Kenup Foundation and Others v European Institute of Innovation and Technology (EIT) (T-76/15)

Contents

Judgment of the General Court (Seventh Chamber)18 January 2018^note(Research and technological development — EIT — Horizon 2020 framework programme for research and innovation — Call for proposals for the designation of a knowledge and innovation community — Rejection of the applicants’ tender — Regulation (EC) No 294/2008 — Regulation (EU) No 1290/2013 — Unlawful delegation of powers)In Case T-76/15,Kenup Foundation, established in Kalkara (Malta),Candena GmbH, established in Lüneburg (Germany),CO BIK Center odličnosti za biosenzoriko, instrumentacijo in procesno kontrolo, established in Ajdovščina (Slovenia),Evotec AG, established in Hamburg (Germany),represented initially by U. Soltész, C. Wagner, H. Weiß and A. Richter, subsequently by U. Soltész, H. Weiß and A. Richter and finally by U. Soltész and H. Weiß, lawyers,supported byRepublic of Malta, represented by M.E. Perici Calascione, acting as Agent,and byStiftung Universität Lüneburg, represented by F. Oehl, lawyer,vEuropean Institute of Innovation and Technology (EIT), represented by M. Kern, acting as Agent, and by P. de Bandt and M. Gherghinaru, lawyers,THE GENERAL COURT (Seventh Chamber),composed of V. Tomljenović, President, A. Marcoulli, Rapporteur, and A. Kornezov, Judges,Registrar: E. Coulon,gives the following

JudgmentOnly the paragraphs of the present judgment which the Court considers it appropriate to publish are reproduced here.…

Procedure and forms of order sought

9By application lodged at the Court Registry on 18 February 2015, the applicants, Kenup Foundation, Candena GmbH, CO BIK Center odličnosti za biosenzoriko, instrumentacijo in procesno kontrolo (‘the research organisation’) and Evotec AG brought the present action.

10On 1 June 2015, the EIT submitted a defence.

11By decision of 6 July 2015, the President of the Eighth Chamber of the General Court granted the Republic of Malta leave to intervene in support of the form of order sought by the applicants.

12By order of 19 October 2015, the President of the Eighth Chamber of the General Court granted Stiftung Universität Lüneburg leave to intervene in support of the form of order sought by the applicant.

13The Republic of Malta’s statement in intervention was lodged on 16 November 2015.

14The reply was lodged at the Court Registry on 16 November 2015.

15The Stiftung Universität Lüneburg’s statement in intervention was lodged on 2 December 2015.

16The rejoinder was lodged at the Court Registry on 27 January 2016.

17As the composition of the Chambers had been altered, the present case was assigned to the Seventh Chamber, in which a new Judge-Rapporteur was designated.

18By document of 10 May 2016, the applicants submitted new evidence, on which the EIT, the Republic of Malta and Stiftung Universität Lüneburg submitted their observations.

19On 5 May 2017, the Court, by way of a measure of organisation of procedure, put written questions to the parties, to which they replied within the prescribed time limit.

20By document of 4 July 2017, the applicants submitted a new plea in law as well as new evidence, on which the EIT and the Republic of Malta submitted their observations.

21The Court (Seventh Chamber) decided, pursuant to Article 106(3) of the Rules of Procedure of the General Court, to rule on the action without an oral part of the procedure.

22The applicants, supported by the Republic of Malta and by Stiftung Universität Lüneburg, claim that the Court should:– annul the decisions of 9 December 2014, notified by letter of 10 December 2014 (‘the contested decisions’), by which the EIT designated the KIC on ‘Innovation for healthy living and active ageing’ and rejected the proposal submitted by the Kenup consortium;– order the EIT to pay the costs.

23The EIT contends that the Court should:– dismiss the action;– order the applicants to pay the costs, including the costs incurred by the EIT.

Law…

Substance…

47In the first place, the Court will examine the first plea in law.

