GC, 1st chamber, April 21, 2021, No T-525/19

THE GENERAL COURT (First Chamber),

1 The European Union, represented by the European Commission, published, on 19 March 2019, a contract notice relating to a call for tenders for the award of a contract for dust and nitrogen oxide reduction measures at Kosovo B thermal power plan, Units B1 and B2 under the reference EuropeAid/140043/DH/WKS/XK (‘the contract notice’).

2 Paragraph 17.2 of the contract notice, as amended by Corrigendum No 2 of 17 April 2019, sets out the selection and award criteria with regard to the technical and professional capacity of the tenderer.

3 Paragraph 17.2(a) of the contract notice provides that the tenderer must have completed at least one project of the same nature and complexity covering certain categories clearly defined in the contract notice, executed on lignite fired power plants with rated electrical output of at least 200 MW in the last eight years.

4 In accordance with paragraph 17.2(c) of the contract notice, in the case of a tender from a joint venture or consortium, its lead member must have the ability to carry out at least 40% of the contract works by its own means.

5 The procedure set out in the contract notice for the award of the contract in question was a restricted tendering procedure. Paragraph 13 of the contract notice provides, in that regard that, on the basis of the applications received, a shortlist will be drawn up and candidates meeting the selection criteria will be invited by the contracting authority to submit a tender (‘the shortlist’). Moreover, the contract notice stated that, on the basis of the applications received, four to six candidates would be invited to submit detailed tenders for the contract in question.

6 The applicants, Intering Sh.p.k, Steinmüller Engineering GmbH, Deling d.o.o. za proizvodnju, promet i usluge and ZM-Vikom d.o.o. za proizvodnju, konstrukcije i montažu, formed a consortium and expressed their interest in participating in the restricted tendering procedure in question by submitting, within the prescribed time limit which ran until 6 May 2019, an application file containing certain documents.

7 After the expiry of the time limit for the submission of the application documents, the assessment committee invited the applicants, on three occasions, to provide clarification of the documents submitted.

8 The applicants responded to the requests for information.

9 By letter of 7 June 2019, bearing the reference Ares(2019)3677456, sent to the consortium leader, Intering, the Commission informed the applicants that their application had not been pre-selected on the ground that it did not meet the criteria set out in paragraph 17.2(a) and (c) of the contract notice (‘the decision of 7 June 2019’).

10 By letter of the same day, the applicants challenged the decision of 7 June 2019.

11 By letter of 13 June 2019, supplemented by a letter of 28 June 2019, which included information and several documents that had not been submitted with the originating application, the applicants filed a complaint concerning the decision of 7 June 2019, seeking the suspension of operation of that decision and their inclusion on the shortlist.

12 Following that complaint, the tendering procedure was suspended for the purposes of a review, which was communicated to the applicants by letter of 23 July 2019, bearing the reference AresD(2019)NA/vk/4806398.

13 By letter of 30 July 2019, bearing the reference Ares(2019)4979920 (‘the decision of 30 July 2019’), the Commission informed the applicants, first, that the decision of 7 June 2019 had been annulled due to the lack of clarity of the selection criterion set out in paragraph 17.2(c) of the contract notice which had consequently been removed from the selection criteria and, second, that their application had again been rejected. In that regard, the decision of 30 July 2019 stated that, after re-evaluation of their application, as submitted within the prescribed time limit which ran until 6 May 2019, it was found that it did not contain any evidence that the criterion relating to technical and professional capacity set out in paragraph 17.2(a) of the contract notice had been met.

14 On the same day, another letter, bearing the reference Ares(2019)4980092, almost identically worded as that of the decision of 30 July 2019, was sent to the consortium leader.

15 By letter of 1 August 2019, supplemented by letter of 2 August 2019, the applicants filed a complaint against the decision of 30 July 2019 and requested that the contract be suspended.

16 By letter of 7 August 2019, bearing the reference Ares(2019)5134299, the applicants were informed that the shortlist was carried forward and that any new application for suspension of the tendering procedure was refused.

