Judgment of the General Court (Third Chamber) of 17 October 2012 — Evropaïki Dynamiki v Court of Justice

(Case T‑447/10)

Public service contracts — Tender procedure — Provision of services for the maintenance, development and support of computer applications — Rejection of the applicant’s tenders and award of the contracts to another tenderer — Selection criteria — Award criteria — Obligation to state reasons — Non-contractual liability

1.                     Proceedings — Application initiating proceedings — Formal requirements — Identification of the subject-matter of the dispute — Summary statement of pleas (Statute of the Court of Justice, Arts 21, first para., and 53, first para.; Rules of Procedure of the General Court, Art. 44(1)(c)) (see para. 27)

2.                     EU public contracts — Conclusion of a contract by tender — Selection criteria — Assessment of the candidates’ capacity to provide specified services — Award criteria — Comparative assessment of the particular characteristics and merits of individual tenders — Application of a criterion designed to assess the ability of candidates to perform a contract at the time of the contract award phase — Not permissible (Council Regulation No 1605/2002, Art. 97(1); Commission Regulation No 2342/2002, Arts 137 and 138) (see paras 35-42, 53)

3.                     EU public contracts — Conclusion of a contract by tender — Discretion of the institutions — Judicial review — Limits (see paras 69, 70)

4.                     Acts of the institutions — Statement of reasons — Obligation — Scope — Decision, in the procedure for the award of a public service contract, not to accept a tender — Obligation to communicate, following a written request, the characteristics and relative advantages of the tender accepted and the name of the tenderer — Obligation on the awarding authority to provide a detailed analysis of the tender accepted and the tender of the unsuccessful tenderer (Art. 296 TFEU; Council Regulation No 1605/2002, Art. 100(2); Commission Regulation No 2342/2002, Art. 149) (see paras 70-73, 92, 95-96, 107, 110)

5.                     Actions for annulment — Action against a decision, in the procedure for award of a public service contract, not to accept a tender — Annulment of the contested decision for lack of reasoning — Alternative plea for annulment claiming infringement of the principle of non-discrimination — Reality of the discrimination depending on examination of pleas having to be directed against the decision replacing the annulled decision — Claim for annulment premature (see para. 116)

6.                     Non-contractual liability — Conditions — Unlawfulness — Damage — Causal link — One of the conditions not satisfied — Claim for compensation dismissed in its entirety (Art. 340, second para., TFEU) (see paras 118, 119)

7.                     Non-contractual liability — Conditions — Unlawfulness — Damage — Causal link — Annulment, for lack of reasoning, of a decision of the Court of Justice having, in the procedure for awarding a public service contract, rejected a tender — Reality of the unlawfulness and the causal link dependent on the examination of pleas having to be directed against the decision replacing the annulled decision — Claim for compensation premature (Art. 340, second para., TFEU) (see paras 123, 125)

Re:

APPLICATION, first, for annulment of the decision of the Court of Justice of 12 July 2010 by which it rejected the applicant’s tenders for lots 1 and 2 in invitation to tender CJ 7/09 of 11 November 2009 for the maintenance, development and support of computer applications (OJ 2009, S 217-312293) and of all further related decisions of the Court of Justice, including the decision to award the respective contracts to the successful contractors, and second, for damages.

Operative part

The Court:

1. Annuls the decision of the Court of Justice of the European Union of 12 July 2010 rejecting the tenders submitted by Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE in tender procedure CJ 7/09 of 11 November 2009 for the maintenance, development and support of computer applications and awarding the contracts to other tenderers;

2. Dismisses the action as to the remainder;

3. Orders the Court of Justice to pay the costs.