JUDGMENT OF THE GENERAL COURT (Fourth Chamber)
29 October 2025 (*)
( Public service contracts – Tendering procedure – Provision of development, consultancy and support services in the field of information systems – Rejection of a tenderer’s bid – Abnormally low tender – Determination of the applicable substantive law – Applicable obligations in the fields of environmental, social and labour law – Manifest error of assessment )
In Case T‑750/22,
UniSystems Luxembourg Sàrl, established in Bertrange (Luxembourg),
Unisystems systimata pliroforikis monoprosopi anonymi emporiki etairia, established in Kallithea (Greece),
represented by N. Korogiannakis, lawyer,
applicants,
v
European Securities and Markets Authority (ESMA), represented by F. Barzanti and M. Deissenberger, acting as Agents, and by V. Christianos, G. Kelepouri, A. Politis and M. Rodopoulos, lawyers,
defendant,
THE GENERAL COURT (Fourth Chamber),
composed, at the time of the deliberations, of R. da Silva Passos, President, N. Półtorak and H. Cassagnabère (Rapporteur), Judges,
Registrar: A. Marghelis, Administrator,
having regard to the written part of the procedure,
further to the hearing on 30 April 2025,
gives the following
Judgment
1        By their action, the applicants, UniSystems Luxembourg Sàrl and Unisystems systimata pliroforikis monoprosopi anonymi emporiki etairia, seek (i) under Article 263 TFEU, the annulment of the decision of the European Securities and Markets Authority (ESMA) of 15 September 2022 to award first place to a consortium other than theirs in the tendering procedure PROC/2021/12, entitled ‘External Provision of IT Services (ICT Consultancy)’, for the provision of information and communications technology consultancy services, and to rank their tender second (‘the contested decision’), and (ii) under Article 268 TFEU, the award of damages.
Background to the dispute
2        The applicants are two companies belonging to the same group which are active in the field of information technology and communications and participate in calls for tenders organised by public and government authorities in the European Union.
3        ESMA and the European Banking Authority (EBA), based in Paris (France), the European Union Agency for Railways (ERA), based in Valenciennes (France), and the European Insurance and Occupational Pensions Authority (EIOPA), based in Frankfurt (Germany), launched a call for tenders, PROC/2021/12, ‘External Provision of IT Services (ICT Consultancy)’, that was published in the Supplement to the Official Journal of the European Union (OJ 2022/S, 14-31036) on 20 January 2022, followed by a corrigendum published in the Supplement to the Official Journal of the European Union (OJ 2022/S, 41-105185) on 28 February 2022 (together, ‘the contract at issue’). The purpose of the call for tenders was the provision of development, consultancy and support services in the field of information systems, in three different contractual modes (on-site, proximity and off-site).
4        The contracting authority responsible for the procedure was ESMA.
5        The tender specifications provided for the signature of framework contracts with up to five cascade contractors. Under the cascade system, the contracting authority using the services specified in the call for tenders addresses specific contract requests to the tenderer ranked first in the cascade. If that tenderer is in a position to satisfy the needs of the request, then a ‘specific contract’ is signed with it, in accordance with the model annexed to the call for tenders. If, on the other hand, that tenderer is not in a position to perform the contract, then the same contract offer is addressed to the contractor ranked second in the cascade, and so on with the third, fourth and fifth tenderers in the cascade.
6        Each contractor was required to provide its services preferably using its own employees, or, failing that, external consultants.
7        According to the tender specifications, the cascade contractors, selected from among the tenderers, were required to submit to the contracting authorities a proposal for 15 information technology consultant profiles (grouped in four categories, ranging from category 1 to category 4) at five e-competency proficiency levels (ranging from level e-1 to level e-5) in relation to the three service modes (on-site, proximity and off-site) and, as regards on-site and proximity services, in relation to the locations of the four contracting authorities as well as in relation to both standard and non-standard working days. Accordingly, each financial proposal form contained a total of 602 individual prices, corresponding to 200 different profiles, divided into four categories of professional profile and five levels of experience.
8        According to Annex VII to the call for tenders, the 602 individual prices were calculated automatically by ESMA software on the basis of certain key data provided by the candidates from their price structure.
9        The key data provided by the candidates comprised two elements.
10      The first of the two elements constituting the key data was a pivot rate corresponding to the all-inclusive price (excluding value added tax), applicable throughout the European Union for a category 1, level e-3 post. The second concerned the percentages which were applied to that pivot rate and which corresponded, first, to the geographical location of the performance of the service (Paris, Valenciennes or Frankfurt); second, to the location of the resource (proximity to the site or on site); and, third, to the uplift for work carried out outside ESMA’s normal working days.
11      In addition, Annex VII to the call for tenders provided that the tenderer’s mark-up was required to be greater than 0 overall.
12      The sole criterion for the award of the contract was price and, more specifically, the average of all 602 individual prices. The award was made under the cascade system to the five tenderers offering the lowest average price.
13      The Unisystems consortium submitted its tender on 14 March 2022.
14      During the tender opening procedure, on 21 and 30 March 2022, ESMA communicated to the tenderers the first sheet of the Excel table of all of the financial proposals, which detailed the key data referred to in paragraphs 9 and 10 above.
15      In addition, in order to determine whether the various competing tenders contained any evidence that they might be abnormally low, ESMA, inter alia, assessed the compliance of the proposed prices with the social legislation applicable in each of the Member States where the contract was to be performed. That led it to seek clarification from a number of tenderers concerning the calculation of minimum daily rates in respect of the provision of on-site services in Germany and the legislative framework applicable to minimum wages in that country.
