ORDER OF THE COURT OF FIRST INSTANCE (Third Chamber)
19 October 2007 ?(1)
(No need to adjudicate – Public procurement – European Food Safety Authority (EFSA) – Cancellation of the call for tenders – Action which has become devoid of purpose)
In Case T‑69/05,
Evropaïki Dynamiki – Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE, established in Athens (Greece), represented by N. Korogiannakis, lawyer,
applicant,
v
European Food Safety Authority (EFSA), represented initially by A. Cuvillier and D. Detken, and subsequently by A. Cuvillier and S. Gabbi, acting as Agents, and J. Stuyck, lawyer,
defendant,
APPLICATION for annulment of the decision of the European Food Safety Authority (EFSA) of 3 December 2004 rejecting the tender submitted by the applicant in the tendering procedure concerning the supply of IT services for establishing an extranet between Member States’ national agencies, EFSA and the Commission, and also of the decision to award the contract to another tenderer,
THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Third Chamber),
composed of M. Jaeger, President, J. Azizi and E. Cremona, Judges,
Registrar: E. Coulon,
makes the following
Order
Legal background
1 The European Food Safety Authority (EFSA) is a European agency established by Regulation (EC) No 178/2002 of the European Parliament and of the Council of 28 January 2002 laying down the general principles and requirements of food law, establishing the EFSA and laying down procedures in matters of food safety (OJ 2002 L 31, p. 1).
2 Article 185(1) of Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 248, p. 1) (‘the Financial Regulation’) provides that:
‘The Commission shall adopt a framework financial regulation for the bodies set up by the Communities and having legal personality which actually receive grants charged to the budget. The financial rules of these bodies may not depart from the framework regulation except where their specific operating needs so require and with the Commission’s prior consent.’
3 Article 74 of Commission Regulation (EC, Euratom) No 2343/2002 of 23 December 2002 on the framework Financial Regulation for the bodies referred to in Article 185 of the Financial Regulation (OJ 2002 L 357, p. 72) states:
‘As regards procurement, the relevant provisions of the general Financial Regulation and the detailed rules for implementing that Regulation shall apply.’
4 That provision is reiterated in Article 74 of the EFSA’s financial regulation, adopted on 13 October 2003, and in Article 54 of the regulation laying down detailed rules for the implementation of certain provisions of that financial regulation, which was adopted on 18 January 2005.
5 Public procurement by Community institutions is subject to the provisions of Title V of Part One of the Financial Regulation and also to the provisions of Title V of Part One of Commission Regulation (EC, Euratom) No 2342/2002 of 23 December 2002 laying down detailed rules for the implementation of the Financial Regulation (OJ 2002 L 357, p. 1) (‘the detailed rules’). Those provisions are based on the relevant Community directives, in particular, in respect of public service contracts, on Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts (OJ 1992 L 209, p. 1), as amended, and in respect of public supply contracts, on Council Directive 93/36/EEC of 14 June 1993 coordinating procedures for the award of public supply contracts (OJ 1993 L 199, p. 1), as amended.
6 Article 100(2) of the Financial Regulation provides:
‘The contracting authority shall notify all candidates or tenderers whose applications or tenders are rejected of the grounds on which the decision was taken, and all tenderers whose tenders are admissible and who make a request in writing of the characteristics and relative advantages of the successful tender and the name of the tenderer to whom the contract is awarded.
However, certain details need not be disclosed where disclosure would hinder application of the law, would be contrary to the public interest or would harm the legitimate business interests of public or private undertakings or could distort fair competition between those undertakings.’
7 Article 101 of the Financial Regulation provides:
‘The contracting authority may, before the contract is signed, either abandon the procurement or cancel the award procedure without the candidates or tenderers being entitled to claim any compensation.
The decision must be substantiated and be brought to the attention of the candidates or tenderers.’
8 Article 149 of the detailed rules, in the version applicable to the facts in the present case, provides that:
‘1. The contracting authorities shall as soon as possible inform candidates and tenderers of decisions reached concerning the award of the contract, including the grounds for any decision not to award a contract for which there has been competitive tendering or to recommence the procedure.
2. The contracting authority shall, within not more than 15 calendar days from the date on which a written request is received, communicate the information provided for in Article 100(2) of the Financial Regulation.’
Facts and procedure
9 By contract notice of 7 August 2004, published in the Supplement to the Official Journal of the European Union (OJ 2004 S 153), the EFSA launched a call for tenders, under the reference EFSA/IT/00012, relating to ‘software and services for establishing an Extranet between Member States’ national agencies, EFSA and the Commission’.
