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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> CMB and Christof v Commission [2011] EUECJ T-407/07 (15 September 2011)
URL: http://www.bailii.org/eu/cases/EUECJ/2011/T40707_J.html
Cite as: [2011] EUECJ T-407/07, [2011] EUECJ T-407/7
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IMPORTANT LEGAL NOTICE - The source of this judgment is the web site of the Court of Justice of the European Communities. The information in this database has been provided free of charge and is subject to a Court of Justice of the European Communities disclaimer and a copyright notice. This electronic version is not authentic and is subject to amendment.
JUDGMENT OF THE GENERAL COURT (Seventh Chamber)
15 September 2011 (*)
(Public supply contracts – EAR procurement procedure – Supply of equipment for the treatment of medical waste – Rejection of the tender – Action for annulment – Jurisdiction of the General Court – Period allowed for commencing proceedings – Preliminary administrative complaint – Excusable error – Award criteria – Procedural rules – Obligation to state reasons – Principle of sound administration – Non-contractual liability )
In Case T-407/07,
CMB Maschinenbau & Handels GmbH, established in Gratkorn (Austria),
J. Christof GmbH, established in Graz (Austria),
represented initially by A. Petsche, N. Niejahr, lawyers, F. Young, Solicitor, and Q. Azau, lawyer, and subsequently by A. Petsche, N. Niejahr and Q. Azau,
applicants,
v
European Commission, as the legal successor of the European Agency for Reconstruction (EAR), represented by P. van Nuffel, F. Erlbacher and T. Scharf, acting as Agents,
defendant,
APPLICATION (i) for annulment of the EAR’s decision rejecting the tender submitted by the applicants in the tender procedure EuropeAid/124192/D/SUP/YU relating to the supply of equipment for medical waste management (OJ 2006 S 233-248823) and awarding the contract to another tenderer and (ii) for damages,
THE GENERAL COURT (Seventh Chamber),
composed of A. Dittrich, President, I. Wiszniewska-Białecka and M. Prek (Rapporteur), Judges,
Registrar: K. Pocheć, Administrator,
having regard to the written procedure and further to the hearing on 8 December 2010,
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 the EAR (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 No 1628/96, as amended by Regulation No 2454/1999, relating to the setting up and running of the EAR, were amended by and incorporated in Council Regulation (EC) No 2667/2000 of 5 December 2000 on the EAR (OJ 2000 L 306, p. 7).
3 Under Article 1 of Regulation No 2667/2000, the Commission may inter alia 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.
4 According to Article 13(2) of Regulation No 2667/2000:
‘In the case of non-contractual liability, the [EAR] shall, in accordance with the general principles common to laws of the Member States, make good any damage caused by the Agency or its servants in the performance of their duties.
The Court of Justice shall have jurisdiction in disputes relating to compensation for any such damage.’
5 Article 13a(3) of Council Regulation (EC) No 2667/2000 as amended by Council Regulation (EC) No 1646/2003 of 18 June 2003 (OJ 2003 L 245, p. 16) provides that ‘[d]ecisions taken by the [EAR] pursuant to Article 8 of Regulation (EC) No 1049/2001 may form the subject of a complaint to the Ombudsman or of an action before the Court of Justice, under the conditions laid down in Articles 195 [EC] and 230 [EC] respectively’.
6 Article 7 of Regulation (EC) No 2666/2000 provides that the Commission is to implement the Community assistance in accordance with 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’).
7 Article 167(1) of the Financial Regulation, which appears in Title IV, headed ‘External actions’, of Part Two of that regulation, provides:
‘The provisions of Article 56 and of Chapter 1 of Title V of Part One relating to the general provisions on procurement shall be applicable to contracts covered by this Title subject to the special provisions relating to thresholds and the arrangements for awarding external contracts laid down in the implementing rules. The contracting authorities for the purposes of this chapter shall be:
(a) the Commission on behalf of and for the account of one or more beneficiaries;
(b) the beneficiary or beneficiaries;
… ’
8 Article 100 of the 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.’
9 Under Article 103 of the Financial Regulation:
‘Where the award procedure or performance of the contract is vitiated by substantial errors or irregularities or by fraud, the institutions shall suspend performance of the contract.
Where such errors, irregularities or fraud are attributable to the contractor, the institutions may in addition refuse to make payments or may recover amounts already paid, in proportion to the seriousness of the errors, irregularities or fraud.’
10 Article 149 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 version applicable to the facts of the case, provided:
‘1. The contracting authorities shall as soon as possible inform candidates and tenderers of decisions reached concerning the award of the contract or framework contract or admission to a dynamic purchasing system, including the grounds for any decision not to award a contract or framework contract, or set up a dynamic purchasing system, 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.
3. In the case of contracts awarded by the Community institutions on their own account, under Article 105 of the Financial Regulation, the contracting authority shall inform all unsuccessful tenderers or candidates, simultaneously and individually, as soon as possible after the award decision and within the following week at the latest, by mail and fax or e-mail, that their application or tender has not been accepted, specifying in each case the reasons why the tender or application has not been accepted.
The contracting authority shall, at the same time as the unsuccessful candidates or tenderers are informed that their tenders or applications have not been accepted, inform the successful tenderer of the award decision, specifying that the decision notified does not constitute a commitment on the part of the contracting authority.
Unsuccessful tenderers or candidates may request additional information about the reasons for their rejection in writing by mail, fax or e-mail, and all tenderers who have put in an admissible tender may obtain information about the characteristics and relative merits of the tender accepted and the name of the successful tenderer, without prejudice to the second subparagraph of Article 100(2) of the Financial Regulation. The contracting authority shall reply within no more than fifteen calendar days from receipt of the request.
The contracting authority may not sign the contract or framework contract with the successful tenderer until two calendar weeks have elapsed from the day after the simultaneous dispatch of the rejection and award decisions. If necessary it may suspend signing of the contract for additional examination if justified by the requests or comments made by unsuccessful tenderers or candidates during the two calendar weeks following the rejection or award decisions or any other relevant information received during that period. In that event all the candidates or tenderers shall be informed within three working days following the suspension decision.’
11 Article 153 of the implementing rules provides:
‘1. Contracts shall be suspended under Article 103 of the .Financial Regulation in order to verify whether presumed substantial errors or irregularities or fraud have actually occurred. If they are not confirmed, performance of the contract shall resume as soon as possible.
2. A substantial error or irregularity shall be any infringement of a provision of a contract or regulation resulting from an act or an omission which causes or might cause a loss to the Community budget.’
12 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) provides that: ‘[a]s regards procurement, the relevant provisions of the … Financial Regulation and the detailed rules for implementing that Regulation shall apply.’
13 Article 9 of Regulation No 2667/2000, as amended by Regulation No 1646/2003, provides:
‘The financial rules applicable to the [EAR] shall be adopted by the Governing Board after the Commission has been consulted. They may not depart from Regulation No 2343/2002 unless specifically required for the [EAR]’s operation and with the Commission’s prior consent.’
14 Article 73 of Governing Board Decision of 4 June 2004 on the Financial Rules applicable to the [EAR] in accordance with [Regulation No 2343/2002] provides that, as regards procurement, the provisions of the Financial Regulation and of the implementing rules are to apply.
15 Article 75 of the Decision of the Governing Board of 25 May 2007 laying down detailed rules for the implementation of the Decision on the financial rules applicable to the [EAR] (‘the EAR implementing rules’), headed ‘Procurement’, provides:
‘The detailed rules for the implementation of Article 73 of the financial rules are described in Annex I.
Where these provisions are amplified, supplemented or derogated by those set out in Annex III (Special provisions for external actions), the latter shall prevail. All contracts implementing a financing agreement must be awarded and implemented in accordance with the procedures laid down and published by the Commission for the implementation of external operations, in force at the time of the launch of the procedure in question.’
16 Article 104 of the EAR implementing rules, headed ‘Special provisions for external actions’, provides that:
‘The special provisions for the implementation of external actions, which amplify, supplement or derogate from those set out in Annex I (Procurement) and Annex II (Grants) are detailed in Annex III. These provisions override the corresponding standard rules contained in those two Annexes and shall constitute the basis and legal framework for the action of the EAR in the operational field.
All contracts implementing a financing agreement must be awarded and implemented in accordance with the procedures laid down and published by the Commission for the implementation of external operations, in force at the time of the launch of the procedure in question.
…’
17 According to Article 6 of Annex III to the EAR Implementing Rules, Articles 37 and 41 of Annex I to those implementing rules apply to procurement contracts concluded by or on behalf of the contracting authorities referred to in points (a) and (b) of Article 167(1) of the Financial Regulation.
18 The wording of Articles 37 and 41 of Annex I to the EAR implementing rules is identical to that of Articles 149 and 153 of the implementing rules respectively (see paragraphs 10 and 11 above).
Background to the dispute
19 By tender notice of 7 December 2006, the EAR launched a call for tenders for the supply of equipment for the treatment of medical waste under the reference EuropeAid/124192/D/SUP/YU (OJ S 233-248823).
