Joined Cases T-383/06 and T-71/07

Icuna.Com SCRL

v

European Parliament

(Action for annulment – Action for damages – Public service contracts – Community tendering procedure – Rejection of a tender – Decision to annul the tendering procedure – Action manifestly lacking any foundation in law – No need to adjudicate)

Summary of the Order

1.      Actions for annulment – Interest in bringing proceedings – Natural or legal persons – Measures of direct and individual concern to them

(Art. 230, fourth para., EC)

2.      Budget of the European Communities – Financial regulation – Provisions applicable to procedures for the award of public contracts

(Council Regulation No 1605/2002, Art. 101, first para.)

3.      Acts of the institutions – Statement of reasons – Obligation – Scope – Reference to the legal basis of a measure

(Art. 253 EC)

4.      Non-contractual liability – Conditions – Sufficiently serious breach of Community law

(Art. 288, second para., EC)

1.      A decision of the European Parliament annulling a tendering procedure for the award of a public contract directly affects the legal situation of a tendering undertaking where, as regards the annulment of that tendering procedure in its entirety, the decision results in the annulment of a decision rejecting its tender, but also that of a decision which annulled a decision awarding that undertaking the contract, and that of a decision which awarded it the contract. That decision annulling the tendering procedure is therefore of direct concern to that undertaking. For the same reason, that decision adversely affects the undertaking, which thus has an interest in seeing it annulled. That decision is also of individual concern to the undertaking in that it was the only tenderer to be awarded the contract in the context of the annulled tendering procedure. That factor is such as to distinguish the applicant individually in relation to all the other unsuccessful tenderers.

(see paras 47-48)

2.      The first paragraph of Article 101 of Regulation No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities is intended to settle the conflict between the private interests of the tenderers and the successful tenderer, on the one hand, and, on the other hand, the general interest which the contracting authority is supposed to pursue, where the contracting authority abandons the procurement or annuls the tendering procedure. It is necessary to distinguish two stages in connection with the application of that provision.

First, the contracting authority is not bound before the signature of the contract with the tenderer chosen and may thus, in the context of its task relating to the general interest, freely abandon the procurement or annul the award procedure. In that case, Article 101 of the Financial Regulation precludes any entitlement to compensation on the part of the candidates or tenderers on account of such an abandonment or cancellation.

Secondly, after the signature of the contract, the contracting authority is bound contractually towards the selected tenderer. It can therefore, as a rule, no longer unilaterally abandon the procurement or annul the tendering procedure. The situation can be different only in exceptional circumstances such as those in which the contracting parties decided, by common accord, to abandon the contract.

The interpretation of the first paragraph of Article 101 of the Financial Regulation, according to which the contracting authority no longer has the competence to annul the award procedure once the contract with the successful tenderer has been signed, even if the successful tenderer has abandoned his contractual position, would, in cases where the contracting authority found, after signature of the contract, that there may have been irregularities in the award procedure, risk placing the parties to that procedure in an impasse. First, the performance of the contract would, in such a situation, expose them to the risk of being ordered to suspend the operation of that contract or to the annulment of the award decision, following an action brought by an unsuccessful tenderer before the Court of First Instance. Secondly, the contracting authority could not annul the procedure or abandon the procurement even if the successful tenderer were prepared to abandon the contract. Article 101 of that regulation cannot be interpreted as running counter to the common intention of the parties to the contract to terminate that contract without having begun to implement it. In such circumstances, the contracting authority therefore has the right to annul the tendering procedure.

(see paras 58-61)

3.      The scope of the obligation to state reasons must be appropriate to the act 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 as to enable the persons concerned to ascertain the reasons for the measure so that they can defend their rights and ascertain whether or not the measure is well founded and to enable the competent Community Court to exercise its power of review.

More specifically as regards the reference to the legal basis of a lawful measure, failure to refer to a precise provision need not necessarily constitute an infringement of essential procedural requirements when the legal basis for the measure may be determined from other parts of the measure, as such explicit reference is indispensable only where, in its absence, the parties concerned and the Community judicature are left uncertain as to the precise legal basis.

(see paras 67-68)

4.      For the Community to incur non-contractual liability within the meaning of the second paragraph of Article 288 EC, a series of conditions must be met, namely, the conduct of which the institutions are accused must have been unlawful, the damage must be real and a causal connection must exist between that conduct 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. With regard to the first of those conditions, the unlawful conduct alleged against a Community institution must consist of a sufficiently serious breach of a rule of law intended to confer rights on individuals.

Where an application for annulment made by the party concerned is manifestly lacking any foundation in law in the absence of unlawful conduct on the part of the institution and a claim for damages is based on the same arguments as those relied on in support of the application for annulment, that claim for damages must be dismissed as also lacking any foundation in law, since there is no sufficiently serious breach of a rule of law intended to confer rights on individuals.

(see paras 77-79, 81)