17 On 18 October 2019, the contract was definitively awarded to the Engineering Dobersek GmbH, Hamon Thermal Europe SA and RJM Corporation (EC) Limited consortium (‘the decision of 18 October 2019’).

Procedure and forms of order sought

18 By application lodged at the Court Registry on 25 July 2019, the applicants brought the present action.

19 In the application, the applicants claim that the Court should:

– annul the decision of 7 June 2019;

– grant the request for obtaining oral evidence.

20 By separate document lodged at the Court Registry on 2 August 2019, the applicants, on the basis of Article 86 of the Rules of Procedure of the General Court, lodged a request for modification of the application to cover the decision of 30 July 2019 and not the decision of 7 June 2019.

21 The Commission failed to submit observations on the applicants’ statement of modification within the time limit set.

22 By separate document lodged at the Court Registry on 7 August 2019, the applicants submitted an application for interim measures, pursuant to Article 278 TFEU and Article 156 of the Rules of Procedure, seeking, in essence, the suspension of operation of the decision of 30 July 2019 and the suspension of the tendering procedure.

23 By order of 13 September 2019, Intering and Others v Commission (T‑525/19 R, not published, EU:T:2019:606), the President of the General Court dismissed the application for interim measures and reserved the costs.

24 By separate document lodged at the Court Registry on 9 October 2019, the applicants submitted a new application for interim measures, pursuant to Article 278 TFEU and Article 156 of the Rules of Procedure, seeking, in essence, the suspension of operation of the decision of 30 July 2019 and the suspension of the tendering procedure.

25 By order of 11 November 2019, Intering and Others v Commission (T‑525/19 R II, not published, EU:T:2019:787), the Court dismissed the application for interim measures and reserved the costs.

26 On 8 October 2019, the Commission lodged its defence at the Court Registry.

27 In the defence, the Commission contends that the Court should:

– dismiss the action;

– reject the request for obtaining oral evidence;

– order the applicants to pay the costs.

28 On 4 December 2019, the applicants lodged their reply at the Court Registry.

29 In the reply, the applicants claim, in essence, that the Court should:

– rule in accordance with the statement of modification;

– annul the decision of 18 October 2019;

– uphold the request for obtaining oral evidence;

– order the Commission to pay the costs.

30 On 27 March 2020, the Commission lodged its rejoinder at the Court Registry.

31 In the rejoinder, the Commission asks, in essence, the Court to rule in accordance with the form of order sought in the defence and to reject the application for the annulment of the decision of 18 December 2019.

32 The General Court (First Chamber) decided to rule on the action without an oral part of the procedure, in accordance with Article 106(3) of the Rules of Procedure.

Law

Alleged breaches by the Commission of the provisions of the Rules of Procedure relating to the period prescribed for the lodging of the defence

33 In the reply, the applicants claim that the Commission failed to submit its defence within the time limit set and did not submit a request for an extension, so that they could have applied to the Court for judgment by default which, however, they did not.

34 In that regard, it must be noted that the applicants’ claim stems from confusion between the date of lodging the defence at the Court Registry, on the one hand, and its notification to the applicants, on the other.

35 It is apparent from the documents in the file that, in accordance with Article 6 of the Decision of the General Court of 11 July 2018 on the lodging and service of procedural documents by means of e-Curia, the application was served on the Commission on 29 July 2019 and that the defence was lodged at the Court Registry on 8 October 2019. The defence was therefore lodged at the Court Registry within the two-month time limit laid down in Article 81(1) of the Rules of Procedure, extended on account of distance pursuant to Article 60 of that regulation.

36 The fact that the defence was served on the applicants after the expiry of that time limit has no bearing on the lodging of the defence at the Court Registry in accordance with the relevant provisions of the Rules of Procedure. It was therefore appropriate for the written stage of the procedure to be continued.

37 In the light of the foregoing, the argument put forward by the applicants that the Commission breached the provisions of the Rules of Procedure relating to the period prescribed for the lodging of the defence must be rejected.

