Joined Cases T-376/05 and T-383/05

TEACEGOS and Others

v

Commission of the European Communities

‛Public contracts — Community tendering procedure — Recruitment of technical assistance for short-term expertise for exclusive benefit of third countries benefiting from external aid — Rejection of tenders’

Judgment of the Court of First Instance (Second Chamber), 14 February 2006   II-208

Summary of the Judgment

1. European Communities' public procurement — Conclusion of a contract following a call for tenders

2. European Communities' public procurement — Tendering procedure

3. Community law — Principles — Protection of legitimate expectations — Conditions

1.  The Commission has a broad discretion 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 of First Instance must be limited to checking that the rules governing the procedure and statement of reasons are complied with, the facts are correct and there is no manifest error of assessment or misuse of powers.

   (see para. 50)

2.  Where the procurement notice issued in a tendering procedure contains a provision prohibiting entities within the same legal group from participating in the same calls for tenders, in the absence of a definition of the concept of legal group in legislation or in case-law, laying down the criteria applying to such a group, the Commission is required to conduct an examination of each individual case, taking into account all the relevant factors, in order to decide whether the conditions governing the application of that provision have been met. Consequently, in order to recognise the existence of a legal group, the Commission has to determine whether the entities in question are structurally linked, since this factor is liable to give rise to a risk of a conflict of interest or of distorted competition between the tenderers, although other factors can support the examination of structural links, such as those relating to the degree of independence of the entities in question.

   (see paras 51-53)

3.  The right to rely on the principle of the protection of legitimate expectations, which is one of the fundamental principles of the Community, extends to any individual in a situation where the Community authorities, by giving him precise assurances, have caused him to entertain legitimate expectations. Such assurances, in whatever form they are given, are precise, unconditional and consistent information from authorised and reliable sources. However, a person may not plead breach of the principle unless he has been given precise assurances by the administration.

   Decisions of the Commission on successful tenders, taken in connection with the tendering procedure and expressly stating that the signing of the framework contract is subject to the persons concerned producing evidence that they are not in any of the situations corresponding to the grounds for exclusion from the tendering procedure, cannot be regarded as thereby containing precise assurances as to the fact that the framework contract will be signed under any circumstances, and cannot therefore cause the entities in question to entertain legitimate expectations to that effect.

   (see paras 88, 90)