Order — ECLI:EU:C:2011:791
Date: 2011-11-29
Language of the case: English
Court formation: Seventh Chamber
Subject matter: Public procurement in the European Union
Procedure: Action for annulment;Appeal - unfounded;Appeal - inadmissible;Action for damages
Origin: Greece

summary of how each detail of its tender was taken into account when the tender was evaluated. 51 Similarly, as regards the argument that the presence in the successful tenderer’s bid of an engineer responsible for monitoring the quality of the IT services provided (a ‘quality engineer’) was positively evaluated in the evaluation report, it should be noted that, in the context of notification of the characteristics and relative merits of the successful tender, the contracting authority cannot be required to undertake a detailed comparative analysis of the successful tender and of the unsuccessful tender (see order in Case C-561/10 P Evropaïki Dynamiki v Commission [2011] ECR I‑0000, paragraph 27). 52 In those circumstances, the General Court did not err in paragraph 65 of the judgment under appeal. 53 As to the remainder, it must be recalled that, according to settled case‑law, it follows from Article 256 TFEU, the first paragraph of Article 58 of the Statute of the Court of Justice and Article 112(1)(c) of the Rules of Procedure that an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of the appeal (see, inter alia, Case C‑352/98 P Bergaderm and Goupil v Commission [2000] ECR I‑5291, paragraph 34; Case C‑41/00 P Interporc v Commission [2006] ECR I‑2125, paragraph 15; and Case C‑131/03 P Reynolds Tobacco and Others v Commission [2006] ECR I‑7795, paragraph 49). 54 With the exception of the argument directed against paragraph 65 of the judgment under appeal, Evropäiki Dynamiki fails to indicate with sufficient precision, in its appeal, those parts of that judgment to which it objects, but merely develops abstract arguments concerning the scope of the Commission’s obligation to state reasons. 55 Therefore, the second ground of appeal must be rejected as being in part clearly inadmissible and in part clearly unfounded. The third ground of appeal Arguments of the parties 56 Evropäiki Dynamiki’s argument relating to the third ground of appeal overlaps to a large extent with the argument alleging breach of the obligation to state reasons raised in support of its second ground of appeal. In addition, Evropäiki Dynamiki complains that the General Court failed to conclude that the principle of equal treatment had been infringed, even though it found, in paragraph 76 of the judgment under appeal, in relation to Lot No 1, that the presence of a quality engineer had been positively evaluated in the case of the successful tenderer, but not in the case of Evropäiki Dynamiki. Lastly, Evropäiki Dynamiki complains that the General Court failed to take account of the fact that many of the merits of the successful tender stemmed from the fact that, as a previous contractor, it had privileged access to the ‘source’ code and technical documentation of the CITL/CR projects. 57 The Commission contends that this ground of appeal is also inadmissible. First, such a ground of appeal amounts to a request for an assessment of the facts and, second, Evropäiki Dynamiki raises a new plea, in so far as it complains that the General Court failed to take account of the advantages enjoyed by the successful tenderer. Findings of the Court 58 Evropäiki Dynamiki complains, first of all, that the General Court failed to penalise a difference in treatment between itself and the successful tenderer stemming from the fact that the presence of a quality manager in Evropäiki Dynamiki’s tender had been overlooked by the evaluation committee. In that connection, it suffices to find that the General Court was able to conclude, without erring in law, that, in any event, that difference in treatment was objectively justified. Indeed, Evropäiki Dynamiki has not disputed that that quality manager was not included in the team responsible for the specific task in the tender specifications, or that his role or involvement in that task was not clearly set out. In those circumstances, the General Court did not err in law in concluding that the Commission could not take into account the quality manager in evaluating Evropäiki Dynamiki’s bid and that the presence of that manager could not therefore be evaluated positively. 59 In its appeal, Evropäiki Dynamiki then complains that the General Court infringed the principle of equal treatment by failing to take account of the fact that many of the merits of the successful tender stemmed from the tenderer’s privileged access – as a previous contractor – to the ‘source’ codes and technical documentation of the CITL/CR projects. 60 In that connection, it must be observed that when Evropäiki Dynamiki submitted, at first instance, that the contested decisions infringed the principle of equal treatment, it only disputed, in relation to Lot No 1 and the third award criterion, the difference in treatment referred to in paragraph 58 above. 