Contents
Judgment of the General Court (Fourth Chamber)9 April 2019note(Public service contracts — Tendering procedure — Supply of IT services to the Parliament and other EU institutions and bodies — Exclusion from tendering procedures — Potential conflict of interests — Failure to provide information required by the contracting authority — Article 107(1)(b) of the Financial Regulation — Transparency — Proportionality — Equal treatment — Article 102(1) of the Financial Regulation)In Case T‑182/15,Sopra Steria Group SA, established in Annecy-le-Vieux (France), represented by A. Verlinden, R. Martens and J. Joossen, lawyers,vEuropean Parliament, represented by B. Simon and L. Tapper Brandberg, acting as Agents,supported byCGI Luxembourg SA, established in Bertrange (Luxembourg),andIntrasoft International SA, established in Luxembourg (Luxembourg),represented by N. Korogiannakis, lawyer,THE GENERAL COURT (Fourth Chamber),composed of H. Kanninen, President, L. Calvo-Sotelo Ibáñez-Martín and I. Reine (Rapporteur), Judges,Registrar: C. Heeren, Administrator,having regard to the written part of the procedure and further to the hearing on 3 October 2017,gives the following
Judgment
Background to the dispute
1On 3 April 2014, the European Parliament, acting on its own behalf and on behalf of other EU institutions and bodies, issued an invitation to tender in call for tenders PE/ITEC-ITS14 on the external provision of IT services (‘the call for tenders’).
2The call for tenders was divided into eight lots. The subject matter of Lots 2 to 4 were as follows:– Lot 2: Development and maintenance of dissemination information systems;– Lot 3: Development and maintenance of production information systems;– Lot 4: Test of developments.
3The tender specifications for the tendering procedure (‘the tender specifications’) provided for the allocation of multiple framework contracts for each lot and a cascade mechanism for the performance of the framework contracts.
4Point I.3 of the tender specifications provided:‘Tenderers may submit a tender for one or more lots, with the exception of the incompatibilities duly mentioned in each lot description. Tenders submitted for incompatible lots subject to an order of preference will be rejected.’
5Point I.4 of the tender specifications provided:‘The economic operators must neither form part of more than one consortium submitting offers, nor must they be proposed as subcontractors by more than one tenderer in the same lots or in exclusive lots.’
6Annex II to the tender specifications provided that a tenderer submitting a tender for Lot 2 or Lot 3 was consequently to be excluded from tendering, either as a sole contractor, as a member of a consortium or as a subcontractor, for Lots 4 and 6. With regard to Lot 4, the same prohibition applied vis-à-vis Lots 2, 3 and 6.
7By press release of 8 April 2014, it was announced that Sopra Group SA intended to acquire Groupe Steria SA.
8On 22 May 2014, the IBI IUS consortium and the STEEL consortium, each of which included Sopra Group, submitted tenders for Lot 2 and Lot 3 respectively. On the same day, the TEPting consortium, which included Steria Benelux SA, a subsidiary of Groupe Steria, submitted a tender for Lot 4.
9Further, on 22 May 2014, the CGI-Intrasoft International consortium, composed of the interveners, CGI Luxembourg SA and Intrasoft International SA, also submitted a tender for Lot 3.
10As is apparent from the documents before the Court, the applicant, Sopra Steria Group SA, is the result of a merger between Sopra Group and other entities, namely Groupe Steria, its subsidiary Steria SA and the latter’s subsidiary, Steria Benelux. Following that merger, Steria Benelux thus became an indirect subsidiary of Sopra Steria Group.
11On 26 June 2014, Sopra Group commenced the process of acquiring Groupe Steria.
12On 14 July 2014, the European Commission decided not to oppose the public exchange of shares between Sopra Group and Groupe Steria.
13On 6 August 2014, Sopra Group announced that the required success threshold in respect of the exchanged shares had been reached and that 79.69% of the shares forming the subject of the transaction had been acquired.
14On 5 September 2014, Sopra Group acquired 90.52% of the shares and 89.41% of the voting rights in Groupe Steria. On the same day, Sopra Group was renamed Sopra Steria Group.
15By letter of 18 September 2014, the Parliament informed the STEEL consortium that its tender for Lot 3 had been ranked first and that it was one of the successful tenderers for that contract.
16Also by letter of 18 September 2014, the Parliament informed the CGI-Intrasoft International consortium that its tender for Lot 3 had been ranked second and that it was one of the successful tenderers for that contract.
17On 30 October 2014, the Parliament informed the IBI IUS consortium that its tender for Lot 2 had been ranked second and that it was one of the successful tenderers for that contract. It also informed the TEPting consortium that its tender for Lot 4 had been ranked second and that it was one of the successful tenderers for that contract.
18On 10 and 12 November 2014, the IBI IUS and TEPting consortia received further information concerning the assessment of the tenders for the lots in respect of which they had submitted a request for information.
19On 12 November 2014, the Parliament was informed of the ‘tie-up’ between Sopra Steria Group and Groupe Steria by letter from the interveners.
20By application lodged at the Court Registry on 14 November 2014 and registered under case number T‑769/14, the interveners, acting on their own behalf and on behalf of the CGI-Intrasoft International consortium, brought an action seeking annulment, first, of the Parliament’s decision to rank their tender for Lot 3 second and, second, of the Parliament’s decision to rank the STEEL consortium’s tender for Lot 3 first and award it the contract as first cascade contractor, as well as an order that the Parliament should pay compensation.
21By letters from the Parliament of 19 November 2014, the IBI IUS, STEEL and TEPting consortia were informed of the suspension of the procurement procedures for Lots 2 to 4. Those letters set out the following reason for the suspension: ‘The purpose of this suspension is to ascertain whether the additional information received by the ... Parliament is well founded and whether it could affect the award decision.’