48The applicants, supported by the Republic of Malta and Stiftung Universität Lüneburg, claim that, by their assessment, the independent experts authorised by the EIT went beyond the merely advisory role legally attributed to them. According to the applicants, those experts were given the power to preselect proposals and, accordingly, were able to eliminate the proposal submitted by the Kenup consortium without a decision being taken by the governing board and without that board’s having examined it. Although experts play an important role in assessing KIC proposals, the selection and designation of those proposals fall within the sole competence of the governing board, with no possibility of delegation, on account of the fundamental importance of that decision. Still less can the preselection decision made by the experts be attributed to the governing board, since it did not, in breach of Regulation No 1290/2013, appoint the experts, who received no instruction, guidance or monitoring from the governing board, those tasks, in the present case, having been performed by the authorising officer, that is to say the director of the EIT. In that regard, the applicants claim that the director of the EIT exercised undue influence on the evaluation procedure. Finally, the applicants submit that, although the experts had broad discretion, the governing board was not entitled to rely on their evaluation without checking it.

49The EIT disputes those arguments and claims that the decision designating the KIC was adopted by the governing board, following a procedure which took place in accordance with the rules applicable to the EIT and to the call for proposals. The EIT maintains that the organisation and administration of a call for proposals do not fall under the sole responsibility of the governing board, tasks being devolved both to independent experts and to the director of the EIT. On that point, it submits that, contrary to what the applicants claim, the selection of experts does not fall within the competence of the governing board. Furthermore, it maintains that the entire appointment process remained fully under the supervision of the governing board. Thus, it submits that the governing board adopted the selection criteria for the KIC, the text of the call for proposals and the overall evaluation approach. It also approved the profiles, criteria and selection procedure for the independent experts and the composition of the expert panels. In addition, the governing board was duly informed of the results of the evaluation process carried out by the experts. Finally, following the hearings, the governing board alone adopted the decision designating the KIC and rejecting the Kenup consortium’s proposal, the experts having taken no decision on that matter.

50It must be held that there are two parts of the first plea in law of the application. By the first part, the applicants claim, in essence, that the decision rejecting the Kenup consortium’s proposal was taken by an authority not competent to do so, since it follows from a decision of the independent experts and not from a formal decision of the governing board. By the second part of the plea, the applicants invoke the unlawful delegation, to independent experts, of powers devolved to the governing board, without the latter’s directing or supervising their work.

51As a preliminary point, it must, first, be noted that, in accordance with Article 1(2) of Regulation No 1290/2013, participation in indirect actions for implementation of the Horizon 2020 framework programme is governed by the provisions 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), and of the delegated regulation, subject to the specific rules laid down in Regulation No 1290/2013. According to Article 1(3) of Regulation No 1290/2013, Regulation No 294/2008 may also establish rules which depart from those laid down in Regulation No 1290/2013.

52It follows that, when it carries out, as in the present case, the selection and designation of a KIC in order to implement the Horizon 2020 framework programme, the EIT must comply, first, with the rules defined by Regulation No 294/2008, next, with the rules for participation in the Horizon 2020 framework programme and, finally, with Regulation No 1605/2002 and the delegated regulation.

53Next, it should be noted that, according to Article 4 of Regulation No 294/2008, in the version thereof applicable in the present case: ‘The EIT shall [have] a Governing Board composed of high-level members experienced in higher education, research, innovation and business [which is] responsible for steering the activities of the EIT, for the selection, designation and evaluation of the KICs, and for all other strategic decisions.’ Article 5 of that regulation provides that ‘in order to achieve its objective, the EIT shall […] select and designate KICs’. According to Article 7 of that regulation: ‘A partnership shall be selected and designated by the EIT to become a KIC following a competitive, open and transparent procedure. Detailed criteria for the selection of the KICs, based on the principles of excellence and innovation relevance, shall be adopted and published by the EIT’. That article also states that ‘external and independent experts shall be involved in the selection process’.

54Finally, Article 15 of Regulation 290/2013 provides that ‘the proposals submitted shall be evaluated on the basis of [various] award criteria[, namely,] excellence[,] impact [and] quality and efficiency of the implementation’, that ‘[the] proposals shall be ranked according to the evaluation results’, and that ‘the evaluation shall be carried out by independent experts’. Article 40 of that regulation also provides that ‘the Commission and, where appropriate, funding bodies may appoint independent experts to evaluate proposals in accordance with Article 15 or to advise on or assist with [...] the evaluation of proposals [...]’.

