Judgment — ECLI:EU:T:2015:5
Date: 2015-01-14
Language of the case: English
Court formation: Third Chamber
Subject matter: Public procurement in the European Union
Procedure: Action for damages - unfounded;Action for annulment - successful;Action for annulment - inadmissible
Origin: Belgium

summary of the pleas in law on which the application is based. That statement must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to exercise its power of review. In order to guarantee legal certainty and the sound administration of justice, it is necessary that the basic legal and factual particulars relied on be indicated, at least in summary form, coherently and intelligibly in the application itself (judgment of 17 October 2012 in Evropaïki Dynamiki v Court of Justice, T‑447/10, EU:T:2012:553, paragraph 27). 25 In the present case, the applicants do not specify which other decisions are concerned apart from the decision of 18 October 2011, with the exception of the decision to award the main contract to the tenderer ranked first. Moreover, they do not develop any argument in support of their application for annulment of those other decisions, including that to award the main contract to that tenderer. 26 Consequently, it is necessary to examine only the merits of the application for annulment of the decision of 18 October 2011, by which the Parliament ranked the applicants’ tender in second place. Merits of the application for annulment 27 In support of their application for annulment of the contested decision, the applicants put forward five pleas in law, the first, alleging mixing of the selection and award criteria and amalgamating the phases of the tendering procedure, the second, alleging non-compliance with Article 100(2) of the Financial Regulation, the third, concerning the composition of the Evaluation Committee, the fourth, alleging inaccurate and inappropriate selection and award criteria and the taking into consideration of criteria that were not notified to all tenderers and the fifth, alleging failure of the evaluation committee to demand proof of training and experience in translation of the tenderers’ staff. 28 The Court considers it appropriate to begin by examining the second plea. 29 By that plea, the applicants claim, in essence, that the Parliament did not provide them with information that it was required to provide in the context of the tendering procedure at issue, and that would have enabled the applicants, in particular, to judge whether or not it was advisable to bring an action. 30 First, the applicants argue that the Parliament did not provide an adequate explanation concerning the points which it included in its evaluation report, since it used vague terms including very limited information, on the evaluation of their offer and that of the tenderer ranked first. The comments of the evaluation committee are far from providing sufficient grounds enabling the reasons for which the award decision was taken to be understood. 31 Second, the applicants criticise the evaluation committee for not verifying whether the tenders satisfied the evaluation criteria. They indicate that none of the communication between them and the Parliament mentions the evaluation criteria. The applicants also argue that, even if such an assessment had been carried out, the obligation to state reasons for the award decision is not complied with if that evaluation is not mentioned. 32 Third, according to the applicants, the information provided by the Parliament does not allow them to have a clear understanding of the merits of the successful tenderer awarded the main contract in terms of the experience or specialisation of its translators and revisers concerning the area covered by the call for tenders at issue. 33 Fourth, the applicants point out that the Parliament refused to provide them with information about the financial offer of the successful tenderer ranked first, even though the price was one of the main criteria which resulted in the applicants being ranked second. For the sake of transparency, it is quite logical that an unsuccessful tenderer should have knowledge of that information in order to be able to assess the reasons which led to the rejection of its tender. 34 In that regard, the applicants submit that no tenderer was able both to formulate an offer likely to receive a quality mark as high as that attributed to the successful tenderer ranked first and to offer a price so low as to reverse the ranking in the evaluation of the tenders. The applicants challenge the marks awarded for quality of the team of the successful tenderer for the main contract, considering that either that team was greatly overvalued or the evaluation formula was incorrectly applied. However, the Parliament refused to disclose the price offered by the successful tenderer ranked first and the lowest price offered by tenderers, which would have allowed the application of the evaluation formula to be checked. 35 The applicants claim that the price offered by the tenderer ranked first should have been disclosed in any event to enable them to exercise their rights of defence and to bring an action. 