22On 21 November 2014, the IBI IUS and STEEL consortia informed the Parliament of the process for the acquisition of Groupe Steria by Sopra Steria Group. Steria Benelux supplied the same information to the Parliament and proposed ‘to withdraw from the contract’ for Lot 4.
23On 15 December 2014, the TEPting consortium, which included Steria Benelux, informed the Parliament that it was withdrawing its tender for Lot 4. By letter of 13 February 2015, the Parliament accepted the TEPting consortium’s withdrawal of its tender for Lot 4.
24On 31 December 2014, the merger of Sopra Steria Group and Groupe Steria was completed, resulting in Sopra Steria Group owning 99.9% of the shares in Steria Benelux.
25By letters of 15 and 20 January 2015, the Parliament requested further information from the IBI IUS, STEEL and TEPting consortia and from Steria Benelux. It requested information, in particular, regarding whether, from an economic perspective and in the light of the tie-up and the prohibition on submitting tenders for incompatible lots, Steria Benelux formed part of Sopra Group, which could give rise to a conflict of interests.
26By letter of 22 January 2015, the IBI IUS and STEEL consortia responded to that request. By letters of 23 January 2015, Sopra Steria Group and Steria Benelux also provided the required information. In those letters, the four entities argued that there was no conflict of interests and, consequently, that they were not precluded from submitting tenders for incompatible lots. Further, they claimed that all relevant information had been submitted in good time.
27By two letters of 13 February 2015, the Parliament informed the IBI IUS and STEEL consortia of its decisions to reject their respective tenders for Lots 2 and 3 (‘the contested decisions’). On 16 February 2015, the Parliament sent copies of those decisions to the applicant.
28The contested decisions are each based on the same two separate grounds.
29In the first place, the Parliament claimed that the simultaneous submission of tenders by the IBI IUS, STEEL and TEPting consortia for incompatible lots infringed the first subparagraph of Article 158(3) of Commission Delegated Regulation (EU) No 1268/2012 of 29 October 2012 on the rules of application of Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council on the financial rules applicable to the general budget of the Union (OJ 2012 L 362, p. 1) (‘the delegated regulation’) and Point I.3 of the tender specifications. In particular, the Parliament concluded that, due to the tie-up between Sopra Group and Groupe Steria, the applicant and Steria Benelux had become the same economic operator. As a result, the IBI IUS and STEEL consortia, of which the applicant was a member, and the TEPting consortium, of which Steria Benelux was a member, had submitted tenders for incompatible lots — namely the former had tendered for Lots 2 and 3 and the latter had tendered for Lot 4 — in spite of the prohibition set out in Point I.3 of the tender specifications. In that regard, in order to consider that, since 5 September 2014, the applicant and Steria Benelux constitute the same economic operator, the Parliament relied on a rebuttable presumption, which the applicant has not rebutted, according to the Parliament, that, where one company owns a shareholding close to 100% in another company, as in this instance, the former company exercises decisive influence over the latter company.
30In the second place, the Parliament argued that the acquisition by Sopra Group of the shares in Groupe Steria has created a situation that could give rise to a conflict of interests that should have been brought to the attention of the Parliament, in accordance with Article 107(1)(b) of Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council of 25 October 2012 on the financial rules applicable to the general budget of the Union and repealing Council Regulation (EC, Euratom) No 1605/2002 (OJ 2012 L 298, p. 1) (‘the Financial Regulation’). According to the Parliament, given that the successful tenderer for Lot 4 will be required to assess the services provided in the context of Lots 2 and 3, the indirect shareholding, acquired by the applicant, a member of the IBI IUS and STEEL consortia, on 5 September 2014, of 90.51% of the shares in Steria Benelux, a member of the TEPting consortium, could create a risk of bias in its performance of the tasks in Lot 4. The withdrawal of the TEPting consortium’s tender for Lot 4, on 15 December 2014, does not affect that finding. As a result, the Parliament concluded that the applicant was required to notify it of that merger transaction by 5 September 2014 at the latest. Consequently, the Parliament took the view that, by failing to notify it of that transaction, the applicant had infringed Article 107(1)(b) of the Financial Regulation. Therefore, it decided that it was necessary to reassess the tenders from the IBI IUS and STEEL consortia without taking the applicant into account as a member of those consortia. Accordingly, it concluded that the tenders from those consortia no longer satisfied the technical capacity requirements set out in the tender specifications.
31On 13 February 2015, the Parliament also sent a letter to the CGI-Intrasoft International consortium notifying it that its decision to rank its tender for Lot 3 second and its decision to award Lot 3 to the STEEL consortium as first cascade contractor had been annulled and replaced by a new decision ranking the tender from the CGI-Intrasoft International consortium for Lot 3 first. On 6 March 2015, that consortium signed the framework contract as first cascade contractor for Lot 3.
32By order of 7 July 2015, CGI Luxembourg and Intrasoft International v Parliament (T‑769/14, not published, EU:T:2015:540), the Court ruled that there was no further need to adjudicate on the action in the case giving rise to that order.
Procedure and forms of order sought
33By application lodged at the Court Registry on 13 April 2015, the applicant brought the present action.
34The Parliament lodged its defence at the Court Registry on 7 July 2015.
35By document lodged at the Court Registry on 21 September 2015, the interveners requested, on their own behalf and on behalf of the CGI-Intrasoft International consortium, leave to intervene in the present proceedings in support of the form of order sought by the Parliament.
36The applicant lodged its reply at the Court Registry on 30 September 2015.
37On 9 November 2015, the Parliament indicated its agreement to the interveners’ application to intervene.
