Judgment_paragraph 49 · Cosepuri Soc. Coop. pA v European Food Safety Authority (EFSA) (T-339/10, T-532/10)

49In any event, in so far as the applicant’s arguments, in particular the argument based on the principle of transparency, may be interpreted as challenging the refusal itself to grant access to the tenderers’ technical and financial bids, in particular those of the successful tenderer, it should be noted that the principle of transparency, referred to in Article 89(1) of the Financial Regulation, must be reconciled with the requirements of protection of the public interest, of the legitimate business interests of public or private undertakings and of fair competition: that is the reason for the provision made in the second subparagraph of Article 100(2) of the Financial Regulation, under which it is possible to refuse to disclose certain details to a rejected tenderer, where non-disclosure is necessary to ensure that those requirements are satisfied (Case T-195/08 Antwerpse Bouwwerken v Commission [2009] ECR II-4439, paragraph 84). That is the context in which the first subparagraph of Article 100(2) of the Financial Regulation provides that, where appropriate, only the characteristics and relative advantages of the successful tender and the name of the tenderer to whom the contract is awarded are to be disclosed. The first subparagraph of Article 100(2) of the Financial Regulation does not provide that all the details of the successful tender are to be disclosed (see, to that effect, the order of 13 January 2012 in Case C-462/10 P Evropaïki Dynamiki v EEA, not published in the ECR, paragraph 39 and the case-law cited). Moreover, it should be recalled that, in the present case, EFSA informed the applicant of the reasons for the rejection of its tender, the characteristics and advantages of the successful tenderer’s bid and the name of that tenderer and provided a copy of the evaluation report and a copy of the contract signed with the successful tenderer. In the light of those factors, the Court considers that EFSA did not fail to comply with the duty of transparency laid down in Article 89(1) of the Financial Regulation. Moreover, with regard specifically to the economic bid of the successful tenderer, it should be recalled that the applicant was in a position to ascertain that bid from the documents communicated by EFSA (see paragraph 34 above).

Cosepuri Soc. Coop. pA v European Food Safety Authority (EFSA) (T-339/10, T-532/10)

Key facts

History · 1 version

Connections