Judgment of the General Court (Second Chamber) of 26 September 2014 — Evropaïki Dynamiki v Commission
(Case T‑498/11)
Public service contracts — Tender procedure — Renovation of a website — Rejection of a tenderer’s tender — Award of contract to another tenderer — Action for annulment — Obligation to state reasons — Award criteria — Manifest errors of assessment — Claim for damages
1. 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 para. 26)
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 — Assessment in the light of information available to the applicant at the time the action brought — Subsequent communication of information designed to complement a statement of reasons already sufficient — No effect (Art. 296 TFEU; Council Regulation No 1605/2002, Art. 100(2); Commission Regulation No 2342/2002, Art. 149(3)) (see paras 34, 162)
3. Judicial proceedings — Introduction of new pleas during the proceedings — Conditions — Amplification of an existing plea — Lawfulness (Rules of Procedure of the General Court, Art. 48(2)) (see para. 38)
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 — No 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(3)) (see paras 43, 45, 58, 63, 77, 103)
5. EU public contracts — Tender procedure — Award of contracts — Most economically advantageous tender — Award criteria — Choice of the contracting authorities — Criteria not exclusively quantitative — Lawfulness — Criterion attaching importance to the presentation of the tenders — Lawfulness (Council Regulation No 1605/2002, Art. 97; Commission Regulation No 2342/2002, Art. 138(2)) (see paras 109, 110, 113)
6. EU public contracts — Tender procedure — Award of contracts — Most economically advantageous tender — Award criteria — Observance of the principle of equal treatment of tenderers and of the principle of transparency — Later fixing by the adjudicating authority of the weighting coefficients for the sub-criteria of the award criteria laid down in the contract documents or in the contract notice — Lawfulness — Conditions (Council Regulation No 1605/2002, Art. 97(2); Commission Regulation No 2342/2002, Art. 138(1) to (3)) (see paras 120-122)
7. EU public contracts — Conclusion of a contract following a call for tenders — Discretion of the institutions — Judicial review — Limits (see para. 123)
8. EU public contracts — Tender procedure — Obligation to communicate to unsuccessful tenderers elements concerning the successful tender — Compliance with the obligation not implying the realisation by the awarding authority of an assessment based on a comparative analysis of the tenders (Council Regulation No 1605/2002, Art. 100(2); Commission Regulation No 2342/2002, Art. 149(3)) (see para. 156)
9. 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 264-268)
Re:
| APPLICATION (i) for annulment of the decision of the Publications Office of the European Union rejecting the tender submitted by the applicant concerning a supply of services relating to the revamping of the website of the European Anti-Fraud Office (OLAF) and of the decision to award the contract to another tenderer, and (ii) for damages. |
Operative part
The Court:
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. |