PC-Ware Information Technologies BV v European Commission.

• Jurisdiction: European Union
• Celex Number: 62008TJ0121
• ECLI: ECLI:EU:T:2010:183
• Court: General Court (European Union)
• Docket Number: T-121/08
• Date: 11 May 2010
• Procedure Type: Recurso por responsabilidad - infundado

Case T-121/08

PC-Ware Information Technologies BV

v

European Commission

(Public supply contracts – Community tendering procedure – Acquisition of software products and licences – Rejection of a tender – Abnormally low tender – Duty to state reasons)

Summary of the Judgment

1. Actions for annulment – Interest in bringing proceedings – Action against a decision that has been implemented

(Art. 230 EC)

2. European Communities’ public procurement – Conclusion of a contract following a call for tenders – Discretion of the institutions – Judicial review – Limits

3. European Communities’ public procurement – Conclusion of a contract following a call for tenders – Abnormally low tender

(Commission Regulation No 2342/2002, Art. 139(1))

4. Acts of the institutions – Statement of reasons – Obligation – Scope

(Art. 253 EC; Council Regulation No 1605/2002, Art. 100(2); Commission Regulation No 2342/2002, Art. 149(2))

5. Non-contractual liability – Conditions – Unlawfulness – Damage – Causal link – One of the conditions not satisfied

(Art. 288, second para., EC)

1. For an applicant to retain during the proceedings an interest in the annulment of the contested measure, that annulment must be capable, in itself, of producing legal effects which may consist, in particular, in redressing any harmful consequences arising from that measure or in preventing future repetition of the alleged unlawfulness.

Even if a public procurement contract has already been performed, where it is a framework contract likely to serve as a model for similar future procurement contracts, there is an interest in preventing the unlawfulness alleged by the tenderer from recurring in the future.

(see paras 39-40)

2. The Community judicature has jurisdiction, in the context of annulment proceedings, to adjudicate in actions for lack of competence, infringement of essential procedural requirements, infringement of the treaties or of any rule of law relating to their application, or misuse of powers. It follows that the Community judicature cannot treat an alleged infringement of national legislation as a question of law for which unlimited judicial review is available. Review of that kind is a matter exclusively for the national courts.

Nevertheless, in accordance with the principles of sound administration and solidarity as between the institutions of the European Union and the Member States, the Community institutions are required to ensure that the conditions laid down in an invitation to tender do not induce potential tenderers to infringe the national legislation likely to be applicable to the contract concerned, as that question constitutes an assessment of facts.

(see paras 62-63)

3. Under the provisions of Article 139(1) of Regulation No 2342/2002 laying down detailed rules for the implementation of the financial regulation, the contracting authority is obliged to allow the tenderer to clarify, or even explain, the characteristics of its tender before rejecting it, if it considers that a tender is abnormally low. The obligation to check the seriousness of a tender also arises where there are doubts beforehand as to its reliability, also bearing in mind that the main purpose of that article is to enable a tenderer not to be excluded from the procedure without having had an opportunity to explain the terms of its tender which appears abnormally low.

(see para. 72)

4. The duty to give reasons depends on the type of measure 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, first, as to make the persons concerned aware of the reasons for the measure and thus enable them to defend their rights and to verify whether or not the decision is well founded and, secondly, to permit the Court to exercise its power to review the lawfulness of the measure.

In the field of public procurement, in accordance with Article 100(2) of Regulation No 1605/2002 on the financial regulation applicable to the general budget of the European Communities and Article 149(2) of Regulation No 2342/2002 laying down detailed rules for the implementation of the financial regulation, the contracting authority must notify the tenderer of the grounds for the rejection of its tender and furthermore, where it has put in an admissible tender, of the characteristics and relative advantages of the tender accepted and the name of the successful tenderer, within no more than 15 calendar days from receipt of a request in writing. Since that manner of proceeding, as described in Article 100(2) aforesaid, discloses the reasoning followed by the authority which adopted the measure in a clear and unequivocal fashion, it satisfies the purpose of the duty to state reasons laid down in Article 253 EC.

(see paras 92-94)

5. In order for the Community to incur non‑contractual liability within the meaning of the second paragraph of Article 288 EC on account of the unlawful conduct of its institutions, a number of requirements must be satisfied, namely that the alleged conduct of the institutions is unlawful, that the damage is real and that there is a causal link between the conduct alleged 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, without it therefore being necessary to examine the other conditions.

(see paras 105-106)

JUDGMENT OF THE GENERAL COURT (Second Chamber)

11 May 2010(*)

(Public supply contracts – Community tendering procedure – Acquisition of software products and licences – Rejection of a tender – Abnormally low tender – Obligation to state reasons)

In Case T‑121/08,

PC-Ware Information Technologies BV, established in Amsterdam (Netherlands), represented by L. Devillé and B. Maerevoet, lawyers,

applicant,

v

European Commission, represented by E. Manhaeve, acting as Agent, and P. Wytinck, lawyer,

defendant,

APPLICATION, principally, for annulment of the Commission’s decision of 11 January 2008 rejecting the tender submitted by the applicant in public procurement procedure DIGIT/R2/PO/2007/022 and, in the alternative, for compensation for the loss allegedly suffered by the applicant as a result of the Commission’s conduct,

THE GENERAL COURT (Second Chamber),

composed of I. Pelikánová, President, K. Jürimäe (Rapporteur) and S. Soldevila Fragoso, Judges,

Registrar: J. Plingers, Administrator,

having regard to the written procedure and further to the hearing on 7 July 2009,

gives the following

Judgment

Legal context

A – Community legislation

1 The award of public supply contracts of the European Commission is subject to the provisions of Title V of Part One 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’) and 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 implementing rules’), in the versions applicable to the facts of the case.

2 Article 100 of the financial regulation provides:

‘1. The authorising officer shall decide to whom the contract is to be awarded, in compliance with the selection and award criteria laid down in advance in the documents relating to the call for tenders and the procurement rules.

2. 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.’

3 Article 130(1) and (3) of the implementing rules provides:

‘1. The documents relating to the invitation to tender shall include at least:

…

(b) the attached specification … ;

…

3. The specifications shall at least:

…

(c) set out the technical specifications … ;

… .’

4 Article 139(1) of the implementing rules states:

‘If, for a given contract, tenders appear to be abnormally low, the contracting authority shall, before rejecting such tenders on that ground alone, request in writing details of the constituent elements of the tender which it considers relevant and shall verify those constituent elements, after due hearing of the parties, taking account of the explanations received. These details may relate in particular to compliance with the provisions relating to employment protection and working conditions in force at the place where the work, service or supply is to be performed.

The contracting authority may, in particular, take into consideration explanations relating to:

(a) the economics of the manufacturing process, of the provision of services or of the construction method;

(b) the technical solutions chosen or the exceptionally favourable conditions available to the tenderer;

(c) the originality of the tender.’

5 Article 146(4) of the implementing rules provides:

‘In the case of abnormally low tenders as referred to in Article 139 of this Regulation, the evaluation committee shall request any relevant information concerning the composition of the tender.’

6 Article 149 of the implementing rules provides:

‘(1) The contracting authorities shall as soon as possible inform candidates and tenderers of decisions reached concerning the...