Judgment;Information — ECLI:EU:T:2024:907
Date: 2024-12-18
Language of the case: English
Court formation: Third Chamber
Subject matter: Public procurement in the European Union
Procedure: Action for annulment - unfounded
Origin: Slovenia

summary manner (see judgment of 17 January 2017, Cofely Solelec and Others v Parliament, T‑419/15, not published, EU:T:2017:8, paragraph 61 and the case-law cited). Furthermore, a certain effort to interpret the reasons may be expected if the meaning of the text is not immediately clear, and Article 296 TFEU is not infringed if it is possible to resolve ambiguities in the statement of reasons by means of such interpretation (judgment of 12 December 1996, Rendo and Others v Commission, T‑16/91, EU:T:1996:189, paragraph 46; see also, to that effect, judgment of 24 September 2008, DC-Hadler Networks v Commission, T‑264/06, not published, EU:T:2008:400, paragraph 32). 74 The applicant was or ought to have been familiar with the rules applicable to the call for tenders in question, as they were all available via the ‘Funding & Tenders’ portal, which also had to be used to submit the proposal. Furthermore, it is apparent from page 5 of the project proposal that the applicant knew or ought to have known that the supporting evidence relating to control of the consortium members was required to be provided in Annex 6. Indeed, on that page, the applicant responded to questions relating to control of the consortium members. At the bottom of the part relating to the consortium members there is a note stating that ‘evidence [must be] provided in the proposal in Annex 6’. 75 The admissibility requirements for the project proposal were set out in Section 3.2.3 of the conditions for the calls and the form identified with sufficient precision to meet the legal standard the concrete information and supporting documents that were required to be submitted in and with the proposal. Section 3.2.1 of the conditions for the calls then set out the consequence of the project proposal not complying with those admissibility conditions. Having regard to the context known to the applicant, the fact that the legal basis was not stated in the contested decision does not mean that it was impossible for the applicant to know, with sufficient precision, why its proposal had been rejected. Indeed, it is apparent from the case-law that, where documents relating to the call for tenders or the call for proposals specify and clarify the requirements, a statement of reasons indicating rejection for failure to meet the criteria set out in those documents is regarded as sufficient (see, to that effect, judgments of 9 September 2010, Carpent Languages v Commission, T‑582/08, not published, EU:T:2010:379, paragraphs 42 and 43, and of 10 September 2019, BP v Court of Justice of the European Union, T‑51/18, not published, EU:T:2019:570, paragraph 25). 76 Furthermore, the letter of 20 July 2022 makes reference to the conditions for the calls, which set out the admissibility conditions, refer to the submission form and state the consequences of the tender failing to meet the admissibility conditions. 77 It follows that the statement of reasons in the contested decision clearly and unequivocally indicates the Commission’s reasoning, in a factual and regulatory context that was well known to the applicant. 78 It cannot, therefore, be complained that the Commission infringed the obligation to state reasons. 79 The second plea must, therefore, be rejected. The third plea, alleging infringement of the principle of sound administration 80 According to the applicant, the right to sound administration requires the competent institution to examine carefully and impartially all the relevant aspects of the individual case. It follows from that right, the applicant submits, as well as from the procedure described in the guide for applicants, which as a set of guidelines can be relied on against the Commission, that since the applicant had provided all the requisite documents in due time, the Commission, before adopting the contested decision, could and should have asked it to provide additional explanations, if it considered that the information provided in Annex 6 was insufficient. 81 By failing to comply with its own guidelines, the Commission infringed the principle of sound administration. 82 The Commission disputes the applicant’s arguments. 83 The principle of sound administration entails the duty of the competent institution to examine carefully and impartially all the relevant aspects of the individual case (see judgments of 29 March 2012, Commission v Estonia, C‑505/09 P, EU:C:2012:179, paragraph 95 and the case-law cited, and of 8 October 2020, Union des industries de la protection des plantes, C‑514/19, EU:C:2020:803, paragraph 50 and the case-law cited; judgment of 21 February 2024, Greenspider v Eismea, T‑733/21, not published, EU:T:2024:104, paragraph 102). 84 In the present case, the Commission has not infringed that principle in any way. Indeed, it is apparent from Section 3.2.3 of the conditions for the calls that if a proposal does not satisfy all the admissibility conditions, the Commission is obliged to reject it as inadmissible. It inevitably follows that the failure to provide even one mandatory item of information or one mandatory document necessarily results in the project proposal being inadmissible. It has also been established that all the mandatory documents had to be provided together with the proposal by the deadline for submission of proposals. It is only supplementary evidence, that is to say evidence other than, or additional to, that which was to have been provided by the submission deadline with the proposal, that may be requested from the interested party on the initiative of the Commission (see paragraphs 41 to 44, 47 and 49 above). 85 It follows from paragraphs 44 to 46 above that no amendments or additions can be made after the submission deadline, unless the Commission contacts the applicant with a view to correcting obvious clerical errors or to clarify the contents of the proposal. As the Commission contends, in essence, the failure to provide mandatory information or supporting evidence cannot be regarded as an obvious clerical error. Equally, the Commission cannot correct such a failure by means of a request for clarification of the contents of the proposal, as such a request must relate to existing information or evidence, not information or evidence that is missing. 