Summary;Judgment — ECLI:EU:C:2025:523
Date: 2025-07-03
Language of the case: French
Court formation: Eighth Chamber
Procedure: Action for annulment;Appeal - unfounded
Origin: Spain

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 (judgment of 3 May 2018, EUIPO v European Dynamics Luxembourg and Others, C‑376/16 P, EU:C:2018:299, paragraph 57 and the case-law cited). 126 Furthermore, the obligation to state reasons does not, in principle, require a specific weighting to be attached to every negative or positive comment in the evaluation. That being said, in a situation where the procurement documents contain specific quantified weightings attached to criteria or sub-criteria, the principle of transparency requires a quantified evaluation to be given in respect of those criteria or sub-criteria (judgment of 3 May 2018, EUIPO v European Dynamics Luxembourg and Others, C‑376/16 P, EU:C:2018:299, paragraph 63). 127 In the present case, it is common ground that the tender specifications provided for a weighting of points at criterion and sub-criterion level, but that they also distinguished, within each sub-criterion, various components which, for their part, were not individually assigned a specific weighting of points. 128 In those circumstances, as the General Court stated in paragraph 102 of the judgment under appeal, the Commission was not required to calculate, or therefore indicate, in its decision or the evaluation grids sent to IC, the precise extent to which each comment relating to an individual component of a sub-criterion contributed to the score obtained under that sub-criterion, expressed in points. 129 Admittedly, the situation may be different where provision is made for awarding fractions of points for one or more components of a sub-criterion. In that case, the principle of transparency and the obligation to state reasons require that the fractions of points awarded on the basis of the positive and negative comments on those components of that sub-criterion be disclosed to the person concerned (see, to that effect, judgment of 3 May 2018, EUIPO v European Dynamics Luxembourg and Others, C‑376/16 P, EU:C:2018:299, paragraphs 65 to 67). However, in the present case, it appears that the various components of the sub-criteria were not individually assigned a specific weighting of points. As stated in paragraph 126 above, the contracting authority has the option to limit a quantified evaluation solely to criterion and sub-criterion level. Accordingly, it is not required to identify, within the score awarded for a sub-criterion, fractions of the score for each individual component of that sub-criterion. The General Court therefore did not err in law in finding that the positive and negative comments expressed in respect of those components should not lead to a numerical weight being assigned to each of those comments. 130 The Kingdom of Spain’s second ground of appeal must therefore be rejected. The Kingdom of Spain’s third ground of appeal Arguments of the parties 131 The Kingdom of Spain observes that the second plea in IC’s action before the General Court concerned the failure to compare the tenders submitted by the CLL consortium and IC and that, by its fifth plea in law, IC complained that the Commission had awarded all the lots of the contract to a single service provider. 132 The Kingdom of Spain submits that, in support of those pleas put forward by IC, it relied before the General Court on an infringement of the principle of equal treatment, by providing a specific illustration of the difference in treatment suffered by IC. 133 That line of argument was incorrectly examined by the General Court in the judgment under appeal. 134 In that regard, first, the Kingdom of Spain observes that it submitted, during the proceedings before the General Court, that the Commission had not carried out any specific assessment of the content of the CLL consortium’s tender relating to the stage of the language training course known as the ‘final summative evaluations’. However, it made a negative comment on that aspect of IC’s tender. 135 In paragraph 176 of the judgment under appeal, even though it acknowledged that difference, the General Court merely found it to be justified on the basis that the documentation in IC’s tender was incomplete. According to the Kingdom of Spain, although the incomplete nature of the documentation may explain the negative comment relating to that tender, it cannot explain the absence of comments concerning the final summary evaluations on the CLL consortium’s tender. 136 Secondly, the Kingdom of Spain claims that it had relied, before the General Court, on the fact that, in the evaluation of sub-criterion 1.1, the Commission had commented positively on the CLL consortium’s tender in respect of certain digital tools proposed by the CLL consortium, whereas, with regard to the digital tools proposed in IC’s tender, the Commission merely stated, without any evaluation, that that tender listed such tools. 