10 On 20 September 2004 the applicant, in consortium with Sineura Spa, submitted a proposal in response to the abovementioned call for tenders.
11 By letter of 3 December 2004 (‘the contested decision’), the EFSA informed the applicant that its tender had not been selected because ‘it did not meet the selection criteria’.
12 On the same day, the applicant sent, by registered post and fax, a letter to the EFSA requesting information concerning the name of the successful tenderer and of its possible partner(s) or subcontractor(s) and the percentage of the contract awarded to the latter; the ground on which the applicant’s tender did not meet the selection criteria; the brand name of the extranet system proposed by the selected tenderer; the scores awarded for each award criterion applied in respect of the technical offer of the applicant and that of the successful tenderer; the content of the evaluation committee’s report and how the applicant’s financial offer compares with that of the successful tenderer and in particular the scores awarded to each of those financial offers.
13 By letter of 10 December 2004, the applicant requested the provision of that information.
14 By letter of 15 December 2004, the applicant, expressing its surprise as regards the exclusion of its tender on the ground of alleged non-compliance with the selection criteria, made some comments on the criterion relating to the references of users of the proposed software application, named Mermig, and stressed the fact that its tender contained more client references of the Mermig platform.
15 On the same day, the EFSA sent to the applicant, in reply to its letter of 3 December 2004, a letter enclosing the ‘Combined Evaluation Grid’, containing the scores awarded, in respect of each award criterion, to the technical offers of both the successful tenderer and an unsuccessful tenderer. The applicant’s tender had not been examined with regard to the award criteria as it had been eliminated on the basis of a selection criterion. The EFSA also informed the applicant that the successful tenderer was HP Belgium, whose subcontractor is Plumtree Inc., and stated that the selection criterion which the applicant’s tender did not meet was the one described in Document II – Tender Specifications, part IV, section 3.2, concerning ‘[c]ontact information for three clients of [the] company which satisfactorily purchased and used the products and services described … in the last three years’. As regards that criterion, the letter stated that the applicant had not passed the selection stage because the evaluation committee had found that two of its clients, inter alia, the Ministerie van de Vlaamse Gemeenschap (Ministry of the Flemish community) and the Office for Official Publications of the European Communities (EUR-OP), did not meet the abovementioned criteria. The EFSA stated, more specifically, that it had made enquiries with those two clients on 13 October 2004 and observed that the first had not yet purchased or used the products and services described in the tender specifications and that the second was not satisfied with the system’s ergonomics or user-friendliness. By contrast, another client, the Commission’s Directorate General (DG) ‘Press and Communication’, of which the EFSA had also made enquiries, had stated that it was satisfied with the applicant’s product and services.
16 Also on 15 December 2004, the applicant replied to the EFSA by a letter in which it made a number of objections to the decision rejecting its tender and stated that the EFSA should have contacted it to request clarification or considered one of the numerous other references mentioned in its tender. Furthermore, the applicant requested that it be provided with a copy of the statements made by the EUR-OP in writing and invited the EFSA to organise a joint meeting with the EUR-OP to address further its statements.
17 By letter of 22 December 2004, the EFSA informed the applicant that it had suspended the signature of the contract relating to the call for tenders. In that letter the EFSA states:
‘Further to our letter dated 3 December 2004, we would like to inform you that EFSA has suspended the signature of the contract related to the call for tender in subject, in order to allow the examination of further observations made by tenderers that have submitted a bid.
Please note that in its capacity as contracting authority, EFSA is entitled either to abandon or cancel this tendering procedure without compensation until the signature of the contract.
You will be informed in writing at a later stage on the final outcome of this tendering procedure’.
18 On 23 December 2004, the EFSA sent to the applicant two letters by email. In the first, sent in response to the question regarding access to documents posed in the applicant’s fax of 3 December 2004, it included the Evaluation Committee Report and five annexes, namely the minutes of the opening of the tenders; the guidelines for checking references; the minutes of the meeting of 3 November 2004 at which the Evaluation Committee selected the tenderers admitted to the award stage; the reference checking for each tenderer and the minutes or presentations. In the second, sent in reply to the applicant’s letter of 15 December 2004, it provided other explanations concerning certain aspects of the opinion given by the Evaluation Committee.
19 The applicant replied on 30 December 2004, expressing its disagreement with the EFSA’s comments in its last letter and informing it that it would address all of those comments the following week.