86 Furthermore, the first paragraph of Article 151 of the Financial Regulation states that the authorising officer responsible may correct obvious clerical errors in application documents after confirmation of the intended correction by the participant. In accordance with the second paragraph of Article 151 of that regulation, where a participant fails to submit evidence or to make statements, the authorising officer responsible is to ask the participant to provide the missing information or to clarify supporting documents. The third paragraph of Article 151 of that regulation provides that such information, clarification or confirmation must not substantially change application documents. 87 In the present case, if the Commission had asked the applicant to submit the missing supporting evidence, the applicant would have had an opportunity to supplement the project proposal, which would have been substantially changed. The submission of the missing evidence would have transformed a proposal which was incomplete, and therefore inadmissible, into a complete, admissible proposal (see, to that effect and by analogy, judgment of 6 October 2021, Global Translation Solutions v Parliament, T‑7/20, not published, EU:T:2021:649, paragraphs 61 to 63, and order of 28 February 2023, Telefónica de España v Commission, T‑170/22 R-RENV, not published, EU:T:2023:89, paragraphs 76 and 77). 88 In the interest of respecting the principles of transparency and of equal treatment, the possibility of requesting clarifications must be interpreted strictly. 89 It follows, as concluded in paragraph 59 above, that, since the failure to provide all the mandatory information or documents necessarily leads to the proposal being inadmissible in its entirety, the Commission has no power to contact applicants individually so that they can supplement their proposals by providing information or supporting documents that were to have been submitted with those proposals by the submission deadline. 90 The third plea must, therefore, be dismissed. The fourth plea, alleging infringement of the right to be heard 91 According to the applicant, it was only by virtue of the contested decision that it was able to come to a partial understanding that the reason why its proposal was inadmissible was that insufficient detail had been provided in relation to Annex 6. The contested decision was not, however, amenable to an admissibility review, and so the applicant was not able to defend itself. The Commission was wrong to consider that the applicant had not provided all the documents when it submitted its project proposal, which it rejected on that ground by its letter of 20 July 2022. The Commission knowingly made an obvious mistake and, instead of giving the applicant an opportunity to answer its new claim that Annex 6 had not been completed sufficiently, it adopted the contested decision at a stage when no further review was possible. It disregarded the provisions of the guide for applicants, which clearly allow applicants to supplement their applications after the submission deadline with respect to all the information contained in Annex 6, and thus infringed the applicant’s right to be heard. 92 The Commission had full knowledge of the fact that the applicant was deprived of the first stage examination and that its application was only examined after the review request. 93 Furthermore, the contested decision did not declare the project proposal inadmissible on the ground that supporting documents were missing, but on the ground that an insufficient description had been given as regards corporate governance. 94 The Commission disputes the applicant’s arguments. 95 Observance of the rights of the defence is a fundamental principle of EU law, in which the right to be heard is inherent (see judgments of 3 July 2014, Kamino International Logistics and Datema Hellmann Worldwide Logistics, C‑129/13 and C‑130/13, EU:C:2014:2041, paragraph 28 and the case-law cited, and of 13 June 2024, C (Court-appointed administrators and liquidators), C‑696/22, EU:C:2024:499, paragraph 104). 96 The right to be heard is affirmed not only in Articles 47 and 48 of the Charter of Fundamental Rights of the European Union, which ensure respect for both the rights of the defence and the right to fair legal process in all judicial proceedings, but also in Article 41 of the Charter, which guarantees the right to good administration. Article 41(2) of the Charter of Fundamental Rights provides that the right to good administration includes, inter alia, the right of every person to be heard before any individual measure which would affect him or her adversely is taken (see judgment of 3 July 2014, Kamino International Logistics and Datema Hellmann Worldwide Logistics, C‑129/13 and C‑130/13, EU:C:2014:2041, paragraph 29 and the case-law cited; judgments of 4 June 2020, EEAS v De Loecker, C‑187/19 P, EU:C:2020:444, paragraph 67, and of 9 February 2022, Elevolution – Engenharia v Commission, T‑652/19, not published, EU:T:2022:63, paragraph 60). 97 The right to be heard is required even where the applicable legislation does not expressly provide for such a procedural requirement (judgments of 3 July 2014, Kamino International Logistics and Datema Hellmann Worldwide Logistics, C‑129/13 and C‑130/13, EU:C:2014:2041, paragraphs 31 and 39, and of 7 December 2018, GE.CO.P. v Commission, T‑280/17, EU:T:2018:889, paragraph 44). 98 The Courts of the European Union have stated that the right to be heard cannot be a concept of variable contours and thus applies regardless of who initiated the procedure in which it was invoked (see, to that effect, judgments of 4 June 2020, EEAS v De Loecker, C‑187/19 P, EU:C:2020:444, paragraphs 73 to 75, and of 13 December 2018, De Loecker v EEAS, T‑537/17, not published, EU:T:2018:951, paragraphs 64 and 65). 