38On 10 November 2015, the applicant lodged its observations opposing the application to intervene. In its observations, the applicant asked the General Court to request that the Parliament submit to it the letters of 20 and 26 November 2014, referred to in Annex 4.D to the application to intervene, which the Parliament had sent to the interveners, and the Parliament’s letter of 25 November 2014, referred to in Annex 4.C to the application to intervene.
39The Parliament lodged a rejoinder at the Court Registry on 2 December 2015.
40By order of 7 March 2016, Sopra Steria Group v Parliament (T‑182/15, not published, EU:T:2016:165), the interveners were granted leave to intervene in the present case.
41On 21 April 2016, the interveners lodged the statement in intervention at the Court Registry.
42By decision of the President of the General Court dated 15 June 2016, owing to the partial renewal of terms of office in the Court, the present case was assigned to a new Judge-Rapporteur.
43On 17 June 2016, the Parliament notified the Court that it did not wish to make observations on the statement in intervention.
44On 24 June 2016, the applicant submitted its observations on the statement in intervention.
45As a result of changes in the composition of the Chambers of the General Court pursuant to Article 27(5) of the Rules of Procedure of the General Court, the Judge-Rapporteur was assigned to the Fourth Chamber, to which the present case was accordingly allocated.
46In the context of measures of organisation of procedure, the Court put written questions to the Parliament on 26 July 2017 which were to be answered during the hearing. In addition, as the letters of 20 and 26 November 2014 were already included in the documents in the case before the Court as Annexes 4.B and 4.C to the application to intervene, the Court requested that the Parliament submit to it only the letter of 25 November 2014. The Parliament responded within the time limit set.
47At the hearing on 3 October 2017, the parties presented oral argument and replied to the questions put by the Court.
48The applicant claims that the Court should:– annul the contested decisions;– declare that the contract(s) concluded with other tenderers on the basis of the contested decisions is (are) null and void;– order the Parliament to bear the costs, including those incurred by the applicant.
49The Parliament contends that the Court should:– dismiss the application;– order the applicant to pay the costs.
50The interveners contend that the Court should:– dismiss the application;– decide upon the costs in accordance with the Rules of Procedure.
Law
Admissibility of the applicant’s second head of claim
51By its second head of claim, the applicant requests that the Court declare that any contract concluded with other tenderers on the basis of the contested decisions is null and void.
52It should be noted that, by asking the Court to adjudicate on the consequences of the annulment of the contested decisions by declaring contracts concluded with other tenderers on the basis of the contested decisions to be null and void, the applicant is seeking to obtain a declaration relating to the effects of the present judgment, which would also constitute an order relating to how the Parliament is to implement that judgment. It is not for the Court, in exercising its power of review under Article 263 TFEU, to make statements of law in the abstract (see, by analogy, order of 5 July 2017, EEB v Commission, T‑448/15, not published, EU:T:2017:503, paragraph 40). Further, it is settled case-law that the Court is not entitled, in the context of a review of legality on the basis of Article 263 TFEU, to issue directions to the institutions or to assume the role assigned to them. That limitation of the scope of judicial review applies to all types of contentious matters that might be brought before the Court (see judgment of 15 June 2017, Bay v Parliament, T‑302/16, not published, EU:T:2017:390, paragraph 45 and the case-law cited; see also, to that effect, orders of 12 November 1996, SDDDA v Commission, T‑47/96, EU:T:1996:164, paragraph 45, and of 6 May 2013, Ethniko kai Kapodistriako Panepistimio Athinon v ECDC, T‑577/11, not published, EU:T:2013:229, paragraph 12). The only possibility open to the Court under Article 264 TFEU is to annul the measure concerned. Under Article 266 TFEU, it is then for the institution concerned to adopt the necessary measures to implement the Court’s judgment (see, to that effect, judgment of 12 March 2008, Evropaïki Dynamiki v Commission, T‑345/03, EU:T:2008:67, paragraph 46).
53The applicant’s second head of claim must therefore be declared to be inadmissible.
Substance
54In support of the action, the applicant relies on a single plea in law, divided into two parts. The first part alleges infringement of the exclusion criteria set out in Article 107(1)(a) and (b) of the Financial Regulation, infringement of Article 158(3) of the delegated regulation and infringement by the Parliament of the tender specifications. The second part alleges infringement of the principles of transparency, proportionality and equal treatment, as set out in Article 102(1) of the Financial Regulation.
The first part: infringement of the exclusion criteria set out in Article 107(1)(a) and (b) of the Financial Regulation, infringement of Article 158(3) of the delegated regulation and infringement by the Parliament of the tender specifications
55The applicant claims that the contested decisions follow from the Parliament’s misconceived conclusion that Steria Benelux and the applicant had to be considered either to be the same economic operator or as forming part of the same economic operator under the incompatibility clause of the tender specifications, which gave rise to a potential conflict of interests between those entities; consequently, it results from that conclusion that the IBI IUS and STEEL consortia, of which the applicant was a member, infringed the prohibition on tendering for incompatible lots.
56In particular, first, the applicant claims that, when the tendering procedure was launched and when the tender was submitted, there was no potential conflict of interests.
57According to the applicant, on 22 May 2014, when the tenders were submitted, Steria Benelux, as a member of the TEPting consortium, and Sopra Group, as a member of the STEEL and IBI IUS consortia, were separate legal entities with no economic or commercial link whatsoever. The applicant also notes that, at that time, the future of the merger was uncertain, given that it was only on 14 July 2014 that the Commission decided not to oppose the public exchange of shares launched by Sopra Group vis-à-vis the shares of Groupe Steria.
58With regard to the period after 22 May 2014, the applicant claims that the Parliament misconstrued the automatic exclusion criteria set out in Article 107(1)(a) and (b) of the Financial Regulation, Article 158(3) of the delegated regulation and the tender specifications by applying the prohibition on submitting tenders for incompatible lots throughout the entirety of the tendering procedure.
