Judgment — ECLI:EU:T:2012:186
Date: 2012-04-19
Language of the case: English
Court formation: Eighth Chamber
Subject matter: Public procurement in the European Union
Procedure: Action for annulment - unfounded;Action for damages - unfounded
Origin: Greece

summary of the pleas in law on which it is based. 90 In accordance with the case-law, this means that the information given in the application must be sufficiently clear and precise to enable the defendant to prepare his defence or to enable the Court to decide the case, if appropriate without other information. In order to ensure legal certainty and the sound administration of justice, if an action is to be admissible the essential facts and law on which it is based must be apparent from the text of the application itself, even if only stated briefly, provided that the statement is coherent and comprehensible (Case T‑195/95 Guérin automobiles v Commission [1997] ECR II‑679, paragraph 20, and judgment of 12 March 2008 in Case T‑332/03 European Service Network v Commission, not published in the ECR, paragraph 229). 91 In the present case, the applicant’s arguments in support of its contention that the Commission infringed the essential procedural requirements of the additional examination lack clarity and precision. Those arguments fail to identify the essential requirements which were allegedly infringed by the Commission or the nature of such an infringement. Moreover, the reference made by the applicant to Article 146 of the Implementing Rules does not provide clarification of its arguments. 92 The Commission is therefore justified in claiming that the manner in which the present plea is set out in the application, in so far as it alleged the infringement of essential procedural requirements, was not sufficiently clear and precise to enable the Commission to prepare its defence. Nor does it enable the Court to determine whether the present plea is well founded. 93 Consequently, the third plea of the application, in so far as it alleges the infringement of essential requirements by the Commission as regards the additional examination conducted in connection with the contested public contract, must be rejected as inadmissible. 94 With regard to the applicant’s complaint that it does not have detailed information on the additional examination conducted by the Commission, it should be recalled that, as was stated in paragraph 48 above, the Commission informed the applicant of its decision to suspend the award procedure for the contested public contract in order to conduct such an examination, thereby complying with its obligation to provide information laid down by the third subparagraph of Article 158a(1) of the Implementing Rules. Moreover, the Commission communicated to the applicant the grounds underlying the suspension decision, informed it of the fact that the additional examination had been led by the same evaluation committee and explained to it the specific objective and final result of that evaluation. In those circumstances, it must be held that there is no basis for acceding to the request for production of the additional examination report and the documents linked to that verification. Furthermore, it should be noted that, contrary to what is required by the case-law cited in paragraph 83 above, the applicant has not provided the Court with sufficient information indicating the utility of those documents for the purposes of the present proceedings. 95 Consequently, the applicant’s request for the production of documents must be dismissed. The plea alleging infringement of the principle of equal treatment 96 The applicant complains, in essence, that the Commission created a situation of inequality between the tenderers participating in the contested public contract both during the preparation and evaluation of their respective tenders and during the final award of the contract. It subdivides this plea into three parts. The first alleges infringement of the principle of equal treatment so far as concerns the approach taken in the present case by the Commission with regard to tenderers making use of subcontractors from non-member countries which are not parties to the Agreement on government procurement (OJ 1996 C 256, p. 2) in Annex 4 to the Agreement establishing the World Trade Organisation (WTO) (OJ 1994 L 336, p. 3). The second alleges that a new criterion for the assessment of quality criterion Q1 was introduced a posteriori. The third alleges that the weighting on which the award criterion set out in paragraph 6.4 of the tendering specifications was based was discriminatory. 97 The Commission submits that the first and third parts of the present plea must be regarded as inadmissible in the present action as they cannot affect the legality of the decision to reject the tender. It disputes the remainder of the applicant’s contentions. 98 It should be recalled from the outset that, in accordance with the considerations set out in paragraphs 24 to 26 above, the scope the present action is limited to examining the legality of the decision to reject the tender. 