Judgment;Information — ECLI:EU:T:2022:342
Date: 2022-06-08
Language of the case: English
Court formation: Second Chamber
Subject matter: Freedom to provide services;Public procurement in the European Union
Procedure: Action for annulment - unfounded;Action for damages - unfounded
Origin: Malta

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 judgment of 4 October 2012, Evropaïki Dynamiki v Commission, C‑629/11 P, not published, EU:C:2012:617, paragraph 21 and the case-law cited). 80 In addition, it should be borne in mind that the requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, 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 (judgment of 17 October 2012, Evropaïki Dynamiki v Court of Justice, T‑447/10, not published, EU:T:2012:553, paragraph 73). 81 It is in the light of the abovementioned principles that it should be examined whether EUAA infringed its obligation to state reasons. 82 In order to determine whether, in the present case, the requirements of the obligation to state reasons laid down in Regulation 2018/1046 and its implementing rules have been satisfied, it is necessary to examine the contested decision, the letter of 28 July 2020, sent to the applicant following the request for additional information on the rejection of the tender, and the letter of 7 August 2020, sent in response to the applicant’s observations. It is clear from the case-law that, if the institution concerned sends a letter in response to a request seeking additional explanations concerning a decision before an action is brought, 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 obligation to state reasons must in fact 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, to that effect, judgment of 14 January 2015, Veloss International and Attimedia v Parliament, T‑667/11, not published, EU:T:2015:5, paragraph 56). 83 It is also necessary to examine the letter of 9 October 2020, sent by EUAA in response to a letter from the applicant requesting the annulment of the contested decision and the termination of the framework contract, even though it was sent to the applicant after the present action was brought and cannot therefore in itself satisfy the obligation to state reasons. It should be noted in that regard that explanations or clarifications capable of casting light on the wording of the contested act may be provided in the course of the proceedings. Where the author of a contested decision provides explanations to supplement a statement of reasons which is already adequate in itself, that does not go to the question whether the duty to state reasons has been complied with, though it may serve a useful purpose in relation to review by the European Union judicature of the adequacy of the grounds of the decision, since it enables the institution to explain the reasons which gave rise to its decision (see, to that effect, judgment of 26 September 2014, Evropaïki Dynamiki v Commission, T‑498/11, not published, EU:T:2014:831, paragraph 162). 84 In the present case, EUAA informed the applicant, in the contested decision, that its tender had been rejected. In that decision, it referred to the points that the applicant had obtained for each of the evaluation criteria and, under each point, it indicated the evaluation carried out by the evaluation committee in respect of the tender submitted by the applicant. EUAA also provided a table with the total number of points obtained and the applicant’s ranking. At the same time, it informed the applicant of the possibility of requesting additional information on the grounds for the rejection of its tender, in particular the characteristics and relative advantages of the successful tender and the name of the successful tenderer. EUAA also stated that certain details of that tender would be withheld where its release would impede law enforcement, would be contrary to the public interest or would prejudice the legitimate commercial interests of public or private undertakings, or might distort fair competition between them. 85 The contested decision, although somewhat formulaic in nature, has been drafted in accordance with the provisions of Article 170(2) of Regulation 2018/1046. However, it must be observed that Article 170(3)(a) of that regulation also requires the contracting authority to inform each unsuccessful tenderer whose tender was admissible and who has made a request in writing of the characteristics and relative advantages of the successful tender and the name of the tenderer to whom the contract is awarded. 86 Following the applicant’s request of 24 July 2020 for additional information on the contested decision, EUAA sent the letter of 28 July 2020 to the applicant. 87 In that letter, EUAA indicated the name of the successful tenderer and the contract value. EUAA also explained the points awarded to the successful tender and the evaluations which the evaluation committee had provided in the form of comments for each qualitative criterion in relation to that tender. 88 A reading of those evaluation comments makes it possible to understand the characteristics of the successful tender, but the relative advantages of that tender are not expressly mentioned therein. 89 However, as stated in paragraph 80 above, it is important to bear in mind that 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. Similarly, it should be noted, as observed in paragraph 79 above, that EUAA was not bound, in the context of notification of the characteristics and relative advantages of the successful tender, to provide a detailed comparative analysis of that tender and of the applicant’s tender. 90 It must therefore be examined, in the light of the circumstances of the case and, in particular, the other information provided by EUAA, whether the latter has fulfilled its obligation to state reasons, in accordance with Article 170(3)(a) of Regulation 2018/1046. 91 In that regard, it must be held that a comparison of the evaluation of the applicant’s tender and of the successful tender highlights the differences between the two tenders. However, in the letter of 28 July 2020, EUAA did not explain that those differences could give rise to a different number of points. Nor does the letter of 7 August 2020 give any guidance in that regard. In that letter, EUAA confines itself, in essence, to explaining that it is not required to provide more information to the applicant. 