59The applicant submits that, in any event, there was no potential conflict of interests either during the assessment phase of the tendering procedure or after the decisions awarding the contracts were notified, which occurred on 18 September 2014 in respect of contracts for Lot 3 and on 30 October 2014 in respect of those for Lots 2 and 4. The merger steps, which had not yet been completed at the time of the decision to award, could not have influenced the submission of tenders, their ranking or the decision to award and could therefore in no way have created a conflict of interests. No information was exchanged between the companies, given that they remained direct competitors until the acquisition was completed, as evidenced by the instructions to that effect sent internally on 23 April 2014 by Sopra Group and Groupe Steria to their respective employees.
60Further, the applicant claims that it should be borne in mind that, on 15 December 2014, the TEPting consortium proposed to withdraw its tender for Lot 4, such withdrawal being accepted by the Parliament on 13 February 2015. According to the applicant, that withdrawal shows clearly that the consortia, of which the applicant and Steria Benelux were members, had no intention to undermine competition or infringe the tender specifications and reinforces its argument that there is no conflict of interests and that the hypothetical conflict of interests could never materialise as a real conflict of interests, as it was evident that TEPting would not perform contracts awarded under that lot.
61The applicant maintains that the possibility of the merger arose on 1 January 2015 and that before that date there was no certainty that it could take place.
62The applicant submits that the absence of any conflict of interests is also shown by the Parliament’s launch of negotiated procedure PE/ITEC-NPE-15.8 on 27 January 2015. The subject matter of that procedure manifestly coincides with the services covered by Lot 3. There was no incompatibility clause provided for in the context of that procedure. In addition, the Parliament invited tenderers already responsible for performing services linked to lots relating to another call for tenders — namely call for tenders PE/ITEC-ITS08, the contract of which had already been awarded — to participate in the procedure in question. According to the logic of the contested decisions, the performance of those services is incompatible with the performance of a contract concluded pursuant to the negotiated procedure.
63The applicant criticises the Parliament for having concluded that possibly as early as 6 August 2014, but at the latest by 5 September 2014, it was the same economic operator as Steria Benelux, without defining the concept of ‘economic operator’ or establishing that joint management had been installed.
64In that regard, the applicant claims that the term ‘undertaking’ cannot be interpreted as it is used in the field of competition law, since the concept pursues purposes in competition law that differ from those pursued in the field of public procurement law.
65The applicant argues that, as it has not established that it applies in the present case, the Parliament cannot rely on the rebuttable presumption under competition law that a parent company exercises a decisive influence over its subsidiary. Accordingly, it failed to fulfil its obligation to assess whether a parent company exercises such an influence over its subsidiary.
66In any event, the applicant maintains that there is no single economic unit and that Steria Benelux acted independently, there being no unity of conduct. In addition, it has not been proved that the companies are under joint management. In that regard, the presence of the same person on the boards of directors of Steria Benelux and Sopra Steria Group does not mean that a decisive influence or any influence whatsoever is automatically present or can be assumed. Consequently, the applicant and Steria Benelux should be considered to be separate legal entities and separate economic operators.
67On the other hand, the applicant submits that there was never a potential conflict of interests and that, in any event, the Parliament was duly informed of the merger process. It points out that the invitation to tender prohibited all contact with the Parliament for the duration of the procedure save in exceptional cases and in certain specified circumstances. The applicant claims that the notification of the intention to merge or of an upcoming merger is not one of those specified circumstances. In addition, it submits that it was only during October and November 2014 that it became aware of the fact that Steria Benelux had participated in the procedure for Lot 4. By letters of 21 November 2014, the IBI IUS and STEEL consortia duly informed the Parliament of the upcoming merger after it contacted them on 19 November 2014 with regard to the suspension of the tendering procedure. Lastly, the applicant notes that the first reference to the merger was contained in a press release of 8 April 2014. Consequently, by reason of its obligation to assess in detail tenders and tenderers, the Parliament must have been aware of the tie-up procedure between Sopra Group and Groupe Steria.
68The Parliament and the interveners dispute the applicant’s arguments.
–Preliminary observations
69In the present case, as was pointed out in paragraphs 28 to 30 above, the contested decisions are based on two separate grounds.
70In that regard, as was noted in paragraph 29 above, in the context of the first ground of the contested decisions, the Parliament took the view that the IBI IUS and STEEL consortia, of which the applicant was a member, and the TEPting consortium, of which Steria Benelux was a member, had submitted tenders for incompatible lots, contrary to the first subparagraph of Article 158(3) of the delegated regulation and Point I.3 of the tender specifications. As follows from the wording of the latter provision, tenders submitted contrary to that provision are to be rejected, without it being necessary to establish at the same time any other infringement. Consequently, that first ground, if established, is sufficient to require the tenders for Lots 2 and 3 submitted by the IBI IUS and STEEL consortia, of which the applicant is a member, to be dismissed.
71With regard to the second ground of the contested decisions, as explained in paragraph 30 above and based on the failure to provide the information required under Article 107(1)(b) of the Financial Regulation, the wording of that provision makes it clear that that ground in itself precludes the tenderer at fault from being awarded a contract, without it being necessary to establish other irregularities. In the present case, as was noted in paragraph 30 above, the Parliament took the view that it was necessary to exclude the applicant from being awarded a contract due to its infringement of that provision of the Financial Regulation and no longer to take account of it in its assessment of the tenders submitted by the IBI IUS and STEEL consortia, which, for that reason, no longer satisfied the technical capacity requirements laid down in the tender specifications and, consequently, had to be rejected.
72Thus, each of the two grounds relied on by the Parliament in the contested decisions justify, by themselves, the rejection of the tenders for Lots 2 and 3 submitted by the IBI IUS and STEEL consortia, of which the applicant was a member.