16      In that context, in response to a request for clarification from ESMA of 20 April 2022, the Unisystems consortium submitted, on 4 May 2022, various details and information concerning its price structure.
17      Following a request made by ESMA on 11 July 2022 relating to the exclusion and selection criteria, the applicants informed the contracting authority, by email of 22 July 2022, of their doubts concerning the conformity of the tenders submitted by certain tenderers with regard, inter alia, to the minimum wages applicable in Germany and Greece.
18      By email of 17 September 2022, ESMA notified the contested decision to the applicants and indicated to them that it would respond to the applicants’ comments at a later date. In accordance with that decision, a consortium composed of a company governed by Belgian law (‘the Belgian company’) and a company governed by Luxembourg law, each company being a subsidiary of a different group of companies, was designated by the contracting authority as first contractor in the cascade (‘the consortium designated as first ranked tenderer’) and the UniSystems consortium as second contractor. That decision was accompanied by a table showing the average price offered in each of the competing tenders. The table showed that there was a difference of 3.24% (that is, EUR 8.62) between the overall average price submitted by the consortium designated as first ranked tenderer and that proposed by the applicants.
19      Subsequently, on 21 September 2022, ESMA informed the applicants that it had not found any justification for their claims that the prices offered by some tenderers were abnormally low.
20      On 27 September 2022, the applicants replied that the tender of the consortium designated as first ranked tenderer (‘the tender at issue’) was, in their opinion, abnormally low in that, inter alia, the tender was based, with regard to Germany, on wage amounts below the statutory minimum provided for by national law and, with regard to Greece, on wage amounts below those provided for by the collective agreement applicable to that consortium. The applicants therefore asked ESMA to refrain from signing any contract with that consortium until they had received more detailed explanations concerning the tender at issue.
21      On 19 October 2022, the contracting authorities and the consortium designated as first ranked tenderer concluded the contract relating to the call for tenders.
22      By a letter dated 24 October 2022, ESMA rejected the applicants’ assertions on the grounds, with regard to Germany, that the applicable law – namely that which was applicable both on the date of publication of the call for tenders and at the time of submission of the tenders – had not been infringed and, with regard to Greece, that the assertions regarding the prices of off-site services were not substantiated.
23      By a letter of 11 November 2022, the applicants maintained that the tender at issue was abnormally low. In so doing, they referred to a company governed by Greek law (‘the Greek company’) that belonged to the same group of companies as the Belgian company (‘the group involved in the consortium designated as first ranked tenderer’), and explained, inter alia, that the salary amounts determined by the collective agreement were, so far as contracts performed in Greece were concerned, applicable to that group of companies.
24      On 24 November 2022, the applicants concluded, as second cascade contractors, the contract relating to the call for tenders with the contracting authorities.
25      By email of 17 December 2022, ESMA confirmed, in response to the applicants’ letter of 11 November 2022 and referring to its letter of 24 October 2022, that it did not consider the tender at issue to be abnormally low.
Forms of order sought
26      The applicants claim that the Court should:
–        annul the contested decision;
–        order ESMA to pay the applicants, by way of damages, the sum of EUR 3.5 million for the first two years of performance of the contract, in addition to EUR 1.75 million for each year of extension of the contract, after deduction of any gross margin realised in their capacity as second contractor, in compensation for the financial loss caused by the loss of that contract, or, in the alternative, the sum of EUR 400 000 for loss of opportunity, plus interest;
–        order ESMA to pay the costs.
27      ESMA contends that the Court should:
–        dismiss the action in its entirety;
–        order the applicants to pay the costs.
Law
The application for annulment of the contested decision
28      In support of their application for annulment of the contested decision, the applicants put forward two pleas in law, relating, first, to an infringement of Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council of 18 July 2018 on the financial rules applicable to the general budget of the Union, amending Regulations (EU) No 1296/2013, (EU) No 1301/2013, (EU) No 1303/2013, (EU) No 1304/2013, (EU) No 1309/2013, (EU) No 1316/2013, (EU) No 223/2014, (EU) No 283/2014, and Decision No 541/2014/EU and repealing Regulation (EU, Euratom) No 966/2012 (OJ 2018 L 193, p. 1; ‘the Financial Regulation’) and of the tender specifications, and breach of the principles of transparency and good administration; and, second, which it is appropriate to examine first, to an infringement of the obligation to state reasons and of the right to an effective remedy, and to an infringement of essential procedural requirements and failure to respect the standstill period provided for in Article 175(2) and (3) of the Financial Regulation.
Second plea in law: infringement of the obligation to state reasons, of the right to an effective remedy, of essential procedural requirements and of the standstill period
29      The second plea in law is in two parts, alleging (i) infringement of the obligation to state reasons, of the right to an effective remedy and of essential procedural requirements, and (ii) infringement of the standstill period as provided for by Article 175(2) and (3) of the Financial Regulation.
–       First part of the second plea, alleging infringement of the obligation to state reasons, of the right to an effective remedy and of essential procedural requirements
30      The applicants submit that, according to the case-law, the obligation to state reasons is fulfilled if the contracting authority informs unsuccessful tenderers immediately of the reasons for the rejection of their tender and then, subsequently, provides to all tenderers who have submitted an admissible tender and who may request it, the characteristics and advantages of the tender selected, as well as the name of the successful tenderer, within a period of 15 calendar days from the date on which the request is received. Such a manner of proceeding satisfies the purpose of the obligation to state reasons, which is to enable the person concerned to exercise his or her rights, in particular the right to an effective remedy, and the Court to exercise its power of review as to the legality of the contested decision.
