Judgments nº T-411/06 of Court of First Instance of the European Communities, October 08, 2008

• Resolution Date: October 08, 2008
• Issuing Organization: Court of First Instance of the European Communities
• Decision Number: T-411/06

In Case T-411/06,

Sogelma - Societá generale lavori manutenzioni appalti Srl, established in Scandicci (Italy), represented by E. Cappelli, P. De Caterini, A. Bandini and A. Gironi, lawyers,

applicant,

v

European Agency for Reconstruction (EAR), represented initially by O. Kalha, subsequently by M. Dischendorfer and then by R. Lundgren, acting as Agents, and by S. Bariatti and F. Scanzano, lawyers,

defendant,

supported by

Commission of the European Communities, represented by P. van Nuffel and L. Prete, acting as Agents,

intervener,

APPLICATION for annulment of decisions of the EAR relating to cancellation of the tender procedure for the public works contract reference EuropeAid/120694/D/W/YU and organisation of a new tender procedure, and an application for compensation for loss allegedly suffered,

THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Eighth Chamber),

composed of E. Martins Ribeiro, President, S. Papasavvas and A. Dittrich (Rapporteur), Judges,

Registrar: J. Palacio González, Principal Administrator,

having regard to the written procedure and further to the hearing on 18 June 2008,

gives the following

Judgment

Legal context

1 The European Agency for Reconstruction (EAR) was established by Council Regulation (EC) No 2454/1999 of 15 November 1999 amending Regulation (EC) No 1628/96 relating to aid for Bosnia and Herzegovina, Croatia, the Federal Republic of Yugoslavia and the former Yugoslav Republic of Macedonia, in particular by the setting up of a European Agency for Reconstruction (OJ 1999 L 299, p. 1).

2 Council Regulation (EC) No 1628/96 of 25 July 1996 (OJ 1996 L 204, p. 1), was repealed by Article 14(1) of Council Regulation (EC) No 2666/2000 of 5 December 2000 on assistance for Albania, Bosnia and Herzegovina, Croatia, the Federal Republic of Yugoslavia and the Former Yugoslav Republic of Macedonia, repealing Regulation (EC) No 1628/96 and amending Regulations (EEC) No 3906/89 and (EEC) No 1360/90 and Decisions 97/256/EC and 1999/311/EC (OJ 2000 L 306, p. 1). The provisions of Regulation (EC) No 1628/96, as amended by Regulation No 2454/1999, governing the establishment and operation of the EAR were amended by and incorporated in Council Regulation (EC) No 2667/2000 of 5 December 2000 on the European Agency for Reconstruction (OJ 2000 L 306, p. 7).

3 Under Article 1 of Regulation No 2667/2000, the Commission may delegate to the EAR implementation of the Community assistance provided for in Article 1 of Regulation No 2666/2000 to Serbia and Montenegro. Under Article 2(1)(c) of Regulation No 2667/2000, the Commission may make the EAR responsible for all operations required to implement programmes for the reconstruction of Serbia and Montenegro, including preparing and evaluating invitations to tender and awarding contracts. In addition, under Article 3 of that regulation, the EAR is to have legal personality.

Background to the dispute

4 On 7 September 2005 the EAR published in the Supplement to the OfficialJournal of the European Union (OJ 2005 S 172) an open procedure procurement notice, reference EuropeAid/120694/D/W/YU, relating to the award of the public works contract -Restoring of Unhindered Navigation (removal of unexploded ordnance) in the Inland Waterway Transport system, Republic of Serbia, Serbia and Montenegro- (-the Procurement Notice-).

5 The Procurement Notice and point 2 of the instructions to tenderers to be found in the tender dossier [the -Instructions to tenderers-] stated that the project concerned was to be financed by the EAR, and that the contracting authority for it was to be the Serbian Ministry of Capital Investments.

6 Point 16(x) of the Procurement Notice and point 4.2(x) of the Instructions to tenderers specified, among the -minimum selection criteria- to be met by the successful candidate, that all the key personnel had to have at least 10 years appropriate professional experience.

7 Point 37 of the Instructions to tenderers reads as follows:

-Appeals

(1) Tenderers believing that they have been harmed by an error or irregularity during the award process may petition the [EAR] directly and inform the Commission. The [EAR] must reply within 90 days of receipt of the complaint.

(2) Where informed of such a complaint, the Commission must communicate its opinion to the [EAR] and do all it can to facilitate an amicable solution between the complainant (tenderer) and the [EAR].

