Judgment — ECLI:EU:C:2012:617
Date: 2012-10-04
Language of the case: English
Court formation: Seventh Chamber
Subject matter: Public procurement in the European Union
Procedure: Action for annulment;Appeal - unfounded;Action for damages
Origin: Greece

summary of how each detail of its tender was taken into account when the tender was evaluated and, second, 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, order of 29 November 2011 in Case C‑235/11 P Evropaïki Dynamiki v Commission, paragraphs 50 and 51 and the case-law cited). 22 Similarly, the contracting authority is not under an obligation to provide an unsuccessful tenderer, upon written request from it, with a full copy of the evaluation report (see order of 20 September 2011 in Case C‑561/10 P Evropaïki Dynamiki v Commission, paragraph 25). 23 Furthermore, it must be noted that, according to settled case-law, the statement of reasons required under the second paragraph of Article 296 TFEU must be assessed in the light of the circumstances of each case, in particular the content of the measure in question and the nature of the reasons given (see, inter alia, Case C‑367/95 P Commission v Sytraval and Brink’s France [1998] ECR I‑1719, paragraph 63, and judgment of 28 February 2008 in Case C‑17/07 P Neirinck v Commission, paragraph 52). 24 In the present case, it is apparent from paragraphs 8 and 37 of the judgment under appeal that the letter of 5 June 2009 contained the names of the tenderers selected as first contractor for each of the two lots of the call for tenders at issue. 25 In addition, the General Court noted, at paragraph 39 of the judgment under appeal, that the Commission enclosed as annexes to that letter extracts from the two evaluation reports, the content of which is summarised at paragraphs 40 to 42, 44, 45, 48 and 49 of that judgment. 26 It is apparent therefrom that those extracts contained tables relating, in particular, to the technical evaluation of the tenders for both of the lots and indicating, for each award criterion, the number of points obtained by Evropaïki Dynamiki in comparison with the successful tenderer, broken down each time into sub-criteria, as well as the maximum number of points attainable per sub-criterion and the weighting of each of those sub-criteria in the overall evaluation. Summary tables showed, on the basis of the results of the technical and financial evaluation, the final ranking for each of the two lots. 27 It is also apparent therefrom that, according to the information communicated in the letter of 5 June 2009, Evropaïki Dynamiki’s tender was ranked higher than the successful tender solely under the fourth award criterion regarding the quality of the service and the methodological proposal in the domain of Lot No 2. It was also only with regard to the fourth criterion relating to the quality of the technical offer in the domain of Lot No 1 that its tender obtained the same number of points as the successful tender. On the other hand, for all other criteria, Evropaïki Dynamiki’s tender was less well ranked than that of the successful tenderer. 28 Furthermore, the comments of the evaluation committee which were also disclosed indicated, for each award criterion, the sub-criteria on the basis of which the Commission found the successful tenderer’s offer or that of Evropaïki Dynamiki to be the best. 29 Finally, the method applied by the Commission for the technical evaluation of the tenders was clearly set out in the tendering specifications relating to the call for tenders at issue. As is apparent in particular from paragraph 3 of the judgment under appeal, they specified, for each lot, the various award criteria, their respective weighting in the evaluation, that is to say in the calculation of the total score, and the minimum and maximum number of points for each criterion. 30 Accordingly, the General Court was able to conclude, at paragraph 50 of the judgment under appeal, that, in view of all the information supplied to Evropaïki Dynamiki, as well as the specifications contained in the call for tenders, including the weighting relating to the award criteria for each of the lots, Evropaïki Dynamiki had sufficient information to enable it, for each lot, to identify the characteristics and relative advantages of the best ranked tenderer’s offer. 31 It follows that, in the light of all of the elements of the present case, the General Court did not err in law in finding, at paragraph 51 of the judgment under appeal, that Evropaïki Dynamiki’s argument alleging that the statement of reasons for the contested decisions was inadequate had to be rejected. 32 The second and third parts of the single plea in law must therefore be rejected as unfounded. First part of the single plea in law Arguments of the parties 33 By the first part of the single plea in law, Evropaïki Dynamiki complains that the General Court, at paragraph 35 of the judgment under appeal, while finding that the Commission had sent the information required under Article 100(2) of the Financial Regulation to Evropaïki Dynamiki belatedly, concluded that that delay had not affected its rights of defence and could not, by itself, lead to the annulment of the contested decisions. 34 According to Evropaïki Dynamiki, the obligation to state reasons has been described as an ‘essential procedural requirement’ by the case-law. When such a procedural requirement has the objective of conferring rights on individuals, failure to comply with it can lead to annulment of the act at issue and cannot be remedied by subsequent communication of the statement of reasons. 35 According to Evropaïki Dynamiki, the time-limit of 15 days provided for in Article 149(2) of the Implementing Rules must be seen in relation to the maximum time-limit of two months imposed for bringing an action for annulment. The procedural requirement at issue is thus essential to ensure the protection of the legitimate rights of the tenderer, in particular the right to effective judicial protection, in that the communication of the statement of reasons for a decision rejecting a tender after an unreasonable length of time has a direct effect on the capacity of the unsuccessful tenderer to bring an action for annulment against that decision. In the present case, Evropaïki Dynamiki received the information at issue nine days after the expiry of the time-limit provided for in Article 149(2) of the Implementing Rules, that is to say after the expiry of almost half of the period imposed for bringing an action for annulment. 36 According to the Commission, this part of the single plea in law must be rejected as inadmissible in that, first, it contains a new plea which was not raised at first instance and, second, it is directed against a ground of the judgment under appeal, namely paragraph 35 thereof, which is unnecessary for the ratio of that judgment. In any event, this part of the single plea in law is also unfounded. Findings of the Court 37 The General Court found, at paragraph 35 of the judgment under appeal, that the fact that the letter of 5 June 2009 had been sent eight days later than the time-limit laid down in Article 149(2) of the Implementing Rules, of 15 calendar days from the date of the request’s receipt, though regrettable, did not however restrict Evropaïki Dynamiki’s opportunity of asserting its rights before the General Court and could not, by itself, lead to the annulment of the contested decisions, since it was apparent from the contents of the court file that Evropaïki Dynamiki made use of the information contained in that letter to bring the action before that Court. 38 It should be noted, first, as has been held at paragraphs 24 to 31 of this judgment, that the Commission’s letter of 5 June 2009 contained the information required under Article 100(2) of the Financial Regulation. Second, Evropaïki Dynamiki has not set out reasons why, in the light of the fact that the Commission’s reply was some days late, it would have been deprived of the possibility of bringing an effective action in order to dispute the merits of the contested decisions, when it had more than half of the period for bringing an action left. 39 Therefore, although the Commission failed in its duty of diligence and good administration by being late in fulfilling its obligation to state reasons, the fact remains that, despite that eight days’ lateness, Evropaïki Dynamiki had the necessary information in order to bring an action for annulment of the contested decisions before the General Court. Accordingly, the General Court was correct in finding that the delay could not, by itself, lead to the annulment of the contested decisions. 40 The first part of the single plea in law must therefore be rejected as unfounded. 41 Accordingly, the appeal must be dismissed in its entirety as unfounded. Costs 42 Under Article 69(2) of the Rules of Procedure of the Court of Justice, 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 and Evropaïki Dynamiki has been unsuccessful, the latter must be ordered to pay the costs. On those grounds, the Court (Seventh 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.