31      The applicants rely, in essence, on an alleged infringement by ESMA of Article 170(3) of the Financial Regulation, in that ESMA had not fulfilled its obligation to communicate to them the characteristics and advantages of the successful tender.
32      According to the applicants, the information provided by ESMA in its letters of 17 and 21 September and 24 October 2022 does not constitute an adequate statement of reasons. In that respect, they state that the letters do not disclose the exact calculations or method of calculation that led the contracting authority to conclude that the prices offered by the consortium designated as first ranked tenderer were not abnormally low. In particular, they submit that the information provided in the letter of 24 October 2022 did not answer the questions they had asked the contracting authority concerning the prices and specific mark-ups included in the successful tender and compliance with the minimum wages applicable in Germany and Greece.
33      The applicants assert that, since the contracting authority did not provide them with details of the prices and specific mark-ups offered by the consortium designated as first ranked tenderer, they were unable to ascertain whether the contested decision was well founded, even though price was the deciding criterion in ranking the tenders.
34      The applicants conclude from this that, since the contracting authority failed to provide adequate reasons for its view that the price offered by the consortium designated as first ranked tenderer was not abnormally low, the contracting authority infringed not only the obligation to state reasons but also essential procedural requirements and the right to an effective remedy.
35      ESMA disputes the applicants’ arguments.
36      It should be noted that where, as in the present case, the EU institutions enjoy a broad discretion, respect for the rights guaranteed by the EU legal order in administrative procedures is of even more fundamental importance. Those guarantees include, in particular, the duty of the competent institution to provide adequate reasons for its decisions (judgments of 10 February 2021, Sophia Group v Parliament, T‑578/19, not published, EU:T:2021:77, paragraph 162, and of 14 June 2023, Instituto Cervantes v Commission, T‑376/21, EU:T:2023:331, paragraph 63).
37      The assessment by the contracting authority of the existence of abnormally low tenders is carried out in two stages.
38      In the first stage, the contracting authority determines whether the price or costs proposed in a tender ‘appear’ to be abnormally low. The use of the verb ‘appear’ in paragraph 23.1 of Annex I to the Financial Regulation requires the contracting authority to carry out a prima facie assessment of the abnormally low nature of a tender and not to conduct, on its own initiative, a detailed analysis of the composition of each tender in order to establish that it is not an abnormally low tender. Thus, in the first stage, the contracting authority need only determine whether the tenders submitted contain evidence likely to arouse suspicion that they might be abnormally low. That is the case in particular where the price proposed in a tender submitted is considerably lower than that of the other tenders submitted or the normal market price. If the tenders submitted do not contain such evidence and therefore do not appear to be abnormally low, the contracting authority may continue the evaluation of those tenders and the award procedure for the contract (see judgment of 1 December 2021, Sopra Steria Benelux and Unisys Belgium v Commission, T‑546/20, EU:T:2021:846, paragraph 48 and the case-law cited).
39      In the second stage, if there is evidence which arouses suspicion that a tender may be abnormally low, the contracting authority must check the composition of the tender in order to ensure that it is not abnormally low. Where the contracting authority carries out that check, it must give the tenderer which submitted that bid the opportunity to set out the reasons why it considers that its tender is not abnormally low. The contracting authority must then assess the explanations provided and determine whether the tender concerned is abnormally low, in which case it must be rejected (see, to that effect, judgments of 4 July 2017, European Dynamics Luxembourg and Others v European Union Agency for Railways, T‑392/15, EU:T:2017:462, paragraph 89, and of 13 June 2019, Strabag Belgium v Parliament, T‑299/18, not published, EU:T:2019:411, paragraph 63).
40      As regards the scope of the contracting authority’s obligation to state reasons if it considers that the successful tender does not appear to be abnormally low, the following should be borne in mind. Where an unsuccessful tenderer, who is not in an exclusion situation and who satisfies the selection criteria, asks the contracting authority, in writing, to set out the reasons why it did not consider the successful tender to be abnormally low, that contracting authority is – unless the arguments put forward by the unsuccessful tenderer are irrelevant or devoid of any reasoning – required, under paragraph 23.1 of Annex I to the Financial Regulation, 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 contracting authority on that point of the broad outlines of that analysis (see, to that effect, judgment of 11 May 2023, Commission v Sopra Stera Benelux and Unisys Belgium, C‑101/22 P, EU:C:2023:396, paragraphs 80 to 83).
41      Moreover, the obligation for the administration to give reasons for its decisions is not merely a general expression of the transparency of its actions, but is also intended to give the individual the possibility of deciding, with full knowledge of the relevant facts, whether there is any point in his or her applying to the courts. There is therefore a close connection between, on the one hand, the obligation to give reasons and, on the other, the fundamental right to effective legal protection and the right to an effective remedy guaranteed under Article 47 of the Charter of Fundamental Rights of the European Union. In other words, the obligation to state reasons helps to ensure effective judicial protection (see judgment of 1 December 2021, Sopra Steria Benelux and Unisys Belgium v Commission, T‑546/20, EU:T:2021:846, paragraph 35 and the case-law cited).