55It follows from all the provisions referred to in paragraphs 53 and 54 above that, first, the selection and designation of KICs fall within the competence of the governing board and that, secondly, independent experts participate in the selection procedure by evaluating proposals, in order to classify them. The governing board selects the KICs on the basis of that classification.

56In that regard, it should be noted that it follows from the case-law that, even when the EIT commissions external experts, it is not thereby exempted from assessing their work (see, to that effect and by analogy, judgment of 8 July 2009, Zenab v Commission, T‑33/06, not published, EU:T:2009:250, paragraph 64 and the case-law cited).

57The merits of each of the two parts of the first plea in law should be examined in the light of the provisions and the principle referred to in paragraphs 51 to 56 above.

The first part

58First, it should be noted that the contested decisions were adopted in the course of the selection procedure for the KIC on ‘Innovation for healthy living and active ageing’, as defined in the call for proposals adopted by the EIT. According to the rules in point 7 of that call for tenders, which the parties agree were complied with both by the independent experts and by the EIT, eligible proposals were to be evaluated by high-level independent external experts. Each proposal was thus examined by five experts, that is to say three thematic experts and two ‘horizontal’ experts, each responsible for an evaluation report for each proposal. The panel of experts was then required to draw up a consolidated evaluation report for each proposal. Next, the three proposals with the best rankings were evaluated by a second panel of high-level independent experts responsible for making a final recommendation containing an overview of those three proposals as well as recommendations for their improvement or reinforcement. Finally, representatives of the three proposals with the best scores were to be heard by the governing board before it designated the selected KIC.

59It follows from the foregoing that the independent experts restricted themselves to evaluating the proposals submitted and did not take any formal decision to eliminate offers classified below third place. Contrary to what the applicants claim, the formal decision rejecting the proposal submitted by the Kenup consortium was taken by the governing board at the same time as the decision to designate the proposal identified as ‘InnoLife — Better, longer lives’ as the KIC on ‘Innovation for healthy living and active ageing’.

60Consequently, the first part of the plea must be rejected.

The second part

61It follows from the evaluation process for the proposals, as described in paragraph 58 above, that the panel of experts responsible for the final recommendation only had to examine the three proposals with the best scores following the evaluation by the first panel of experts. In addition, only representatives of those three proposals were to be heard by the governing board. In that regard, it should be noted that the call for proposals clearly indicated that the KIC would be selected by the EIT on the basis, first, of the consolidated evaluation reports relating to the three best proposals, as established by the panel of experts, secondly, of the report drawn up by the panel responsible for the final recommendation and, thirdly, of the outcome of the hearings. Accordingly, the EIT was required to make its selection only on the basis of the work carried out by the independent experts on the three proposals with the best scores and the outcome of the hearings carried out with the representatives of those proposals.

62In that regard, it is apparent from the documents in the case file that the members of the governing board had access, via a protected website, to all the proposals submitted for the KIC on ‘Innovation for healthy living and active ageing’, including the Kenup consortium’s proposal. Furthermore, before the hearings, the director of the EIT indicated to the governing board the various stages of the evaluation procedure, including the various scores awarded overall and for sub-criteria to the five proposals submitted. However, none of the analyses of the Kenup consortium’s proposal carried out by the independent experts were submitted to the members of the governing board. Annex 1 to the information note of 1 December 2014 drawn up by the director of the EIT for the members of the governing board, produced by the EIT at the Court’s request, included merely a summary of the evaluation reports drawn up by the panel of experts relating solely to the proposals selected for the hearings. In addition, it does not follow from the procedure for the call for proposals, nor is it claimed, that members of the governing board attended the experts’ working sessions.

63It is true, as the EIT maintains in its defence, that members of the governing board were free to raise questions and to request additional information concerning all the proposals and their evaluation by the experts. However, as stated in paragraph 62 above, the members of the governing board did not possess any of the evaluations or a summary of the evaluations carried out by the panel of experts concerning the two proposals not selected for the hearings.

