Judgment of the General Court (Seventh Chamber) of 19 November 2014 —
European Dynamics Luxembourg and Evropaïki Dynamiki v Europol
(Cases T‑40/12 and T‑183/12)
Public service contracts — Tender procedure — Provision of information technology services relating to a document management system and a corporate Intranet portal– Rejection of a tenderer’s bid– Obligation to state reasons — Equal treatment — Transparency — Proportionality — Non-contractual liability
1. Judicial proceedings — Introduction of new pleas during the proceedings — Inadequate statement of reasons — Plea which may be invoked at any stage of the proceedings (Rules of Procedure of the General Court, Art. 48(2)) (see para. 37)
2. 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 — Assessment having regard to information available to the applicant at the time the action brought (Art. 296 TFEU; Council Regulation No 1605/2002, Art. 100(2); Commission Regulation No 2342/2002, Art. 149(3)) (see paras 38-41)
3. EU public contracts — Conclusion of a contract following a call for tenders — Discretion of the institutions — Judicial review — Limits (Council Regulation No 1605/2002; Commission Regulation No 2342/2002) (see para. 46)
4. Judicial proceedings — Introduction of new pleas during the proceedings — Plea raised for the first time at the reply stage — Inadmissibility — Analogous requirements with regard to grounds in support of a plea (Rules of Procedure of the General Court, Art. 48(2), first para.) (see para. 51)
5. Judicial proceedings — Producing evidence — Time-limit — Evidence lodged out of time — Conditions (Rules of Procedure of the General Court, Art. 48(1)) (see paras 64, 65)
6. EU public contracts — Tender procedure — Duty to comply with the principle of equal treatment of tenderers — Scope — Awarding authority taking account of amendments to a tender by a tenderer — Not permissible (Council Regulation No 1605/2002, Arts 89(1), and 99; Commission Regulation No 2342/2002, Art. 148(3)) (see paras 83, 103-105)
7. EU public contracts — Tender procedure — Duty to comply with the principles of equal treatment of tenderers and transparency — Scope — Obligation to formulate clearly, precisely and unequivocally the conditions and procedures for awarding the contract (Council Regulation No 1605/2002, Art. 89(1); Commission Regulation No 2342/2002) (see para. 114)
8. EU public contracts — Conclusion of a contract following a call for tenders — Obligation on an institution to exercise its option to make contact with a tenderer after the opening of tenders — Condition — Exercise in compliance with the principles of sound administration, equal treatment, proportionality and legal certainty (Council Regulation No 1605/2002, Arts 89 and 92; Commission Regulation No 2342/2002, Art. 148(3)) (see para. 135)
9. Actions for annulment — Natural or legal persons — Measures of direct and individual concern to them — Absolute bar to proceeding (Art. 263, fourth para., TFEU) (see paras 147, 148)
10. Actions for annulment — Interest in bringing proceedings — Natural or legal persons — Action capable of securing a benefit for the applicant — Action brought by a tenderer, rejected before the award phase, against a decision to award a contract — Inadmissibility (Art. 263, fourth para., TFEU) (see paras 150-153)
11. Non-contractual liability — Conditions — Unlawfulness — Damage — Causal link — Absence of one of those conditions — Claim for compensation dismissed in its entirety (Art. 340, second para., TFEU) (see para. 161)
Re:
| In Case T‑40/12, an application for annulment of Europol’s decision of 22 November 2011 rejecting the bid tendered by the applicants in connection with Call for Tenders D/C3/1104 concerning the provision of an enterprise content management system (management of documents, records, and business processes) and a corporate Intranet portal (OJ 2011/S 134-222044), and, in Case T‑183/12, first, an application for annulment of Europol’s decision to grant the public service contract in respect of the call for tenders referred to above to another tenderer and, secondly, an application for compensation for the loss sustained as a result of the loss of opportunity for the applicants to be granted that public service contract. |
Operative part
The Court:
1. | | Orders that Cases T‑40/12 and T‑183/12 be joined for the purposes of judgment; |
3. | | Orders European Dynamics Luxembourg SA and Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE to bear their own costs and to pay those incurred by the European Police Office (Europol). |