42      Lastly, it must be recalled that, according to settled case-law, the obligation to state reasons is an essential procedural requirement, as distinct from the question whether the reasons given are well founded, which goes to the substantive legality of the contested measure (see judgment of 1 February 2018, European Dynamics Luxembourg and Others v ECHA, T‑477/15, not published, EU:T:2018:52, paragraph 31 and the case-law cited).
43      In the present case, the average price and the data referred to in paragraphs 9 and 10 above relating to the tender at issue were communicated to the applicants, as is apparent from the table annexed to the contested decision and the documents sent to the applicants on 21 and 30 March 2022 (see paragraph 14 above). That information enabled the applicants to estimate the values set out at each of the price items offered by the consortium designated as first ranked tenderer, as is apparent from the tables included in Annex 27 to the application.
44      Furthermore, it is clear from the content of the letter from ESMA of 24 October 2022 that the contracting authority considered the arguments put forward by the applicants to be irrelevant in so far as, first, according to ESMA, the social law on which the tenderers were required to base their calculations was that in force at the date of publication of the call for tenders and, therefore, in the case of the wages applicable in Germany, that which was in force prior to 1 July 2022, an hourly rate of EUR 9.82, and, second, nothing relied on by the applicants supported their view that the collective agreement which they had invoked was applicable to one of the two companies making up the consortium designated as first ranked tenderer.
45      As it is, irrespective of whether the statement of reasons set out in the letter from ESMA of 24 October 2022 was well founded, that statement of reasons must be regarded as having been sufficient to enable the applicants to understand the reasons for the contracting authority’s finding that their claims relating to the abnormally low nature of the tender at issue were irrelevant, in a situation where, moreover, the data that had been communicated to them enabled them to evaluate and to challenge all of the prices proposed by the consortium designated as first ranked tenderer, as in fact they have done by bringing the present action.
46      It follows that, in the light of the factors referred to in paragraphs 39 and 42 above, ESMA provided adequate reasons for its view that the tender submitted by the consortium designated as first ranked tenderer did not appear to be abnormally low.
47      With regard to the complaints alleging infringement of the right to an effective remedy and infringement of essential procedural requirements, it must be noted that, as, moreover, the applicants clarified at the hearing, these are indissociable from the complaint alleging an inadequate statement of reasons; accordingly, they may be rejected on the same grounds.
48      Consequently, the first part of the second plea in law must be rejected.
–       Second part of the second plea, alleging infringement of the standstill period
49      The applicants submit that ESMA signed the contract with the consortium designated as first ranked tenderer on 19 October 2022, that is to say, before answering their letter of 27 September 2022, thereby infringing the standstill period.
50      It follows from the application of Article 175(2) and (3) of the Financial Regulation, in conjunction with point (a) of the first subparagraph of paragraph 35.1 of Annex I to that regulation, that where, as in the present case, the contracting authority notifies the tenderers by electronic means of the outcome of the call for tenders, the contracting authority must leave a period of 10 days between such notification and signature of the contract; that period is to run from the day after notification.
51      Paragraph 35.1 of Annex I to the Financial Regulation provides, in the second subparagraph, that ‘if necessary, the contracting authority may suspend the signature of the contract for additional examination if this is justified by the requests or comments made by unsuccessful or aggrieved candidates or tenderers or by any other relevant information received during the period set out in Article 175(3) [of the Financial Regulation].’
52      It must be noted that the decision of the contracting authority to suspend the mandatory period of 10 days provided for by Article 175(3) of the Financial Regulation is, according to paragraph 35.1 of Annex I to that regulation, merely an option, not an obligation, so that the fact that the contracting authority does not use it cannot vitiate the procedure which it has conducted. Furthermore, the applicants do not specify how the irregularity on which they rely could have affected the outcome of the procedure.
53      In the present case, it is sufficient to note that a period of more than 10 days elapsed between the date on which the outcome of the call for tenders was notified, that is, 17 September 2022, and the date on which the contract with the consortium designated as first ranked tenderer was signed, that is, 19 October 2022, and that, therefore, the standstill period provided for by Article 175(3) of the Financial Regulation was respected.
54      In the light of the foregoing, the second part of the second plea in law must be rejected and, accordingly, the second plea must be dismissed in its entirety.
First plea in law: infringement of the Financial Regulation and of the tender specifications and breach of the principles of transparency and of good administration
55      The applicants claim that the tender at issue was abnormally low within the meaning of paragraph 23.2 of Annex I to the Financial Regulation.
56      In that respect, the applicants argue, in essence, that of the 602 price items in the tender at issue, 10 price items, 4 of which relate to tasks to be carried out ‘on site’ and in proximity to the site in Germany (‘the four disputed price items relating to Germany’) and 6 relating to ‘off-site’ price items (‘the six disputed price items relating to Greece’), did not comply with social legislation. Indeed, they argue that the four disputed price items relating to Germany contravene German legislation on the application of the minimum wage, whereas, in the case of the six disputed price items relating to Greece, the prices proposed did not comply with the applicable collective agreement, that is to say, with the agreement that applied to the Greek company which, like the Belgian company, is a subsidiary of the group involved in the consortium designated as first ranked tenderer for the contract at issue.
57      As regards the method of assessing whether a tender is abnormally low, which the applicants invoke by way of introduction and in general terms, the applicants submit that it matters little that a relatively insignificant number of price items were affected by the infringement of Greek and German social laws by the consortium designated as first ranked tenderer. In fact, according to the applicants, the systematic method of calculation used by the contracting authority in order to calculate all of the prices means that, in a kind of chain reaction, a single error in the price table, such as that shown in paragraph 63 of the application, results in all of the price tables being affected, since observance of the minimum wage by the consortium designated as first ranked tenderer would have an effect on the determination of the pivot rate referred to in paragraph 10 above.