20 Pursuant to paragraph 5 of the tender notice, the contracting authority for the tender was the EAR, Operational Centre Belgrade, for and on behalf of the beneficiary country, namely the Republic of Serbia.
21 Under point 17 of the tender notice, the award was to be made to the lowest priced administratively and technically compliant tender.
22 The tender consisted of two lots. The present case concerns only Lot 1, that is to say the supply of low temperature thermal treatment equipment for medical waste.
23 Point 16(3) of the tender notice indicated as the selection criterion for Technical Capacity for Lot 1 that ‘the tenderer [must have] carried out reference installations of at least 3 units per year during the last 3 years (2003, 2004 and 2005).’
24 The technical specifications of the equipment tendered for in Lot 1 of the contract are described in Annex II of the Tender Dossier. The following conditions are listed in point 1.1:
‘1.1. Description: 78 (seventy-eight) low-temperature wet thermal treatment devices, including shredding facility, to be used for the sterilization of various kinds of infectious medical waste, among which will include cultures and stocks, sharp objects, materials contaminated with blood and body fluids, isolation and surgery wastes, laboratory wastes and soft wastes (gauze, bandages, drapes, gowns, bed linen) from patient care.
1.1.1. Operating process: Low-temperature wet thermal treatment.
1.1.2. Minimum capacity: 20kg/hour.
1.1.3. Level of microbial inactivation: STAATT III or higher (the tenderer needs to provide documentary evidence that the equipment proposed can achieve this standard of treatment).
…’
25 The deadline for submission of the tender was 12 February 2007 at 12:00 CET, and the opening session took place at 14:00 CET the same day at the offices of the EAR in Belgrade. Eight tenderers submitted a bid for Lot 1.
26 The applicants, CMB Maschinenbau & Handels GmbH and J. Christof GmbH, received six requests for clarifications between 16 February 2007 and 13 March 2007, to which they responded within the deadlines set by the EAR.
27 The Evaluation Committee came to the conclusion that two tenders were administratively and technically compliant, that is to say that of Getinge International AB (‘Getinge’), at a price of EUR 5 358 600, and that of the applicants, at a price of EUR 7 995 000.
28 According to the relevant contract award notice, the contract was awarded on 30 March 2007 to Getinge for a total amount of EUR 5 358 600.
29 By letter of 2 May 2007, addressed to the EAR, the applicants stated that the the different price levels submitted could be explained by the different technologies proposed by the tenderers. In particular, the autoclaves technique could not, according to them, meet the requirements laid down in the call for tenders in question.
30 By fax of 17 May 2007, the EAR informed the applicants that their tender had not been successful because it was not the least expensive of those tenders which were technically compliant, and that Lot 1 of the contract had been awarded to Getinge.
31 By letter of 25 May 2007, the applicants challenged the award of the contract at issue to Getinge, calling on the procurement procedure to be cancelled on the grounds of alleged irregularities, and that negotiations be opened with the applicants or with the applicants and all other tenderers who submitted compliant tenders or, alternatively, that a new procurement procedure be launched. In that letter, they reiterated and expanded upon the arguments set out in their letter of 2 May 2007 by claiming that Getinge’s bid did not comply with the requirements of the call for tenders at issue.
32 By letter of 1 June 2007, in response to the applicants’ letter of 2 May 2007, the EAR provided certain additional information concerning the conformity of the various techniques proposed with the technical specifications of the call for tender at issue.
33 By fax of 29 August 2007, the EAR responded to the applicants’ complaint, confirming that it was the contracting authority conducting the tender procedure, and that the contract had been awarded to the tenderer ‘which [had been] adjudged to have submitted the lowest priced administratively and technically compliant tender’. The EAR also pointed out that Getinge’s tender complied with the required technical specifications, that it had submitted independently verified test results certifying that its equipment was compliant and that its tender was less expensive than the applicants’ tender.
Procedure and forms of order sought by the parties
34 By application lodged at the Registry of the Court on 8 November 2007, the applicants brought the present action.
35 On 11 December 2007, the applicants lodged a request for the confidential treatment vis-à-vis the public of certain parts of the application and some of its annexes.
36 By separate document lodged at the Registry of the Court on 25 January 2008, the Commission raised a plea of inadmissibility pursuant to Article 114(1) of the Rules of Procedure of the Court. On the same day, it also lodged an application to intervene in support of the form of order sought by the EAR.
37 By separate document, lodged at the Registry of the Court on 7 February 2008, the EAR also raised an objection of inadmissibility pursuant to Article 114(1) of the Rules of Procedure. The same day, it also lodged its defence.
38 On 7 April 2008, the applicants lodged observations on the Commission’s application to intervene.
39 On 25 April 2008, the applicants lodged observations on the pleas of inadmissibility raised by the Commission and the EAR.
40 By decision of 1 April 2009, having taken formal notice that since 1 January 2009 the Commission had assumed the rights and obligations of the EAR and was thereby the sole defendant in the present case, the EAR having ceased to exist on that date, the Court (Fifth Chamber) decided that there was no longer any need to adjudicate on the plea of inadmissibility raised by the EAR. By the same decision, it joined the plea of inadmissibility raised by the Commission to the substance and invited the Commission to lodge a statement in defence. It also declared that the Commission’s application to intervene had become devoid of purpose.
41 As the composition of the Chambers of the Court was altered, the Judge-Rapporteur was assigned to the Seventh Chamber, to which the present case was therefore assigned.
42 In reply to a request by the Court of 20 October 2010 for the production of documents, the Commission, by letters of 28 and 29 October 2010, produced a copy of an evaluation grid showing that the contracting authority had checked the criterion of technical capacity of the successful tenderer and a copy of the contract award notice in relation to the contract in question.
43 Upon hearing the report of the Judge-Rapporteur, the Court (Seventh Chamber) decided to open the oral procedure.
44 The parties presented oral argument and their answers to the questions put by the Court at the hearing on 8 December 2010.
45 The applicants claim that the Court should:
– reject the plea of inadmissibility raised by the Commission;
– annul the decision contained in the letter of 29 August 2007;
– order the Commission, as successor of the EAR, to produce certain documents;
– order the Commission, as successor of the EAR, to pay damages with interest in respect of the loss suffered by the applicants, for costs and lost profit, plus compensatory interest from the date on which the damage materialised;
– order the Commission, as successor of the EAR, to pay interest on the damages from the date of judgment;
– order the Commission to pay the costs.
46 The Commission contends that the Court should:
– declare the action for annulment inadmissible, insofar as it was originally brought against the Commission;
– declare the application for annulment inadmissible or dismiss it as unfounded;
– declare the application for damages inadmissible or dismiss it as unfounded;
– order the applicants to pay the costs.
Law
A – Admissibility
47 In the plea of inadmissibility, the Commission submits that the application for annulment is inadmissible in so far as it was originally brought against the Commission. Furthermore, in its defence, it maintains that the action for annulment is inadmissible in its entirety, because it was brought against a confirmatory act, after the expiry of the time-limit for challenging the ‘original decision’.
1. The inadmissibility exception raised by the Commission
a) Arguments of the parties
48 The Commission submits that the application for annulment, brought under Article 230 EC, of a decision of the EAR must be brought directly against the EAR. It is for the EAR, as a Community body endowed with its own legal personality, to defend the decisions adopted by it in the context of a ‘task’ delegated to it by the Commission. In any case, that application is inadmissible in so far as it directed in the alternative against the Commission, because the Commission was not the legal person which adopted the act in question.
49 According to the Commission, it cannot be inferred from Article 13 or 13a of Regulation No 2667/2000, as amended by Regulation No 1646/2003, which provide expressly for the Court of Justice to have jurisdiction in disputes relating to compensation for damage and the refusal to grant access to documents, that the European Union legislature wished to exclude other actions based on Article 230 EC against the EAR.
50 The Commission submits, with reference to Case 294/83 Les Verts v European Parliament [1986] ECR 1339, that it would be contrary to the general scheme and spirit of the EC Treaty for acts to lose their status as challengeable measures where, as in the present case, the power to adopt them was delegated by the Commission to another body established under Community law.
51 The Commission considers that, when the EAR ceased to exist, its rights and obligations ‘returned’ to the European Commission and that it became from that moment the defendant on behalf of the EAR, with all the rights and obligations the EAR had before that date, but not in its own right as defendant ab initio.
52 In its defence and in the rejoinder, the Commission adds that to give it the status of initial defendant would be contrary to the judgment in Case T-411/06 Sogelma v EAR [2008] ECR II-2771, in which the Court held that it was competent to review the legality of acts of agencies such as the EAR. For the same reason, it withdrew the first plea of inadmissibility invoked by the EAR, alleging that the Court lacked jurisdiction to hear and determine a case brought against the EAR. The jurisdiction of the Court is confirmed by Article 263 TFEU. In any event, the Commission considers that the Court should rule on the respective responsibilities of the Commission and the EAR.
53 In their submissions on the plea of inadmissibility, the applicants maintain that the present application for annulment was validly directed against the EAR.
