Judgment — ECLI:EU:T:2015:918
Date: 2015-12-02
Language of the case: English
Court formation: Fourth Chamber
Subject matter: Public procurement in the European Union
Procedure: Action for annulment - unfounded;Action for damages - unfounded
Origin: Greece;Luxembourg

summary of how each detail of its tender was taken into account when the tender was evaluated and, in the context of notification of the characteristics and relative advantages of the successful tender, a detailed comparative analysis of the successful tender and of the unsuccessful tender (see, to that effect, orders of 20 September 2011 in Evropaïki Dynamiki v Commission, C‑561/10 P, EU:C:2011:598, paragraph 27; 29 November 2011 Evropaïki Dynamiki v Commission, C‑235/11 P, EU:C:2011:791, paragraphs 50 and 51; and judgment of 4 October 2012 in Evropaïki Dynamiki v Commission, C‑629/11 P, EU:C:2012:617, paragraph 21). 41 Furthermore, it does not follow either from the first subparagraph of Article 113(2) of the Financial Regulation or from Article 161(2) of the Implementing Rules or from the case-law that, on written request by an unsuccessful tenderer, the contracting authority is bound to supply it with full copies of the evaluation report and the successful tender (see, by analogy, order of 13 January 2012 in Evropaïki Dynamiki v EEA, C‑462/10 P, EU:C:2012:14, paragraph 39). 42 Moreover, according to case-law, if the institution concerned sends a letter in reply to a request from the applicant seeking additional explanations about a decision before instituting proceedings but after the date laid down in Article 161(2) of the Implementing Rules, that letter may also be taken into account when examining 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, by analogy, judgment of 20 May 2009 in VIP Car Solutions v Parliament, T‑89/07, ECR, EU:T:2009:163, paragraph 73 and the case-law cited). 43 In the present case, it must be noted that Fusion for Energy notified the applicant immediately, in the contested letter, of the grounds for rejection of its tender. In particular, it was stated that, although that applicant’s tender demonstrated certain merits, the tender of the first-ranked tenderer had received a higher technical score and was better value for money. Furthermore, the award decision included a table showing the minimum scores and the scores obtained by that applicant and by the successful tenderers in respect of each of the criteria and sub-criteria and the financial score for the two scenarios set out in the specifications. 44 Accordingly, the contested letter was drafted in accordance with Article 113(2) of the Financial Regulation and Article 161 of the Implementing Rules (see, to that effect, judgment of 2 October 2014 in Euro-Link Consultants and European Profiles v Commission, T‑199/12, EU:T:2014:848, paragraph 69 and the case-law cited). 45 Subsequently, Fusion for Energy replied to the requests for further information sent by that applicant in letters of 23 August and 13 September 2013. The fact that those letters were sent to the first applicant after the time-limit laid down in Article 161(2) of the Implementing Rules had expired, does not preclude, in any way, their being taken into account, in the light of the case-law referred to in paragraph 42 above, for the purposes of examining whether the reasons are sufficient. 46 The first of those letters included the names of the three successful tenderers, the evaluation sheet showing the scores obtained by the first applicant and those successful tenderers in respect of each of the technical and financial criteria and sub-criteria and information, in respect of each successful tender and each of those criteria, concerning the ‘better quality and merit’ of the successful tenders compared with that applicant’s tender. 47 In an annex to the second letter, Fusion for Energy provided a full extract of the evaluation report concerning that applicant’s tender, containing specific comments on the evaluation of that tender in respect of each of the applicable technical criteria. 48 First, Fusion for Energy notified the first applicant of the names of the successful tenderers and provided a table enabling the first applicant to compare directly, in respect of the various criteria evaluated, the scores awarded to it, with the result that it could identify the respective strengths and weaknesses of the various tenders (see, to that effect, judgment in Euro-Link Consultants and European Profiles v Commission, cited in paragraph 44 above, EU:T:2014:848, paragraph 72). 49 Secondly, since, during the contract award procedure, the applicants were provided with a complete extract of the evaluation report concerning the first applicant’s tender, they were in a position to understand why those scores had been allocated to the tender in question and, more generally, the evaluation as a whole. 50 Thirdly, Fusion for Energy also provided comments concerning the evaluation of the successful tenderers’ tenders, which, despite being less detailed than those provided in respect of the first applicant’s tender, enabled the applicants and the Court, by reading them in conjunction with the other elements referred to above, in particular the full extract of the evaluation report concerning that tender, to understand the reasons for that tender’s rejection. The applicants were therefore in a position to be aware of the evaluation of that tender and on what points other tenderers’ tenders were better. By taking note of the details of that evaluation, they were able to identify, by converse implication, the elements of the report where other tenderers’ tenders did not contain the same shortcomings as that of the first applicant and, accordingly, received higher scores. 