58      According to the applicants, such irregularities would necessarily have an impact on the overall price of the tender, since any updating of the ‘wages’ element of the prices concerned would automatically lead, by offsetting, to an improper reduction of the other components of those prices, namely, in this case, all indirect costs and the mark-up, which, as is apparent from Annex VII to the call for tenders, cannot be below 0.
59      The applicants add that, even if it were assumed that the errors affecting the 10 disputed price items are not capable of affecting all of the price tables, that would not call into question the existence of the abnormally low price of the tender at issue, in a situation where ESMA has not proved that the services relating to the 10 price items in question are objectively insignificant.
60      In order to substantiate their arguments with figures, the applicants rely on ESMA’s assertion in its letter of 24 October 2022 that the indirect costs and mark-up of the tender at issue exceeded those which the applicants had offered. It is on the basis of that premiss and applying, therefore, the percentage relating to those two components of the price which they themselves had submitted in their proposal (that is to say, 10.28% of the total price) that the applicants infer that the tender at issue was abnormally low. Indeed, according to the applicants, the updating of prices by taking minimum wages into account would have resulted automatically in a lowering of the indirect costs and mark-up of the tender, without the contracting authority showing, using figures, that the indirect costs and mark-up of the tender at issue complied with the requirements of the tender specifications.
61      As regards specifically, and in the first place, the six disputed price items relating to Greece, the applicants argue, in essence, that the collective agreement applicable to the Greek company, which is one of the largest companies established in Greece, is intended to apply equally and horizontally to all employees of the group involved in the consortium designated as first ranked tenderer, including those of the Belgian company.
62      In that regard, and in response to ESMA’s argument that the Greek company could, as a subcontractor, perform only 15% of the total contract volume, the applicants contend that the contracting authority has not proved its assertion. In their view, it is highly unlikely that the Belgian company, which has only one employee, is the main contractor and that the Greek company is merely a subcontractor.
63      The applicants argue that, taking into account the qualifications required by the tender specifications, the qualifications applicable to the collective agreement correspond, as a minimum, to those of an expert with a ‘post lower secondary level education’, awarded a minimum gross monthly salary of EUR 866.12.
64      Basing their calculations on a percentage of the overhead cost representing 10.28% of the overall price offered, as referred to in paragraph 60 above, the applicants claim that the minimum daily price for off-site contracts in Greece would be EUR 75.60, which is higher than the prices proposed by the consortium designated as first ranked tenderer in relation to categories 2, 3 and 4 and level e-1.
65      As regards, in the second place, the four disputed price items relating to Germany, the applicants submit that the Dritte Verordnung zur Anpassung der Höhe des Mindestlohns (Third Regulation adjusting the level of the minimum wage) of 9 November 2020 (BGBl. I, p. 2356, No 51; ‘the regulation of 9 November 2020’), which provided, inter alia, for an increase in the minimum hourly wage as from 1 July 2022, entered into force on 13 November 2020.
66      Taking into account the fact that the regulation of 9 November 2020 was in force before the start of the tendering procedure, on 20 January 2022, and certainly before the closure of that procedure on 14 March 2022, the applicants submit that the statutory hourly minimum wage to be used in the tender with regard to the services provided in Germany was, at the very least, the figure applicable from 1 July 2022, that is to say, EUR 10.45, and not EUR 9.82, as was stated by the contracting authority in its letter of 24 October 2022.
67      The applicants add that, on 21 January 2022, the Federal Ministry of Labour and Social Affairs published a text entitled ‘Entwurf eines Gesetzes zur Erhöhung des Schutzes durch den gesetzlichen Mindestlohn’ (draft law to increase protection through the statutory minimum wage), which was followed, on 23 February 2022, by the publication by the Federal Government of a text entitled ‘Entwurf eines Gesetzes zur Erhöhung des Schutzes durch den gesetzlichen Mindestlohn und zu Änderungen im Bereich der geringfügigen Beschäftigung’ (draft law to increase protection through the statutory minimum wage and to make changes in relation to part-time employment).
68      Ultimately, a new law, the Gesetz zur Erhöhung des Schutzes durch den gesetzlichen Mindestlohn und zu Änderungen im Bereich der geringfügigen Beschäftigung (Law to increase protection through the statutory minimum wage and to make changes in relation to part-time employment) of 28 June 2022 (BGBl. I, p. 969, No 22; ‘the Law of 28 June 2022’) increased the hourly minimum wage to EUR 12 with effect from 1 October 2022.
69      The applicants assert that the prices in the case of the four disputed price items relating to Germany were abnormally low, since it was ‘common knowledge’ that the hourly minimum wage would be increasing to EUR 12 with effect from 1 October 2022, and that the contracting authority was in any event required, in accordance with the principles of good administration and legal certainty, to take account of wages applicable from 1 July 2022.
70      To that end, the applicants indicate that the amount of the four disputed price items relating to Germany is lower than the minimum wage applicable with effect from 1 July 2022, if the rate of 10.28% referred to in paragraph 60 above is applied to the total price. Under paragraph 23.2 of Annex I to the Financial Regulation, that would make the tender at issue abnormally low.
71      ESMA disputes the applicants’ arguments.
72      As a preliminary point, it must be noted that the concept of an ‘abnormally low tender’ is not defined by the Financial Regulation.