54 By contrast, they submit that, in accordance with the principle of effective judicial protection, in the event that the Court should find that the action for annulment in this case cannot be brought against the EAR, that action would be admissible against the Commission, irrespective of the fact that the Commission is not the legal person which adopted the contested decision. Otherwise, effective legal protection of the applicants’ rights could not be ensured by any other legal remedy.
b) Findings of the Court
55 The applicants brought their action for annulment against the EAR, the body which adopted the contested decision, and against the Commission, in the event that the Court should hold that that action for annulment could not be pursued against the EAR as a defendant.
56 It must be held that Regulation No 2667/2000, as amended, which states only, in Articles 13 and 13a, that the Court has jurisdiction in disputes relating to compensation in the case of the EAR’s non-contractual liability and to EAR decisions relating to access to documents taken pursuant to Article 8 of Regulation No 1049/2001, does not provide that the Court has jurisdiction to hear actions for annulment against other decisions taken by the EAR. However, it cannot be concluded on the basis of that provision that the European Union judicature lacks jurisdiction to hear and determine an action for annulment brought against an act adopted by the EAR which adversely affects the applicant.
57 It must be noted that, even if agencies such as the EAR established on the basis of secondary legislation are not among the Community institutions listed in the first paragraph of Article 230 EC, that does not preclude review by the Court, under Article 230 EC, of the legality of EAR acts (see, to that effect, Sogelma, cited in paragraph 52 above, paragraphs 33 and 35).
58 As was noted in Sogelma (paragraph 52 above, paragraph 37), the general principle to be elicited from Les Verts v Parliament (paragraph 50 above) is that any act of a Community body which is intended to have legal effects vis-à-vis third parties must be amenable to judicial review.
59 Rejection of a tender in a public procurement procedure is an act which, as a general rule, may be the subject of an action for annulment. It is an act which adversely affects the unsuccessful tenderer and brings about a distinct change in his legal position (see, to that effect, Sogelma, paragraph 52 above, paragraph 38).
60 Consequently, it must be concluded that decisions taken by the EAR in public procurement procedures and intended to produce legal effects vis-à-vis third parties are acts open to challenge before the European Union judicature (see, to that effect, Sogelma, paragraph 52 above, paragraph 43).
61 It thus follows from the first paragraph of Article 230 EC, as interpreted in the light of Les Verts (paragraph 50 above, paragraphs 23 to 25), and of Sogelma (paragraph 52 above, paragraphs 36 and 37), that decisions taken by the EAR are open to challenge before the Court. Moreover, that is confirmed by the first paragraph of Article 263 TFEU.
62 In the present case, the EAR adopted the decision and, consequently, the applicants were right initially to have brought the action for annulment against it (see, to that effect, Sogelma, paragraph 52 above, paragraphs 49 to 51).
63 The applicants directed their action for annulment against the Commision only as an alternative claim, in the event that the Court should consider its action against the EAR to be inadmissible. In the light of the conclusion reached in the preceding paragraph, the Court considers it unnecesssary to rule on the question of the admissibility of the action for annulment as initially brought against the Commission.
64 It follows from all of the foregoing that the action for annulment is admissible in so far as it is was initally brought against the EAR and that, consequently, it is not necessary to rule on the admissibility of that action in so far as initially brought against the Commission.
2. The nature of the letter of 29 August 2007 and the allegedly late submission of the application
a) Arguments of the parties
65 In its defence, the Commission contends that the action for annulment is directed at a purely confirmatory act and was brought after the time-limit for bringing an action against the ‘original decision’.
66 It considers that the time-limit for bringing the action began to run on 17 May 2007, the date on which the decision rejecting the applicants’ tender was notified by fax. Since they brought their action on 8 November 2007, that was lodged outside the period laid down in Article 230 EC.
67 Nothing in the Instructions to Tenderers or the Practical Guide to Contract Procedures for EC External Actions (‘the practical guide’), on the basis of which the applicants brought their complaint of 25 May 2007, exempts tenderers from the obligation to comply with the time-limit in Article 230 EC for bringing an action, since that time-limit is mandatory.
68 The letter of 29 August 2007 merely confirms the EAR’s earlier decision of 17 May 2007 and does not have any legal effect in itself. In fact, the applicants’ complaint of 25 May 2007 contains no substantial new facts and no specific information which could have demonstrated the alleged non-compliance of Getinge’s tender with the technical specifications, and gave no basis for the EAR to reconsider its decision. According to the case-law of the Court, an action for annulment brought against a decision which merely confirms an earlier decision which has not been contested within the time-limits is inadmissible. The Commision notes in particular that the act adversely affecting the applicants is the letter of 17 May 2007, which was precise and unequivocal in its terms and in tone and constituted the ‘definitive decision’ which could not have been interpreted differently.
69 The letter of 29 August 2007 is a reply to the applicants’ complaint of 25 May 2007. However, the Commission maintains that, under point 25 of the Instructions to Tenderers, the EAR undertook to examine only whether there had been any error or irregularity in the procurement procedure. According to the Commission, such an eventuality might result, depending on the stage of the process, in non-conclusion of the contract, suspension or termination of the contract but, under no circumstances, in the award of the contract to the applicants. Furthermore, a different outcome would be completely contrary to the rule that unsuccessful tenderers are informed only after signature of the contract.
70 The Commission argues that the complaint provided for in point 25 of the Instructions to Tenderers is a mere possibility for tenderers, not an obligation. In particular, that point does not provide for any time-limit for bringing the complaint and might extend the time-limit of Article 230 EC for an indefinite period. In addition, it submits that it follows from Sogelma, (paragraph 52 above), that there is no requirement that an administrative complaint procedure be carried out before an action for annulment may be brought.
71 The Commission also draws attention to the settled case-law according to which an extension of the time-limit for bringing an action is allowed only where the circumstances are quite exceptional, in the sense of being unforeseeable or amounting to force majeure, which is not the position in this case. The tender dossier and the practical guide could not have given rise to confusion if the applicants had exercised the required diligence and had informed themselves about the conditions under which proceedings for annulment could have been brought. In any event, the applicants’ error was not excusable.
72 The applicants consider that the action for annulment was not brought out of time, since the letter of 29 August 2007 was not confirmatory. They submit that, by virtue of point 25 of the instructions to tenderers, they may have recourse to procedures established under Community legislation only if that administrative procedure failed. The applicants claim that, if the Court were to find the present action for annulment inadmissible, they would be denied access to judicial review, because of an unclear term in the tender dossier.
b) Findings of the Court
73 In its plea of inadmissibility, the Commission does not claim that the present action for annulment was submitted late. However, in its defence, it expounds the arguments which had been made by the EAR in relation to that question.
74 In any case, since the conditions for the admissibility of an action relate to the question whether there is an absolute bar to proceedings (see order of the Court of 7 October 1987 in Case 108/86 D. M. v Council and CES [1987] ECR 3933, paragraph 10, and Joined Cases T-309/04, T-317/04, T-329/04 and T-336/04 TV 2/Danmark and Others v Commission [2008] ECR II-2935, paragraph 62, and the case-law cited), it is for the Court to consider of its own motion whether, in the present case, the action for annulment was brought within the time-limit laid down in the fifth paragraph of Article 230 EC.
75 As a preliminary point, it should be noted that, while in their claims the applicants seek annulment of the decision notified by letter of 29 August 2007, according to the case-file in reality they seek by those claims the annulment of the decision by the EAR of 30 March 2007 to award the contract at issue to Getinge and to reject the applicants’ tender. That decision was however notified to the applicants by letter of 17 May 2007 and confirmed by that of 29 August 2007. Consequently, it must be held that in the present case the action for annulment is directed against the two documents which incorporate the decision of 30 March 2007, that is, the letters of 17 May 2007 and 29 August 2007.
76 According to the case-file, the EAR informed the applicants, by letter of 17 May 2007, that their tender had not been accepted, because it was not the least expensive of those tenders which were administratively and technically compliant, and that the contract had been awarded to Getinge.
77 Thus, the EAR notified the applicants, in a clear and uneqivocal manner, of its decision not to accept their tender and also of the grounds of that decision.
78 In that regard, it should be noted that point 25 of the instructions to tenderers, set out in section A of the tender dossier, provided:
‘Appeals
Tenderers believing that they have been harmed by an error or irregularity during the award process may petition the contracting authority directly. The contracting authority must reply within ninety days of receipt of the complaint. If this procedure fails, the tenderer may have recourse to the following:
Where the … Commission is the contracting authority, the tenderer may have recourse to procedures established under Community legislation. European citizens or residents, including legal entities with a registered office in the European Union, also have the right to complain to the European Ombudsman, who investigates complaints of maladministration by the European Community institutions.’
79 It must be observed that such wording is not easy to interpret. In particular, the fact that no time-limit is laid down for the bringing of the complaint is liable to create uncertainty with regard to the implementation of that provision. In addition, the second paragraph envisages a situation in which the Commission is the contracting authority, which was not the case in the procedure at issue, where the contracting authority stipulated by the tender notice was the EAR on behalf of the Republic of Serbia.
80 However the content of point 25 of the instructions to tenderers reproduces in part that of point 2.4.16 of the practical guide which, as the Commission notes, explains in a general way the contractual procedures which apply to Community external aid. Point 2.4.16 states:
‘Appeals
Tenderers believing that they have been harmed by an error or irregularity during the award process may petition the contracting authority directly. The contracting authority must reply within ninety days of receipt of the complaint.