20 By fax of 4 January 2005, the applicant sent another letter to the EFSA in which it made a number of criticisms as regards the decision to reject its tender and, more generally, as regards the selection procedure followed by the EFSA.
21 By letter of 7 February 2005, which was sent to the applicant and to the other tenderers, the EFSA announced its decision to cancel the call for tenders. It justified that decision with ‘the serious risk that the award of the contract [might] lead to a situation [contrary to] the procurement rules which the EFSA [was required to] observe’.
22 By application lodged at the Court Registry on 11 February 2005, the applicant brought this action.
23 On 3 March 2005, the applicant was informed orally by the EFSA that the product referred to in the disputed call for tenders had already been bought directly from a supplier without launching a call for tenders and that the award of the corresponding services would be the subject of a new call for tenders with the reference number EFSA.IT.2005.006.
24 On 4 March 2005, the applicant sent a fax to the EFSA to inform it that it would not participate in the new call for tenders EFSA.IT.2005.006 because it considered that procedure to be completely illegal. In the same letter, the applicant expressed its regret regarding the fact that the EFSA had made a new call for tenders in such a hasty manner without waiting for the outcome of the proceedings which it had initiated before the Court and asked the EFSA to abstain from creating further similar products and services, to cancel immediately the new call for tenders and to carry out a fair evaluation of the tenders submitted in the context of the disputed call for tenders.
25 On 14 March 2005, the EFSA sent an email informing the applicant that the EFSA had just become aware of its application and asking it whether it had received the letter communicating the cancellation of the call for tenders, a copy of which was attached in electronic format.
26 The applicant replied by fax on 16 March 2005, stating that it had received the cancellation notice for the first time in the abovementioned email. It complained, furthermore, about the fact that the EFSA had decided to buy the product referred to in the disputed call for tenders directly from a supplier. Lastly, it expressed its astonishment as regards the fact that the EFSA had decided to communicate with it using the Brussels office address of its subsidiary, although the official address for communication of documents in Greece was clearly stated in its tender.
27 On 19 March 2005, the notice of cancellation of the call for tenders was published in the Supplement to the Official Journal of the European Union (OJ 2005 S 56).
28 On 5 April 2005, the EFSA sent a letter to the applicant explaining that it was entitled to cancel the procedure for award of the contract in terms of the provisions of the Financial Regulation and of the letter of invitation to tender. The EFSA pointed out to the applicant that the cancellation decision had been sent to it on 7 February 2005, stated the reasons why, in its opinion, the action before the Court had to be regarded as inadmissible and invited the applicant to a meeting in order to discuss those issues.
29 On 15 April 2005, following telephone conversations with the EFSA’s legal department, the applicant’s legal adviser agreed to that meeting and suggested a number of dates.
30 By email of the same date, the head of the EFSA’s legal department replied that it was not possible to organise the meeting on the suggested dates and that ‘having regard to the advanced stage of preparation of the defence …, it no longer appeared to them to be appropriate to hold such a meeting’.
31 On 19 May 2005, the EFSA lodged its defence in which it essentially submits that the present action is inadmissible and devoid of purpose.
32 On 14 July 2005, the applicant submitted its reply containing, inter alia, its observations on the EFSA’s arguments in that regard, without however amending its pleas in law and submissions on account of the cancellation of the call for tenders.
33 By way of measures of organisation of procedure, the Court, by letter of 17 January 2007, addressed questions to the parties and requested that the EFSA produce a copy of the ‘chronology’ of its outgoing mail, proving the date of registration of the letters sent. The applicant replied within the period allowed. As regards the EFSA, although its reply was submitted out of time, the Court decided to add it to the case file as well.
Forms of order sought by the parties
34 The applicant claims that the Court should:
– annul the decision of the EFSA to exclude its tender and award the contract to the successful tenderer as well as all other subsequent decisions of the EFSA related to that decision;
– order the EFSA to re-examine its tender on the basis of fair and transparent criteria;
– order the EFSA to pay the costs even if the action is dismissed.
35 The EFSA contends that the Court should:
– principally, declare the action to be inadmissible;
– alternatively, declare the action to be unfounded;
– order the applicant to pay the costs.
The absence of a need to adjudicate
Arguments of the parties
36 The EFSA submits, first, that the action is devoid of purpose because it had cancelled the call for tenders before the application was lodged and had informed the applicant, by letter of 7 February 2005, and the other nine tenderers, all of whom confirmed receipt of the letter, of the cancellation.
