Judgment — ECLI:EU:T:2008:334
Date: 2008-09-10
Language of the case: English
Court formation: Fourth Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Financial provisions;Public procurement in the European Union
Concepts: Infringement
Procedure: Action for annulment - successful
Origin: Greece

summary of the pleas in law and arguments put forward by the applicant that the present action was formulated on the basis of information furnished by the Court of Justice in its letters of 3 and 23 August 2006, in response to the applicant’s request for the reasons upon which the decision was based in accordance with Article 100(2) of the Financial Regulation. 31 Thus, the pleas in law advanced against the contested decision are confined to putting in issue the way in which the references supplied by the applicant in accordance with the contract conditions were evaluated, these references being relevant only at the selection stage of the procedure. In other words, the present case has been brought upon a basis induced by the reasons given by the Court of Justice, to the effect that the applicant’s bid had been excluded at the end of the selection stage upon the ground that the bid had been placed in sixth position in accordance with the evaluation criteria for that phase of the procedure and that only five tenderers had been retained for consideration at the award phase. 32 However, the documents produced by the Court of Justice on foot of the measure of organisation of the procedure (see paragraph 15 above) show that the information given to the applicant in the letters of 20 July, 3 and 23 August 2006 was wrong and did not reflect the true basis upon which the decision to award the contract to the two successful tenderers had in fact been taken by the Court of Justice. 33 On the basis of the proofs which have been furnished to it, the Court finds that what happened during the course of the evaluation procedure was as follows: – on 21 June the Informatics and New Technologies Division of the Court of Justice (‘the Informatics Division’) presented to the evaluation committee its report No 16/2006 on the call for tenders Ref. CJ AM 13/2004, containing an evaluation by reference to both the selection and the award criteria; – the Informatics Division informed the evaluation committee that on the basis of this evaluation six tenderers including the applicant had received the minimum 70 points in the evaluation of the selection criteria stage. However, the applicant, with 70.1 points, was placed in sixth position. Accordingly, only the bids of the other five tenderers had been evaluated at the phase of the award criteria; – in the evaluation of the bids by reference to the award criteria, the Informatics Division had placed the two tenderers who were subsequently successful in first and second position and recommended that the committee should award them the contract; – at its meeting on 12 July 2006 the evaluation committee had considered the Informatics Division report but decided to postpone its decision on the award of the contract and to await additional information which it requested from the Informatics Division; – on 18 July 2006, the Informatics Division furnished a supplementary report entitled ‘Addendum to Report No 16/2006’; this report, together with its annexes, clearly shows that the Informatics Division had carried out a new evaluation of the award criteria in order to take into account the applicant’s bid as well as the five bids which had previously been assessed; – for the two categories of award criteria, the Informatics Division had placed the applicant’s bid in fourth position for quality (38.13 points out of 60) and in second place on price (39.18 points out of 40). On the combined quality/price criteria the applicant’s bid had been placed in fourth position with a total of 77.91 points out of 100; – on 20 July 2006, the Court of Justice informed the two successful tenderers of the award of the contract and informed the applicant that its bid had been rejected. 34 The description of the conduct of the evaluation procedure as set out in the preceding paragraph does not establish that, on the one hand, the applicant’s bid had been rejected on the grounds that it had been placed in sixth position at the end of the selection stage or, on the other hand, that no technical and financial evaluation of the bid had been made. 35 The formal decision to award the contract to the two successful tenderers was in reality taken on the basis of the supplementary report of 18 July 2006, which includes an evaluation of all six bids which had attained 70 points at the selection stage, including that of the applicant. The applicant’s bid was not therefore rejected at the end of the selection stage but upon the basis that it had been placed in fourth position at the end of the award stage. Moreover, this fact was known to the Court of Justice when it sent its letter of 20 July 2006 to the applicant. 36 At the hearing the Court of Justice argued that the evaluation of the applicant’s bid by reference to the award criteria was merely an informal exercise designed to confirm the earlier decision to reject the bid at the selection phase. That argument cannot be accepted. The supplementary report of 18 July 2006 clearly shows that the bid had been fully evaluated at the award stage and had even been placed in second position on price. It was on the basis of that evaluation, which took into account the applicant’s bid, that the Court of Justice adopted its formal and definitive decision to award the contract to the two successful tenderers. 