Where the … Commission is not the contracting authority and where informed of such a complaint, it must communicate its opinion to the contracting authority and do all it can to facilitate an amicable solution between the complainant tenderer and the contracting authority. Should a contracting authority fail to adhere to the procurement procedures provided for in this practical guide, the … Commission reserves the right to refuse to finance the contract or to suspend, withhold or recover funding for the contracts concerned. If this procedure fails, the tenderer may have recourse to procedures established under the beneficiary country’s national legislation.
Where the … Commission is the contracting authority, the tenderer may have recourse to procedures established under Community legislation. European citizens or residents, including legal entities with a registered office in the European Union, also have the right to complain to the European Ombudsman, who investigates complaints of maladministration by the European Community institutions.’
81 That makes it possible to infer that by omitting, in point 25 of the instructions to tenderers in the call for tenders at issue, the second paragraph of point 2.4.16 of the practical guide, the contracting authority had considered that the third paragraph of that point, referring to the hypothesis of the Commission being the contracting authority, was the only one applicable to the procedure at issue.
82 It should in addition be recalled that the question of a prior administrative complaint was also raised and analysed in Sogelma, paragraph 52 above. In the case which led to judgment in that case, an administrative procedure, similar to that provided for in the present case, had been envisaged. However, in the first case, the applicant had not brought a complaint alleging errors or irregularities in the procurement procedure and had therefore not initiated such a procedure. However, the EAR had contended that that stage of a prior administrative complaint was obligatory and that, for that reason, the action brought before the Court was inadmissible. The Commission, which intervened in support of the form of order sought by the EAR in that case, opposed that plea of inadmissibility.
83 The situation in the present case is therefore diametrically opposite to that which was at issue in the case which gave rise to the judgment in Sogelma, cited in paragraph 52, in so far as the applicants in the present case did indeed initiate that procedure by their complaint of 25 May 2007 and brought the present action only following the EAR’s response to that complaint by letter of 29 August 2007. However, the Commission submits that the fact that they made such a complaint does not exempt the applicants from the obligation to comply with the time-limit for bringing an action under Article 230 EC.
84 In the case which led to the judgment in Sogelma, cited in paragraph 52, point 37 of the instructions to tenderers provided for a procedure little different from that applicable in the present case. However, in paragraphs 60 to 68 of that judgment, the Court held that that provision did not provide for the adoption, in that administrative procedure, of a decision open to judicial review. In addition, it considered that point 37 could not make the admissibility of an action subject to an obligatory prior administrative complaint, since the wording was not sufficiently clear. For the sake of completeness, it also held that a condition governing admissibility of an action which goes beyond those laid down in Article 230 EC could not be introduced by the EAR without any basis in law.
85 While it is true that, in Sogelma, cited in paragraph 52, the Court regarded that administrative procedure as optional, it did not thereby rule on a possible situation such as that in the present case, in which such a procedure had actually been initiated by the applicants.
86 In that regard, it should be noted that Article 149(1) and (2) of the implementing rules states:
‘1. The contracting authorities shall as soon as possible inform candidates and tenderers of decisions reached concerning the award of the contract or framework contract or admission to a dynamic purchasing system, including the grounds for any decision not to award a contract or framework contract, or set up a dynamic purchasing system, 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.’
87 In the present case, by their letter of 25 May 2007, the applicants did not request the EAR to provide reasons for its decision to reject their tender, but confined themselves to identifying the alleged weaknesses of the material proposed by the party to whom the contract in question was awarded.
88 It must also be held that, by the letter of 29 August 2007, the EAR did not provide any additional grounds to explain its decision, but confined itself to repeating its decision which was notified on 17 May 2007. That reasoning is, admittedly, longer but it is in essence identical to that contained in the letter of 17 May 2007. In particular, the EAR had considered that the applicants’ arguments in their complaint, based on the comparision of their tender with that of the party awarded the contract and proposing other solutions with the goal of obtaining a better outcome, did not allow their request to be granted. It also confirmed that Getinge’s tender was technically correct and presented the lowest price among the tenders received.
89 In that regard, according to settled case-law, an action for annulment brought against a decision which merely confirms an earlier decision which has not been challenged in good time is inadmissible. A decision is a mere confirmation of an earlier decision where it contains no new factors as compared with the earlier measure and is not preceded by any reexamination of the situation of the addressee of the earlier measure (order of the Court of 10 October 2006 in Case T-106/05 Evropaïki Dynamiki v Commission, not published in the ECR, paragraph 46, and case-law cited).
90 In addition, as is apparent from the case-law, the confirmatory or other nature of a measure cannot be determined solely by comparing its content with that of the previous decision which it confirms but must also be appraised in the light of the nature of the request to which it constitutes a reply (see Case T-186/98 Inpesca v Commission [2001] ECR II-557, paragraph 45 and case-law cited, and order of the Court of 29 April 2004 in Case T-308/02 SGL Carbon v Commission [2004] ECR II-1363, paragraph 52 and case-law cited).
91 It is clear, in particular, from that case-law that, if the measure constitutes the reply to a request in which substantial new facts are relied on, and whereby the administration is requested to reconsider its previous decision, that measure cannot be regarded as merely confirmatory in nature, since it constitutes a decision taken on the basis of those facts and thus contains a new factor as compared with the previous decision. The existence of substantial new facts may justify the submission of a request for reconsideration of a previous decision which has become definitive. By contrast, if the request for reconsideration is not based on substantial new facts, an action against the decision refusing to reconsider it must be declared inadmissible (see, to that effect, Inpesca, cited in paragraph 90, paragraph 49, and the order in SGL Carbon, cited in paragraph 90, paragraph 54).
92 As regards the question of the criteria which determine whether facts are to be classified as substantial new facts, it is clear from the case-law that, in order for a fact to be new, it is essential that neither the applicant nor the administration was aware of, or in a position to be aware of, the fact in question when the previous decision was adopted. That condition is fulfilled, a fortiori, if the fact in question has emerged after the previous decision was adopted (see Inpesca, cited in paragraph 90, paragraph 50).
93 In order to be ‘substantial’, the fact concerned must be capable of substantially altering the applicant’s situation forming the basis of the initial request which gave rise to the previous decision that has become definitive (see, in that regard, Case 232/85 Becker v Commission [1986] ECR 3401, paragraph 11).
94 In the present case, the matters relied upon by the applicants in their complaint of 25 May 2007 do not consitute substantial new facts. The applicants merely contested the award of the contract to Getinge by invoking the lack of compatibility of the material proposed by it with the criteria defined by the call for tenders. They therefore repeated and expanded upon the arguments which they had already expounded in their letter of 2 May 2007.
95 Equally, none of the information contained in the letter of 29 August 2007 can constitute a new fact capable of conferring on it the character of a new decision having adverse effects. In addition, there is no indication at all in that letter that the applicants’ tender had been re-examined before the letter was sent. The EAR concluded only in the letter that the contract had been awarded to the tenderer ‘which [had been] adjudged to have submitted the lowest priced administratively and technically compliant tender’ and that that conclusion could not be called into question by the applicants’ arguments.
96 It must be noted that, according to well-settled case-law, where an applicant allows the time-limit for bringing an action against a decision unequivocally laying down a measure with legal effects affecting his interests and binding on him to expire, he cannot start time running again by asking the institution to reconsider its decision and by bringing an action against the refusal confirming the decision previously taken, (order in Evropaïki Dynamiki, paragraph 89 above, paragraph 55).
97 In that regard, the applicants claim that they simply followed a procedure laid down by the rules governing the call for tenders at issue and that, therefore, they could not be criticised for doing so.
98 It must therefore be considered whether such a procedure, which is set out in a provision introduced by the EAR in the Instructions to tenderers, was capable of rendering the action admissible by derogating from the rules governing the time-limit for bringing actions or, in other words, could have led the applicants to commit an excusable error, an error accepted by the European Union judicature as permitting a derogation from the rules governing the time-limit for bringing actions.
99 The concept of excusable error, which arises directly out of a concern that the principles of legal certainty and the protection of legitimate expectations should be upheld can, according to settled case-law, concern only exceptional circumstances in which, in particular, the conduct of the institution concerned has been, either alone or to a decisive extent, such as to give rise to a pardonable confusion in the mind of a party acting in good faith and exercising all the diligence required of a normally experienced person (Case C-193/01 P Pitsiorlas v Council and BCE [2003] ECR I-4837, paragraph 24, and Case T- 12/90 Bayer v Commission [1991] ECR II-219, paragraphs 28 and 29, upheld on appeal in Case C-195/91 P Bayer v Commission [1994] ECR I-5619, paragraph 26).
100 In the present case, the Court considers that, by including the provision concerned in the tender file, the EAR acted in such a way as to to give rise to a pardonable confusion in the mind of the applicants, by setting out the appeals available to the unsuccessful candidates in an unclear way. It is evident from the content of the letter of 25 May 2007 that, in that letter, the applicants did not ask for reasons for the notified decision but sought to challenge it by means of an administrative complaint.