51 Fourthly, it should be noted that the applicants have failed to identify and to challenge, in a detailed manner, the specific points of the reasons given by the contracting authority concerning the evaluation of the first applicant’s tender, which they could consider to be inadequate and which prevent them from understanding the essential features of that evaluation and the reasons for the tender’s rejection. On the contrary, the applicants have merely complained of an alleged inherent inadequacy in the additional reasoning concerning the evaluation of the successful tenderers’ tenders and the absence of an explanation of the reasons why those tenders were superior to the first applicant’s tender. In particular, they were wrong to assume that that tender had not been evaluated or evaluated only after its validity period had expired. Those general and unsubstantiated findings are not, however, sufficient to call into question the adequacy of the reasons for the award decision as a whole, when it is read in context (see paragraphs 48 to 50 above). 52 In the light of the above, it must be concluded that the applicants have failed to demonstrate that the reasons for the award decision are inadequate. The second plea in law must therefore be dismissed as unfounded. 53 The application to annul the decision awarding the contract to the successful tenderers must be rejected as a result of the rejection of the application to annul the award decision, with which it is closely connected (see, to that effect, judgment of 10 October 2012 in Evropaïki Dynamiki v Commission, T‑247/09, EU:T:2012:533, paragraph 170 and the case-law cited). 54 The claims for annulment must therefore be dismissed in their entirety. The claim for damages 55 The applicants consider that the conditions giving rise to non-contractual liability of the European Union are satisfied in the present case. In particular, they submit, Fusion for Energy’s breach of Articles 102 and 113 of the Financial Regulation, Articles 138(2)(c) and 161(1) and (3) of the Implementing Rules, the specifications and the principle of equal treatment was sufficiently serious. The unlawful conduct consisted in carrying out the evaluation after the validity period of the tenders had expired and evaluating only the tenders which were valid, excluding that of the applicants, without requesting that the applicants extend the validity period of their tender. In addition, they claim, the provisions infringed have a particular degree of clarity and precision and the contracting authority acted deliberately. The criteria of damage and causation were, in addition, fulfilled in the present case. Consequently, the applicants seek compensation in the amount of EUR 100 000, for loss of opportunity to obtain the contract. Since, in their view, Fusion for Energy’s conduct was arbitrary, the applicants also claim payment of exemplary damages and interest, quantified at EUR 50 000. 56 Fusion for Energy contends that none of the three conditions for incurring non-contractual liability on the part of the EU institutions has been met in the present case. 57 It should first be noted that, according to settled case-law, in order for the Union to incur non-contractual liability, a number of requirements must be satisfied, namely that the alleged conduct of the institutions is unlawful, that the damage is actual and certain and that there is a direct causal link between the conduct of the institution concerned and the damage relied upon (judgments of 29 September 1982 in Oleifici Mediterranei v EEC, 26/81, ECR, EU:C:1982:318, paragraph 16, and 9 July 1999 New Europe Consulting and Brown v Commission, T‑231/97, ECR, EU:T:1999:146, paragraph 29). 58 Moreover, if any one of those conditions is not satisfied, the action must be dismissed in its entirety and it is unnecessary to consider the other conditions which give rise to that liability (judgments of 15 September 1994 in KYDEP v Council and Commission, C‑146/91, ECR, EU:C:1994:329, paragraph 81; 14 October 1999 Atlanta v European Community, C‑104/97 P, ECR, EU:C:1999:498, paragraph 65; and 10 December 2009 Antwerpse Bouwwerken v Commission, T‑195/08, ECR, EU:T:2009:491, paragraph 91). 59 In the present case, it is clear from the Court’s findings on the claim for annulment that the applicants have not proved that Fusion for Energy acted unlawfully. 60 It follows that the claim for compensation must be dismissed as unfounded in its entirety. 61 Accordingly, the action must be dismissed in its entirety. Costs 62 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. Since the applicants have been unsuccessful, they must be ordered to pay the costs, in accordance with the form of order sought by Fusion for Energy. On those grounds, THE GENERAL COURT (Fourth Chamber) hereby: 1. Dismisses the action; 2. Orders European Dynamics Luxembourg SA and Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE to pay the costs. Prek Labucka Kreuschitz Delivered in open court in Luxembourg on 2 December 2015. [Signatures] * Language of the case: English.