 The application for annulment of the decision of 18 October 2019

38 It must be noted that the form of order sought in the application, as amended following the statement of modification, seeks only the annulment of the decision of 30 July 2019. It was only at the stage of the reply that the applicants sought the annulment of the decision of 18 October 2019.

39 However, assuming that the applicants intended to bring a new action seeking the annulment of the decision of 18 October 2019 in the reply, it is sufficient to point out that, under Article 21 of the Statute of the Court of Justice of the European Union, applicable to the General Court by virtue of the first paragraph of Article 53 thereof, a case is brought before the Court of Justice of the European Union by a written application addressed to the Registrar and not, like in the present case, by lodging a document in the course of the proceedings which are pending.

40 In addition, in the event that the applicants simply intended to modify the form of order sought to cover the decision of 18 October 2019 as well, it should be borne in mind that, in accordance with Article 76 of the Rules of Procedure, the applicant must indicate the subject matter of the proceedings and set out the form of order sought in the application initiating proceedings. Although Article 84(1) of those rules allows new pleas in law to be introduced in the course of the proceedings provided that they are based on matters of law or of fact which come to light in the course of those proceedings, it cannot be interpreted as authorising an applicant to seek a new form of order before the EU Courts and thereby to modify the subject matter of the proceedings or the nature of the action (judgment of 7 November 2019, Rose Vision v Commission, C‑346/18 P, not published, EU:C:2019:939, paragraph 43). Thus, subject to the existence of certain circumstances provided for in Article 86 of the Rules of Procedure, only the form of order set out in the originating application may be taken into consideration and the substance of the application must be examined solely with reference to the order sought in the application initiating proceedings (judgments of 21 October 2015, Petco Animal Supplies Stores v OHIM – Gutiérrez Ariza (PETCO), T‑664/13, EU:T:2015:791, paragraph 25, and of 8 November 2017, De Nicola v Court of Justice of the European Union, T‑99/16, not published, EU:T:2017:790, paragraph 28).

41 It must therefore be examined whether the application for annulment of the decision of 18 October 2019 falls within the circumstances referred to in Article 86 of the Rules of Procedure. Article 86(1) provides that, where a measure the annulment of which is sought is replaced or amended by another measure with the same subject matter, the applicant may, before the oral part of the procedure is closed, or before the decision of the General Court to rule without an oral part of the procedure, modify the application to take account of that new factor.

42 However, it must be stated that, whilst the decision of 18 October 2019 was taken after the date on which the present action was lodged, it does not replace or amend the decision of 30 July 2019.

43 It must therefore be found that the applicants cannot rely on Article 86 of the Rules of Procedure to amend, at the stage of the reply, the form of order sought to cover the decision of 18 October 2019 as well.

44 It follows that the application for annulment of the decision of 18 October 2019 is manifestly inadmissible.

The action brought against the decision of 30 July 2019

45 It must be borne in mind that, as stated in paragraph 13 above, the Commission, by the decision of 30 July 2019, informed the applicants, first, that the decision of 7 June 2019 had been annulled due to the lack of clarity of the selection criterion set out in paragraph 17.2(c) of the contract notice and, second, that their application had again been rejected because it did not contain any evidence that the criterion relating to technical and professional capacity set out in paragraph 17.2(a) of the contract notice had been met.