137 In paragraphs 179 and 180 of the judgment under appeal, the General Court rejected that argument on the basis that, as regards digital tools, the comment relating to IC’s tender was equivalent to that relating to the CLL consortium’s tender. Such an assessment by the General Court is incorrect since the Commission, in relation to that component of sub-criterion 1.1, failed to formulate an evaluation of IC’s tender. 138 In reality, in view of the absence of a measure of inquiry to compel the Commission to explain its position in that regard, the General Court was not in a position to know whether the Commission had awarded the same score to the CLL consortium and IC for that component of sub-criterion 1.1. 139 The Kingdom of Spain submits that it had therefore requested that the Court ask the Commission to provide the full evaluation of sub-criteria 1.1 and 1.2. According to the Kingdom of Spain, that measure of inquiry was necessary to support the argument that the Commission, when evaluating sub-criterion 1.1, specifically mentioned and evaluated the digital tools proposed by the CLL consortium, but not those proposed by IC, since those tools were not evaluated in order to determine, inter alia, whether they facilitate the consolidation of language learning or whether they allow for continuous evaluation. 140 The Kingdom of Spain adds that, in paragraph 150 of the judgment under appeal, the General Court rejected that request for a measure of inquiry on the ground that it is apparent from Article 88 of the Rules of Procedure of the General Court that such a request cannot be made by an intervener. However, such an interpretation of Article 88 is incorrect since it relies solely on that provision without taking into account its context. That context includes Article 145(2)(c) of the Rules of Procedure, which allows interveners to submit any evidence produced or offered. 141 Third, the Kingdom of Spain observes that it argued before the General Court that the Commission had evaluated the learning methods proposed in IC’s tender but not those proposed in the CLL consortium’s tender. 142 By rejecting that argument in paragraph 178 of the judgment under appeal on the ground that accepting it ‘amounts to treating [IC] even more favourably’, the General Court distorted that argument. Without that distortion, the General Court could have found that the difference in treatment referred to in the preceding paragraph is unacceptable since, if the Commission had evaluated the learning methods proposed by the CLL consortium, it could have arrived at a negative assessment of those methods. 143 Fourth, the Kingdom of Spain states that it maintained before the General Court that the Commission, in its assessment of the CLL consortium’s tender relating to the component ‘organisation of the content’ referred to in sub-criterion 1.1, confined itself to a formal analysis leading to the comment that that organisation was detailed and had a very clear structure, whereas, in its assessment of IC’s tender, it had commented on the content of the courses. 144 In paragraph 182 of the judgment under appeal, the General Court erred in rejecting that argument on the ground that the Commission had made a positive comment on the content of the courses, whereas the Kingdom of Spain disputed the fact that the Commission had not carried out any assessment as regards the organisation of that content. 145 In the light of those four illustrations, the Kingdom of Spain concludes that the General Court erred in finding that the Commission applied a different methodology in the evaluation of IC’s tenders and the CLL consortium. In addition, the judgment under appeal infringes Article 145(2)(c) of the Rules of Procedure of the General Court. 146 The Commission disputes that line of argument. Findings of the Court 147 As the Kingdom of Spain states, the paragraphs of the judgment under appeal which it challenges by the third ground of its appeal respond to arguments which it had raised in support of IC’s second and fifth grounds of appeal, by which IC criticised, inter alia, the fact that all the lots of the public contract at issue had been awarded to the CLL consortium. That favourable result for the CLL consortium was the result of lacunae, or even arbitrary treatment, in the comparison of the tenders. According to those arguments put forward by the Kingdom of Spain before the General Court, it was apparent from the evaluation grids for the tenders submitted by the CLL consortium and IC for Lot 3 that the evaluation of the CLL consortium’s tender had not been as thorough on certain aspects as the evaluation of IC’s tender and had been more detailed on other aspects as that evaluation. 