101 It is true that, as also noted in paragraphs 60 and 61 of Sogelma, paragraph 52 above, the wording of point 25 of the instructions to tenderers does not specify that an administrative complaint is obligatory. That lack of a requirement to make a prior administrative complaint is confirmed by the fact that that provision does not lay down any time-limit for the bringing of an administrative complaint. It must accordingly be concluded that that provision does not lay down that the procedure to which it refers must be completed before an action may be brought before the European Union judicature.
102 In addition, it must be noted that the provisions at issue in the present case and those at issue in Sogelma, paragraph 52 above, differ somewhat, in particular with regard to the second paragraph of point 25 of the Instructions to Tenderers.
103 However, if a contracting authority provides, in the rules governing an invitation to tender, for a conciliation or mediation procedure or any other procedure which may be initiated by the tenderers in order to obtain a friendly solution and if the tenderer has recourse to that procedure, the tenderer may not be penalised by losing the right to bring an action before the European Union judicature. A finding to the contrary would mean that, where the tenderer had not brought such an action in parallel with an administrative complaint, the contracting authority could evade review of its decisions by the European Union judicature by introducing administrative remedies which, if used, would deprive tenderers of their right to bring an action under Article 230 EC or Article 263 TFEU.
104 In addition, with regard to the step following that of the bringing of the complaint, it must be recalled that, in the present case, the second paragraph of point 25 of the instructions to tenderers mentioned only the case where the contracting authority was the Commission. Applied to the present case, that statement, by reason in particular of its lack of clarity, should be read as also referring to the agencies acting under powers delegated by the Commission (see paragraph 81 above).
105 In the light of all of the foregoing, the action for annulment must be declared admissible.
B – Substance
1. Action for annulment
106 In support of their action, the applicants rely on four pleas in law alleging, respectively, the failure to comply with the award and selection criteria, infringement of the rules governing the procurement procedure, infringement of the obligation to state reasons and infringement of the principle of sound administration.
a) The first plea in law, alleging the failure to comply with the award and selection criteria
107 The applicants maintain that the EAR did not award the contract to the lowest priced administratively and technically compliant tender, according to the award criteria set forth in the tender notice and the tender dossier. More specifically, they consider that the tender submitted by the party awarded the contract did not meet the required technical specifications and did not contain proof of reference installations, as required by the tender notice.
The first branch, alleging the failure to comply with technical specifications
– Arguments of the parties
108 The applicants maintain that, by awarding the contract to Getinge, which submitted a tender which was not technically compliant, the EAR committed a manifest error of assessment. Getinge’s products are not capable of providing low-temperature wet thermal treatment by sterilisation to STAATT Level III of microbial inactivation of infectious waste as described in point 1.1 of Annex II to the tender dossier. According to the applicants, the EAR did not have a broad margin of assessment in relation to the compliance of tenders with the technical specifications. In any event, it did not evaluate Getinge’s tender properly. Given the serious doubts regarding the technical conformity of the tender which was accepted, in particular following the applicants’ letters, the EAR should have received additional guarantees from the successful tenderer, which was not the case.
109 According to the applicants, the products tendered by the successful tenderer are designed only to treat solid waste or solutions or prions for inactivation, but not various kinds of infectious medical waste together, as required for this call for tenders. The treatment of ‘materials contaminated with blood and body fluids, isolation and surgery waste’ includes closed drainage and dialysis systems and bloodbags. However, Getinge’s inactivation method is not transferable to blood and other coagulating liquids and, in any event, needs a lot of energy. The treatment of liquids is further complicated by the fact that they are packed in sealed plastic or glass containers which act as an isolator. The applicants also maintain that, given the large quantity of litres that this liquid waste may represent, these products cannot reach a capacity of 20kg per hour owing to the temperature inhomogeneity for a certain period of time during the treatment of liquids. To their knowledge, the only Getinge system able to treat solid waste and liquids is not adapted to the daily routine of a hospital and does not meet the required microbial inactivation standard at the required capacity per hour.
110 The method of autoclaves used by Getinge serves only to disinfect and sterilise instruments to be reused in hospitals and is mainly used to treat products entering hospitals and to dispose of laboratory wastes, like, for example, relatively small items and probes that can easily be sterilised thermally. Its use for the treatment of outgoing waste, generally in the form of a mixture of spoilt and infectious wastes, requires specific validation of its capability to sterilise such waste. However, Getinge failed to provide proof of such validation.
111 The applicants rely on the World Health Organisation’s definition of infectious waste, according to which such waste includes liquid waste. They claim that the various kinds of infectious medical waste generated in a usual hospital setting, as illustrated by the applicants, are not sorted and separately treated, since hospitals do not operate separate procedures for the treatment of that waste and do not segregate infectious fluid wastes for separate treatment. According to the applicants, the equipment required should meet the purpose of the tender dossier, namely to procure equipment that would treat the various kinds of medical waste generated at each of the hospitals for which that equipment was intended.
112 They claim that the EAR and the Commission have not shown that Getinge’s products were technically compliant with the specifications. The theoretical possibility that, in certain circumstances, those products would comply with the tender requirements would not suffice. Such compliance had to be proved by the required documentation, which Getinge had not provided. Furthermore, it is apparent from the table annexed to the reply that the products actually delivered by Getinge require a longer cycle time and that they exclude the treatment of biohazardous waste as defined by a document originating from Indiana University (USA).
113 According to the applicants, the extracts from Getinge’s tender annexed to the EAR’s defence do not provide proof that the tender was technically compliant. In particular, the products proposed by Getinge have not been validated by the Robert Koch Institute (‘the RKI’) for the treatment of unspecified clinical wastes. As regards the report drawn up by the Clinical Centre of Serbia, that does not relate to Getinge’s system as tendered, which concerns the treatment of wastes in plastic bags to be put into boxes with a fully closed bottom. It does not provide the required proof of microbial inactivation of various kinds of infectious medical wastes, to STAATT Level III or higher, by the proposed system. The test concerned used sterilisation boxes that are not able to hold fluids and only the disinfection efficacy of textile cloth was validated. In addition, in that report, other important information was missing. The applicants add that the equipment they propose has, for its part, been appropriately tested and validated by the RKI prior to being listed as an approved product for the treatment of unspecified medical waste. The report prepared by the Karolinska Institute in Stockholm (Sweden) was not notified but would in any event be unlikely to provide the required proof.
114 The Commission disputes the applicants’ arguments.
– Findings of the Court
115 According to settled case-law, European Union institutions and bodies enjoy a broad margin of assessment with regard to the factors to be taken into account for the purpose of deciding to award a contract following an invitation to tender, and review by the Court is limited to checking compliance with the procedural rules and the duty to give reasons, the correctness of the facts found and ensuring that there is no manifest error of assessment or misuse of powers (Case T-211/02 Tideland Signal v Commission [2002] ECR II-3781, paragraph 33, and Case T-148/04 TQ3 Travel Solutions Belgium v Commission [2005] ECR II-2627, paragraph 47).
116 In that regard it is certainly true that, in the context of a public procurement procedure where, as in the present case, the contract is awarded to the tenderer who has submitted the lowest priced administratively and technically compliant tender, the contracting authority limits its margin of discretion with regard to the award of the contract to the lowest priced tender among the compliant tenders. However, its margin of discretion must remain broad with regard to the evaluation of the conformity of the tenders presented, and in particular the documentation provided in that regard. Moreover, according to Article 101 of the Financial Regulation and Article 149(1) of the implementing rules, the contracting authority may, until signature of the contract, either withdraw from the contract or annul the procurement procedure.
117 In the present case, the applicants submit that the products presented by the successful tenderer were not able to meet the technical specifications as noted in paragraph 24 above. The products were conceived for the treatment of solid waste but did not make it possible to treat various kinds of infectious medical waste together and in particular liquid waste, of which there may be large quantities. According to the applicants, the waste referred to in the technical specifications includes closed drainage and dialysis systems and bloodbags packed in sealed containers.
118 However, it must be noted that those types of waste are not referred to in the technical specifications of the call for tenders at issue. In addition, it must be made clear that those specifications do not refer simply to medical and/or infectious waste in general but to ‘various kinds of infectious medical waste’ and then list several concrete examples thereof. In that regard, the applicants’ argument concerning the World Health Organisation or University of Indiana definitions relied upon must be rejected, since the technical specifications also do not refer to infectious waste or biohazardous waste, as defined by those two bodies.
119 However, it must also be concluded that the various types of liquid waste referred to by the applicants are also not expressly excluded by the technical specifications.
120 Consequently, it is necessary to assess whether, by concluding that Getinge’s tender complied with the technical specifications as laid down in the tender dossier, the EAR made a manifest error of assessment.
121 It is not apparent in any way from the case-file that the EAR made such an error. On the basis of the information and supporting documents provided by Getinge, the EAR concluded that its tender was technically and administratively compliant. Thus, it is apparent from the case-file that the equipment proposed by the successful tenderer corresponded, according to its tender, to a low-temperature wet thermal treatment with a capacity of 26kg/hour of STAATT Level IV of microbial inactivation as described in the technical specifications. Since those technical specifications do not refer to any particular requirement regarding the treatment of relatively large quantities of liquid waste or still less to closed drainage and dialysis systems, bloodbags or other coagulating liquids, the proposed equipment did not necessarily have to meet that requirement.
