Case T‑38/21
Inivos Ltd
and
Inivos BV
v
European Commission
Judgment of the General Court (First Chamber, Extended Composition) of 21 February 2024
(Public procurement – Negotiated procedure without prior publication of a contract notice – Supply of disinfection robots to European hospitals – Extreme urgency – COVID-19 – Non-participation of the applicants in the tendering procedure – Action for annulment – Lack of individual concern – Contractual nature of the dispute – Inadmissibility – Liability)
1. Action for annulment – Actionable measures – Concept – Measures producing binding legal effects – Preparatory measures – Excluded – Commission decision to use the negotiated procedure without prior publication of a contract notice – Inadmissibility
(Art. 263 TFEU)
(see paragraphs 21-24, 29-31, 33)
2. Action for annulment – Actionable measures – Concept – Measures producing binding legal effects – Commission decision to award a contract under a negotiated procedure without prior publication of a contract notice – Included
(Art. 263 TFEU)
(see paragraphs 37, 39-41)
3. Action for annulment – Natural or legal persons – Interest in bringing proceedings – Action capable of securing a benefit for the applicant – Action brought by an operator acting on the market subject to a negotiated procedure without prior publication of a contract notice – Basis of a possible action for compensation – Interest in bringing proceedings retained
(Art. 263, fourth para., TFEU)
(see paragraphs 42, 45, 47, 54, 56, 57)
4. Action for annulment – Natural or legal persons – Measures of direct and individual concern to them – Direct concern – Criteria – Commission decision to award a contract under a negotiated procedure without prior publication of a contract notice – Direct concern of the applicant who is absent from the procedure and acts on the relevant market
(Art. 263, fourth para., TFEU)
(see paragraphs 60-67)
5. Action for annulment – Natural or legal persons – Measures of direct and individual concern to them – Individual concern – Criteria – Commission decision to award a contract under a negotiated procedure without prior publication of a contract notice – Action brought by an operator which has not been invited to tender and has not demonstrated its ability to fulfil the criteria used to select the operators invited to tender – Not individually concerned – Inadmissibility
(Art. 263, fourth para., TFEU)
(see paragraphs 68-79)
6. Action for annulment – Action relating in reality to a contractual dispute – Action concerning a Commission decision to conclude framework contracts with the successful tenderers – No jurisdiction of the EU judicature – Inadmissibility
(Art. 263 TFEU)
(see paragraphs 81-84)
Résumé
The General Court, ruling in the extended five-judge composition, dismisses as inadmissible the action brought by the applicants, Inivos Ltd and Inivos BV, seeking, inter alia, annulment of three decisions of the European Commission concerning the award of an EU public contract for the acquisition of disinfection robots. In its judgment, the Court clarifies the conditions governing the admissibility of an action brought by an economic operator which has not been invited to participate in a negotiated procedure without prior publication of a contract notice (‘NPWPP’), seeking annulment of the decision taken in the course of that procedure to award the contract.
The Commission has decided, on the basis of the urgency arising from the COVID-19 crisis, to use the NPWPP to acquire 200 autonomous disinfection robots using UV rays in order to deploy them in European hospitals. (1) A preliminary market consultation had identified six suppliers, other than the applicants, that met predefined criteria and were invited by the Commission to submit a bid under the NPWPP. The Commission adopted the decision to award that contract to two of them, with which the framework contracts for disinfection robots were therefore concluded.
Following the contract award notice of 9 December 2020, according to which the framework contracts at issue had been concluded on 19 November 2020, the applicants brought an action for annulment of the decision to use an NPWPP, the decision to award that contract (‘the contested award decision’) and the decision to conclude the framework contracts with the two selected operators, as well as an action for damages.
Findings of the Court
In the assessment of the admissibility of the head of claim seeking annulment of the contested award decision, the Court rules, inter alia, on the question of the standing of the applicants to bring proceedings. (2)
In the first place, the Court examines whether the contested award decision is of direct concern to the applicants. It finds, first, that the effect of that decision was to deprive them definitively of the opportunity to participate in – and thereby to exclude them from – the NPWPP. Accordingly, that decision directly produced effects on their legal situation. Stressing that the applicants must prove that they are operators active on the market concerned, the Court considers that they have sufficiently demonstrated that they were active on the market for autonomous disinfection robots using UV rays.
Secondly, the contested award decision definitively identified two operators as successful tenderers for the contract at issue with immediate and binding effect. Since that decision produces its legal effects without any additional measure being required, it leaves no discretion to the addressees who are entrusted with the task of implementing it. The Court concludes from the foregoing that the contested award decision directly affected the applicants.
In the second place, the Court examines whether the contested award decision is of individual concern to the applicants. In the specific circumstances of an NPWPP, an operator which has not been invited to participate in that procedure, even though it was able to fulfil the criteria applied by the contracting authority to select the undertakings to be invited to tender, must be regarded as belonging to a limited class of competitors which, had they been invited to submit a tender, would have been in a position to do so.
In that regard, the Commission explained that the criteria used in the procedure in question were the CE marking, a production capacity of at least 20 units per month and experience in deploying at least 10 robots in hospitals. Those criteria were brought to the attention of the applicants in the context of the judicial proceedings.
First, as regards the criterion relating to the CE marking, the Court considers that the applicants have demonstrated that their robot fulfilled that criterion.
Secondly, as regards the criterion relating to production capacity, although the applicants stated at the hearing that they fulfilled that criterion and were even able to increase their production capacity, the Court notes that they have not adduced any evidence establishing that their production capacity could reach 20 robots per month.
Thirdly, as regards the criterion relating to the experience required in the deployment of robots in hospitals, the Court finds that the evidence produced by the applicants does not make it possible to determine the exact number of robots deployed.
The Court infers from the foregoing that the applicants have not proved that they were in a position to fulfil the criteria used by the Commission to select the operators invited to tender in the context of the NPWPP. Consequently, they have not proved that they formed part of a limited class of operators in a position to be invited to tender and to submit a tender. They are therefore not individually concerned by the contested award decision.
Accordingly, the Court finds that the head of claim seeking annulment of the contested award decision is inadmissible. After dismissing as inadmissible the heads of claim directed against the other two contested decisions, the Court dismisses the action for annulment in its entirety. Furthermore, the Court also dismisses the action for damages brought by the applicants.