61 However, the Court of Justice has consistently held that to allow a party to put forward for the first time before it a plea which the party did not raise before the General Court would be to authorise it to bring before the Court of Justice, whose jurisdiction in appeals is limited, a case of wider ambit than that which came before the General Court. In an appeal, the jurisdiction of the Court of Justice is confined to review of the findings of law on the pleas argued before the General Court (see, inter alia, Joined Cases C‑514/07 P, C‑528/07 P and C‑532/07 P Sweden and Others v API and Commission [2010] ECR I‑0000, paragraph 126 and case-law cited). 62 Since, in other respects, Evropäiki Dynamiki simply refers to the principle of equal treatment, without specifying other information capable of substantiating the claim that that principle has been breached – contrary to the case‑law cited in paragraph 40 above – the third ground of appeal must be rejected as being in part clearly inadmissible and in part clearly unfounded. The fourth ground of appeal Arguments of the parties 63 By its fourth ground of appeal, Evropäiki Dynamiki submits that the General Court infringed Article 41 of the Charter by failing to provide sufficient reasons in its judgment. The General Court, in particular in paragraph 65 of the judgment under appeal, failed to carry out a proper examination, in the light of the circumstances of the case, of the plea in law raised by Evropäiki Dynamiki at first instance alleging insufficient reasoning of the evaluation report. The General Court thus accepted the vague and general terms used by the Commission and failed, in particular, to invite the latter to submit a detailed copy of the evaluation report and of the successful tender. 64 The Commission contends that the present ground of appeal must be rejected as inadmissible in that it does not satisfy the need for precision and clarity required by the Court’s case-law. In any event, since the General Court fully satisfied its obligation to state reasons under that case-law, the present ground of appeal is unfounded. Findings of the Court 65 The arguments alleging that the judgment under appeal is insufficiently reasoned – which, in Evropäiki Dynamiki’s submission, constitutes an infringement of Article 41 of the Charter – cannot be upheld. 66 In so far as the present ground of appeal is directed at paragraph 65 of the judgment under appeal – the only paragraph of that judgment addressed in this ground of the appeal – it should be recalled that, according to settled case-law, the obligation of the General Court to state reasons, pursuant to the first sentence of Article 36 and the first paragraph of Article 53 of the Statute of the Court of Justice, does not require the General Court to provide an account which follows exhaustively and one by one all the arguments put forward by the parties to the case. The reasoning may therefore be implicit on condition that it enables the persons concerned to know why the General Court has not upheld their pleas in law or arguments and provides the Court of Justice with sufficient material for it to exercise its power of review (see, inter alia, Joined Cases C-120/06 P and C‑121/06 P FIAMM and FIAMM Technologies v Council and Commission [2008] ECR I-6513, paragraph 96, and Case C-252/10 P Evropaïki Dynamiki v EMSA [2011] ECR I-0000, paragraph 46). 67 It is apparent from paragraph 65 of the judgment under appeal that the General Court explained sufficiently the reasons for which it considered that the Commission had fulfilled its obligations under Article 100(2) of the Financial Regulation and Article 149(2) and (3) of the Implementing Rules, notwithstanding the fact that there was no mention of a quality manager in the evaluation report. 68 As to the remainder, the present ground of appeal is inadmissible, in accordance with the case-law cited in paragraph 53 above. 69 Consequently, the fourth ground of appeal must be rejected as being in part clearly inadmissible and in part clearly unfounded. 70 It follows from the foregoing considerations that none of the grounds relied on by Evropäiki Dynamiki in support of its appeal can be upheld and, accordingly, the appeal must be dismissed in its entirety. Costs 71 Under Article 69(2) of the Rules of Procedure, which applies to the procedure on appeal by virtue of Article 118 thereof, 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 Commission has applied for costs to be awarded against Evropaïki Dynamiki and the latter has been unsuccessful, Evropaïki Dynamiki must be ordered to pay the costs. On those grounds, the Court (Seventh Chamber) hereby orders: 1. The appeal is dismissed. 2. Evropaïki Dynamiki – Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE shall pay the costs. [Signatures] * Language of the case: English.