36 The Parliament disputes the applicants’ arguments. 37 It argues, in essence, that the grounds on which the contested decision was based and the characteristics and relative advantages of the successful tenderer’s bid were in fact provided to the applicants. The Parliament argues that, by their letter of 17 November 2011, the applicants requested the final ranking of all candidates and points awarded for each criterion and were given in response, by letter dated 24 November 2011, information concerning the quality points and total points (including for the price) awarded to the tenderer ranked first and the applicants themselves. 38 It must be noted at the outset that the Parliament, like the other institutions, has a broad discretion with regard to the factors to be taken into account for the purpose of deciding to award a contract following an invitation to tender. The judicial review of the exercise of that discretion is therefore limited to checking that the rules governing the procedure and statement of reasons have been complied with, the facts have been accurately stated and there has been no manifest error of assessment or misuse of powers (see, by analogy, judgments of 27 September 2002 in Tideland Signal v Commission, T‑211/02, ECR, EU:T:2002:232, paragraph 33, and of 10 September 2008 in Evropaïki Dynamiki v Commission, T‑465/04, EU:T:2008:324, paragraph 45). 39 Where the Parliament, like the other institutions, enjoys a wide power of appraisal, respect for the rights guaranteed by the European Union legal order in administrative procedures is of fundamental importance. Those guarantees include, in particular, the duty of the competent institution to provide adequate reasons for its decisions. Only in this way can the European Union judicature verify whether the factual and legal elements upon which the exercise of the discretion depends were present (judgments of 21 November 1991 in Technische Universität München, C‑269/90, ECR, EU:C:1991:438, paragraph 14; in Evropaïki Dynamiki v Commission, paragraph 38 above, EU:T:2008:324, paragraph 54, and of 20 May 2009 in VIP Car Solutions v Parliament, T‑89/07, ECR, EU:T:2009:163, paragraph 61). 40 The requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations (see judgment of 6 May 2013 in Kieffer Omnitec v Commission, T‑288/11, EU:T:2013:228, paragraph 81 and the case-law cited). 41 Article 100(2) of the Financial Regulation requires the administration to provide complementary reasoning to tenderers which have presented an admissible tender and make an express request in that regard (see, by analogy, judgments of 8 May 1996 in Adia Interim v Commission, T‑19/95, ECR, EU:T:1996:59, paragraph 31, and of 25 February 2003 in Strabag Benelux v Council, T‑183/00, ECR, EU:T:2003:36, paragraph 54). Thus, it follows from that article, Article 149 of Commission Regulation (EC, Euratom) No 2342/2002 of 23 December 2002 laying down detailed rules for the implementation of Regulation No 1605/2002 (OJ 2002 L 357, p. 1, ‘the Implementing Rules’), and the General Court’s case-law that the Parliament, like other institutions, complies with its obligation to state reasons if, first, it merely informs any eliminated tenderer immediately of the reasons for the rejection of his tender and then provides any tenderer having made an admissible tender and expressly requesting it with the characteristics and relative advantages of the tender selected and the name of the successful tenderer, within 15 days of the date on which a written request is received (see judgment in Kieffer Omnitec v Commission, paragraph 40 above, EU:T:2013:228, paragraph 79 and the case-law cited). 42 This manner of proceeding satisfies the purpose of the obligation to state reasons laid down in Article 296 TFEU, whereby the reasoning followed by the authority which adopted the measure must be disclosed clearly and unequivocally so as, on the one hand, to enable the persons concerned to ascertain the reasons for the measure and thereby enable them to assert their rights and, on the other, to enable the Court to exercise its power of review (judgments of 14 July 1995 in Koyo Seiko v Council, T‑166/94, ECR, EU:T:1995:140, paragraph 103, and of 19 March 2010 in Evropaïki Dynamiki v Commission, T‑50/05, ECR, EU:T:2010:101, paragraph 134). 43 Finally, the obligation to state reasons is an essential procedural requirement, as distinct from the question whether the reasons given are correct, the latter going to the substantive legality of the contested measure (judgments of 22 March 2001 in France v Commission, C‑17/99, ECR, EU:C:2001:178, paragraph 35, and VIP Car Solutions v Parliament, paragraph 39 above, EU:T:2009:163, paragraph 63). 44 It is in the light of those considerations that the applicant’s arguments must be examined. 45 In the present case, in the contested decision, the Parliament informed the applicants that their offer had been accepted and that they were second on the list of tenderers. The contested decision also stated that, in accordance with Articles 23 and 24 of the specifications, the applicants were asked to provide evidence relating to the exclusion criteria provided for in Article 93 of the Financial Regulation. 