148 In that regard, it should be noted that the fact that there are discrepancies, in terms of content or degree of detail, between the comments made by the evaluation committee on the various tenders is not, in itself, evidence of the existence of unequal treatment or arbitrary treatment. Since the tenders differ from one another, the comments made on them may be more detailed in relation to one tenderer than another. 149 Although it is true that unequal treatment or arbitrary treatment must be found to exist where there is precise and consistent evidence of such unlawful conduct, it must be observed that it is not apparent from the paragraphs of the judgment under appeal referred to in the Kingdom of Spain’s third ground of appeal that such evidence was found in the evaluation grids for the tenders of the CLL consortium and IC for Lot 3. 150 That evaluation by the General Court, which is factual in nature, is not subject to review by the Court of Justice on appeal. 151 As is clear from Article 256(1) TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union, an appeal lies on points of law only. The General Court thus has exclusive jurisdiction to find and appraise the relevant facts and the evidence. The assessment of the facts and evidence does not, save where the facts and evidence are distorted, constitute a point of law which is subject, as such, to review by the Court of Justice on appeal (judgment of 13 March 2025, PKK v Council, C‑72/23 P, EU:C:2025:182, paragraph 113 and the case-law cited). In the present case, the Kingdom of Spain’s arguments concern the General Court’s assessment of the facts, but no mention is made of any distortions of the facts. 152 Consequently, in so far as the Kingdom of Spain’s third ground of appeal alleges infringement of the principle of equal treatment and of the prohibition of arbitrariness in the assessment of tenders, that ground is inadmissible. 153 By contrast, in so far as the Kingdom of Spain claims that the rejection, in paragraph 150 of the judgment under appeal, of its request for a measure of inquiry is based on a misreading of Article 88(1) of the Rules of Procedure of the General Court and thus renders Article 145(2)(c) of those rules of procedure redundant, the Kingdom of Spain raises a question of law. 154 Article 88(1) of those rules of procedure states that measures of inquiry may be taken either of the court’s own motion or at the request of a main party. 155 As is clear from that provision, interveners are not permitted to submit requests for measures of inquiry before the General Court. 156 Contrary to the Kingdom of Spain’s contention, that exclusion of the interveners does not render Article 145(2)(c) of those rules of procedure redundant. That provision, which stipulates that the statement in intervention must include any evidence produced or offered on which the intervener’s pleas and arguments are based, concerns evidence produced or offered by the intervener itself, rather than evidence that another party produces following a measure of inquiry adopted by the General Court. 157 Consequently, in so far as it alleges infringement of Article 145(2)(c) of that regulation, the Kingdom of Spain’s third ground of appeal is unfounded. 158 It follows from the foregoing that the second ground of appeal must be rejected. The Kingdom of Spain’s fourth ground of appeal Arguments of the parties 159 The Kingdom of Spain recalls that the right to good administration, enshrined in Article 41 of the Charter, includes, inter alia, the requirements of objective impartiality and transparency. By rejecting IC’s fifth plea in law, the General Court failed to have regard to those requirements. 160 In that regard, the Kingdom of Spain submits that, in a public procurement procedure based on the award criterion of the best price-quality ratio, the evaluation of the quality of the tender must be carried out separately from the evaluation of the price. Maintaining such a separation ensures that the evaluation of quality is not influenced by price. Accordingly, the fact that a tender is more expensive would prevent it from being considered as being of higher quality. 161 In paragraph 209 of the judgment under appeal, the General Court correctly found that, by that argument, the Kingdom of Spain did not intend to rely on subjective bias on the part of the members of the evaluation committee. However, in paragraph 208 of that judgment, the General Court misinterpreted that argument, which is based on the requirement of objective impartiality, as meaning that, by that argument, the Kingdom of Spain criticised the Commission for having first evaluated the price and then the quality of the tenders. That reading of its line of argument is incorrect since, in reality, the Kingdom of Spain’s concern relates to the risk of the separation between those two evaluations not being ensured. 