73To the extent that the applicant does not contest the conclusions made by the Parliament in the context of its second ground, relating to the technical capacity criterion, it is sufficient for the first part of the single plea in law to be rejected that the Parliament’s application of the first subparagraph of Article 158(3) of the delegated regulation or, alternatively, of Article 107(1)(b) of the Financial Regulation be free from error.
74In that regard, the Court considers it appropriate to examine, in the first place, the second ground on which the contested decisions are based, namely infringement of Article 107(1)(b) of the Financial Regulation.
75It should be noted that, in the context of the second ground of the contested decisions, the Parliament does not claim that there was an actual conflict of interests or an infringement of Article 107(1)(a) of the Financial Regulation. As is clear from paragraphs 31 to 34 of the contested decisions, the Parliament alleges merely that the applicant failed to inform it of a situation that could lead to a conflict of interests, contrary to Article 107(1)(b) of the Financial Regulation.
76In that context, it should be noted that, under Article 107(1)(b) of the Financial Regulation, a contract is not to be awarded to candidates or tenderers who, during the procurement procedure for that contract, have failed to supply information required by the contracting authority.
77Therefore, in order to assess the legality of the second ground of the contested decisions, in the first place, it is appropriate to determine whether, in the present case, there were factors capable of creating a situation that could give rise to a conflict of interests, including in the light of the prohibition, set out in the tender specifications, on submitting tenders for incompatible lots. In the second place, if that is the case, it is necessary to examine whether, and, if so, from when the applicant was obliged to inform the Parliament of it under Article 107(1)(b) of the Financial Regulation.
–Existence of factors capable of creating a situation that could give rise to a conflict of interests
78According to the case-law, Article 107 of the Financial Regulation, the purpose of which is to prevent conflicts of interests, seeks to guarantee the independence, in the broad sense, of tenderers via-à-vis other potential participants, from both a structural and a functional point of view (see, to that effect and by analogy, judgment of 14 February 2006, TEA-CEGOS and Others v Commission, T‑376/05 and T‑383/05, EU:T:2006:47, paragraphs 53, 58 and 59).
79Further, it is appropriate to find that the prohibition precluding the same economic operator from tendering, either directly or indirectly, for incompatible lots prevents competition from being distorted and gives concrete expression to the notion of a conflict of interests within the meaning of Article 107 of the Financial Regulation (see, to that effect, order of 20 April 2007, TEA-CEGOS and STG v Commission, C‑189/06 P, not published, EU:C:2007:242, paragraph 28).
80In that regard, it should be noted that, in accordance with point (g) of Form 4 annexed to the tender specifications, a conflict of interests may arise from economic interests or other relevant connections or shared interests. It should also be noted that, pursuant to the section on evidence relating to the exclusion criteria under Point I.13.I of the tender specifications, all tenderers were under an obligation to sign and submit that form.
81It must be recalled that, in the context of the call for tenders, the tasks to be carried out by the successful tenderer for Lot 4 consist in the evaluation of services provided in performance of Lots 2 and 3. The prohibition on submitting tenders for incompatible lots, namely, on the one hand, Lots 2 and 3 and, on the other hand, Lot 4, which is laid down in Point I.3 of the tender specifications read in combination with Annex II to the tender specification, is to be seen in that context.
82In addition, it should be noted that, on 5 September 2014, the applicant held 90.52% of the shares in and 89.41% of the voting rights in Groupe Steria, and that, at that time, Steria Benelux was a subsidiary that was 99.99% owned by Steria, which was itself a subsidiary 100% owned by Groupe Steria.
83Therefore, in the event that, in its performance of the services falling within Lot 4, Steria Benelux was required to evaluate, as a member of the TEPting consortium, the applicant’s services provided in performance of Lots 2 and 3, the proper performance of those services may have been compromised, since it may have had an interest in evaluating the services provided by the applicant in a biased manner due to their structural connections and shared interests.
84Moreover, other factors bear out the fact that there are relevant links between the applicant and the parent company of Steria Benelux or shared interests within the meaning of point (g) of Form 4 annexed to the tender specifications.
85First, as is pointed out by the Parliament, the press releases of 8 April and 6 August 2014 were published under the names of both Sopra Group and Groupe Steria and mentioned two separate contact points, while the press release of 5 September 2014 mentioned only one contact point and the press release of 3 December 2014 was published solely under the name of Sopra Steria and mentioned only one contact point.
86Second, on 5 September 2014, Sopra Group was renamed Sopra Steria Group in accordance with the resolutions made during the applicant’s general meeting of 27 June 2014, which is to be seen as part of the process intended to amalgamate those two economic entities and create joint interests.
87Third, on 5 September 2014, the Managing Director of Steria Benelux became a director of Sopra Steria Group in accordance with the resolutions made during the applicant’s general meeting, which is an indication that there were relevant links between the applicant and Steria Benelux or shared interests.
88It follows from the foregoing that there were sufficient factors capable of creating a situation that could give rise to a conflict of interests within the meaning of both point (g) of Form 4 annexed to the tender specifications and the case-law referred to in paragraph 78 above, which had to be taken into account by the Parliament at the time when the contract was awarded, even if that risk did not ultimately materialise because the TEPting consortium withdrew its tender for Lot 4 (see, to that effect, judgment of 18 April 2007, Deloitte Business Advisory v Commission, T‑195/05, EU:T:2007:107, paragraph 65 and 75).
89That conclusion is not called into question by the applicant’s argument that the prohibition on submitting tenders for incompatible lots applies only at the time when the tender is submitted.
90In that regard, it should be noted, as is pointed out by the Parliament, that the prohibition referred to in paragraph 89 above — the justification for which is that it also prevents conflicts of interests — was intended to preclude a tenderer from being awarded a contract, either in its own right or as a member of a consortium, for both Lot 2 or 3 and Lot 4 by failing to comply with that prohibition.
