Judgments nº T-70/05 of The General Court, March 02, 2010

• Resolution Date: March 02, 2010
• Issuing Organization: The General Court
• Decision Number: T-70/05

In Case T‑70/05,

Evropaïki Dynamiki – Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE, established in Athens (Greece), represented by N. Korogiannakis, lawyer,

applicant,

v

European Maritime Safety Agency (EMSA), represented by W. de Ruiter and J. Menze, acting as Agents, and J. Stuyck, lawyer,

defendant,

ACTION for annulment of the decisions of EMSA not to accept the tenders submitted by the applicant in tendering procedures EMSA C‑1/01/04, relating to the contract entitled ‘SafeSeaNet Validation and further development’, and EMSA C‑2/06/04, relating to the contract entitled ‘Specification and development of a marine casualty database, network and management system’, and to award those contracts to other tenderers,

THE GENERAL COURT (Third Chamber),

composed of J. Azizi, President, E. Cremona (Rapporteur) and S. Frimodt Nielsen, Judges,

Registrar: C. Kantza, Administrator,

having regard to the written procedure and further to the hearing on 20 January 2009,

gives the following

Judgment

Legal context

1 The European Maritime Safety Agency (EMSA) was established by Regulation (EC) No 1406/2002 of the European Parliament and of the Council of 27 June 2002 (OJ 2002 L 208, p. 1). Its task is to ensure a high, uniform and efficient level of maritime safety and of prevention of pollution caused by ships in the European Union.

2 Pursuant to Article 5(1) of that regulation, EMSA is a body of the Community and has legal personality.

3 Article 8 of Regulation No 1406/2002 provides:

‘1. The contractual liability of [EMSA] shall be governed by the law applicable to the contract in question.

2. The Court of Justice shall have jurisdiction to give judgment pursuant to any arbitration clause contained in a contract concluded by [EMSA].

3. In the case of non-contractual liability, [EMSA] shall, in accordance with the general principles common to the laws of the Member States, make good any damage caused by its departments or by its servants in the performance of their duties.

4. The Court of Justice shall have jurisdiction in disputes relating to the compensation for damage referred to in paragraph 3.

5. The personal liability of its servants towards [EMSA] shall be governed by the provisions laid down in the Staff Regulations or Conditions of employment applicable to them.’

   4 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:

   ‘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.’

   5 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), in the version applicable at the material time, states:

   ‘As regards procurement, the relevant provisions of the general Financial Regulation and the detailed rules for implementing that Regulation shall apply.’

   6 That provision is repeated in Article 74 of the EMSA financial regulation adopted by its Administrative Board on 3 July 2003.

   7 The award of service contracts by the bodies referred to in Article 185 of the Financial Regulation is, accordingly, subject to the provisions of Title V of Part One of the Financial Regulation and to the provisions 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 implementing rules’). Those provisions are based on the relevant directives, in particular, with regard to 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.

   8 Under Article 89(1) of the Financial Regulation:

   ‘All public contracts financed in whole or in part by the budget shall comply with the principles of transparency, proportionality, equal treatment and non-discrimination.’

   9 Article 97 of the Financial Regulation, in the version applicable at the material time, states:

   ‘1. The selection criteria for evaluating the capability of candidates or tenderers and the award criteria for evaluating the content of the tenders shall be defined in advance and set out in the call for tender.

2. Contracts may be awarded by the automatic award procedure or by the best-value-for-money procedure.’

   10 In that regard, Article 138 of the implementing rules, in the version applicable at the material time, states:

   ‘…

2. The tender offering the best value for money shall be the one with the best price-quality ratio, taking into account criteria justified by the subject of the contract such as the price quoted, technical merit, aesthetic and functional characteristics, environmental characteristics, running costs, profitability, completion or delivery times, after-sales service and technical assistance.

3. The contracting authority shall specify, in the contract notice or in the [tender] specifications, the weighting it will apply to each of the criteria for determining best value for money.

   The weighting applied to price in relation to the other criteria must not result in the neutralisation of price in the choice of contractor.

   If, in exceptional cases, weighting is technically impossible, particularly on account of the subject of the contract, the contracting authority shall merely specify the decreasing order of importance in which the criteria are to be applied.’

   11 Article 98 of the Financial Regulation provides:

   ‘1. The arrangements for submitting tenders shall ensure that there is genuine competition and that the contents of tenders remain confidential until they are all opened simultaneously.

   …

3. With the exception of the contracts involving small amounts …, applications and tenders shall be opened by an opening board appointed for this purpose. Any tender or application declared by the board not to satisfy the conditions laid down shall be rejected.

4. All applications or tenders declared by the opening board to satisfy the conditions laid down shall be evaluated, on the basis of the selection and award criteria laid down in the documents relating to the call for tenders, by a committee appointed for this purpose with a view to proposing to whom the contract should be awarded.’

   12 In the version applicable at the material time, Article 143(2) of the implementing rules provided:

   ‘Tenderers may submit tenders:

   (a) by post, for which purposes the invitation to tender documents shall specify that the relevant date is to be the date of despatch by registered post, as evidenced by the postmark; or

   (b) by hand-delivery to the premises of the institution by the tenderer in person or by an agent, including courier service; for which purposes the invitation to tender documents shall specify, in addition to the information referred to in point (a) of Article 130(2), the department to which tenders are to be delivered against a signed and dated receipt.’

   13 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.’

   14 In that regard, Article 149 of the implementing rules, in the version applicable at the material time, states:

   ‘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 fifteen 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.’

   Background to the dispute

   15 The applicant, Evropaïki Dynamiki – Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE, is a company established under Greek law, active in the field of information technology and communications.

   16 The present case concerns two calls for tender, relating to ‘SafeSeaNet validation and further development’, under reference EMSA C‑1/01/04‑2004 (‘call for tenders C‑1/01/04’), and to ‘specification and development of a marine casualty database, network and management system (marine casualty information platform)’, under reference EMSA C‑2/06/04 (‘call for tenders C‑2/06/04’).

1. Tendering procedure EMSA C-1/01/04

   17 By a contract notice of 1 July 2004 published in the Supplement to the Official Journal of the European Union (OJ 2004 S 126), EMSA launched call for tenders C-1/01/04. The time-limit for submitting tenders was 9 August 2004.

   18 Point 13 of the tender specifications, entitled ‘Criteria for the award of the contract’, is worded as follows:

   ‘… The contract will be awarded to the tenderer who submits the most economically advantageous bid, as assessed on the basis of the following factors:

   (a) Technical evaluation criteria in their order of importance as weighted by...