46 In support of their application for annulment of the decision of 30 July 2019, the applicants put forward seven pleas in law. The first plea in law alleges infringement of the principles of transparency, proportionality and equal treatment in that the Commission failed to resolve its doubts with regard to the documents filed by the applicants. The second plea in law alleges infringement of the principles of transparency and proportionality, and breach of the provisions of Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council of 18 July 2018 on the financial rules applicable to the general budget of the Union, amending Regulations (EU) No 1296/2013, (EU) No 1301/2013, (EU) No 1303/2013, (EU) No 1304/2013, (EU) No 1309/2013, (EU) No 1316/2013, (EU) No 223/2014, (EU) No 283/2014, and Decision No 541/2014/EU and repealing Regulation (EU, Euratom) No 966/2012 (OJ 2018 L 193, p. 1) (‘the financial regulation’), in that the Commission failed to justify its decision to exclude the applicants from the further tendering procedure and failed to grant the applicants access to the detailed evaluation report or provide them with information on the advantages and characteristics of the tenderers included on the shortlist. The third plea in law alleges infringement of the general principle that the tender documents are to be protected from any changes during the tendering procedure. The fourth plea in law alleges infringement of Article 5(1) and (2) of Regulation (EU) No 231/2014 of the European Parliament and of the Council of 11 March 2014 establishing an Instrument for Pre-accession Assistance (IPA II) (OJ 2014 L 77, p. 11) and Article 1(3) and (6) of Regulation (EU) No 236/2014 of the European Parliament and of the Council of 11 March 2014 laying down common rules and procedures for the implementation of the Union’s instruments for financing external action (OJ 2014 L 77, p. 95) due to an infringement of the general principles of public procurement law. The fifth plea in law alleges infringement of the provisions of the ‘Practical Guide on Procurement and Grants for European Union external actions’ with regard to paragraph 17 of the contract notice. The sixth plea in law alleges infringement of the provisions of Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43) in that the Commission did not justify its decision to exclude the applicants from the further tendering procedure and failed to grant the applicants access to the detailed evaluation report or provide them with information on the advantages and characteristics of the tenderers included on the shortlist. Lastly, the seventh plea in law alleges infringement of the selection criteria set out in paragraph 17.2(a) of the contract notice, which the Commission failed to apply correctly.

47 For the purpose of this proceeding, it is necessary to analyse, in the first place, the third plea in law, which is divided into two parts.

48 In the context of the first part, the applicants claim, referring to the first sentence of Article 166(2) and Article 167(1)(c) of the financial regulation, that the Commission infringed the general principle that the tender documents are to be protected from any changes during the tendering procedure, since, following the removal of the selection criterion set out in paragraph 17.2(c) of the contract notice, their tender was evaluated on the basis of sub-criteria and interpretations that were not provided for in the documents in question.

49 In the context of the second part, the applicants call into question how the selection process was conducted. They claim that, by making such a substantial change to the pre-selection procedure as removing the selection criterion relating to paragraph 17.2(c) of the contract notice, the Commission’s infringement of the principle of equal treatment is serious enough to recommence the tendering procedure.

50 The Commission disputes the arguments put forward by the applicants.

51 The Court considers it is appropriate to start by analysing the second part of the third plea in law.

52 In that regard, it should be borne in mind that Article 160(1) of the financial regulation provides that all public contracts financed in whole or in part by the Union budget respect the principles of transparency, proportionality, equal treatment and non-discrimination.

53 The principle of equal treatment between tenderers, in order to ensure open and healthy competition between undertakings participating in a public procurement procedure, requires, inter alia, tenderers to be in a position of equality both when they formulate their tenders and when those tenders are being assessed (see judgment of 24 November 2005, ATI EAC e Viaggi di Maio and Others, C‑331/04, EU:C:2005:718, paragraph 22 and the case-law cited).

54 The principle of equal treatment also implies an obligation of transparency in order to enable verification that it has been complied with (judgment of 12 December 2002, Universale-Bau and Others, C‑470/99, EU:C:2002:746, paragraph 91).

55 The Court of Justice has thus held that the subject matter of each contract and the criteria governing its award should be clearly defined from the beginning of the award procedure (judgment of 10 May 2012, Commission v Netherlands, C‑368/10, EU:C:2012:284, paragraph 56).

56 In addition, the principles of equal treatment and transparency of award procedures imply an obligation on the part of contracting authorities to interpret the award criteria in the same way throughout the procedure (see judgment of 18 October 2001, SIAC Construction, C‑19/00, EU:C:2001:553, paragraph 43 and the case-law cited) and, a fortiori, that the award criteria must not be amended in any way during the tender procedure (judgment of 4 December 2003, EVN and Wienstrom, C‑448/01, EU:C:2003:651, paragraph 93).