91In that context, it must be pointed out that limiting the scope of the prohibition referred to in paragraph 89 above solely to the time when the tender is submitted would deprive it of its practical effect, since that objective could be thwarted and the proper performance of the contract compromised (see, to that effect, judgments of 28 November 2002, Scan Office Design v Commission, T‑40/01, EU:T:2002:288, paragraph 87, and of 26 September 2014, B&S Europe v Commission, T‑222/13, not published, EU:T:2014:837, paragraph 85). The practical effect of that prohibition is assured only if it applies throughout the procedure so as to capture any event that would lead an operator to be awarded contracts for incompatible lots, including those events occurring after the submission of tenders.
92It must therefore be concluded that the prohibition referred to in paragraph 89 above is to apply throughout the entirety of the tendering procedure.
93Consequently, it is irrelevant that the structural connections between the applicant and Steria Benelux or their shared interests were created after the time when tenders were submitted. The same is true of the fact that the merger between Sopra Group and Groupe Steria was completed only on 1 January 2015, since it has been established that relevant connections between those entities capable of creating a situation that could give rise to a conflict of interests existed beforehand.
94It should also be noted that the applicant has failed to show that the instructions sent internally on 23 April 2014 by Sopra Group and Groupe Steria to their respective employees still applied after the acquisition of 90.52% of the shares in Groupe Steria on 5 September 2014.
95Accordingly, in the light of the foregoing, it must be concluded that the Parliament did not err in taking the view that, from 5 September 2014, there were factors capable of creating a situation that could give rise to a conflict of interests.
96Therefore, it is appropriate to examine whether, and, if so, from when the applicant was obliged to inform the Parliament of those factors under Article 107(1)(b) of the Financial Regulation.
–Obligation to supply information required by the contracting authority
97As was recalled in paragraph 76 above, it is apparent from Article 107(1)(b) of the Financial Regulation that a contract is not to be awarded to candidates or tenderers who, during the procurement procedure for that contract, have failed to supply information required by the contracting authority.
98In that regard, it must be noted that, under point (h) of Form 4 annexed to the tender specifications, tenderers undertook to inform the contracting authority without delay of any situation considered a conflict of interests or which could give rise to a conflict of interests. As is pointed out in paragraph 80 above, the tenderers were under an obligation to sign and submit that form.
99It is apparent therefrom that that obligation to provide information, incumbent on tenderers in the context of a call for tenders, covers, inter alia, the risk that one of their members finds itself in a situation that could give rise to a conflict of interests.
100Consequently, having regard to the finding in paragraph 95 above, it must be found that, in the present case, information concerning the tie-up between the applicant and Groupe Steria, of which Sopra Benelux was a subsidiary, must be considered to be ‘information required by the contracting authority as a condition of participation in the procurement procedure’ within the meaning of Article 107(1)(b) of the Financial Regulation.
101In the light of the findings above, it must be concluded that, under Article 107(1)(b) of the Financial Regulation, and as is also apparent from point (h) of Form 4 annexed to the tender specifications, it was for the applicant, either directly or through the consortia of which it is a member, to exercise due care and inform the Parliament on its own initiative and without delay of the acquisition by Sopra Group of the shares in Groupe Steria, of which Steria Benelux was a subsidiary, which occurred on 5 September 2014, in order to provide it with all the information necessary to assess the applicant’s situation and take appropriate measures, as the case may be. The Parliament was informed by the IBI IUS and STEEL consortia, of which the applicant was a member, of the procedure for the acquisition of Groupe Steria by Sopra Group for the first time only on 21 November 2014, after the Parliament’s announcement on 19 November 2014 that the tendering procedure was to be suspended. The delay in the submission of that information to the Parliament, which has not been appropriately justified in any way, cannot be accepted, in spite of the arguments put before the General Court by the applicant.
102First, that conclusion cannot be called into question by the proposal, submitted by the TEPting consortium on 15 December 2014, to withdraw its tender for Lot 4, since the applicant was required to supply the information required by the contracting authority by 5 September 2014 at the latest, when it held 90.52% of the shares in and 89.41% of the voting rights of Groupe Steria. In that regard, the Court finds that, with regard to information relating to a member of a consortium concerning factors capable of creating a situation that could give rise to a conflict of interests that has not been supplied, despite being required by the contracting authority, that authority is precluded from awarding a contract to such a member as soon as the failure to send that information is established (see, to that effect, judgment of 26 September 2014, Flying Holding and Others v Commission, T‑91/12 and T‑280/12, EU:T:2014:832, paragraph 75).
103Second, with regard to the prohibition on contacting the Parliament during the procedure, contained in the invitation to tender, it is indeed the case that there is a prohibition on contact between tenderers and the Parliament, except for in exceptional cases listed in that invitation. However, the interpretation of that prohibition must be reasonable. Its principal aim is to avoid the evaluation and modification of tenders being influenced in any way. That finding follows from by the fact that all contact initiated by tenderers after the period for the submission of offers has begun is prohibited, while that is not the case for contact initiated by the Parliament.
104Supplying information such as that forming the subject of the present case, namely concerning the acquisition by the applicant of shares in a company that was a member of a consortium that has tendered for a lot that is incompatible with other lots also tendered for by consortia of which the applicant was a member, is clearly one of the exceptional circumstances falling outside of the scope of the prohibition precluding contact with the Parliament during the procedure, especially given that those circumstances relate to the observance of the main conditions set out in the tender specifications. As is pointed out in paragraph 98 above, it was clearly stated in Form 4 annexed to the tender specifications that any situation which could give rise to a conflict of interests had to be declared by tenderers without delay.
