Judgment;Summary — ECLI:EU:C:2023:396
Date: 2023-05-11
Language of the case: French
Court formation: Eighth Chamber
Subject matter: Freedom to provide services;Public procurement in the European Union
Procedure: Action for annulment;Appeal - unfounded
Origin: France

summary review is for internal use only and cannot be relied on against an unsuccessful tenderer which substantiates its doubts regarding that assessment. 80 It follows that, where an unsuccessful tenderer, who is not in an exclusion situation and satisfies the selection criteria, asks the contracting authority, in a written reasoned request, to set out the reasons why it did not consider the successful tender to be abnormally low, that authority is required to provide a detailed response. 81 Paragraph 23.1 of Annex I to the Financial Regulation provides that if, for a given contract, the price or costs proposed in the tender appear to be abnormally low, the contracting authority is to request in writing details of the constituent elements of the price or costs which it considers relevant and give the tenderer the opportunity to submit its observations. The wording of that provision does not rule out the possibility that doubts as to the abnormally low nature of the successful tender may have been raised by an unsuccessful tenderer. The fact that such an unsuccessful tenderer refers, in a substantiated manner, to the existence of doubts as to the abnormally low nature of the successful tender thus causes the contracting authority to enter the second stage of the review. 82 Apart from a situation in which the arguments put forward by the unsuccessful tenderer are irrelevant or devoid of any reasoning, the contracting authority is therefore required, first, to carry out a detailed analysis of the successful tender in order to determine that it is not in fact abnormally low and, second, to inform the unsuccessful tenderer which expressly questioned the authority on that point of the broad outlines of that analysis. 83 Any other interpretation would deprive the unsuccessful tenderer of its right to an effective remedy guaranteed in Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’). It would be impossible for a tenderer to assess the merits of the contracting authority’s decision that the successful tender is not abnormally low, if that contracting authority could merely state peremptorily and without putting forward any justification to that effect that that tender appeared to it to comply with the market conditions of the countries from which the services in question are to be carried out by the contractors and their subcontractors or that the price of the successful tender was not abnormally low. 84 In the present case and as the General Court pointed out in paragraph 60 of the judgment under appeal, that is all the more so since only two tenders had been submitted to the contracting authority, the price criterion was decisive in the ranking of the tenders and the price of the successful tender was the only relative advantage characterising that tender. In addition, as is apparent from paragraph 56 of that judgment, the experience of the S2U companies as contracting parties with the Commission should also have led the Commission to lend credit to the fears expressed by those companies that the successful tender entails a risk of ‘social dumping’, as well as risks concerning the performance of the contract in so far as the price proposed in the selected tender was considerably lower than the price proposed in their own tender. 85 The General Court was therefore right to hold, in paragraph 68 of the judgment under appeal, that the Commission could not merely find that the successful tender did not appear to it to be abnormally low, without specifying to the S2U companies, who had expressly requested it to do so, the reasons which led it to that conclusion. 86 In the second place, the Commission complains that the General Court confused, in paragraphs 60 and 69 of the judgment under appeal, the obligation to state reasons incumbent on the contracting authority and the latter’s prerogative, as a defendant, to rely on its rights of defence, as enshrined in Article 47(2) of the Charter. 87 That argument is manifestly unfounded. 88 The fact that the Commission provided the reasons for the decision at issue in the course of the proceedings cannot compensate for the inadequacy of the initial statement of reasons for that decision. 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 26 November 1981, Michel v Parliament, 195/80, EU:C:1981:284, paragraph 22; of 28 June 2005, Dansk Rørindustri and Others v Commission, C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P, EU:C:2005:408, paragraph 463; and of 11 June 2020, Commission v Di Bernardo, C‑114/19 P, EU:C:2020:457, paragraph 51). 89 To allow the institution concerned to defer its duty to state reasons for its decision finding that the successful tender is not abnormally low would affect the right of unsuccessful tenderers to effective judicial protection, in so far as they must know the reasons for a measure, not only in order to defend their rights in the best possible conditions, but also in order to decide in full knowledge of the circumstances whether it is worthwhile to bring an action before the competent court (see, to that effect, judgments of 15 October 1987, Heylens and Others, 222/86, EU:C:1987:442, paragraph 15, and of 7 September 2021, Klaipėdos regiono atliekų tvarkymo centras, C‑927/19, EU:C:2021:700, paragraph 120). 