73      However, the wording of paragraph 23.1 of Annex I to the Financial Regulation makes clear that a tender is abnormally low where, inter alia, the price proposed does not include all the costs generated by the technical aspects of the tender or where the price proposed in a tender submitted is considerably less than that of the other tenders submitted or the normal market price, but the tenderer has not given any objective or credible reasons for that difference (see, to that effect, judgment of 16 May 2019, Transtec v Commission, T‑228/18, EU:T:2019:336, paragraph 72 (not published) and the case-law cited).
74      In so far as, on the basis of such considerations, the categorisation of an abnormally low tender calls for complex technical and economic assessments to be made by the contracting authority, that authority has been recognised as having a broad discretion with regard to the factors to be taken into account for the purpose of adopting a decision to award a contract following a call for tenders. In such situations, the review by the Court is limited to checking compliance with the applicable procedural rules and with the duty to give reasons, whether the facts have been accurately stated, and that there is no manifest error of assessment or misuse of powers (see, to that effect, judgment of 6 September 2023, Sopra Steria Benelux and Unisys Belgium v Commission, T‑108/22, not published, EU:T:2023:495, paragraph 60 and the case-law cited).
75      In that regard, according to settled case-law, the abnormally low nature of a tender must be assessed by reference to the composition of the tender and to the services at issue. In addition, for the purpose of ensuring healthy competition, the contracting authority may, in the course of that assessment, take account of all relevant information in the light of the service at issue (see, to that effect, judgment of 28 January 2016, Agriconsulting Europe v Commission, T‑570/13, EU:T:2016:40, paragraph 55 and the case-law cited).
76      Moreover, it has previously been held that the broad discretion which the contracting authority is recognised as having to evaluate the tenders submitted to it meant that the possible irregularity of a minor or isolated aspect of the tender that was not liable to undermine the consistency of the overall price offered and, therefore, the tender as a whole, could not, by itself, amount to a manifest error of assessment on the part of the contracting authority in accepting that tender (see, to that effect, judgment of 28 January 2016, Agriconsulting Europe v Commission, T‑570/13, EU:T:2016:40, paragraph 60).
77      As regards, specifically, the second subparagraph of paragraph 23.2 of Annex I to the Financial Regulation, which provides that ‘the contracting authority shall reject the tender where it has established that the tender is abnormally low because it does not comply with applicable obligations in the fields of environmental, social and labour law’, it must be noted that the EU legislature sought to limit, in those three specific fields, the discretion of the contracting authority which, if it finds an irregularity in the tender in the light of those obligations, is required to reject it as being abnormally low.
78      As it is, in the present case, it should be noted that, according to the applicants, the abnormally low nature of the tender submitted by the consortium designated as first ranked tenderer was attributable to the fact that, with regard to certain price items, either the minimum wage had not been respected or, if it had, the other components of those price items had been compressed to such an extent that the tender was abnormally low as a result, with the resulting chain reaction described in paragraph 57 above.
79      As regards, in the first place, the challenge concerning the six disputed price items relating to Greece, it must be noted that, in accordance with settled case-law, in order to establish whether, in the light of the assessment of the facts, the decision at issue was wrongly adopted, the evidence adduced by the applicant must be sufficient to make the findings upheld in that decision implausible. In other words, a plea put forward by the applicant alleging a manifest error of assessment must be rejected if, despite the evidence adduced by the applicant, the contested assessment may still be accepted as being true or valid (see judgment of 6 September 2023, Sopra Steria Benelux and Unisys Belgium v Commission, T‑108/22, not published, EU:T:2023:495, paragraph 62 and the case-law cited).
80      In the present case, the letter of 27 September 2022 shows that the applicants did assert that the group involved in the consortium designated as first ranked tenderer was required to comply with the sectoral collective agreement applicable to it and, consequently, to apply the wage grid attached to the letter. Nonetheless, they did not produce any substantiated evidence as to why that collective agreement might be applicable to one or other of the two companies referred to in paragraph 18 above that made up the consortium designated as first ranked tenderer.
81      In those circumstances, the contracting authority was entitled, without making a manifest error of assessment in so doing, to find in its letter of 24 October 2022 that, in view of the fact that the applicants had not put forward anything to explain the application of the collective agreement or the wage levels on which they relied to demonstrate the existence of an abnormally low price in the six disputed price items relating to Greece, it was not appropriate to regard the tender at issue as being abnormally low, in a situation where the contracting authority had, moreover, noted that the wage levels being considered appeared to correspond to the qualifications of the employees and to their level of experience.
82      As to the arguments developed by the applicants in their letter of 11 November 2022, it must first be noted that the collective agreement which they invoked is applicable only to one company, the Greek company, which, although part of the same group as the Belgian company, is nonetheless not the entity to which the contract was awarded. There is nothing, moreover, to suggest that that company is a subcontractor in respect of the contract. Furthermore, the consortium designated as first ranked tenderer was entitled, as ‘provider of consultants’, as was indicated in the tender specifications, to use the services of independent consultants, to whom that collective agreement would not apply.
83      In the light of those points, the complaint concerning the abnormally low prices in relation to the six disputed price items relating to Greece must be rejected.
84      As regards, in the second place, the four disputed price items relating to Germany, it is necessary to determine, first of all, which minimum wage law was applicable ratione temporis.