122 In that regard, it must be recalled that, with regard to a contract awarded to the lowest priced administratively and technically compliant tender, the conclusion concerning the conformity of the tender suffices completely for that first stage of the assessment. There is no need to compare the quality of the material proposed by the different tenderers in order to identify the best among them. Once it has reached that conclusion, the Contracting Authority must simply identify, among the tenders considered thus compliant, the tender presenting the lowest price.
123 In the present case, according to the case-file, with regard to the two tenders which were administratively and technically compliant, that of Getinge presented the lowest price, that is to say EUR 5 358 600, compared to EUR 7 995 000 for the applicants’ tender.
124 With regard to the supporting documents presented by Getinge in support of its tender, it is apparent from the case-file that the only relevant one, that certifying the STAATT Level IV of microbial inactivation and the 26kg/hour treatment capacity of its equipment, was the report by the Clinical Centre of Serbia. In that regard, the applicants do not contest the independence or competence of that body, but submit that the report does not concern the same system of treatment as that presented by Getinge in its tender, any more than it does the treatment of the different types of medical waste. Thus, the test was allegedly carried out on non-specific textile cloth, packaged in ‘standard DIN sterilisation boxes’ with a ‘perforated bottom and lid’, whereas the containers used in practice are metal boxes ‘fully welded, non-permeable on sides and bottom’ with a ‘red plastic bag … placed inside’.
125 However, it is apparent from the case-file that those claims are not correct. First, it is apparent from Getinge’s tender that the suggested model of steriliser indeed matches the model which had been tested by the Clinical Centre of Serbia. Second, it is true that the containers used during the test had a perforated bottom and lid, in order to permit steam to enter. However, the same details concerning the last requirement mentioned are referred to in the information sheet which describes the system proposed by Getinge’s tender, that is that Getinge uses containers which, although completely sealed, non-permeable on sides and bottom, have a perforated lid, enabling steam to enter the box and the red plastic bag. The information sheet does not mention closure of the plastic bag before sterilisation.
126 Finally, with regard to the waste used for the purposes of that test, that is textile cloth, and the applicants’ argument that the Clinical Centre of Serbia used sterilisation boxes which cannot hold liquids, it must be recalled that there is no indication in the technical specifications, as noted in paragraph 24 above, that the equipment proposed in the context of the present call for tenders had to meet the requirement of treatment of the waste in liquid form. Moreover, the applicants fail to adduce proof that the method of sterilisation of textile cloth is not suitable for the treatment of other types of infectious waste to be treated in the context of the contract concerned. First, their arguments are based principally on the requirements of treatment of liquid waste. Second, the applicants admit that the autoclaves method proposed by the successful tenderer is used for the sterilisation of instruments which are to be reused in hospitals and for the elimination of laboratory waste.
127 The applicants’ arguments concerning the reports of the RKI and the Karolinska Institute must also be rejected. The tender dossier did not require the tenderers to submit a specific report from a particular body, for example the RKI, but a document proving that the equipment proposed was capable of complying at least with the STAATT III Level of treatment. In the present case, the evaluation committee had considered that the report submitted by the successful tenderer was such a document. Therefore, there is no need to raise the question of the relevance or probative value of the two other reports relied upon by the applicants.
128 Finally, with regard to the applicants’ statement according to which the equipment actually delivered by Getinge required a longer treatment cycle than the 30 minutes default cycle, it must be observed that, even supposing that the table annexed to the reply could substantiate that argument, the technical specification requirements referred not to a maximum duration of a treatment cycle but a minimum capacity, defined by a quantity of 20 kg of waste to be treated per hour.
129 In the light of all of the foregoing, it must be concluded that the applicants have not adduced proof that, by considering that Getinge’s tender complied with the technical specifications, as laid down in the tender dossier, the EAR had committed a manifest error of assessment.
130 The first branch of the first plea in law must therefore be rejected.
The second branch, alleging the lack of proof in the successful tenderer’s tender of the carrying out of the required reference installations
– Arguments of the parties
131 The applicants maintain that, contrary to the requirements set out in point 16 of the tender notice for Lot 1, Getinge did not prove that it had carried out reference installations of at least 3 units per year in each of the last 3 years. In that regard, they claim that proof has not been adduced that the EAR had checked Getinge’s reference installations, as required.
132 The Commission disputes the applicants’ arguments.
– Findings of the Court
133 It is apparent from the tender notice that proof that the reference installations were carried out during the last 3 years was a selection criterion for Lot 1, that is to say the tenderer’s technical capacity to implement the contract.
134 In accordance with point 16(3) of the tender notice, the tenderers had to prove, regarding Lot 1, that they had carried out reference installations of at least 3 units per year during the previous 3 years (2003, 2004 and 2005).
135 In that regard, it must be pointed out, as does the Commission, that the call for tenders does not require proof to be provided of equipment which corresponds exactly to the technical specifications of the contract concerned in the present case, but of ‘reference’ installations relating to that contract. The part of the applicants’ arguments relating to Getinge’s alleged inability to adduce proof of the reference installations corresponding to the technical specifications, as they have interpreted them, must therefore be rejected.
136 However, a key part of the public procurement procedure is to verify that the selection criteria have been met. Consequently, it is necessary to check whether the contracting authority has indeed verified whether the tenders submitted by the tendererers contain that proof. In that context, it is not necessary that the contracting authority send to the Court the documents actually submitted by the successful tenderer, but only the document emanating from the contracting authority and certifying that it has indeed duly received and checked the documents in question.
137 Following the request to produce documents addressed to the Commission, the Commission sent the Court a copy of the evaluation grid relating to the call for tenders at issue. It is apparent from that document that the evaluation committee considered that the successful tenderer had proved that it had carried out the reference installations of at least 3 units per year during the last 3 years.
138 Therefore, the second branch and, consequently, the first plea in law must be rejected.
b) The second plea, alleging infringement of the procedural rules of the procurement procedure
Arguments of the parties
139 In this plea, the applicants complain that the EAR infringed a number of procedural rules designed to guarantee equal opportunities and the equal treatment of tenderers. More specifically, they claim that the EAR did not comply with the provisions either of Article 37(3) of Annex I to the EAR implementing rules or, in the alternative, those of Article 37(1) and (2) of that annex. The EAR also infringed Article 41 of Annex I to the EAR implementing rules.
140 Contrary to what the Commission maintains, the applicants submit that, in accordance with Article 9 of Regulation No 2667/2000, Articles 37 and 41 of Annex I to the EAR Implementing Rules apply to the procurement procedure at issue. The Commission did not decide otherwise when it delegated the implementation of the CARDS (Community Assistance for Reconstruction, Democratisation and Stabilisation) programme to the Republic of Serbia.
141 More particularly, Article 37(3) of Annex I to the implementing rules of the EAR applies to the present case, since the EAR conducted the tender by delegation for and on account of the Commission.
142 First, in infringement of that article, the EAR did not inform the applicants as soon as possible after the ‘award decision’ and within the following week at the latest that their tender had not been accepted. According to the supply contract award notice, the contract was awarded on 30 March 2007, whereas the EAR only informed the applicants that their tender had been rejected by letter of 17 May 2007, that is more than six weeks after the award of the contract.
143 Second, in its letter of 29 August 2007, the EAR did not provide all the information requested concerning the compatibility of Getinge’s tender with the microbial inactivation level STAATT Level III norms and concerning its technical capacity and the characteristics and advantages of that tender. Moreover, the EAR did not observe the time-limit for responding of fifteen calendar days from receipt of their letter of 25 May 2007. In that regard, the applicants explain that the EAR’s letter of 1 June 2007 was a response to their earlier letter of of 2 May 2007, which had been sent before they had been informed of the rejection of their tender.
144 Third, the EAR did not wait the required two calendar weeks after the notification of the rejection decision to sign the contract with Getinge. The EAR thereby denied the applicants any meaningful possibility of appealing against the ‘award decision’.
145 Alternatively, the EAR infringed Article 37(1) and (2) of Annex I to the EAR implementing rules. That infringement resulted from the late communication to the applicants of the ‘award decision’ and of the reponse to their letter of 25 May 2007 more than fifteen days after that date.
146 The EAR also infringed Article 41 of Annex I to the EAR implementing rules by failing to suspend the award procedure or the performance of the contract pursuant to Article 103 of the Financial Regulation, in order to verify whether the substantial errors pointed out by the applicants in their letters of 2 and 25 May 2007 had occurred. Those irregularities caused losses to the budget of the European Union.
147 The applicants consider that Articles 75 and 104 of the EAR implementing rules do not refer back to the practical guide but to Annexes I and III to the implementing rules. That is also apparent from Article 6 of Annex III to the EAR implementing rules, read in conjunction with Article 167(a) and (b) of the Financial Regulation. By contrast, in Sogelma, paragraph 52 above, the practical guide was only a working tool without value or legal effect, which cannot derogate from the EAR implementing rules.