90 Moreover, the General Court did not in any way require the Commission to ensure that the information it must provide, on the one hand, to an unsuccessful tenderer and, on the other hand, to the EU Courts is completely identical. Accordingly, the argument by analogy based on the judgment of 14 October 2020, Close and Cegelec v Parliament (C‑447/19 P, not published, EU:C:2020:826, paragraph 43) is irrelevant. 91 The third ground of appeal must therefore be rejected in its entirety as unfounded. The second ground of appeal, alleging that the General Court distorted the facts by incorrectly assessing the content of the reply of 20 July 2020 – Arguments of the parties 92 By its second ground of appeal, the Commission submits that the General Court distorted the content of the reply of 20 July 2020, which led it to conclude, wrongly, that the Commission had infringed its obligation to state reasons under Article 170(3) of the Financial Regulation. After observing, correctly, in paragraph 8 of the judgment under appeal, that the Commission had stated, in that reply, ‘that a detailed financial analysis of the selected bid had found it to be in line with the market conditions in the countries from which the contractors and their subcontractors would perform the requested services’, the General Court wrongly held, in paragraphs 61 and 68 of that judgment, that, in that reply, the Commission merely found or justified by a simple assertion that the price of the successful tender was not abnormally low. In so doing, it did not specify to the S2U companies, who had expressly requested it to do so, the reasons which led it to that conclusion. 93 The Commission contends that, in the reply of 20 July 2020, it did not take a position on whether or not the successful tender was abnormally low. It merely answered the question raised by the S2U companies on social dumping, stating that a detailed analysis of the financial offer which it accepted had revealed that the winning tender is in line with the market conditions of the countries from which the contractors and their subcontractors will carry out the requested services. 94 According to the Commission, that distortion of the content of the reply of 20 July 2020, combined with the error made in the classification of the request of 10 July 2020, led the General Court to conclude incorrectly, in paragraph 68 of the judgment under appeal, that the Commission had failed to fulfil its duty to state reasons. 95 The S2U companies contend that this ground of appeal must be rejected as unfounded. – Findings of the Court 96 By its second ground of appeal, the Commission submits, in essence, that, since it had not received a request from the S2U companies expressly seeking disclosure of the reasons why it had considered that the successful tender was not abnormally low, it merely responded to the request submitted by the S2U companies regarding the existence of a risk of social dumping. Therefore, according to the Commission, the General Court wrongly considered that the reply of 20 July 2020 stated that the price of the successful tender was not abnormally low, and thus distorted the content of that reply. 97 Since it is clear from the examination of the first ground of appeal that the S2U companies did in fact submit to the Commission an ‘express request’ relating to the abnormally low nature of the successful tender, the Commission had to comply with the particular requirements to state reasons laid down in Article 170(3) of the Financial Regulation and paragraph 23 of Annex I thereto. Accordingly, in order to ensure the right to an effective remedy guaranteed in Article 47 of the Charter to an unsuccessful tenderer, the Commission, in its capacity as a contracting authority, could not merely claim, in peremptory terms and without putting forward the slightest justification to that effect, that the successful tender did not present a risk of social dumping. 98 In that regard, it must be recalled that the right to an effective remedy guaranteed in Article 47 is sufficient in itself and does not need to be made more specific by provisions of EU or national law to confer on individuals a right which they may rely on as such (judgments of 17 April 2018, Egenberger, C‑414/16, EU:C:2018:257, paragraph 78, and of 14 July 2022, EPIC Financial Consulting, C‑274/21 and C‑275/21, EU:C:2022:565, paragraph 83). 99 In those circumstances, even if the General Court, by taking the view that the reply of 20 July 2020 merely stated that the price of the successful tender was not abnormally low, had distorted the content of that reply, such a distortion could not call into question the finding in paragraph 97 of the present judgment that the Commission had to comply with the particular requirements to state reasons resulting from Article 170(3) of the Financial Regulation and paragraph 23 of Annex I thereto, and that it could not merely state, without the slightest justification, that the successful tender did not present a risk of social dumping. 100 The second ground of appeal must therefore be rejected as ineffective. 101 Since none of the three grounds relied on by the Commission in support of its appeal has been upheld, that appeal must be dismissed in its entirety. Costs 102 Under Article 184(2) of the Rules of Procedure of the Court of Justice, where the appeal is unfounded, the Court is to make a decision as to the costs. 103 Under Article 138(1) of those rules, which apply to the procedure on appeal by virtue of Article 184(1) 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 S2U companies have requested that the Commission be ordered to pay the costs and the latter has been unsuccessful in its appeal, it must be ordered to pay the costs. On those grounds, the Court (Eighth Chamber) hereby: 1. Dismisses the appeal; 2. Orders the European Commission to pay the costs. [Signatures] * Language of the case: French.