37 It submits that, according to well-established case-law, an action brought against a decision that has been withdrawn in the course of the procedure is to be held to be devoid of purpose and therefore inadmissible by reason of lack of interest because the contested decision has become ‘inapplicable’ and hence ceased to produce any further legal effects (Case T-239/94 EISA v Commission [1997] ECR II‑1839, paragraph 34, and the Order of 31 July 2000 in Case T-31/00 BSB-Fleischimport v Commission, not published in the ECR, paragraphs 11 and 14; see, to that effect, Joined Cases C-305/86 and C-160/87 Neotype Techmashexport v Commission and Council [1990] ECR I-2945, paragraphs 14 and 15).
38 Since the call for tenders was cancelled on 7 February 2005, that is to say before the date on which this action was brought, the EFSA submits that it is devoid of purpose and that there is no need for the Court to adjudicate upon it.
39 The EFSA disputes the applicant’s argument that it received the information concerning the cancellation of the call for tenders only in the email which the EFSA sent to it on 14 March 2005. The EFSA also disputes the applicant’s objection that it should have used the official address for communication mentioned in its tender instead of the Brussels office address of its subsidiary.
40 In that regard it states, first, that the Brussels address is one of the four addresses printed on the applicant’s standard letterhead and was therefore provided by the applicant itself, and, secondly, that the applicant had regularly received other letters at that address in the course of the procedure. It refers, in particular, to the letter of 3 December 2004, communicating the rejection of the tender, which was received by the applicant without any possible doubt as it was attached as an annex to its application.
41 According to the EFSA, the question whether the applicant did receive the cancellation decision does not affect the established fact that, at the time of lodging of the application, the award procedure had come to an end due to its cancellation by the EFSA in accordance with Article 101 of the Financial Regulation. The EFSA adds that the legal effect of that cancellation is not linked to the independent obligation to provide information which is referred to in the second paragraph of Article 101 of the Financial Regulation. Non-compliance with the obligation to provide information cannot affect the existence or validity of the decision to cancel the call for tenders.
42 Furthermore, the EFSA takes the view that it was under no obligation to send that letter by fax or registered mail or to check that the letter was actually received by the tenderers.
43 Lastly, the EFSA submits that the cancellation decision of 7 February 2005 complies with the provisions of the financial regulations.
44 As regards the applicant’s claim that the EFSA’s subsequent decision to award part of the contract, namely the purchase of the product, to the successful tenderer of the cancelled call for tenders and to prepare a new call for tenders in respect of the services relating to that product is contrary both to the disputed call for tenders and to the provisions governing public procurement, the EFSA submits that it is inadmissible since those decisions are not the subject-matter of this action.
45 In its reply, the applicant submits, first, that it received the EFSA’s letter concerning the cancellation of the call for tenders only by email of 14 March 2005. Secondly, it disputes the EFSA’s claim that that letter was sent to it on 7 February 2005. In that regard, it submits that, according to settled case-law, the burden of proof in respect of the sending of mail lies with the EFSA and, so far, it has not provided any conclusive evidence or even an indication in support of its claims.
46 The applicant further submits that the letter by which the EFSA communicated the cancellation of the call for tenders contains no statement of reasons and does not fulfil either the obligation referred to in point 13 of the letter of invitation to tender or that under Article 101 of the Financial Regulation and Article 149(1) of the detailed rules.
47 In any event, the applicant maintains that the EFSA’s decision to award directly to the successful tenderer the part of the contract concerning the purchase of the product which was the subject of the contested call for tenders, although that call for tenders had already been cancelled, and to initiate a new procedure for the services connected with the product in question infringes the call for tenders and the law relating to public procurement.
48 Lastly, the applicant submits that the EFSA’s letter of 7 February 2005 cancelling the call for tenders and its subsequent decision to award part of the subject of the call for tenders directly to the successful consortium before making a new call for tenders in respect of the supply of services relating to the product already purchased constitutes a misuse of power. By launching a new call for tenders relating only to the services, the EFSA gave a clear advantage to the supplier of the product who was best placed to supply services in respect of software which it had itself designed.
Findings of the Court
49 By its application for a ruling that there is no need to adjudicate, the EFSA raises a procedural issue which should, pursuant to Article 114(3) of the Rules of Procedure, be settled without opening the oral procedure as the Court takes the view that it has sufficient information from the documents in the case file.
50 In the present case, the parties agree that the award procedure in respect of the disputed contract was not completed as the disputed call for tenders was cancelled by the contracting authority on 7 February 2005. That decision was communicated, by ordinary mail, to the tenderers and published, subsequently, in the Supplement to the Official Journal of the European Union on 19 March 2005.