85      In that regard, as indicated in paragraphs 65 to 69 above, it should be noted that the law that was in force both when the call for tenders was initiated, on 20 January 2022, and when tenders were submitted, in March 2022, provided for a future increase in the minimum wage with effect from 1 July 2022 and, moreover, that following that increase, the Law of 28 June 2022 was passed, which provided for a further increase in the minimum wage.
86      Admittedly, as ESMA argues, the Court of Justice has, with regard to the application ratione temporis of the procedural rules of public procurement, previously determined that the applicable law was, as a rule, the law that was applicable at the time when the contracting authority chose the type of procedure to be followed, not when the contract was awarded, on the ground that the latter date marked the end of the public procurement procedure being considered (see, to that effect, judgment of 11 July 2013, Commission v Netherlands, C‑576/10, EU:C:2013:510, paragraphs 52 and 53 and the case-law cited).
87      However, from the point of view of their application ratione temporis, the substantive rules applicable during the performance of a public contract must be distinguished from the procedural rules applicable prior to conclusion of the contract. Indeed, the former are intended to be applied not as procedural rules, that is to say, at the time when the contract concerned is awarded, but subsequently, in the context of the performance of that contract.
88      It follows that the principles derived from the case-law on which ESMA relies cannot be relevant for the purpose of determining the law that is applicable ratione temporis to the performance of a public contract.
89      Rather, the law that was applicable ratione temporis
must be determined as follows.
90      According to settled case-law, the principle of equal treatment as between tenderers, the aim of which is to promote the development of healthy and effective competition between undertakings taking part in a public procurement procedure, requires all tenderers to be afforded equality of opportunity when formulating their tenders, which therefore implies that the tenders of all competitors must be subject to the same conditions (see judgment of 6 October 2021, Global Translation Solutions v Parliament, T‑7/20, not published, EU:T:2021:649, paragraph 43 and the case-law cited).
91      That principle of equal treatment as between tenderers implies that all the conditions and all the detailed rules of the award procedure must be drawn up in a clear, precise and unequivocal manner in the notice or contract documents so that, first, all reasonably informed tenderers exercising ordinary care can understand their exact significance and interpret them in the same way and, second, the contracting authority is able to ascertain whether the tenders submitted satisfy the criteria applying to the relevant contract (see judgment of 19 April 2023, Siemens v Parliament, T‑74/22, not published, EU:T:2023:202, paragraph 31 and the case-law cited).
92      Where, as in the present case, the conditions of the call for tenders are not unequivocal, in that they do not specify the law applicable ratione temporis to the contracts concluded after the award of the contract when a number of substantive laws may apply successively, the principles of legal certainty and transparency require that both the contracting authority and the tenderers apply the substantive law governing the contract which, if not applicable on the date of publication of the call for tenders or on the date of submission of tenders, certainly will be when the contract is performed, which is the case where the law being considered is in force on those two dates and expressly provides that its application is to be deferred.
93      In the present case, the contracting authority and tenderers could not have anticipated the effects of a draft law that had not yet been passed when tenders were submitted (namely the future Law of 28 June 2022). However, it was incumbent on them to take account of the regulation of 9 November 2020, which was in force both on the date of publication of the call for tenders and when tenders were submitted, and which provided that, with effect from 1 July 2022 (and thus during performance of the contract, since the contract with the consortium designated as first ranked tenderer had been concluded on 19 October 2022), the minimum wage in Germany was to rise to EUR 10.45 per hour.
94      Thus, ESMA was wrong to conclude that the applicable law in relation to the minimum wage was the law applicable at the time of publication of the call for tenders, rather than the law which, being in force at the time of publication of the call for tenders and when tenders were submitted, provided for a forthcoming increase in the minimum wage that would be in effect when the contract was to be performed.
95      In those circumstances, it is necessary to determine whether, notwithstanding that error of law, the contracting authority was nevertheless entitled, without being mistaken, to consider the tender submitted by the consortium designated as first ranked tenderer not to be abnormally low.
96      In that regard, in the first place, it must be noted that the irregularities concerned, assuming that they are established, affect a very limited number of price items, that is to say, in this instance, only 4 of the 602 price items set out in the tender at issue, corresponding to a percentage of 0.66%.
97      In the second place, it should be noted that, as is apparent from the call for tenders, and as the applicants indicated in their letter of 27 September 2022 and subsequently in response to a question from the Court, the amount, for a given price item, of the ‘all-inclusive’ price covers (i) the ‘wages’ component relating to the services provided; (ii) the ‘overhead and indirect costs’ component, which includes, inter alia, costs related to staff training, travel expenses and catering, costs related to staff recruitment, invoicing, building costs and taxes; and, lastly, (iii) the ‘mark-up’ component, which must, according to the tender specifications, be greater than 0. Thus, and in so far as those three components are independent of each other both from an economic standpoint and from the point of view of determining their amount, any irregularity affecting the ‘wages’ component of the four disputed price items relating to Germany is likely to be offset by the amount of the other two components, that is to say, the amount of the overhead and indirect costs, and that of the mark-up. In that situation, the corresponding decrease in the amount of those other components does not contravene the Financial Regulation, provided that it does not have the effect of making the amount of the component abnormally low, within the meaning of paragraph 23.1 of Annex I to that regulation.
98      In the third place, as ESMA made clear in response to a question put by the Court, after adjusting the ‘wages’ component of the four disputed price items relating to Germany to the level of the minimum wage applicable with effect from 1 July 2022, there was still a surplus equivalent to 7% of each of the four disputed price items, so that the tender in question was compatible with those rules, as to which the contracting authority will have to satisfy itself during the performance of the contract.