99 As regards the first part of the plea, it must be held that, contrary to what the Commission claims, whose argument seeks, in essence, to have this part of the plea declared ineffective, the alleged discrimination does not lie in the fact that tenderers who made use of the possibility to subcontract their services to companies established in non-member countries which are not parties to the Agreement on government procurement were favoured. By its complaint, the applicant alleges that the Commission infringed the principle of equal treatment by failing to specify the admission criteria for tenderers making use of subcontracting or which are themselves established in non-member countries not parties to the Agreement on government procurement, with the result that the other tenderers did not know whether, in practice, such tenderers were admissible. According to the applicant, that uncertainty obliged it to attempt to lower its costs in order to compete with that type of operator, which had the effect that its tender did not comply with the minimum threshold for quality criterion Q1 and that it was excluded from the subsequent award phase. Since the present part of the plea could affect the legality of the decision to reject the tender, the Commission’s argument that it is ineffective must be rejected. 100 By contrast, the third branch must be regarded as incapable of affecting the legality of the decision to reject the tender. 101 It should be noted that it was not until the award phase that the Commission had to compare the particular merits of the tenderers’ offers on the basis of the weighting laid down in paragraph 6.4 of the tendering specifications. It is therefore only during that phase that discrimination, as claimed by the applicant, could have occurred. 102 However, in the present case, the decision to reject the tender had the effect of excluding that tender from the award phase of the contested public contract. 103 Moreover, it should be pointed out, as the Commission did, that this third part of the plea does not relate to the assessment of quality criterion Q1 and cannot lead to the annulment of the decision to reject the tender. The applicant also acknowledged, during the hearing, in response to a question to that effect put by the Court, that this third part of the plea could be declared ineffective were the Court to take the view that the action was directed solely against the decision to reject the tender. 104 In so far as the third part of the present plea cannot affect the legality of the decision to reject the tender, it must be declared ineffective. 105 The first two parts of the present plea have therefore to be examined. – Infringement of the principle of equality with regard to the Commission’s approach to subcontracting 106 The applicant complains that the Commission took the view, in particular in its letter of 18 August 2008, that it could admit the offers of tenderers established in non-member countries, in particular in those which are not parties to the Agreement on government procurement, or which make use of subcontractors established in those countries, on a case-by-case and discretionary basis. The applicant claims that, in so doing, the Commission infringed both the principle of equal treatment and the principle of transparency. 107 It should be recalled that, according to settled case-law, the principle of equal treatment requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified (see Case C‑550/07 P Akzo Nobel Chemicals and Akcros Chemicals v Commission and Others [2010] ECR I‑0000, paragraph 55 and the case-law cited). 108 In the field of public procurement, in accordance with that principle, the Commission is required to ensure, at each stage of the procedure, equal treatment and, thereby, equality of opportunity for all the tenderers (see Case T‑345/03 Evropaïki Dynamiki v Commission [2008] ECR II‑341, paragraph 141 and the case-law cited). Similarly, the principle of equal treatment implies that tenderers must be in a position of equality both when they formulate their tenders and when those tenders are being assessed by the contracting authority (judgment of 17 February 2011 in Case C‑251/09 Commission v Cyprus, not published in the ECR, paragraph 39). 109 More specifically, this implies that the award criteria must be formulated, in the contract documents or the contract notice, in such a way as to allow all reasonably well-informed and normally diligent tenderers to interpret them in the same way and that, when those bids are being evaluated, those criteria must be applied in an objective and uniform manner to all tenderers (Commission v Cyprus, cited in paragraph 108 above, paragraph 40). 110 The principle of transparency is essentially intended to preclude any risk of favouritism or arbitrariness on the part of the contracting authority. It 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 the tendering specifications (see Evropaïki Dynamiki v Commission, cited in paragraph 108 above, paragraph 144 and the case-law cited). 111 In the present case, first, it should be noted that paragraph 3.3 of the tendering specifications provides expressly for the possibility of making use of subcontractors to perform the contested public contract and that no limitation was laid down in respect of subcontractors not established in countries which are signatories to the Agreement on government procurement. 