(3) If the above procedure fails, the tenderer may have recourse to procedures established by the European Commission.-

8 Before the deadline for the submission of tenders, the EAR received three tenders, submitted respectively by a consortium formed by the applicant, Sogelma - Societá generale lavori manutenzioni appalti Srl, and the Croatian company DOK ING RAZMINIRANJE d.o.o. (-DOK ING-), and by two other consortia.

9 On 10 March 2006 the EAR publicly opened the tender envelopes. The price in the applicant-s tender was lower than that proposed by its competitors.

10 On 14 and 22 March 2006 the EAR sent requests for clarification to the tenderers. The second request concerned in particular the CVs of the proposed key personnel. All the tenderers replied to the requests for clarification within the periods set by the EAR.

11 By letter dated 9 October 2006 the EAR informed the applicant that the tender procedure in question had been cancelled due to the fact that none of the offers received was technically compliant. As regards the applicant-s offer, the EAR stated that one of the key personnel proposed, the -Superintendent Survey Team- did not satisfy the requirements laid down in point 16(x) of the Procurement Notice and in point 4.2(x) of the Instructions to tenderers.

12 By letter of 19 October 2006 (mistakenly dated 19 September 2006) the applicant asked for a copy of the decision to cancel the tender procedure and the respective minutes. In addition, it refers in that letter to the possibility of using the negotiated procedure under Article 30 of Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (OJ 2004 L 134, p. 114).

13 By letter of 13 November 2006 the applicant repeated that request and asked the EAR to take a reasoned decision on whether or not to proceed with a negotiated procedure.

14 By letter of 1 December 2006 the applicant asked the EAR to provide it with copies of all the minutes of the evaluation committee which examined the tenders submitted in response to the Procurement Notice, of the minutes of the public opening of the tender envelopes, and of the decision to cancel the tender procedure and the related minutes, on the basis of Article 6 of Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43).

15 By letter of 14 December 2006 the EAR advised the applicant that it had exercised its right to cancel the tender procedure and to initiate a new invitation to tender due to the fact that the technical requirements -ha[d] been considerably changed-. Furthermore, the EAR stated that, apart from the finding that no technically compliant tenders had been received, the evaluation committee made no other remarks. Annexed to that letter, the EAR sent the minutes relating to the public opening of tender envelopes.

Procedure and forms of order sought

16 By application lodged at the Registry of the Court of First Instance on 22 December 2006 the applicant brought this action and stated that it was bringing proceedings on its own behalf and as the agent of the company DOK ING.

17 By order of the President of the Second Chamber of 4 June 2007 the Commission was given leave to intervene in support of the forms of order sought by the EAR.

18 The Commission lodged a statement in intervention. The applicant submitted observations on that statement within the period allowed.

19 After a partial renewal of the membership of the Court of First Instance, the case was allocated to a new Judge Rapporteur. That judge was then assigned to the Eighth Chamber, and this case was consequently allocated to that chamber.

20 After hearing the report of the Judge Rapporteur the Court (Eighth Chamber) decided to open the oral procedure and, by way of measures of organisation of procedure provided for in Article 64 of the Court-s Rules of Procedure, asked the parties to reply in writing to a number of questions. The parties complied with that request within the period allowed.

21 The parties presented oral argument and replied to the questions put by the Court at the hearing of 18 June 2008.

22 The applicant claims that the Court should:

- annul the decisions of the EAR relating to:

- cancellation of the tender procedure;

- organisation of a fresh tender procedure;

- order the EAR to pay it compensation for the loss suffered, as stated in the application;

- order the EAR to pay the costs.

23 The EAR contends that the Court should:

- declare the action to be inadmissible, or, alternatively, dismiss the action as unfounded;

- order the applicant to pay the costs.

24 The Commission contends that the Court should:

- declare the action for annulment to be inadmissible, or, alternatively, dismiss the action as unfounded;

- dismiss the action for compensation for damage as unfounded;

- order the applicant to pay the costs.

25 Further, the applicant requests that, pursuant to Article 65(b) of the Rules of Procedure, the Court order the EAR to produce all the documents relating to the award procedure in question. The EAR and the Commission oppose that request.

26 In the application, the applicant also claimed that the Court should annul -all other preliminary, connected or associated measures, including the decision to exclude the applicant-. At the hearing, the applicant stated that this claim...