99      In that regard, at the hearing, the applicants indicated that they did not take issue with the matters referred to in paragraph 98 above, but contended that the 7% variance was lower than the floor rate of the overhead and indirect costs and the 10.28% mark-up which the contracting authority had indirectly referred to in its letter of 24 October 2022, as recalled in paragraph 60 above.
100    In other words, the applicants implicitly but necessarily argue that the set-off applied in order to bring the ‘wages’ component of the four disputed price items relating to Germany to the level of the minimum wage had the effect of automatically lowering the ‘overhead and indirect costs’ and ‘mark-up’ components to such a level that the tender was abnormally low on grounds other than the failure to respect the minimum wage.
101    As it is, the 7% surplus as against the minimum wage applicable as regards the four disputed price items relating to Germany does not appear to be so low that it could be considered manifestly insufficient to enable the consortium designated as first ranked tenderer, on the one hand, to finance the ‘overhead and indirect costs’ linked to performance of the contract and, on the other, to establish a ‘mark-up’ that is greater than 0. That conclusion is all the more plausible as, in their letter of 27 September 2022, the applicants themselves recognised that the percentage of indirect costs and of the mark-up to be added to the ‘wages’ component was 4.80% of the overall average price, an order of magnitude that is capable of being applied to each of those four disputed price items, their components being similar to those constituting the overall average price.
102    It follows from the foregoing that, notwithstanding the error of law referred to in paragraph 94 above, the applicants are not justified in claiming that ESMA wrongly considered the prices in relation to the four disputed price items relating to Germany not to be unlawful. Accordingly, the arguments relating to an alleged chain reaction across all of the price tables on the basis of those four price items must be rejected.
103    It follows from paragraphs 83 and 102 above that the first plea in law cannot be upheld. Accordingly, it follows from all of the above that the head of claim by which the applicants seek the annulment of the contested decision must be rejected, without there being any need to rule on the objections as to inadmissibility raised by ESMA.
The claim for damages
104    By their second and third heads of claim, the applicants seek damages on the basis of Articles 256, 268 and 340 of the FEU Treaty to compensate for the damage caused by ESMA’s alleged infringement of the Financial Regulation and breach of the principles of transparency and equal treatment.
105    Arguing, first, that the total value of the framework contract for the first contractor is EUR 40.2 million over the whole duration of the contract; second, that the first designated tenderer is expected to sign 95% of the specific contracts; and lastly, third, that their gross margin, as their 2021 annual accounts show, may be presumed to be 18.35%, the applicants seek damages in the amount of EUR 3.5 million for the first two years of performance of the contract and an additional annual amount of EUR 1.75 million for each of the two possible extensions of that contract, after deducting any gross margin that may be achieved in their capacity as second contractor.
106    In the alternative, should the Court find that the applicants are not entitled to damages for the full amount of the losses incurred, the applicants claim damages for loss of opportunity, namely that of being awarded the contract as first contractor.
107    Under the second paragraph of Article 340 TFEU, in the case of non-contractual liability, the Union must, in accordance with the general principles common to the laws of the Member States, make good any damage caused by its institutions or by its servants in the performance of their duties.
108    According to settled case-law, in order for the European Union to incur non-contractual liability under the second paragraph of Article 340 TFEU and for the right to compensation to be enforceable, a number of cumulative conditions must be satisfied: the conduct alleged against the institutions must be unlawful, actual damage must have been suffered, and there must be a causal link between that conduct and the damage alleged (see judgment of 12 September 2024, Nardi v ECB, C‑574/23 P, not published, EU:C:2024:746, paragraph 25 and the case-law cited).
109    In the present case, it must be observed that the applicants’ claim for damages is based solely on the same illegalities as those invoked in support of their application for annulment. It follows from the examination of the applicants’ claim for annulment that the contracting authority cannot be accused of having behaved unlawfully by ranking in first place the tender submitted by the consortium designated as first ranked tenderer.
110    Thus, and in so far as the applicants have failed to adduce proof that one of the three cumulative conditions for the liability of the administration to be incurred is satisfied, their claim for damages must be rejected and, accordingly, the action must be dismissed in its entirety.
Costs
111    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. Under Article 135(1) of those rules, the Court may, if equity so requires, decide that an unsuccessful party is to pay only a proportion of the costs, or even that that party is not to be ordered to pay any.
112    In the present case, it is apparent from the grounds set out above that the applicants are the unsuccessful parties and that ESMA, in the form of order sought, expressly applied for the applicants to be ordered to pay the costs. It is conceivable, however, that the action brought by the applicants may have been attributable to ESMA’s error of law as referred to in paragraph 94 above, and to the communication of the rate of 10.28% referred to in paragraph 60 above, as to which ESMA itself acknowledged that it could give rise to confusion and was not necessarily uniform in respect of all price items.
113    Equity thus requires that each party bear its own costs.
On those grounds,
THE GENERAL COURT (Fourth Chamber)
hereby:
1.      Dismisses the action;
2.      Orders UniSystems Luxembourg Sàrl, Unisystems systimata pliroforikis monoprosopi anonymi emporiki etairiaand the European Securities and Markets Authority (ESMA) each to bear their own costs.
da Silva Passos
Półtorak
Cassagnabère
Delivered in open court in Luxembourg on 29 October 2025.
V. Di Bucci
M. van der Woude
Registrar
President
*      Language of the case: English.