damage caused by a Community institution must state the evidence from which the conduct alleged against the institution can be identified, the reasons for which the applicant considers there to be a causal link between that conduct and the damage it claims to have suffered, and the nature and extent of that damage.

(see paras 96, 103)

4.      Under Article 44(1)(c) of the Rules of Procedure of the Court of First Instance an applicant is required to state in the application the subject-matter of the proceedings and the form of order sought. Although Article 48(2) of those rules authorises, in certain circumstances, new pleas in law to be introduced in the course of proceedings, the provision cannot in any circumstances be interpreted as authorising the applicant to bring new claims before the Community Courts and thereby to modify the subject-matter of the proceedings.

(see para. 110)

5.      In an action for annulment founded on Article 230 EC, the jurisdiction of the Community judicature is confined to reviewing the legality of the contested measure and the Court cannot, in the exercise of its jurisdiction, issue directions to the Community institutions. If the contested measure is annulled, it is for the institution concerned to adopt, in accordance with Article 233 EC, the necessary measures to comply with the judgment annulling that measure.

(see para. 112)