148 In any event, the applicants argue that the EAR also infringed the provisions of the practical guide, more specifically point 2.9.1.3 thereof. The EAR did not inform them of the ‘award decision’ as soon as possible but waited until it had received the contract signed by Getinge before informing them of it. In addition, the applicants claim that they never received the second communication corresponding to Annex C8 mentioned in the point of the Practical Guide concerned.
149 The applicants consider that, in order to ensure equality of treatment and equality of opportunity, it is essential that all the tenderers are informed of the ‘award decision’ before the contract with the successful tenderer is signed, in order to ensure that the EAR’s decisions are subject to meaningful and effective review in the context of the procedure laid down in point 25 of the instructions to tenderers.
150 The Commission disputes the applicants’ arguments. In addition, it contends that Articles 75 and 104 of the EAR implementing rules refer back to the practical guide and that Articles 37 and 41 of Annex I to the EAR implementing rules are not applicable.
Findings of the Court
151 As a preliminary point, it must be determined which provisions govern the procurement procedure at issue.
152 Public procurement by the European Union institutions is subject to the provisions of the Financial Regulation and of the implementing rules. In addition, under Article 167(1) of the Financial Regulation, which appears in Title IV, headed ‘External actions’, of Part Two of that regulation, the provisions of Article 56 and of Chapter 1 of Title V of Part One relating to the general provisions on procurement are applicable to contracts covered by that Title IV, subject to the specific provisions laid down in the implementing rules (see paragraph 7 above).
153 The provisions regarding public procurement which must be complied with by the institutions also apply to the EAR. According to Article 74 of Regulation No 2343/2002, adopted in accordance with Article 185(1) of the Financial Regulation, the relevant provisions of that regulation and the implementing rules apply with regard to the public contracts awarded by bodies created by the Communities, which are endowed with legal personality and which actually receive subsidies from the European Union budget (see paragraph 12 above).
154 Article 7(1) of Regulation No 2666/2000 furthermore provides expressly that the Commission is to implement the Community aid referred to in that regulation in accordance with the Financial Regulation.
155 Also, Article 73 of the Governing Board Decision on the financial rules applicable to the EAR provides that, as regards public procurement, the provisions of the Financial Regulation and of the implementing rules are to apply (see paragraph 14 above).
156 With regard to the EAR implementing rules, they refer back to Annex I to those rules, with regard to calls for tender, and to Annex III thereto, with regard to the special provisions for external actions, and to the practical guide. Article 6 of Annex III to the EAR implementing rules does not exclude the application of Articles 37 and 41 of Annex I to the EAR implementing rules in the case of a procurement contract such as that in the present case (see paragraphs 15 to 17 above). The wording of those two articles corresponds to that of Articles 149 and 153 of the implementing rules.
157 In that context, the Commission’s argument that the practical guide is the only text applicable to the procurement procedure at issue must be rejected. A practical guide is a working tool which explains the procedures applicable in a particular area and which cannot, as such, constitute the sole legal basis of a procurement procedure (see, to that effect, Sogelma, paragraph 52 above, paragraph 66). As such, it also cannot derogate from higher-ranking rules.
158 It follows that it is in the light of the relevant provisions of the Financial Regulation, the implementing rules, the EAR implementing rules and those of the practical guide that it must be examined whether the EAR infringed the procedural rules of the procurement procedure.
159 First, with regard to the applicants’ statement that the EAR infringed Article 37(3) of Annex I to the EAR implementing rules (Article 149(3) of the implementing rules), it must be noted that that provision concerns only contracts awarded by the European Union institutions on their own account. In the present case, the contracting authority in the procurement procedure was the EAR, acting for and on behalf of the beneficiary country, namely the Republic of Serbia (see paragraph 20 above). Consequently, since that provsion was not applicable in the present case, the applicants’ arguments concerning its infringement must be rejected.
160 Second, with regard to Article 37(1) of Annex I to the EAR implementing rules (Article 149(1) of the implementing rules), that provision lays down only the obligation on the contracting authority to inform the tenderers as soon as possible of decisions reached concerning the award of the contract.
161 That obligation is repeated in point 2.9.1.3 of the practical guide, in its version of 22 August 2006, headed ‘Publication of the award of the contract’, according to which:
‘The contracting authority informs candidates and tenderers of decisions reached concerning the award of the contract as soon as possible, including the grounds for any decision not to award a contract for which there has been competitive tendering or to recommence the procedure.
Once the contract has been signed, the contracting authority must prepare a contract award notice and send it to the … Commission, which publishes the results of the tender procedure in the Official Journal of the European Union and on the internet site of EuropeAid and in any other appropriate media. In addition, the contracting authority must:
– inform the other tenderers that their tenders have not been successful by standard letter (see template in Annexes B13, C8, D8) within not more than fifteen days, counting from the receipt of the countersigned contract according to the English version of the guide.
– …
The contracting authority prepares the contract award notice using the template in Annexes B14, C9, D9 and submits an electronic version of it for publication to the European Commission in electronic form without delay after having received the countersigned contract from the successful tenderer without delay after having received the countersigned contract from the successful tenderer.'
162 Following an application for production of documents addressed to the Commission, the Commission sent to the Court a copy of the contract concerning the procurement procedure at issue, signed by the EAR and the successful tenderer on 3 and 7 May 2007 respectively.
163 The applicants having been informed of the rejection of their tender by letter of 17 May 2007 (see paragraph 30 above), it follows that the EAR correctly fulfilled the information obligations as referred to in the above paragraphs.
164 Third, with regard to the applicants’ argument alleging the infringement of Article 37(2) to Annex I of the EAR implementing rules (Article 149(2) of the implementing rules), according to which the EAR did not reply to their letter of 25 May 2007 within the fifteen day time-limit, it is sufficient to note that, by that letter, the applicants did not request the EAR to provide reasons for its decision on award of the contract (see paragraph 87 above). Consequently, it may not be regarded as equivalent to a request provided for under Article 149(2) of the implementing rules, read in conjunction with Article 100(2) of the Financial Regulation.
165 Fourth, the applicants’ argument that the EAR infringed Article 41 of Annex I to the EAR implementing rules (Article 153 of the implementing rules) must also be rejected. That article refers to Article 103 of the Financial Regulation. It should be noted that those articles do not impose any obligation on the contracting authority to suspend the implementation of the contract on the basis, inter alia, of a challenge by the unsuccessful tenderer to the award of the contract. In the present case, the information contained in the applicants’ letters of 2 and 25 May 2007 did not, according to the contracting authority, establish a presumption of errors, substantial irregularities or fraud which would justify suspension of the contract in question so that they may be checked.
166 In the light of the foregoing, the second plea in law must be rejected.
c) The third plea in law, alleging an infringement of the obligation to state reasons
Arguments of the parties
167 The applicants claim that the EAR did not inform them of the reasons why they found that Getinge’s tender complied with the technical specifications and why the contract was not awarded to them.
168 According to the applicants, the decision closing the administrative appeal procedure, brought by the applicants pursuant to point 25 of the instructions to tenderers, had to be adequately reasoned and relevant in response to the complainant’s allegations. In that context, the use of ‘usual straightforward wording’ that may suffice for the letter communicating the award decision in cases when no such substantial doubts have been raised is not sufficient. The EAR could have communicated to it the technical offer and documentation produced by Getinge which do not contain any confidential information.
169 The Commission disputes the applicants’ arguments.
Findings of the Court
170 It follows from Article 100(2) of the Financial Regulation and Article 149 of the implementing rules that the contracting authority fulfils its obligation to state reasons if it confines itself, first, to informing unsuccessful tenderers immediately of the reasons for the rejection of their respective tenders and then provides, to all tenderers who have made an admissible tender and an express request, the characteristics and relative advantages of the tender selected as well as the name of the successful tenderer, within a period of fifteen days from the date on which a written request is received (judgment of 10 September 2008 in Case T-465/04 Evropaïki Dynamiki v Commission, not published in the ECR, paragraph 47, and Case T-437/05 Brink’s Security Luxembourg v Commission [2009] ECR II-3233, paragraph 160).
171 Such a manner of proceeding satisfies the purpose of the duty to state reasons enshrined in Article 253 EC, according to which the reasoning followed by the authority which adopted the measure must be disclosed in a clear and unequivocal fashion so as, on the one hand, to make the persons concerned aware of the reasons for the measure and thereby enable them to defend their rights and, on the other, to enable the Court to exercise its supervisory jurisdiction (Evropaïki Dynamiki v Commission, paragraph 170 above, paragraph 48).
172 It should also be noted that the obligation to state reasons must be assessed in the light of the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure or other parties to whom it is of direct and individual concern, may have in obtaining explanations (see Case C-367/95 P Commission v Sytraval and Brink’s France [1998] ECR I-1719, paragraph 63 and case-law cited).
173 In the present case, it must be considered that the applicants did not make a written request for information concerning the characteristics and relative advantages of the tender selected (see paragraphs 87 and 164 above).