99 In accordance with that principle, the addressees of decisions which significantly affect their interests must be placed in a position in which they can effectively make known their views as regards the information on which the authorities intend to base their decision (judgments of 3 July 2014, Kamino International Logistics and Datema Hellmann Worldwide Logistics, C‑129/13 and C‑130/13, EU:C:2014:2041, paragraph 30, and of 7 December 2018, GE.CO.P. v Commission, T‑280/17, EU:T:2018:889, paragraph 44). 100 That right extends to all the factual and legal material which forms the basis of the decision, but not to the final position which the authority intends to adopt (judgments of 16 June 2015, Gako Konietzko v OHIM (Shape of a cylindrical container in red and white), T‑654/13, not published, EU:T:2015:381, paragraph 42, and of 17 April 2024, Insider v EUIPO – Alaj (in Insajderi), T‑119/23, EU:T:2024:253, paragraph 30). Thus, that right does not require that, before taking a final position on the assessment of the evidence submitted by a party, the authority must offer that party a further opportunity to comment on that evidence (judgment of 14 July 2021, Interpipe Niko Tube and Interpipe Nizhnedneprovsky Tube Rolling Plant v Commission, T‑716/19, EU:T:2021:457, paragraph 211). 101 The existence of an irregularity in the respect of that right can lead to the annulment of the contested measure only to the extent that there is a possibility that, in the absence of that irregularity, the administrative procedure might have resulted in a different result, thereby materially affecting the rights of defence of the party concerned. However, that party cannot be required to demonstrate that the contested decision would have been different, but simply that such a possibility cannot be totally ruled out, since that party would have been better able to defend itself in the absence of the procedural error complained of (see, to that effect, judgments of 14 July 2021, Interpipe Niko Tube and Interpipe Nizhnedneprovsky Tube Rolling Plant v Commission, T‑716/19, EU:T:2021:457, paragraph 210, and of 1 March 2023, Hengshi Egypt Fiberglass Fabrics and Jushi Egypt for Fiberglass Industry v Commission, T‑301/20, EU:T:2023:93, paragraph 56). 102 On the other hand, it is for the party concerned to establish specifically how it would have been better able to ensure its defence in the absence of that procedural irregularity, without merely pleading that it was impossible for it to provide comments on hypothetical situations (judgment of 10 April 2019, Jindal Saw and Jindal Saw Italia v Commission, T‑300/16, EU:T:2019:235, paragraph 79). 103 In the present case, in the first place, as follows from the rejection of the first plea, the Commission was obliged, by reason of the circumscribed power it was exercising, to reject the project proposal at the admissibility stage (see, in particular, paragraphs 49 and 60 above). 104 In the second place, it is apparent inter alia from paragraphs 41 and 43 to 45, 59 and 84 to 89 above that, contrary to the applicant’s submissions, it was not able to supplement its project proposal after the submission deadline by providing information or evidence that were to have been provided before the deadline. 105 In the third place, the applicant is wrong to submit that the contested decision did not declare the project proposal inadmissible on the ground that supporting documents were missing, but on the ground that an insufficient description had been given as regards corporate governance (paragraph 93 above). As has been established in paragraphs 57 and 71 above, the contested decision makes clear that the project proposal was rejected because it was incomplete. The Commission expressly stated that the missing documents related to Annex 6, and cannot validly be criticised for stating in the contested decision that, ‘as an example’, another aspect of Annex 6 had not been covered, in that there was no sufficient description of the corporate governance. There can be no doubt that the deficiencies making the project proposal inadmissible were identified in the contested decision. 106 In the fourth place, it is apparent from the letter of 20 July 2022 that the rejection to which it relates is based on the application being incomplete, having regard to the conditions for the calls. Bearing in mind the context as known to the applicant, it was easily possible for it to identify the missing documents. 107 The contested decision stated that the lack of supporting documents related to Annex 6 and added that the corporate governance had not been sufficiently described. 108 Even supposing that that level of detail ought to have been provided in the letter of 20 July 2022, the applicant has in no way demonstrated that it would thereby have been better able to defend itself, or indeed that it could not be totally ruled out that the contested decision would have been different. As has been explained notably in paragraphs 103 and 104 above, it is apparent both from the conditions for the calls and from the project proposal form that the proposals were required to be complete as regards the information and supporting evidence that was required to be submitted by the deadline and that it was not possible for applicants to add such evidence or information. While the Commission may invite applicants to provide supplementary information or documents, this does not include information or documents that should already have been provided in or with the proposal. If it were otherwise, the deadline for submitting proposals and the admissibility conditions themselves could be circumvented. 109 It follows that the Commission’s decision could not possibly have been different. 110 Consequently, the fourth plea must be rejected and, accordingly, the action must be dismissed in its entirety. Costs 111 Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. 112 The applicant must, therefore, be ordered to bear its own costs and to pay those incurred by the Commission, in accordance with the form of order sought by the Commission. On those grounds, THE GENERAL COURT (Third Chamber) hereby: 1. Dismisses the action; 2. Orders Institut Jožef Stefan to pay the costs. Škvařilová-Pelzl Steinfatt Kukovec Delivered in open court in Luxembourg on 18 December 2024. V. Di Bucci S. Papasavvas Registrar President * Language of the case: English.