105Therefore, the purpose of any contact with the Parliament undertaken with the intention of notifying it of factors concerning a member of several consortia that are capable of creating a situation that could give rise to a risk of a conflict of interests was not to modify tenders submitted by those consortia to their benefit or influence the Parliament in the context of the actual evaluation of those tenders. On the contrary, that information would precisely have enabled the Parliament carry out its evaluation, as to whether the tenders complied with the requirements contained in the tender specifications, with full knowledge of the facts. It follows that the applicant cannot reasonably claim that it was impossible to contact the Parliament due to the prohibition on contacting it during the procedure.
106Third, with regard to the applicant’s argument that the IBI IUS and STEEL consortia, of which it was a member, informed the Parliament of the situation in good time, it must be held that it was only in response to the Parliament’s letters of 19 November 2014 concerning the suspension of the tendering procedure that the Parliament was notified of the tie-up between Sopra Group and Groupe Steria by letters of 21 November 2014 from the IBI IUS and STEEL consortia and Steria Benelux. What is more, the letters of 21 November 2014 specify that that information was given only because the IBI IUS and STEEL consortia and Steria Benelux had been informally advised that the tie-up may have been the reason for the decision to suspend the tendering procedure.
107Accordingly, the applicant cannot reasonably claim that the consortia of which it was a member acted in good time and on their own initiative in order to remedy their failure to provide the necessary information to the Parliament at the appropriate time.
108Fourth, the applicant submits that it was only during October and November that it became aware of the fact that Steria Benelux had participated in the procedure for Lot 4. In that regard, it is sufficient to state that the applicant cannot justify its failure to provide the information required by the contracting authority by the absence of due diligence on its part. The failure to provide such information covers both omissions made knowingly as well as those that result from negligence (see, by analogy, judgment of 26 September 2014, Flying Holding and Others v Commission, T‑91/12 and T‑280/12, EU:T:2014:832, paragraph 75).
109Fifth, with regard, first, to the press release of 8 April 2014 announcing the potential merger of Sopra Group and Groupe Steria and, second, to the Parliament’s alleged disregard of its obligation to evaluate in detail the tenders and tenderers, it is plain, from point (h) of Form 4 annexed to the tender specifications and from the wording of Article 107(1)(b) of the Financial Regulation, that it was for the applicant to inform the Parliament of the tie-up between Sopra Group and Groupe Steria. That press release was neither addressed nor sent to the Parliament by the applicant or by those consortia of which it was a member. In addition, as is apparent from paragraph 106 above, those consortia informed the Parliament of that tie-up only on 21 November 2014 in response to the Parliament’s letters of 19 November 2014.
110Consequently, that submission by the applicant must be rejected.
111Sixth, the applicant claims that the fact that there was no risk of a conflict of interests that needed to be notified to the contracting authority was also shown by the launch by the Parliament of negotiated procedure PE/ITEC-NPE-15.8. In that regard, it should be noted that the subject matter of that procedure was partially similar to that of the call for tenders relating to the services covered by Lot 3. The applicant claims that that negotiated procedure did not provide any incompatibility clause.
112In that context, it is apparent from the case-law that, although a negotiated procedure may be initiated by the contracting authority only in specific situations, such as where irregular or unacceptable offers have been submitted in response to an open procedure which has been completed, as provided for in Article 135(1)(a) of the delegated regulation, the fact nonetheless remains that it is an autonomous procedure, distinct from any other contract award procedure (see, to that effect, judgment of 29 October 2015, Direct Way and DW Worldwide v Parliament, T‑126/13, EU:T:2015:819, paragraph 67 and the case-law cited). Thus, in accordance with the case-law referred to above, the call for tenders and negotiated procedure PE/ITEC-NPE-15.8 are not linked. It follows that the conditions provided for in respect of that procedure do not affect the call for tenders. Consequently, the applicant cannot reasonably rely on that procedure to show that there was no risk of a conflict of interests in the present case and that it was not necessary to notify that risk to the contracting authority.
113It follows that the Parliament was entitled to exclude the applicant from being awarded a contract and, consequently, to reject the tenders from the IBI IUS and STEEL consortia on the basis of their failure to comply with their obligation under Article 107(1)(b) of the Financial Regulation to provide the Parliament with information on factors capable of creating a situation that could give rise to a conflict of interests for the applicant.
114As a result, the first part of the single plea in law must be rejected, there being no need to examine the first ground relied on in the contested decisions.
The second part: infringement of the principles of transparency, proportionality and equal treatment as set out in Article 102(1) of the Financial Regulation
115The applicant argues that the Parliament infringed Article 102(1) of the Financial Regulation, as is shown by various findings.
116First, the applicant argues that an extensive statement of reasons and a thorough investigation are even more essential in the present case given that neither the tender specifications nor the Financial Regulation provide for an automatic exclusion should a potential conflict of interests arise. In addition, in accordance with Article 142 of the delegated regulation, the Parliament was obliged to evaluate the situation in compliance with the principle of proportionality.
117Second, the applicant claims that the IBI IUS and STEEL consortia found two copies of the contracts to be signed and returned to the Parliament attached to the letters sent to those consortia by the Parliament on 18 September 2014 and 30 October 2014 respectively. The applicant argues that the consortia consequently carried out that request, trusting that the Parliament had thoroughly examined the tenders. The applicant thus concludes that the Parliament has breached the principles of proportionality and good faith.
118As noted by the applicant, under Point I.13 of the tender specifications and Article 107(2) of the Financial Regulation, the Parliament was under an obligation to assess whether any tenderers should be excluded. Thus, in awarding the contracts to the IBI IUS and STEEL consortia, it confirmed that, further to its obligation to perform a thorough investigation of the situation, there was no conflict of interests. Accordingly, the Parliament infringed the principle of proportionality by confirming, in the first place, that there were no grounds for excluding the IBI IUS and STEEL consortia.