112 Furthermore, it should be noted that, in response to a question to that effect by the applicant, the Commission informed it, by letter of 18 August 2008, that the admission of tenderers making use of subcontractors from non-member countries was a possibility that it would consider on a case-by-case basis. 113 It follows that, contrary to what the applicant appears to claim, the possibility of admitting such tenderers was brought to the attention of all tenderers in the context of the contested public contract. Moreover, the Commission responded to the questions on that subject, thereby making every effort to clarify and explain its position in that regard. 114 Furthermore, in the contested tendering procedure, all the tenderers were in the same situation since they could decide, in line with their own strategies, to make use of subcontracting packages including operators established in non-member countries which are not parties to the Agreement on government procurement. 115 Therefore, the Commission did not infringe the principles of equal treatment and transparency when it took the view that it could decide on a case-by-case basis whether tenderers making use of subcontractors from a country which is not party to the Agreement on government procurement could be admitted. 116 In light of the foregoing, the first part must be rejected as unfounded. – The alleged introduction a posteriori of a new award criterion for the evaluation of quality criterion Q1 117 The applicant claims, in essence, that the Commission introduced, during the evaluation of quality criterion Q1, technical criteria which were not provided for in the tendering specifications, namely, first, the number of ‘man-days’ proposed by the tenderers for the takeover phase of the project and, second, the number of persons proposed for PMS, UGTS and OTSS services. The applicant further claims that, if the Commission had wanted the tenderers to specify precisely how many ‘man-days’ were necessary for the takeover phase, it should have given them access to the source codes of DG Regional Policy’s IT applications. 118 First, as regards the applicant’s claim that the Commission introduced a new evaluation criterion by referring to the size of the teams proposed for PMS, UGTS and OTSS services, it should be noted that the evaluation of the teams proposed for those services related to quality criterion Q2. Since the decision to reject the tender was not adopted on the ground that that criterion had not been complied with, but on the ground that quality criterion Q1 had not been satisfied, the applicant’s arguments must be considered to be ineffective in the context of its application for annulment of the decision to reject the tender. 119 Moreover, it should be recalled that, as paragraphs 56 to 82 above make clear, the Commission did not commit a manifest error of assessment in using the number of ‘man-days’ as a parameter to evaluate the effort proposed for the takeover phase of the project. 120 Furthermore, it should be recalled that quality criterion Q1, as is clear from paragraph 5.1.2.1 of Annex VI to the tendering specifications, was designed to evaluate the strategy that tenderers planned to implement to ‘take over the existing systems and activities’ in order to ensure that, at the end of the takeover phase, they would be ‘ready to provide the services required’. 121 It is clear from the wording of that criterion that the number of ‘man-days’ proposed in view of the tasks required could be one of the elements of an effective takeover of the existing activities and systems. It must be considered that that element is not a criterion as such, but is an indissociable element of the evaluation of the strategy proposed for the takeover phase and could therefore be taken in account in the application of quality criterion Q1 (see, to that effect, Evropaïki Dynamiki v EMCDDA, cited in paragraph 34 above, paragraph 51). 122 Lastly, as regards the claim relating to the source codes and other material concerning DG Regional Policy’s IT systems, the applicant has not shown that the fact that it did not have access to those data infringed the principle of equal treatment. It must be held, as the Commission has pointed out, that all the tenderers had access to the same type of technical information concerning the IT system used by DG Regional Policy and that they were therefore in the same position when preparing their tenders. In those circumstances, it cannot be held that there was discrimination in the present case by reason of a lack of access to the source codes. 123 The second part must be rejected as unfounded and the plea must therefore be rejected in its entirety. 