46 At the outset, it must be observed that, in its defence and rejoinder, the Parliament argues, in essence, without raising a plea of inadmissibility, that the decision was intended to provide notice of the forthcoming opening of the exclusion criteria phase and that the decisive act, triggering the obligations under Article 100(2) of the Financial Regulation, was the final award decision and written record of the evaluation of 12 December 2011 in accordance with Article 147 of the Implementing Rules. In other words, during the written phase of the procedure, the Parliament argued that the contested decision was a preliminary award decision. However, at the hearing the Parliament stated, in essence, that it no longer regarded the decision as a preliminary award decision, but the final decision, and that the decision of 12 December 2011 was only a decision that had upheld the contested decision, after the verification of the exclusion criteria. 47 It should be recalled in this regard that, according to settled case-law and having regard to the objective of effective and rapid judicial protection, in particular by interlocutory measures, the possibility of review cannot be subject to the fact that the public procurement procedure in question has formally reached a particular stage. On the basis of the consideration that compliance with the procurement rules must be ensured in particular at a stage at which infringements can still be corrected, it must be concluded that an expression of the will of the contracting authority in connection with a contract, which comes in any way whatever to the knowledge of the persons interested, is amenable to review, provided that that expression has passed the stage of acts which constitute a mere preliminary study of the market or are purely preparatory and form part of the internal reflections of the contracting authority with a view to a public award procedure and is capable of producing legal effects (see, to that effect and by analogy, judgment of 11 January 2005 in Stadt Halle and RPL Lochau, C‑26/03, ECR, EU:C:2005:5, paragraphs 38 and 39). 48 In the present case, it is appropriate to consider that, by the contested decision, the applicants were informed that their offer had been ranked second on the list of tenderers and that they had been selected for the signature of the secondary framework contract. That necessarily entails the rejection of their tender for the main contract. The contested decision therefore implies, in essence, the rejection of their tender for the main contract and the fact that it had been decided to award the contract to another tenderer. 49 It follows that the contested decision is indeed the measure that gives rise to obligations stemming from Article 100(2) of the Financial Regulation. 50 It should first be noted that, in the contested decision, the Parliament did not provide the applicants with any reasons for the rejection of their tender in respect of the main contract, contrary to the provisions of Article 100(2) of the Financial Regulation. 51 Moreover, by letter of 31 October 2011, the applicants asked the Parliament, in particular, for the reasons for rejecting their tender and the names of the other successful candidates and the marks that had been awarded to those candidates. That letter may be considered as a request for additional information made pursuant to Article 100(2) of the Financial Regulation, even though it does not specifically mention either the request for the name of the successful tenderer ranked first or the characteristics and advantages relating to the successful tender. On that point, it must be held that this is clear from the title ‘the reasons for rejection’ used by the applicants. 52 In response, the Parliament sent the applicants, by letter of 11 November 2011, the names of the eight highest ranked tenderers and their quality marks and a table containing the marks and comments of the evaluation committee on the various qualitative criteria relating to the applicants’ tender. The Parliament said in its letter that the applicants’ tender had received the highest mark at the end of the evaluation on the basis of qualitative criteria, but that, for the establishment of the final ranking list, the price had yet to be taken into consideration. 53 Therefore, although the Parliament responded within 15 calendar days of receipt of the request as prescribed by Article 149(3) of the Implementing Rules, it did not provide the applicants with either the name of the successful tenderer or any information about the characteristics and relative advantages of the successful tender, even though it was required to do so under the Financial Regulation and the Implementing Rules. 54 Consequently, by several subsequent letters of 17 November and 2 and 12 December 2011, the applicants asked the Parliament for, in particular, the name of the successful tenderer ranked first, and information on the characteristics and relative advantages of that tenderer’s bid. 55 The Parliament responded to the letters of the applicants, inter alia, by the letters of 24 November and 20 December 2011 mentioned in paragraphs 10 and 15 above. 