119Third, the applicant points out that, on 15 December 2014, the TEPting consortium had proposed withdrawing its tender for Lot 4 and that the Parliament, by letter of 9 February 2015, had requested that it agree to extend the validity period of the tender until 18 February 2015. However, on 13 February 2015, the Parliament accepted the withdrawal of TEPting’s tender.
120Thus, not only did the Parliament accept the withdrawal of the TEPting consortium’s tender after an unreasonably long period, but it also adopted the contested decisions after letting an unreasonably long period elapse after the notification of the suspension decisions of 19 November 2014. The applicant submits that, for that reason, the Parliament breached the principle of proportionality.
121Further, it argues that, if the tender specifications were infringed, the Parliament was obliged, as with the decisions relating to Lots 2 and 3, to take a decision to exclude the TEPting consortium from Lot 4, instead of accepting its proposal to withdraw the tender that it had submitted for that lot. The applicant maintains that those conflicting decisions are contrary to the principle of transparency.
122Fourth, the applicant claims that, by launching negotiated procedure PE/ITEC‑NPE-15.8, the Parliament actively created a potential conflict of interests while, at the same time, excluding the IBI IUS and STEEL consortia from being awarded a contract on the basis of a similar conflict of interests, which constitutes a manifest infringement of Article 102(1) of the Financial Regulation.
123The Parliament and the interveners dispute the applicant’s arguments.
124In the present case, it should be noted that, in accordance with Article 102(1) of the Financial Regulation, all public contracts financed in whole or in part by the budget are to comply with the principles of transparency, proportionality, equal treatment and non-discrimination and that the principle of transparency, which is essentially intended to preclude any risk of favouritism or arbitrariness on the part of the contracting authority, implies that all the conditions and detailed rules of the award procedure must be drawn up in a clear, precise and unequivocal manner in the notice or tender specifications (see judgment of 26 September 2014, Evropaïki Dynamiki v Commission, T‑498/11, not published, EU:T:2014:831, paragraph 119 and the case-law cited; see also, to that effect, judgment of 22 September 2011, Evropaïki Dynamiki v Commission, T‑86/09, not published, EU:T:2011:515, paragraph 63).
125In addition, first, it is appropriate to find that, for the purposes of this part of the single plea in law, the applicant raises some arguments that have already been relied on in support of the first part of that plea in law, in particular the arguments based on there being no potential conflict of interests, on the Parliament’s obligation to evaluate in detail the tenders and the tenderers, and on there being no conflict of interests caused by the Parliament’s launch of negotiated procedure PE/ITEC-NPE-15.8, which have already been rejected as unfounded in paragraphs 95, 109 and 112 above. Those arguments must be rejected on the same grounds.
126Second, with regard to the applicant’s automatic exclusion from being awarded a contract due to its failure to send information required by the contracting authority, it must be held that, as was recalled in paragraph 102 above, the Parliament had no other choice but to implement Article 107(1)(b) of the Financial Regulation and exclude the member of the consortium at fault from being awarded a contract as soon as the failure to send that information was established (see, to that effect, judgment of 26 September 2014, Flying Holding and Others v Commission, T‑91/12 and T‑280/12, EU:T:2014:832, paragraph 75). If the Parliament had not applied that measure, it is reasonable to assume that it may have been accused of favouring the consortia of which the applicant was a member.
127Third, the applicant cannot reasonably claim that, by awarding Lot 2 to the IBI IUS consortium and Lot 3 to the STEEL consortium, the Parliament confirmed that there were no irregularities. The Parliament acted on the basis of the incomplete information provided and revised its decision only on the basis of subsequent additional information which, as is pointed out in paragraph 101 above, the applicant was obliged to provide.
128Fourth, with regard to the fact that no decision was taken excluding the TEPting consortium and to the alleged breach of the principles of proportionality and transparency, it is sufficient to state that it was the TEPting consortium that proposed withdrawing its tender for Lot 4 and that the proposal was accepted by the Parliament. Consequently, that argument cannot succeed.
129Fifth, the Parliament has explicitly stated in its letters of 19 November 2014 that the tendering procedure had been suspended in order to obtain necessary information. Consequently, the applicant cannot claim to have believed that the procedure was to continue as normal.
130Sixth, the Parliament cannot be criticised for having allowed an unreasonably long period elapse before adopting the contested decisions. In that regard, it must be held that the Parliament received the relevant information on 12 November 2014 from the interveners and suspended the procedure seven days later. In less than three months from the date of the suspension of the procedure, the Parliament carried out an investigation into several economic operators and adopted those decisions. Additionally, in the present case, the fact that the applicant or the IBI IUS and STEEL consortia, of which it was a member, had not provided the necessary information in good time rendered the Parliament’s task more difficult. Consequently, the applicant’s argument must be rejected.
131In the light of the foregoing, the second part of the single plea in law must be rejected and, therefore, the action in its entirety must be dismissed.
Costs
132Under 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 applicant has been unsuccessful, it must be ordered to bear its own costs and to pay those incurred by the Parliament in accordance with the forms of order sought by it.
133Furthermore, under Article 138(3) of the Rules of Procedure, the Court may order that an intervener other than those referred to in paragraphs 1 and 2 of that article is to bear his own costs. In the present case, it is appropriate to decide that the interveners are to bear their own costs.
Operative part
On those grounds,THE GENERAL COURT (Fourth Chamber),hereby:
1.Dismisses the action;
2.Orders Sopra Steria Group SA to bear its own costs and to pay those incurred by the European Parliament;
3.Orders CGI Luxembourg SA and Intrasoft International SA to bear their own costs.
Delivered in open court in Luxembourg on 9 April 2019.
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