124 It follows from all of the foregoing that the applicant’s application for annulment of the decision to reject the tender must be dismissed. The application for damages 125 The applicant seeks the sum of EUR 4 520 845.05 by way of damages corresponding to its estimated gross profit from the contested public contract, taking account of the net profit on the contract and, in accordance with case‑law, the general costs incurred by the applicant in order to participate in the tendering procedure in question (Case T‑160/03 AFCon Management Consultants and Others v Commission [2005] ECR II‑981, paragraph 102). The applicant states that its application for damages stems from the unlawfulness of the Commission’s decision contained in the letter of 21 November 2008. In that regard, it submits that it has shown that the decision of the evaluation committee was based on manifest errors of assessment, on the infringement of essential procedural requirements, on the infringement of the principle of equality and on the failure to give an adequate statement of reasons. 126 The Commission disputes the applicant’s arguments. 127 According to settled case-law, in order for the Community to incur non-contractual liability, within the meaning of the second paragraph of Article 288 EC, for the unlawful conduct of its institutions, a number of requirements must be met, namely that the alleged conduct of the institutions is unlawful, that the damage is real and that there is a causal link between the conduct alleged and the damage relied upon (Joined Cases C‑120/06 P and C‑121/06 P FIAMM and Others v Council and Commission [2008] ECR I‑6513, paragraph 106; Case C‑419/08 P Trubowest Handel and Makarov v Council and Commission [2010] ECR I‑2259, paragraph 40; Evropaïki Dynamiki v EMCDDA, cited in paragraph 34 above, paragraph 126). 128 It follows from the case-law cited above that it is sufficient that only one of the conditions relating to non-contractual liability on the part of the Commission is not satisfied for the conclusion to be drawn that no such liability exists (see, to that effect, Case C‑146/91 KYDEP v Council and Commission [1994] ECR I‑4199, paragraph 81). 129 In the present case, since the applicant has not succeeded in proving that the Commission acted unlawfully, as is made clear by the considerations concerning the application for annulment of the decision to reject the tender set out in paragraphs 27 to 124 above, its application for damages must be rejected in its entirety without it being necessary to examine the other conditions. 130 It follows that the application for damages in respect of the damage allegedly suffered by reason of the decision contained in the letter of 21 November 2008 must be dismissed as unfounded. 131 In the light of the foregoing, the action must be dismissed in its entirety. Costs 132 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. 133 Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the Commission. 134 The applicant nevertheless asks the General Court to order the Commission to pay the applicant’s legal costs even if the application is rejected, pursuant to the second subparagraph of Article 87(3) of the Rules of Procedure. In essence, it argues that the incorrect evaluation of its tender by the Commission, the lack of reasoning and the fact that the Commission did not send it the evaluation committee’s report forced it to bring the present action. 135 Under the second subparagraph of Article 87(3) of the Rules of Procedure, the Court may order a party, even if successful, to pay to the other party costs which it has caused that party to incur and which the Court considers to be unreasonable or vexatious. 136 According to case-law, that provision is to be applied where a European Union institution, by its conduct, contributed towards creating the conditions for the dispute to arise (Case T‑73/95 Oliveira v Commission [1997] ECR II‑381, paragraphs 51 and 52, and Case T‑81/95 Interhotel v Commission [1997] ECR II‑1265, paragraphs 81 and 82). 137 In the present case, an analysis of the Commission’s conduct towards the applicant provides no basis for it to be ordered to pay the costs pursuant to the second subparagraph of Article 87(3) of the Rules of Procedure. 138 It should be recalled that an examination of the Commission’s evaluation of the tender does not show that the Commission committed any manifest errors in the assessment of the applicant’s tender. Moreover, the Commission, in having communicated all of the information required by Article 100(2) of the Financial Regulation, did not infringe its obligation to state reasons. Likewise, pursuant to that provision, the Commission was not required, contrary to what the applicant claims, to provide the latter with a full copy of the evaluation report. 139 In those circumstances, it must be held that the Commission’s conduct did not contribute towards creating the conditions for the dispute to arise, as that conduct complied with the European legislation, with the result that the applicant was not forced to bring proceedings before the Court. 140 The applicant’s request must consequently be rejected. On those grounds, THE GENERAL COURT (Eighth Chamber) hereby: 1. Dismisses the action; 2. Orders Evropaïki Dynamiki – Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE to pay the costs. Truchot Martins Ribeiro Kanninen Delivered in open court in Luxembourg on 19 April 2012. [Signatures] * Language of the case: English.