Judgment of the General Court (Seventh Chamber) of 22 September 2011 – Evropaïki Dynamiki v Commission

(Case T-86/09)

Public service contracts – Tendering procedure – Provision of computer and related services, including the maintenance and development of the information systems of the Commission Directorate-General for Maritime Affairs and Fisheries – Rejection of a tender – Obligation to state reasons – Equal treatment – Transparency – Award criteria – Conflict of interests – Manifest error of assessment – Non-contractual liability

1.                     Acts of the institutions – Statement of reasons – Obligation – Scope – Decision, in a tendering procedure for 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 (Art. 253 EC; Council Regulation No 1605/2002, Art. 100(2); Commission Regulation No 2342/2002, Art. 149(3)) (see paras 26, 29-32)

2.                     European Communities’ public procurement – Tender procedure – Obligation to comply with the principle of equal treatment tenderers – Need to ensure equality of opportunity and comply with the principle of transparency – Disparity in information communicated to tenderers, to the benefit of the established contractor – Information neither necessary nor useful for the formulation of tenders – No infringement of the equal treatment principle (see paras 60-63, 65-83)

3.                     European Communities’ public procurement – Conclusion of a contract following a call for tenders – Power of the institutions in the conduct of the tendering procedure – Conflict of interest between a tenderer and a member of the tender evaluation committee – Concept (Council Regulation No 1605/2002, Art. 52(2)) (see paras 100-103)

4.                     European Communities’ public procurement – Conclusion of a contract following a call for tenders – Discretion of the institutions – Judicial review – Limits (see para. 123)

Re:

APPLICATION for annulment of the Commission’s decision of 12 December 2008 rejecting the tender submitted by the applicant in response to Call for Tenders MARE/2008/01 for the provision of computer and related services, including the maintenance and development of the information systems of the Commission’s Maritime Affairs and Fisheries Directorate-General (OJ 2008 S 115) and of the decision to award the contract to another tenderer, and an application for damages.

Operative part

The Court:

1. Dismisses the action;

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.