51 In that regard, it should be observed, as a preliminary point, that the Financial Regulation and the detailed rules do not contain any provision expressly requiring the contracting authority which has made a call for tenders to carry the procedure for awarding a contract to its conclusion (see, to that effect and by analogy, Case C-92/00 HI [2002] ECR I‑5553, paragraph 41, and the Order in Case C-244/02 Kauppatalo Hansel [2003] ECR I-12139, paragraph 30; Case T-203/96 Embassy Limousines & Services v Parliament [1998] ECR II-4239, paragraph 55). It is apparent, in particular from Article 101 of the Financial Regulation, Article 149(1) of the detailed rules and point 13 of the letter of invitation to tender of 7 August 2004, first, that the contracting authority may, before the contract is signed, either abandon the procurement or cancel the award procedure without the candidates or tenderers being entitled to claim any compensation and, secondly, that the decision must be substantiated and be brought to the attention of the candidates or tenderers as soon as possible. Furthermore, those provisions do not state that the decision to abandon the procurement or cancel the award procedure is limited to exceptional cases or must necessarily be based on serious grounds (see, to that effect and by analogy, Case C-27/98 Fracasso and Leitschutz [1999] ECR I-5697, paragraphs 23 and 25; HI, paragraph 40; and Kauppatalo Hansel, paragraph 29).
52 In the present case, it must be stated that, by adopting the decision of 7 February 2005 cancelling the call for tenders, the EFSA rendered the contested decision inoperative because there was no longer any contract to award. It arrived at that decision after finding that there was a serious risk that the award of the contract would be contrary to the procurement rules which it was required to observe.
53 The Court finds that, in those circumstances, the lapsing of the contested decision, which gave rise to its eradication from the Community legal order, is equivalent in effect to a judgment annulling that decision, without prejudice to the right of the applicant to contest, if necessary, in separate proceedings the lawfulness of the decision to cancel the call for tenders. A judgment by the Court annulling the contested decision would entail no legal consequence additional to the consequences stemming from the fact that the contested decision has lapsed. The applicant thus retains no interest in seeking the annulment of the contested decision. It follows that the present action has become devoid of purpose and that, consequently, there is no further need to adjudicate (see, to that effect, the Order in Case C-123/92 Lezzi Pietro v Commission [1993] ECR I-809, paragraph 10, and the Orders in Case T-13/96 TEAM and Kolprojekt v Commission [1997] ECR II-983, paragraph 28, and Case T-178/99 Elder v Commission [1999] ECR II-3509, paragraphs 20 and 21, and the case-law cited).
54 That finding cannot be invalidated by the applicant’s argument that it had not received the cancellation decision at the time when it lodged its application and that that decision had been incorrectly sent to it at the address of its subsidiary in Belgium instead of being sent to the address referred to in its tender.
55 It should be noted, in that regard, that the fact that the EFSA decided to send that decision to the applicant’s address in Belgium has no bearing on either the scope or validity of the decision. It must be pointed out, as stated by the EFSA, that the applicant’s Brussels office address is one of four printed on its letterhead. It is common ground, in addition, that other letters from the EFSA had indeed been received previously by the applicant at its address in Belgium. One of those letters was, inter alia, the contested decision which had, moreover, also been sent by ordinary mail, as was confirmed by the EFSA in reply to a written question from the Court. It is not, in addition, apparent from the documents in the case file that the applicant complained to the EFSA that it had sent those letters to it at its address in Belgium and not at that in Greece. The EFSA did not therefore have any information which could deter it from sending the letter communicating the cancellation of the call for tenders to the applicant’s Brussels office address given that it was sure that the applicant had previously received its letters.
56 It should also be pointed out that there is no provision governing the procurement procedure at issue which required the EFSA to send any communication connected with the procedure in question to the main address of the unsuccessful tenderers. The same is true of the means of communication of those decisions. The Court considers, as stated by the EFSA, that the EFSA was not required, by any provision governing public procurement, to comply with formalities for sending those communications which allowed it to check whether they were actually received by tenderers, although it is regrettable that it did not consider it to be appropriate to use a means of communications enabling it to make such a check.
57 In the light of those considerations, the Court finds that the applicant’s argument is irrelevant for the purposes of ascertaining whether the action is devoid of purpose and that it can relate, if appropriate, only to the matter of the order for costs. Even if the applicant did not receive the decision cancelling the procurement procedure before the lodging of its application, the fact remains that that decision was subsequently made public by its publication in the Supplement to the Official Journal of the European Union. It must therefore be concluded that the action became devoid of purpose, at the very least and in any event, after that publication and that there is no further need to adjudicate in that regard.