57 It follows that where the contracting authority annuls a decision relating to an award criterion, that authority cannot, without infringing the principles of equal treatment and transparency, validly continue the tender procedure leaving aside that criterion, since that would be tantamount to amending the criteria applicable to the procedure in question (see, by analogy, judgment of 4 December 2003, EVN and Wienstrom, C‑448/01, EU:C:2003:651, paragraph 94).

58 That case-law is applicable mutatis mutandis to the selection criteria.

59 Even if the selection criteria, applied during the first stage of a restricted tendering procedure, were more objective in nature, in so far as they do not involve a weighing or balancing exercise, the fact remains that the withdrawal, during a tendering procedure, of one of the selection criteria may have an effect on and conflict with the principle of equal treatment. Accordingly, such withdrawal has an impact on any tenderer excluded from the further tendering procedure for failing to meet the selection criterion which was subsequently removed. Similarly, such withdrawal affects the position of any potential tenderers who did not respond to the call for tenders on the ground, in particular, that they considered that they were unable to meet the criterion which, unbeknownst to them, was subsequently removed.

60 It must therefore be found that, by removing the criterion set out in paragraph 17.2(c) of the contract notice, whilst continuing the public procurement procedure, the Commission failed to fulfil its obligations under the principle of equal treatment and the consequent obligation of transparency, as interpreted by the Court of Justice’s case-law referred to in paragraphs 53 to 57 above.

61 That finding cannot be called into question by the Commission’s argument that the removal of the criterion referred to in paragraph 17.2(c) of the contract notice in no way altered the situation with regard to paragraph 17.2(a) of the contract notice; the applicants’ non-compliance with that criterion led to their non-inclusion on the shortlist in the decision of 7 June 2019.

62 It cannot be presumed, in the event that the Commission terminated the ongoing tender procedure and issued a new contract notice relating to the same contract, that the criterion set out in paragraph 17.2(a) of the contract notice would be reproduced in identical terms. Moreover, it cannot be ruled out that the Commission would carry over the criterion set out in paragraph 17.2(c) of the contract notice albeit in clearer terms.

63 In any event, it must be noted that, in such a situation, the applicants could have submitted to the Commission the information and documents included in their letter of 28 June 2019, which were not taken into account in the procedure giving rise to the decision of 30 July 2019, in so far as they were lodged after the expiry of the initial time limit for the submission of the application documents. Moreover, they would also have had the opportunity to submit other information and documents. In addition, it cannot be ruled out that, in the context of a new tender procedure and on the basis of new information, the Commission could have considered that the applicants met the criterion set out in paragraph 17.2(a) of the new contract notice, if that criterion had been carried over.

64 In the light of all the foregoing, the second part of the third plea in law must be upheld.

65 It follows that the decision of 30 July 2019 must be annulled, without it being necessary to examine either the first part of the third plea in law, or the other pleas in law raised by the applicants, or to rule on the applicants’ request for measures of inquiry relating to the summons of an employee of the consortium leader so that he can testify to his experience as required by the conditions specified in the call for tenders.

Costs

66 Under Article 134(1) 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. Since the Commission has been unsuccessful, it must be ordered to pay the costs, including those relating to the proceedings for interim measures, in accordance with the forms of order sought by the applicants.

On those grounds,

THE GENERAL COURT (First Chamber)

hereby:

1. Annuls European Commission Decision Ares(2019)4979920 of 30 July 2019 to exclude Intering Sh.p.k, Steinmüller Engineering GmbH, Deling d.o.o. za proizvodnju, promet i usluge and ZM-Vikom d.o.o. za proizvodnju, konstrukcije i montažu from the restricted tendering procedure relating to the call for tenders EuropeAid/140043/DH/WKS/XK;

2. Dismisses the action as to the remainder;

3. Orders the Commission to pay the costs, including those relating to the proceedings for interim measures.