56 According to the case-law, if the institution concerned sends a letter in response to a request seeking additional explanations concerning a decision before an action is brought but after the date laid down in Article 149(3) of the Implementing Rules, that letter may also be taken into account when the Court considers whether the statement of reasons in the case in question was adequate. The requirement to state reasons must be assessed in the light of the information which the applicant possessed at the time when proceedings were brought, it being understood, however, that the institution is not permitted to replace the original statement of reasons by an entirely new statement (see judgment in VIP Car Solutions v Parliament, paragraph 39 above, EU:T:2009:163, paragraph 73 and the case-law cited). Consequently, to determine whether the Parliament satisfied its requirement to state reasons, it is necessary to consider, in addition to the contested decision and the letter of 11 November 2011, the letters of 24 November and 20 December 2011. 57 The applicants, in essence, claim that the Parliament has refused to provide them with information on the financial offer of the successful tenderer ranked first, including the price. 58 It is true that, by letter of 24 November 2011, the Parliament provided the applicants with the total mark for the tender of the successful tenderer ranked first in addition to the mark awarded for the qualitative criteria. However, it has provided no information on the financial details of that tender. 59 Under the first paragraph of Article 100(2) of the Financial Regulation, the Parliament was obliged to notify the unsuccessful tenderer, upon written request, of the characteristics and relative advantages of the successful tender. 60 Accordingly, following the written request of the applicant, the Parliament was required to inform them of the price offered by the successful tenderer, which was one of the characteristics and one of the key advantages of the successful tender, especially since, in the circumstances of the present case, that criterion counted for 40% in the evaluation of tenders and the applicants’ tender was the first on the list of tenderers following the evaluation of the qualitative criteria. 61 It follows from the foregoing that the applicants had not, in their possession, all the elements that would allow them to understand why their offer was ultimately ranked second on the list of tenderers. Therefore, the answers provided by the Parliament do not disclose clearly and unequivocally its reasoning, in such a way as, first, to enable the applicants to understand the justifications for the measure taken in order to assert their rights and, second, to enable the Court to exercise its power of review. 62 Finally, it should be noted that the Parliament provided the applicants with the exact price proposed by the tenderer ranked first in the letter of 5 January 2012. 63 However, the fact that the Parliament provided the reasons for that decision in the course of the proceedings does not compensate for the inadequacy of the initial statement of reasons for the contested decision. It is settled case-law that the reasons for a decision may not be explained for the first time ex post facto before the Court, save in exceptional circumstances which, failing any urgency, are not present in this case (see, to that effect, judgments of 2 July 1992 in Dansk Pelsdyravlerforening v Commission, T‑61/89, ECR, EU:T:1992:79, paragraph 131, and VIP Car Solutions v Parliament, paragraph 39 above, EU:T:2009:163, paragraph 76). 64 That finding is not called into question by the argument put forward by the Parliament at the hearing that the applicants could have established the minimum price offered by one of the tenderers and the price offered by the tenderer ranked first on the basis of the information available to them and deducing it through working backwards on the basis of the formula in paragraph 34 above. 65 In that regard, suffice it to note that it is clear from settled case-law that, in order to comply with the obligation to state reasons enshrined in Article 296 TFEU, the reasoning of the author of the act must be shown clearly and unequivocally (see, to that effect, judgments in Koyo Seiko v Council, paragraph 42 above, EU:T:1995:140, paragraph 103, and Evropaïki Dynamiki v Commission, paragraph 42 above, EU:T:2010:101, paragraph 134). The Parliament’s argument that the applicants could, through working backwards, have deduced the minimum price offered by one of the tenderers and, therefore, the price offered by the tenderer ranked first cannot be accepted. It must be considered that, even if the applicants had made such a deduction, they would have had no certainty regarding the correct application of that formula and the accuracy of the result obtained. That finding is corroborated by the Parliament’s attitude, which raised the possibility of such a deduction being carried out only at the hearing and not during the written procedure. 