58 As regards the applicant’s argument alleging an insufficient statement of reasons for the decision cancelling the call for tenders, the Court, whilst pointing out that such an argument relates to a decision which is distinct from that which is the subject-matter of the action, finds that the applicant did not request permission to substitute new claims for those in its application and that it did not, furthermore, clearly widen or adapt its claims and initial pleas in law to take account of the subsequent decision or make additional claims against that decision. That argument is thus inadmissible in that it seeks to amend the subject-matter of the action.
59 The same is true so far as concerns the applicant’s claim relating to the alleged infringement of the call for tenders and the law relating to public procurement and also to the existence of an alleged misuse of power by the contracting authority when, after cancelling the disputed call for tenders, it decided to award part of the contract, namely the purchase of the product, to the same successful tenderer and to carry out a new procurement procedure as regards the services connected with the product.
60 The Court finds that those decisions do not have the same subject-matter as that of the decision contested in this action. On the basis of the little information contained in the case file, the award of the contract relating to the purchase of the product appears to have taken place at the end of a negotiated procedure and under an already existing framework contract, whilst the procurement procedure relating to the services connected with that product was the subject of a new publication in the Official Journal of the European Union. The two procedures in question can thus be distinguished clearly from the disputed procurement procedure.
61 It follows that the claim for, in essence, annulment of the abovementioned decisions, whose precise content is not clear from the case file, must be declared to be inadmissible in that it seeks to amend the subject-matter of the present action.
62 What is more, as is apparent from the fax sent to the EFSA by the applicant on 4 March 2005, the applicant took the view, at the time, that those decisions might be unlawful. Nothing would thus have prevented it from putting forward any plea relating to the illegality of those decisions in support of an action for annulment thereof.
63 Lastly, it should be observed that the fact that the applicant could no longer succeed by means of this action for annulment and would probably be time-barred from bringing a new action for annulment of the decisions taken by the EFSA following the cancellation of the disputed call for tenders does not preclude it from submitting, if appropriate, an application for compensation of the damage which it might claim to have incurred as a result of the allegedly unlawful conduct of the EFSA throughout the contested tendering procedure.
64 In the light of the foregoing considerations, the Court finds that the action has become devoid of purpose and that there is no further need to adjudicate.
Costs
65 The EFSA takes the view that, as it adopted the cancellation decision in accordance with the provisions of the financial regulations, it did not unreasonably or vexatiously cause the applicant to incur expenses. Accordingly, it requests that the applicant be ordered to pay the costs.
66 In its reply, the applicant submits, on the contrary, that the EFSA should pay the costs of the proceedings since they were initiated solely or partly because of its failure to act within reasonable time-limits. The applicant adds that, in the present case, the EFSA failed to ensure that the decision cancelling the call for tenders was communicated to it in time.
67 Under Article 87(6) of the Rules of Procedure, where a case does not proceed to judgment, the costs are in the discretion of the Court of First Instance.
68 In the present case, it should be pointed out, first, that, although it is indeed true that the decision cancelling the disputed call for tenders was adopted by the EFSA on 7 February 2005, that is to say four days before this action was brought, the fact remains that the EFSA has not proved its claim that the applicant became aware of that decision prior to the time at which it brought its action. On the contrary, it is apparent from the case file that the applicant first became aware of that decision on 14 March 2005, namely after the action had been brought.
69 Secondly, it must be found that the call for tenders was cancelled, according to the EFSA’s own statements, inter alia on account of the criticisms made by the applicant during the administrative procedure.
70 Thirdly, it is apparent from the case file that the EFSA, after having requested and been assured of the applicant’s availability to take part in a meeting for the purpose of discussing the issues connected with the admissibility of the action, essentially stated by email of 15 April 2005 that it was not available, on account of the advanced stage of preparation of its defence, which was lodged more that one month afterwards, namely on 19 May 2005.
71 Fourthly, it must be pointed out that the EFSA, without giving any justification, failed to comply with the time-limit set for answering the written questions of the Court.
72 In the light of those considerations, the Court considers that an order that the EFSA is to pay all the costs constitutes a fair reflection of the circumstances in the present case.
On those grounds,
THE COURT OF FIRST INSTANCE (Third Chamber)
hereby orders:
1. There is no need to adjudicate on this case.
2. The EFSA shall pay all the costs.
Luxembourg,19 October 2007.