64In any event, any initiatives of the governing board were unlikely to call into question the fact that only the three proposals with the best scores awarded by the experts could have been designated as the KIC on ‘Innovation for healthy living and active ageing’. The procedure established by the call for proposals entirely ruled out any possibility of the governing board’s selecting the Kenup consortium’s proposal and inviting its representatives to participate in the hearings, since that proposal was ranked in fourth position by the independent experts. That finding is confirmed by the wording of the letter of 10 December 2014 informing the coordinator of the Kenup consortium that its proposal had been rejected, which clearly links that exclusion with the ranking of the consortium’s proposal below third place. On that point, it may be noted, as the applicants claim, that, in its reply to their request for further information, the EIT stated that the experts had been granted, by the call for proposals, a delegated power to preselect proposals.

65Therefore, in accordance with the procedure defined in the call for proposals, the governing board could, following the hearings, only alter the ranking of the three best proposals selected by the experts, as the EIT indicates, moreover, in point 63 of its defence. The fact that, according to Article 15 of Regulation No 1290/2013, the selection of a KIC is made on the basis of the ranking of the proposals, in accordance with the evaluation carried out by independent experts, cannot mean that the EIT is bound, even in part, as regards the order of the proposals thus selected.

66In that regard, the fact that the members of the Kenup consortium did not challenge the wording of the call for proposals before its closure cannot deprive them of the possibility of claiming, in the present action, that the selection procedure defined by that call for proposals was irregular. On that point, it may be noted that a procurement document, such as, in the present case, the call for proposals, is not a measure that can be subject to an action for annulment on the basis of the fourth paragraph of Article 263 TFEU. The contested decisions were therefore the first measures which the applicants could challenge and thus the first measures entitling them to dispute, indirectly, the lawfulness of the KIC selection procedure determined by the EIT (see, to that effect, judgment of 20 September 2011, Evropaïki Dynamiki v EIB, T‑461/08, EU:T:2011:494, paragraphs 73 and 74 and the case-law cited). Accordingly, the EIT cannot reasonably claim that the Kenup consortium’s exclusion results from the strict application of the call for proposals procedure defined by the governing board.

67It follows from all the foregoing considerations that the applicants are justified in maintaining that the governing board failed fully to exercise its powers in respect of the selection of proposals, in breach of the provisions of Article 4 of Regulation No 294/2008, those powers having been delegated in part to experts without that board having, at any time, had the opportunity to make a proper assessment of the work they carried out on the proposals which were not ranked in the first three places.

68The fact that the governing board adopted the wording of the call for proposals, the KIC selection criteria and the selection criteria for the experts responsible for the evaluation of the proposals, and that it monitored the full procedure leading to their selection cannot call into question that finding.

69It follows that it is necessary to uphold the second part of the first plea in law and to annul, on that ground, both the decision by which the EIT rejected the Kenup consortium’s proposal and the decision, which is closely linked thereto, by which it designated the proposal identified as ‘InnoLife — Better, longer lives’, without there being any need to rule on the other nine pleas in law of the application, in particular, that alleging the existence of a conflict of interests as regards the members of the governing board, especially concerning whether the EIT took all due care to ensure the impartial and objective exercise of the functions of those members, when, first, the requirement of impartiality encompasses both their subjective and objective impartiality, in so far as an institution, body, office or agency of the European Union must offer sufficient guarantees to exclude any legitimate doubt in that regard (see, by analogy, judgment of 11 July 2013, Ziegler v Commission, C‑439/11 P, EU:C:2013:513, paragraph 155) and, second, such review must be carried out independently of any assessment concerning their level of expertise.…

Operative part

On those grounds,THE GENERAL COURT (Seventh Chamber)hereby:

1.Annuls the decisions of 9 December 2014, as notified by letter of 10 December 2014, by which the European Institute of Innovation and Technology (EIT) designated the Knowledge and Innovation Community (KIC) on ‘Innovation for healthy living and active ageing’ and rejected the proposal submitted by the Kenup consortium;

2.Orders the EIT to bear its own costs and to pay those incurred by Kenup Foundation, Candena GmbH, CO BIK Center odličnosti za biosenzoriko, instrumentacijo in procesno kontrolo and Evotec AG.

Delivered in open court in Luxembourg on 18 January 2018.