162 According to the Kingdom of Spain, the General Court should have found that it could not be ruled out that the Commission simultaneously evaluated the price and quality of the tenders and that it was thus influenced by the high price of the CLL consortium’s tender in order to conclude, on the basis of the price, that that tender was of high quality. 163 In that regard, the Kingdom of Spain notes that, in order to show that the organisation of an administrative procedure does not provide sufficient guarantees to exclude any legitimate doubt as to possible bias, it is not necessary to prove lack of impartiality. It is sufficient for a legitimate doubt to arise which cannot be dispelled. 164 The Commission disputes that line of argument. Findings of the Court 165 The fundamental right to good administration, set out in Article 41 of the Charter, includes, under paragraph 1 of that provision, the right to have one’s affairs handled impartially. That requirement of impartiality has a subjective component and an objective component. In accordance with the latter component, each institution, body, office or agency of the European Union must offer sufficient guarantees to exclude any legitimate doubt as to any bias (judgment of 14 March 2024, D & A Pharma v Commission and EMA, C‑291/22 P, EU:C:2024:228, paragraphs 72 and 73 and the case-law cited). 166 In the present case, as is apparent from the facts established by the General Court concerning the evaluation criteria, summarised in paragraphs 15 to 19 above, the tender specifications provided for a separate evaluation of the price, weighted at 30%, and of quality, weighted at 70%. The tender specifications provide for a strict distinction. It follows from the description of the quality-related criteria and sub-criteria that each of them is entirely unrelated to the price of the tender. 167 In paragraphs 208 and 209 of the judgment under appeal, the General Court found that the Kingdom of Spain had not submitted any circumstantial or other evidence that the Commission had not complied with that distinction or organised the procedure in such a way that the quality evaluation was influenced by the price-based evaluation. 168 The Kingdom of Spain does not allege any distortion of the facts in order to challenge that assessment by the General Court. 169 That assessment by the General Court duly enabled it to reject the Kingdom of Spain’s argument alleging infringement of the requirement of impartiality. Even assuming that the concern expressed by the Kingdom of Spain as to possible bias in favour of the most expensive tender has any relevance, the fact remains that a distinction, such as that made in the procurement documents, between price-based and quality-based evaluations provides sufficient guarantees to exclude any legitimate doubt as to such bias. 170 Consequently, in so far as the Kingdom of Spain’s fourth ground of appeal alleges failure to observe the requirement of objective impartiality, it must be rejected as unfounded. 171 Finally, the Kingdom of Spain submits that the General Court failed to have regard to the requirement of transparency, but did not put forward any specific arguments in that regard. In accordance with settled case-law, it is apparent from the second subparagraph of Article 256(1) TFEU, the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union and Article 168(1)(d) of the Rules of Procedure of the Court of Justice that an appeal must indicate precisely the contested elements of the judgment under appeal and the legal arguments specifically advanced in support of the appeal, failing which the appeal or the ground of appeal in question will be dismissed as inadmissible (judgment of 4 October 2024, thyssenkrupp v Commission, C‑581/22 P, EU:C:2024:821, paragraphs 57 and 58). It follows that the Kingdom of Spain’s complaint alleging failure to observe the requirement of transparency is inadmissible. 172 That ground of appeal must therefore be dismissed. 173 Since none of the grounds put forward in support of the appeals has been upheld, those appeals must be dismissed in their entirety. Costs 174 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. 175 Article 138(1) of the Rules of Procedure, which is applicable to appeal proceedings by virtue of Article 184(1) thereof, provides that the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. 176 Since the Commission has applied for costs and IC and the Kingdom of Spain have been unsuccessful, the latter must be ordered to bear their own costs and to pay those incurred by the Commission in the appeals. On those grounds, the Court (Eighth Chamber) hereby: 1. Dismisses the appeals in Cases C‑534/23 P and C‑539/23 P; 2. Orders Instituto Cervantes and the Kingdom of Spain to bear their own costs and to pay those of the European Commission relating to the appeals. [Signatures] * Language of the case: French