66 It follows from all the foregoing that the second plea must be upheld and the contested decision annulled, without it therefore being necessary to rule on the four other pleas. The claim for compensation for damage 67 The applicants seek damages to compensate for the loss of opportunity and harm done to their reputation and their credibility arising from infringements by the Parliament of the rules of European Union public procurement law. Since the applicants could not acquire the experience associated with the performance of the contract, they would have also lost the competitive advantage and reputation associated with the performance of contracts as prestigious as those at issue. 68 The applicants consider that the amount of harm suffered in respect of the loss of a chance of being awarded the contract and the harm to their reputation and their credibility amounts to EUR 118 000. However, they state that they are limiting their request for compensation to the symbolic sum of EUR 10 000. 69 The Parliament argues, in essence, that there is no causal link, because it is clear from the facts that the applicants did not obtain the maximum number of points, as a result of their higher prices. Therefore, even if the complaints put forward by the applicants in their pleas were upheld, the infringements would not have had a decisive effect on the final outcome of the procurement procedure at issue. Finally, the Parliament maintains that, in any event, any loss suffered by the applicants should be judged to be negligible and any possible violation of the rules of European Union public procurement law should be regarded as minor. 70 It is settled case-law that an application seeking compensation for damage caused by an EU institution must state the evidence from which the conduct which the applicant alleges against the institution can be identified, the reasons why the applicant considers that there is a causal link between the conduct and the damage it claims to have suffered, and the nature and extent of that damage (judgments of 10 July 1997 in Guérin automobiles v Commission, T‑38/96, ECR, EU:T:1997:110, and of 3 February 2005 in Chiquita Brands and Others v Commission, T‑19/01, ECR, EU:T:2005:31, paragraph 65). 71 In the present case, it must be held that the claim for damages is based on the same grounds as those put forward in support of the application for annulment of the contested decision. Moreover, it has already been observed, in the context of the review of this application, that the contested decision was vitiated by failure to state reasons and is to be annulled on that ground. 72 It is clear, however, that, even if the Parliament did not give adequate reasons for the contested decision, that does not mean that the award of the contract to the successful tenderer constitutes wrongful conduct or that there is a causal link between that fact and the loss alleged by the applicants (see, to that effect, judgment of 25 February 2003 in Renco v Council, T‑4/01, ECR, EU:T:2003:37, paragraph 89). There are no grounds for concluding that the Parliament would have awarded the contract in question to the applicants if the statement of reasons for the contested decision had been adequate. 73 It follows that the claim for damages in respect of the alleged harm suffered as a result of the contested decision must, in so far as it is based on the failure to state reasons for that decision, be rejected as unfounded. 74 In so far as that claim is based on other pleas that were not considered in the context of the claim for annulment, it is premature and must be rejected on that ground (see, to that effect, judgment of 18 May 1995 in Wafer Zoo v Commission, T‑478/93, ECR, EU:T:1995:92, paragraphs 49 and 50). In view of the failure to state reasons in the contested decision, the Court is not in a position to consider whether that results from, in particular, the confusing of the selection criteria and the award criteria, the amalgamation of the various phases of the tendering procedure, the composition of the evaluation committee or inaccurate and inappropriate selection and award criteria, as argued by the applicants. An application for annulment grounded on these pleas may be examined, should the case arise, only in the light of the grounds of the decision which will replace the contested decision, following the annulment of the latter by the Court. 75 It follows that the claim for damages must be rejected in its entirety. Costs 76 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 Parliament has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the applicants. On those grounds, THE GENERAL COURT (Third Chamber) hereby: 1. Annuls the decision of the European Parliament of 18 October 2011 to select, in second position, the tender submitted by Veloss International SA and Attimedia SA in call for tenders EL/2011/EU for the provision of Greek translation services; 2. Dismisses the remainder of the action; 3. Orders the Parliament to pay the costs. Papasavvas Forwood Bieliūnas Delivered in open court in Luxembourg on 14 January 2015. [Signatures] * Language of the case: English.