92 However, it is apparent from the applicant’s letter of 10 September 2020 that it understood that the different aspects of the two tenders, as stated by the evaluation committee, gave rise to a difference in points. In that letter, the applicant in fact criticises EUAA for awarding additional points to the successful tender on account of aspects which were not included in its own tender. Accordingly, in that letter, as regards the first and fifth qualitative criteria, the applicant makes the following comments: ‘– Award criterion 1: quality control and risk mitigation have not been mentioned in the tender specifications, nonetheless [EUAA] specifically mentions this as a positive aspect in the evaluation of the bid of the consortium; – Award criterion 5: the possibility to provide additional training on soft skills and technical skills is not mentioned in the tender specifications. Nonetheless, [EUAA] specifically mentions this as a positive aspect in the evaluation of the bid of the consortium.’ 93 In that regard, it must be held that, despite the fact that EUAA had not expressly explained it, the applicant understood how the points were awarded in respect of each of the criteria and that it was able to assert its rights in respect of each of them. 94 This is, moreover, confirmed by the letter of 9 October 2020, which may be taken into account in the present case in accordance with the case-law cited in paragraph 83 above, given that it does not provide a new statement of reasons, but merely clarifies the information available to the applicant when the action was brought and on which it had had the opportunity to comment, as is apparent from the exchanges referred to in paragraphs 82 and 83 above. In addition, the applicant itself stated at the hearing that the letter of 9 October 2020 did not contain any new statement of reasons. 95 It follows from the letter of 9 October 2020 that EUAA considered that it could take into account the aspects referred to in the applicant’s letter of 10 September 2020, since the words ‘such as’ were used in the administrative specifications concerning criterion 1 and the words ‘including but not limited to’ were used in those specifications as regards criterion 5. Accordingly, EUAA’s reply of 9 October 2020 confirms that the applicant had in fact understood which were the relative advantages of the successful tender. That reasoning is also applicable to qualitative award criteria 2 to 4. A comparison of the comments relating to those criteria therefore makes it possible, as for criteria 1 and 5, to understand why the evaluation committee evaluated certain aspects of the consortium’s tender covered by criterion 2 more positively, which conferred more points to it than to the applicant’s tender, and why that committee awarded the same number of points to the two tenders for criteria 3 and 4. It should be added in that regard, as is clear from paragraph 92 above, that the slight difference in points attributed between the two tenders enabled the applicant to understand that the different aspects of the consortium’s tender, as noted by the evaluation committee, gave rise to additional points. 96 Accordingly, it must be concluded that, even if it had been preferable to highlight more explicitly the relative advantages of the successful tender, EUAA fulfilled its obligation to state reasons given that the applicant was in a position to understand why the consortium’s tender had obtained more points than its own, as concluded in paragraphs 92 to 95 above. 97 In the light of the foregoing, the third plea in law must be rejected as unfounded. The claim for damages 98 The applicant asks the Court to order EUAA to pay compensation for the damage suffered by it as a result of the loss of profit resulting from the loss of the framework contract at issue. 99 The applicant submits that the three conditions for the European Union to incur non-contractual liability, within the meaning of the second paragraph of Article 340 TFEU, for the unlawful conduct of its institutions are satisfied in the present case. 100 EUAA disputes the applicant’s arguments. It contends, in essence, that none of the three conditions for the European Union to incur non-contractual liability is satisfied. 101 According to settled case-law, in order for the European Union to incur non-contractual liability, a number of conditions must be met: the conduct of the institutions must be unlawful; there must be real and certain damage; and a direct causal link must exist between the conduct of the institution concerned and the alleged damage (judgments of 29 September 1982, Oleifici Mediterranei v EEC, 26/81, EU:C:1982:318, paragraph 16, and of 9 July 1999, New Europe Consulting and Brown v Commission, T‑231/97, EU:T:1999:146, paragraph 29). 102 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 for such liability (judgments of 15 September 1994, KYDEP v Council and Commission, C‑146/91, EU:C:1994:329, paragraph 81, and of 10 December 2009, Antwerpse Bouwwerken v Commission, T‑195/08, EU:T:2009:491, paragraph 91). 103 It is in the light of those considerations that the Court must examine whether the conditions establishing non-contractual liability on the part of the European Union have been satisfied. 104 It must be observed that the application for damages is based on the same unlawful conduct as that relied on in support of the application for annulment of the contested decision. 105 Since all the pleas relied on in support of the claim for annulment have been rejected, the applicant has not adduced evidence of unlawful conduct on the part of EUAA. 106 Consequently, since the condition relating to the unlawfulness of the conduct for which EUAA is criticised has not been satisfied, that finding is sufficient, in the present case, for the application for damages to be dismissed as unfounded. 107 It follows from all of the foregoing that the action must be dismissed in its entirety. Costs 108 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. 109 Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by EUAA. On those grounds, THE GENERAL COURT (Second Chamber) hereby: 1. Dismisses the action; 2. Orders EMCS ltd. to pay the costs. Tomljenović Nõmm Kukovec Delivered in open court in Luxembourg on 8 June 2022. E. Coulon S. Papasavvas Registrar President * Language of the case: English.