Judgment of the General Court (Fourth Chamber) of 23 November 2011 – bpost v Commission
(Case T-514/09)
Public service contracts – Tendering procedure of the PO – Daily transport and delivery of the Official Journal, books, other periodicals and publications – Rejection of the tender of a tenderer and decision to award the contract to another tenderer – Award criteria – Duty to state reasons – Manifest error of assessment – Non-contractual liability
1. European Communities’ public procurement – Tender procedure – Appeal procedure against decisions of the awarding authority to award public contracts – Audi alteram partem rule – Reconciliation with the protection of business secrets – Bodies responsible for review procedures – Duty to ensure confidentiality and the right to respect for business secrets having regard to information contained in files communicated by the parties – Conditions – Reconciliation of that obligation with the requirements of effective legal protection and respect for defence rights (Art. 267 TFEU; Council Regulation No 1605/2002, Art. 100(2)) (see paras 25-26)
2. European Communities’ public procurement – Tender procedure – Award of contracts – Most economically advantageous tender – Award criteria – Choice of the contracting authorities – Limits – Compliance with the principles of transparency, equal treatment and non-discrimination (Council Regulation No 1605/2002, Art. 97; Commission Regulation No 2342/2002, Art. 138) (see paras 64, 66)
3. European Communities’ public procurement – Tender procedure – Obligation to comply with the principle of equal treatment of tenderers – Need to ensure equality of opportunity and comply with the principle of transparency – Scope of the duty of transparency (Council Regulation No 1605/2002, Art. 89) (see para. 65)
4. European Communities’ public procurement – Conclusion of a contract following a call for tenders – Discretion of the institutions – Judicial review – Limits (see para. 121)
5. Non-contractual liability – Conditions – Unlawfulness – Damage – Causal link – One of the conditions not satisfied – Claim for compensation dismissed in its entirety (Art. 340, second para., TFEU) (see para. 167)
6. European Communities’ public procurement – Tender procedure – Expenses incurred by a tenderer – Right to compensation – None (Council Regulation No 1605/2002, Art. 101) (see para. 173)
Re:
APPLICATION, first, for the annulment of the decision of the Publications Office of the European Union, communicated by letter of 17 December 2009, to reject the tender submitted by the applicant under invitation to tender No 10234 ‘Daily transport and delivery of the Official Journal, books, other periodicals and publications’ (OJ 2009/S 176-253034) and award the contract to the successful tenderer, and, second, for damages.
Operative part
The Court:
1.
Dismisses the action;
2.
Orders bpost NV van publiek recht to pay the costs, including those relating to the interlocutory proceedings.
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