37 It is also apparent that, in formulating its present case, the applicant was induced into error by the description given of the evaluation of the references in the letters of 20 July and 3 and 23 August 2006. In particular this last letter suggests that the mark of 17.5 out of 35 points was attributable to the three factors cited at paragraph 10 above, including the fact that some of its references concerned activities which were carried out more than three years previously. The applicant, as is shown clearly in the application, interpreted this explanation to the effect that the references in question had not been taken into account in the evaluation of the selection criteria upon the ground that they covered work which had been commenced or finished on dates outside the relevant period, running from 1 January 2003 to 31 December 2005, even though the work was being performed during those years. 38 That interpretation was, in effect, further confirmed by the defence which, at paragraph 29, reads as follows: ‘First the applicant’s contention is misconceived in fact. Even though all the aforementioned references cover work carried out by the applicant or by the partner companies in a consortium during the past three years, it would have been contrary to the principles of transparency and equal treatment to take into account the work and activities which were carried out more than three years ago by the applicant. The [Court of Justice] indeed took into account the work carried out by the applicant or by the partner companies in a consortium during the past three years, excluding however the activities [relating to the projects “EUR-Lex”, “ESP5”, “Circa”, “SEI-JOS”, “IDA Tools”, “Stadium” and “Chopin”] which were anterior to this period.’ 39 Although paragraph 29 of the defence is open to an interpretation to the effect that the references in question had been excluded from consideration only to the extent that they covered work performed outside the relevant period, the defence pleading did not correct the impression created by the letter of 23 August 2006. It was not until the Court of Justice, in its rejoinder, declared unequivocally that all of the references had been taken into account in respect of work performed during the relevant period that the applicant and the Court were able to understand that the meaning first given to the letter of 23 August 2006 was mistaken. 40 Moreover, it follows from the foregoing that the debate between the parties in the present case as to the validity of the evaluation of the references is in effect redundant in these circumstances, because the evaluation of the selection criteria is no longer relevant once the bid is admitted to the award stage. If the Court of Justice had informed the applicant of the fact that the limit of five tenderers at the outcome of the selection phase had not been applied and that its bid had been placed in fourth position at the end of the award stage, the present case might not have been brought, or, at the very least, would have been founded on a totally different basis. 41 As the applicant points out, Article 89(1) of the Financial Regulation requires that ‘all public contracts … comply with the principles of transparency, proportionality, equal treatment and non-discrimination’. Moreover Article 100(2) of the regulation provides that ‘[t]he contracting authority shall notify all candidates or tenderers whose applications or tenders are rejected of the grounds on which the decision was taken.’ 42 It is undeniable that this last provision requires every contracting authority to give a tenderer the true reasons for the rejection of its bid. Moreover, the reasons given must reflect the actual conduct of the evaluation procedure. In that connection it must be recalled that the reasons given for a decision which has adverse effect must be logically compatible with the decision as adopted (see, to that effect, Case 2/56 Geitling v High Authority [1957] ECR 3, at p. 16). 43 A statement of reasons which does not identify the true basis upon which a decision rejecting a bid has been taken and does not reflect faithfully the manner in which the rejected bid has been evaluated is not transparent and does not fulfil the obligation to state reasons in Article 100(2) of the Financial Regulation. 44 It follows from the above findings that the decision rejecting the applicant’s bid disregarded the obligation to state reasons and that in consequence it is necessary to annul that decision, as communicated to the applicant by the letter of 20 July 2006. 45 As regards the applicant’s claim for annulment of the decision awarding the contract to the two successful tenderers, the Court finds it impossible to judge whether it is well founded because, as the obligation to state reasons was disregarded, no examination of the evaluation of the award criteria could take place in the present action. Costs 46 Under Article 87(2) 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 Court of Justice has been unsuccessful, it must be ordered to pay costs as applied for by the applicant. On those grounds, THE COURT OF FIRST INSTANCE (Fourth Chamber) hereby: 1. Annuls the decision of the Court of Justice to reject the tender submitted by Evropaïki Dinamiki – Proigmena Sistimata Tilepikinonion Pliroforikis kai Tilematikis AE, as communicated to the latter by letter of 20 July 2006; 2. Orders the Court of Justice to pay the costs. Czúcz Cooke Labucka Delivered in open court in Luxembourg on 10 September 2008. E. Coulon O. Czúcz Registrar President * Language of the case: English.