The Court of Justice of the European Union (CJEU) has set aside the judgment of General Court (Case T-54/21 – see EUROPE 13171/32) of April 2023 dismissing the action brought by OHB System (OHB) against the award by the European Commission of a contract for transition satellites for the Galileo programme to Thales Alenia Space Italia (TASI) and Airbus Defence & Space (ADS), in a ruling handed down on Thursday 12 June (Case C-415/23 P).
The CJEU points out that all contracts co-financed by the EU budget must comply with the principle of equal treatment of tenderers at every stage of a procedure for the award of public contracts. In the CJEU’s view, this means that the contracting authority must check whether conflicts of interest exist and take appropriate measures to prevent, detect and remedy them.
However, the company – whose bid was ultimately rejected – had informed the Commission that, during the tender procedure, its Chief Operating Officer had been recruited by ADS and placed at the head of the department responsible for the bid submitted by ADS. It claims that the sensitive information obtained by its former employee gave an undue advantage to the competing company ADS, which won part of the satellite contract.
According to the Court, it cannot be ruled out that the information obtained through the engagement of a former OHB executive gave ADS an unjustified advantage. Faced with doubts about the autonomous and independent nature of the ADS offer, the Commission should have examined all the relevant circumstances leading up to its presentation.
Such an examination should be triggered not only by direct evidence of a breach of public procurement rules, but also on the basis of objective and concordant evidence, according to the European judge.
Thus, by failing to review the Commission’s compliance with the principle of equal treatment of tenderers, the General Court erred in law, held the Court, which set aside the judgment of the General Court and referred the case back to it.
Link to the CJEU ruling: https://aeur.eu/f/hao (Original version in French by Mathieu Bion)