Judgment — ECLI:EU:C:2009:752
Date: 2009-12-03
Language of the case: English
Court formation: Eighth Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Right of establishment;Approximation of laws;Freedom to provide services
Concepts: Appeals
Procedure: Action for annulment;Appeal - unfounded
Origin: Greece

summary table of the tenders and the ranking of the tenderers, in which the appellant came in fourth place, were drawn up by the evaluation committee in section 5.4 of the evaluation report, precisely where reference is made to the incorrect evaluation criteria. It follows that the Court of First Instance was correct to hold that the typographical error in section 5.4 was of no relevance as regards the tender procedure. 20 Consequently, the appellant’s complaint that the Court of First Instance relied solely on an oral declaration made at the hearing by an agent of the Commission on the basis of information obtained from an official of DG AGRI of the Commission present at the hearing, and who was not a member of the evaluation committee, has no basis. 21 In any event, an agent of the Commission appointed in accordance with the first sentence of Article 19 of the Statute of the Court of Justice represents the Commission at the hearing before the Court of First Instance and, on that basis, may, at that hearing, make statements on behalf of that institution. For the purposes of assessing the value of such a statement, there is nothing to be gained by making enquiries as to the source, within that institution, from which that agent obtained the information. 22 In the light of the above, it must be held that, by holding that the appellant had not succeeded in establishing to the requisite legal standard that the Commission had committed a manifest error of assessment and, thus, that the typographical error in section 5.4 of the evaluation committee’s report had not affected the procedure for the award of the contract in question, the Court of First Instance correctly stated the reasons for its decision. 23 Consequently, the present plea must be rejected as unfounded. The second plea The second part of the plea – Position of the parties 24 In the second part of its second plea, which should be examined first, the appellant criticises the finding of the Court of First Instance that the evaluation committee’s statement of reasons rejecting its tender, which was sent to it by letter of the Commission dated 10 December 2004, was adequate. The lack of detail relating to the scores and the few general comments from the evaluation committee’s report did not enable the appellant to prepare its defence satisfactorily. 25 The Commission submits that the Court of First Instance did not err in law by holding that the extracts from the non-confidential version of the evaluation committee’s report specifying the name of the successful tenderer, the relative advantages of its tender in the light of the three quality criteria, the details of the calculation by which the quality/price ratio of the tenders was determined, their ranking and the general observations comparing the appellant’s tender with that of the successful tenderer constitute adequate reasons for the rejection of the appellant’s tender. In addition, the fact that the reasons given were succinct and that, initially, the entire report was not communicated, but that fuller explanations were provided subsequently, does not call into question the adequacy of those reasons. – Findings of the Court 26 It should be noted that the Commission’s letter of 10 December 2004, as the Court of First Instance states in paragraphs 126 to 129 of the judgment under appeal, provides information on several points in reply to the appellant’s request for detailed explanations, namely the name of the successful tenderer and of the subcontractor, the advantages of the successful tender in comparison with that of the appellant in the light of the three qualitative award criteria laid down in the tender specifications and the comparison of the tenders with regard to price. The information communicated was presented in the form of three tables. The first table enables the appellant’s tender to be compared with that of the successful tenderer in the light of the qualitative criteria and their weighting. The second table analyses, by way of a written summary, the appellant’s tender in comparison with that of the successful tenderer. The third table analyses the quality/price ratio of the appellant’s tender, by comparing it with the successful tender. 27 Thus, it is apparent from that letter of 10 December 2004 that the appellant’s tender had not been ranked, on any of the three qualitative criteria set out in the tender specifications, ahead of the successful tender. In addition, it is apparent from the third table that, in the final ranking, the appellant’s tender was placed in fourth position. 28 Consequently, it must be held that the information communicated by the Commission to the appellant satisfies the requirements laid down in Article 100(2) of the Financial Regulation and Article 149(2) of the Implementing Rules. 29 The Court of First Instance therefore correctly applied the relevant provisions. 30 The second part of the second plea must therefore be rejected as unfounded. The first part of the plea – Position of the parties 31 In the first part of its second plea, the appellant objects that the Court of First Instance, while finding that the Commission was late in replying to its additional requests of 29 and 30 September 2004, by letter dated 26 January 2005, actually sent on 7 February 2005, held that that delay had not affected the appellant’s rights of defence with respect to the decision at issue. Consequently, by holding that that plea did not amount to a sufficient reason for annulling that decision, despite a flagrant breach of the duty of diligence and the principle of good administration, the Court of First Instance failed to apply the relevant provisions of Community law and the principles of transparency and equal treatment. 32 The Commission states that the late reply which it gave to the appellant, although constituting a breach of the duty of diligence and good administration, nevertheless did not affect the appellant’s rights of defence with respect to the decision at issue. All the necessary information was communicated to the appellant before the expiry of the period within which it could challenge that decision. Consequently, in the opinion of the Commission, the Court of First Instance did not err in law as it is alleged to have done. – Findings of the Court 33 The Court of First Instance held in paragraphs 151 to 158 of the judgment under appeal that, by not replying to the appellant’s requests of 29 and 30 December 2004 within a reasonable period of time, the Commission had failed in its duty of diligence and good administration. However, the finding of such a breach, in the view of the Court of First Instance, did not suffice to render the decision at issue unlawful nor to have it annulled, in so far as the Commission’s delay in replying to the appellant’s requests did not affect the appellant’s rights of defence with respect to that decision. 34 Since, as was held in paragraphs 26 and 28 of this judgment, the Commission’s letter of 10 December 2004 provided the information requested, the appellant’s subsequent requests of 29 and 30 December 2004 and the Commission’s reply of 26 January 2005 do not play any role in the consideration of the substance of the case. 35 Therefore, although the Commission failed in its duty of diligence and good administration by being late in replying to those requests, the fact remains that the appellant already had the necessary information in order to protect its rights of defence with respect to the decision at issue. 36 The first part of the second plea must therefore be rejected as unfounded. 37 In those circumstances, the appeal must be dismissed in its entirety as unfounded. Costs 38 Under Article 69(2) of the Rules of Procedure, which applies to appeal proceedings 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 (Eighth Chamber) hereby: 1. Dismisses the appeal; 2. Orders Evropaïki Dynamiki – Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE to pay the costs. [Signatures] * Language of the case: English.