1. European Communities’ public procurement – Tendering procedure
(Arts 230, fourth para., EC and 241 EC)
2. Procedure – Introduction of new pleas during the proceedings
(Rules of Procedure of the Court of First Instance, Arts 44(1)(c) and 48(2); Commission Regulation No 2342/2002, Art. 139(1))
3. European Communities’ public procurement – Conclusion of a contract following a call for tenders
(Commission Regulation No 2342/2002, Arts 138(2) and 139(1))
4. Non-contractual liability – Conditions – Unlawfulness – Damage – Causal link
(Art. 288, second para., EC)
1. Since, in a procedure for the award of public contracts, the specifications are not of individual concern to tenderers, who accordingly have no right to bring an action for annulment against them under the fourth paragraph of Article 230 EC, there is no basis on which the Council can plead that one of those tenderers had the right to challenge those specifications as a basis for opposing the incidental challenge by the latter to the lawfulness of that document in an application for the annulment of the decision to exclude it from the procedure at issue.
(see para. 44)
2. It follows from Article 44(1)(c) in conjunction with Article 48(2) of the Rules of Procedure of the Court of First Instance that the original application must contain the subject-matter of the proceedings and a summary of the pleas in law relied on, and that new pleas in law may not be introduced in the course of the proceedings unless they are based on matters of law or of fact which come to light in the course of the procedure. However, a submission or argument which may be regarded as amplifying a plea made previously, whether directly or by implication, in the original application, and which is closely connected therewith, will be declared admissible.
That applies to a plea alleging infringement of Article 139(1) of Regulation No 2342/2002 laying down detailed rules for the implementation of the Financial Regulation, which provides that, in procedures for the award of public contracts of the European Communities, the contracting authority is obliged to allow the tenderer to clarify, or even explain, the characteristics of its tender before rejecting it, if it considers that a tender is abnormally low, when the plea is raised expressly by an applicant only at the stage of its reply but when that applicant, in its application, had expressly criticised the Council for having rejected its tender without further consideration, by reason of its being abnormally low.
(see paras 87-90)
3. Article 139(1) of Regulation No 2342/2002 laying down detailed rules for the implementation of the Financial Regulation enshrines a fundamental requirement in the field of public procurement, which obliges a contracting authority to verify, after due hearing of the parties and having regard to its constituent elements, every tender appearing to be abnormally low before rejecting it.
Where the contract is awarded to the tender offering best value for money, that requirement applies not only to the price criterion under the tender evaluated but also to the other criteria referred to in Article 138(2) of Regulation No 2342/2002, since those criteria allow an anomaly threshold to be determined beneath which a tender submitted in the tender procedure in question is suspected to be abnormally low, within the meaning of Article 139(1) of that regulation.
Accordingly, in rejecting a tender, in a procedure for the award of public contracts to the tenderer offering best value for money, on the sole ground of the excessively low nature of the total number of hours included in that tender without arranging any hearing of the parties, within the meaning of Article 139(1), in relation to that tender prior to its being eliminated automatically, the Council infringed that article.
(see paras 98, 100, 103-104)
4. 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. Where one of those conditions is not satisfied, the action must be dismissed in its entirety and it is unnecessary to examine the other conditions.
It follows that a claim for damages must be rejected where the damage alleged, that is to say, the loss of a Community contract, is not actual and certain, but hypothetical.
(see paras 119-120, 127-129)