174 Consequently, in order to determine whether the EAR fulfilled its obligation to give reasons provided for under the Financial Regulation and by the implementing rules, it is only the EAR’s letter of 17 May 2007 which must be examined.
175 By that letter, the EAR informed the applicants that their tender had been rejected on the ground that it was not the lowest priced of the technically compliant tenders and that Lot 1 of the contract had been awarded to Getinge.
176 Thus, the EAR fully complied with its obligations resulting from Article 100(2) of the Financial Regulation and Article 149(1) of the implementing rules.
177 In addition, it must be noted that, according to the case-law, the contracting authority was not obliged, on the basis of its duty to state reasons for a decision rejecting a tender, to enter into a debate with the applicants on the merits of their tender as against those of the successful tender (see, to that effect, judgment of 1 July 2008 in Case T-211/07 AWWW v FEACVT, not published in the ECR, paragraph 43).
178 The plea alleging infringement of the obligation to state reasons must therefore be rejected.
d) The fourth plea, based on infringement of the principle of sound administration
Arguments of the parties
179 The applicants maintain that, contrary to the case-law, the EAR, acting by delegation from the Commission, failed to fulfil its duty to examine carefully and impartially all the relevant aspects of the tender submitted. The EAR did not examine the tender offers with all due diligence and did not adopt its ‘decision on the winning tender’ on the basis of all the information which could affect the outcome. It infringed the principle of sound administration when concluding, on the basis of its evaluation, that Getinge’s offer was the lowest priced administratively and technically compliant tender. In addition, the Commission failed to adduce proof that the tenders submitted were correctly assessed, in particular following the doubts expressed by the applicants in their letters of 2 and 25 May 2007.
180 The Commission contends that this plea in law is manifestly inadmissible because it does not identify any actual failure to comply with the principle of sound administration. In any case, it is unfounded.
Findings of the Court
181 Article 89(1) of the Financial Regulation provides that all public contracts financed in whole or in part by the European Union budget are to comply with the principles of transparency, proportionality, equal treatment and non-discrimination.
182 In addition it is clear from the case-law that the rights guaranteed by the European Union legal order in administrative procedures include in particular the duty of the competent institution to examine carefully and impartially all the relevant aspects of the individual case (Case C-269/90 Technische Universität München [1991] ECR I-5469, paragraph 14, and Case T- 44/90 La Cinq v Commission [1992] ECR II-1, paragraph 86). Also, the contracting authority is required to ensure equal treatment at each stage of a tendering procedure and, thereby, equality of opportunity for all the tenderers (Case C-496/99 P Commission v CAS Succhi di Frutta [2004] ECR I-3801, paragraph 108, and Case T-145/98 ADT Projekt v Commission [2000] ECR II-387, paragraph 164).
183 In the present case, the Court considers that the infringements alleged in the context of this plea have been explained sufficiently to enable them to be analysed. However, it suffices to hold that it is apparent from the other pleas in law submitted by the applicants that they have not succeeded in proving a lack of diligence, care or impartiality of any kind in the examination of the tenders submitted. Equally, according to the case-file, the EAR had carried out the necessary checks and had, in particular, requested additional information from the applicants concerning their tender. With regard to the argument that insufficient proof has been provided that the tenders submitted were correctly examined or that Getinge’s tender was reevaluated, in particular following the applicants’ letters of 2 and 25 May 2007, it must be pointed out that, on the contrary, it is for the applicants to prove that an irregularity was committed during examination of the tenders submitted.
184 Therefore, in the absence of other factors raised by the applicant in support of the plea in law alleging infringement of the principle of sound administration with regard to the examination of the tenders submitted, that plea must be rejected as unfounded.
2. The application for damages
a) Arguments of the parties
185 The applicants seek payment of damages with interest on the basis of the non-contractual liability of the Community in that the EAR unlawfully awarded the contract to Getinge and not to them. Accordingly, they claim damages in respect of the cost of participating in the procurement procedure and lost profit. In addition, the applicants claim payment of compensatory interest on any and all damage caused by the EAR from the date on which the damage materialised, as well as interest on the damages from the date of judgment.
186 The Commission submits that the application for damages is inadmissible since the applicants have failed to provide any evidence of the existence, nature and extent of the damage they sustained and have not indicated the evidence they would have offered. In any case, the claim is unfounded.
b) Findings of the Court
187 The Court considers that, in the circumstances of the present case, there is no need to rule on the Commission’s arguments based on the inadmissibility of the application for damages, since the form of order sought by the applicants must in any event be rejected on the substance (see, to that effect, Case C-23/00 P Council v Boehringer [2002] ECR I-1873, paragraph 52, and Case C-233/02 France v Commission [2004] ECR I-2759, paragraph 26).
188 It is settled case-law that in order for the Community to incur non-contractual liability under the second paragraph of Article 288 EC for unlawful conduct of its institutions, a number of conditions must be satisfied: the institution’s conduct must be unlawful, actual damage must have been suffered and there must be a causal link between the conduct and the damage pleaded (Case 26/81 Oleifici Mediterranei v EEC [1982] ECR 3057, paragraph 16, and Case T-175/94 International Procurement Services v Commission [1996] ECR II-729, paragraph 44).
189 If any one of those three conditions required for the Community to incur non-contractual liability is not satisfied, the claims for damages must be dismissed in their entirety and it is unnecessary to consider the other conditions (Case C-146/91 KYDEP v Council and Commission [1994] ECR I-4199, paragraph 81, and Case T-170/00 Förde-Reederei v Council and Commission [2002] ECR II-515, paragraph 37).
190 In the present case, the Court has examined and rejected all the arguments relied on by the applicants in order to demonstrate that the decision to award the contract concerned to Getinge was unlawful. The applicants may not therefore claim damages with interest on the basis of a claim that that decision was unlawful.
191 It follows that the application for damages must be rejected.
3. Claim for production of documents
192 The applicants request the Court to order the Commisson to produce certain documents, namely the contract for supply of services concluded between Getinge and the EAR and the related correspondence, and all the internal and external correspondance connected with the applicants’ letters of 2 and 25 May 2007 and with that of 29 August 2007. The documents requested are said to be needed in order further to substantiate that the EAR infringed the rules of the procurement procedure. The applicants also request production of the report of the Karolinska Institute concerning the characteristics of the equipment suggested by Getinge.
193 First, it must be pointed out that the report of the Karolinska Institute was already produced by the Commission as an annex to the rejoinder. In addition, following the request for production of Court documents of 20 October 2010, the Commission also sent a copy of the contract signed by EAR and the successful tenderer (see paragraph 42 above).
194 Second, with regard to the applicants’ request that the Court order the EAR to produce all the correspondence relating to that contract and all the internal and external correspondence connected with the applicants’ letters of 2 and 25 May 2007 and with that of 29 August 2007, it must be pointed out that, according to the case-law, to enable the Court to determine whether it was conducive to proper conduct of the procedure to order the production of certain documents, the party requesting production must identify the documents requested and provide the Court with at least minimum information indicating the utility of those documents for the purposes of the proceedings (C-185/95 P Baustahlgewebe v Commission [1998] ECR I-8417, paragraph 93).
195 Not only do the applicants not submit any evidence proving that such correspondence exists, but they also fail to identify any of the documents requested. In addition, they do not state how exactly that could substantiate their claim that the EAR infringed the procedural rules of the procurement procedure.
196 The applicants’ request that the Court order the Commission to produce the documents referred to in paragraph 192 above must accordingly be rejected.
Costs
197 Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
198 As the applicants have been unsuccessful, they must be ordered to pay the costs, in accordance with the form of order sought by the Commission.
On those grounds,
THE GENERAL COURT (Seventh Chamber)
hereby:
1. Dismisses the action;
2. Orders CMB Maschinenbau & Handels GmbH and J. Christof GmbH to bear their own costs and those incurred by the European Commission.
|
Dittrich |
Wiszniewska-Białecka |
Prek |
Delivered in open court in Luxembourg on 15 September 2011.
[Signatures]
Table of contents
Legal context
Background to the dispute
Procedure and forms of order sought by the parties
Law
A – Admissibility
1. The inadmissibility exception raised by the Commission
a) Arguments of the parties
b) Findings of the Court
2. The nature of the letter of 29 August 2007 and the allegedly late submission of the application
a) Arguments of the parties
b) Findings of the Court
B – Substance
1. Action for annulment
a) The first plea in law, alleging the failure to comply with the award and selection criteria
The first branch, alleging the failure to comply with technical specifications
– Arguments of the parties
– Findings of the Court
The second branch, alleging the lack of proof in the successful tenderer’s tender of the carrying out of the required reference installations
– Arguments of the parties
– Findings of the Court
b) The second plea, alleging infringement of the procedural rules of the procurement procedure
Arguments of the parties
Findings of the Court
c) The third plea in law, alleging an infringement of the obligation to state reasons
Arguments of the parties
Findings of the Court
d) The fourth plea, based on infringement of the principle of sound administration
Arguments of the parties
Findings of the Court
2. The application for damages
a) Arguments of the parties
b) Findings of the Court
3. Claim for production of documents
Costs
* Language of the case: English.