Case T-121/08

PC-Ware Information Technologies BV

v

European Commission

(Public supply contracts – Community tendering procedure – Acquisition of software products and licences – Rejection of a tender – Abnormally low tender – Duty to state reasons)

Summary of the Judgment

1.      Actions for annulment – Interest in bringing proceedings – Action against a decision that has been implemented

(Art. 230 EC)

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

3.      European Communities’ public procurement – Conclusion of a contract following a call for tenders – Abnormally low tender

(Commission Regulation No 2342/2002, Art. 139(1))

4.      Acts of the institutions – Statement of reasons – Obligation – Scope

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

5.      Non-contractual liability – Conditions – Unlawfulness – Damage – Causal link – One of the conditions not satisfied

(Art. 288, second para., EC)

1.      For an applicant to retain during the proceedings an interest in the annulment of the contested measure, that annulment must be capable, in itself, of producing legal effects which may consist, in particular, in redressing any harmful consequences arising from that measure or in preventing future repetition of the alleged unlawfulness.

Even if a public procurement contract has already been performed, where it is a framework contract likely to serve as a model for similar future procurement contracts, there is an interest in preventing the unlawfulness alleged by the tenderer from recurring in the future.

(see paras 39-40)

2.      The Community judicature has jurisdiction, in the context of annulment proceedings, to adjudicate in actions for lack of competence, infringement of essential procedural requirements, infringement of the treaties or of any rule of law relating to their application, or misuse of powers. It follows that the Community judicature cannot treat an alleged infringement of national legislation as a question of law for which unlimited judicial review is available. Review of that kind is a matter exclusively for the national courts.

Nevertheless, in accordance with the principles of sound administration and solidarity as between the institutions of the European Union and the Member States, the Community institutions are required to ensure that the conditions laid down in an invitation to tender do not induce potential tenderers to infringe the national legislation likely to be applicable to the contract concerned, as that question constitutes an assessment of facts.

(see paras 62-63)

3.      Under the provisions of Article 139(1) of Regulation No 2342/2002 laying down detailed rules for the implementation of the financial regulation, the contracting authority is obliged to allow the tenderer to clarify, or even explain, the characteristics of its tender before rejecting it, if it considers that a tender is abnormally low. The obligation to check the seriousness of a tender also arises where there are doubts beforehand as to its reliability, also bearing in mind that the main purpose of that article is to enable a tenderer not to be excluded from the procedure without having had an opportunity to explain the terms of its tender which appears abnormally low.

(see para. 72)

4.      The duty to give reasons depends on the type of measure at issue and the context in which it was adopted. The statement of reasons must disclose in a clear and unequivocal fashion the reasoning followed by the institution in such a way, first, as to make the persons concerned aware of the reasons for the measure and thus enable them to defend their rights and to verify whether or not the decision is well founded and, secondly, to permit the Court to exercise its power to review the lawfulness of the measure.

In the field of public procurement, in accordance with Article 100(2) of Regulation No 1605/2002 on the financial regulation applicable to the general budget of the European Communities and Article 149(2) of Regulation No 2342/2002 laying down detailed rules for the implementation of the financial regulation, the contracting authority must notify the tenderer of the grounds for the rejection of its tender and furthermore, where it has put in an admissible tender, of the characteristics and relative advantages of the tender accepted and the name of the successful tenderer, within no more than 15 calendar days from receipt of a request in writing. Since that manner of proceeding, as described in Article 100(2) aforesaid, discloses the reasoning followed by the authority which adopted the measure in a clear and unequivocal fashion, it satisfies the purpose of the duty to state reasons laid down in Article 253 EC.

(see paras 92-94)

5.      In order for the Community to incur non‑contractual liability within the meaning of the second paragraph of Article 288 EC on account of the unlawful conduct of its institutions, a number of requirements must be satisfied, namely that the alleged conduct of the institutions is unlawful, that the damage is real and that there is a causal link between the conduct alleged and the damage in question. Since those three conditions for the incurring of liability are cumulative, failure to meet one of them is sufficient for an action for damages to be dismissed, without it therefore being necessary to examine the other conditions.

(see paras 105-106)