JUDGMENT OF THE GENERAL COURT (Third Chamber)
17 October 2012 (*)
(Public service contracts – Tender procedure – Provision of services for the maintenance, development and support of computer applications – Rejection of the applicant’s tenders and award of the contracts to another tenderer – Selection criteria – Award criteria – Obligation to state reasons – Non-contractual liability)
In Case T‑447/10,
Evropaïki Dynamiki – Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE, established in Athens (Greece), represented by N. Korogiannakis and M. Dermitzakis, lawyers,
applicant,
v
Court of Justice of the European Union, represented by T. Lefèvre, acting as Agent,
defendant,
APPLICATION, first, for annulment of the decision of the Court of Justice of 12 July 2010 by which it rejected the applicant’s tenders for lots 1 and 2 in invitation to tender CJ 7/09 of 11 November 2009 for the maintenance, development and support of computer applications (OJ 2009, S 217-312293) and of all further related decisions of the Court of Justice, including the decision to award the respective contracts to the successful contractors, and second, for damages,
THE GENERAL COURT (Third Chamber),
composed of O. Czúcz (Rapporteur), President, I. Labucka and D. Gratsias, Judges,
Registrar: S. Spyropoulos, Administrator,
having regard to the written procedure and further to the hearing on 25 January 2012,
gives the following
Judgment
Background
1        The applicant, Evropaïki Dynamiki – Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE, is a company operating in the information and communications technology sector.
2        By notice of 11 November 2009 published in the Supplement to the Official Journal of the European Union (OJ 2009, S 217-312293) under reference CJ 7/09, the Court of Justice of the European Union launched a call for tenders relating to the maintenance, development and support of computer applications.
3        It is clear from point 3 of the tendering specifications that the call for tenders related to making a team available for the maintenance, development and support of computer applications. According to the information in points 3.5.2 and 3.5.3 of the tendering specifications, the indicative number of members of the intra‑muros team was approximately 22 people and tenderers had to provide also for an extra-muros team.
4        Point 5 of the tendering specifications is entitled ‘Analysis of tenders’.
5        Point 5.3 of the tendering specifications concerns examination of the selection criteria. According to point 5.3.2.1 of, and Annex H to, the tendering specifications, the ability of a tenderer to make available to the Court of Justice a team possessing the minimum technical skills is to be examined by using in particular the 34 curricula vitae submitted by tenderers.
6        Point 5.4 of the tendering specifications relates to examination of the award criteria. It provides that both lots will be awarded to the most economically advantageous tender.
7        Points 5.4.1.1 to 5.4.1.2 of the tendering specifications, which concern the quality criteria, are worded as follows:
‘5.4.1.1 Technical assessment: aspects common to both lots
This part counts for 50 points out of 70.
The majority of the aspects are analysed in the light of the information provided in Annex E. They are analysed by taking into account the specific characteristics of the lot for which the tender is being submitted. The weightings indicated in brackets are applied to these aspects to calculate the overall score of the quality criterion.
–        Guarantees on the stability of the team (7 points)
The legal link between the tenderer and the proposed persons will be taken into account.
–        Guarantees regarding acquisition of skills (7 points)
Proposed approach to ensure that skills are transferred within the team and passed on to Court officials.
Proposed approach to ensure that products pass smoothly from the development to the maintenance stage.
Proposed approach for the rational management of knowledge acquired during the projects and of other good practices.
–        Guarantees that the work time schedules will be observed (10 points)
–        Quality-Assurance (10 points): guarantees provided by the organisation on the quality of the deliverables.
–        Proposal for the contract start-up stage (3 points): proposed approach for the work involving familiarisation with the existing information systems or those being developed.
–        The technical quality of the proposed team (10 points): the skill, experience, organisation and training of the proposed team within the area covered by the lot and particularly the available profiles and coverage of the technologies used at [the] Court by the available technical skills, on the understanding that the Court requires a minimum number of personnel per profile, that it will from time to time call on the consultants to discuss specific and/or advanced technical points, and that the company must therefore prove that it has the experience and resources to enable it to meet these demands effectively and thus to assist the team working at the Court (including the technical expert – see description of profiles and table of available profiles) if they cannot be effectively satisfied by this team. The ability of the proposed team to use French as the written and spoken working language is also taken into account.
The [curricula vitae] provided are analysed for their quality beyond their minimum characteristics required for selection. Any clear over-estimate of the candidates’ experience constitutes a negative factor in the analysis of the tender.
–        Quality of the tender file (3 points): the tender file itself is deemed to be representative of the quality of the documents produced by the tenderer and, in this regard, its own quality (presentation, clarity, effectiveness of expression, manner of presenting information in the reference documents provided, quality of wording, etc.) is taken into consideration in the qualitative assessment of the tender.
5.4.1.2 Specific elements for a particular lot
This part counts for 20 points out of 70.
Lot 1 (Development)
–        Reusable technical elements (10 points).
–        Guarantees as to the proper assessment of development costs (10 points).
Lot 2 (Maintenance)
–        Workload management (10 points): organisation adopted to absorb maintenance peak loads.
–        Guarantees on handling the large portfolio of technologies, including those generating a low workload (10 points).’
8        On 29 January 2010, the applicant submitted its tenders for lots 1 and 2 to the Court of Justice in response to the aforementioned call for tenders.
9        On 9 July 2010, the tender evaluation committee concluded that the applicant was not excluded and satisfied all the selection criteria, but that, on the basis of the award criteria, its tenders were not the most economically advantageous ones.
10      On 12 July 2010, the Court of Justice sent the applicant a letter informing it that it had not been awarded the contracts because, at the end of the award phase, its tenders had not been considered to be the best ones. The Court of Justice told the applicant that it could obtain additional information on the grounds for rejection of its tenders, in particular on the characteristics and relative advantages of the successful tenders.
11      On the same day, the applicant sent the Court of Justice a letter asking the latter to inform it within 14 days of inter alia the following matters relating to both lots in the call for tenders:
–        the scores awarded for its tenders and those of the successful tenderers for each technical award criterion, together with a thorough analysis of the strong and weak points of its tenders and those of the successful tenderers, explaining the relative advantages and the additional or better services offered by the successful tenderers in comparison with its own tenders;
–        the content of the evaluation committee’s report for lots 1 and 2.
12      The Court of Justice responded by letter of 22 July 2010. In that letter, it first set out, in two tables, the scores obtained by the applicant and by the successful tenderers. Those tables indicated not only the overall score and the scores for the quality criteria as a whole and the price criteria as a whole, but also the scores awarded for each quality sub-criterion referred to in points 5.4.1.1 and 5.4.1.2 of the tendering specifications and for each price sub-criterion. Underneath the tables, the Court of Justice observed that the scores showed that, despite the quality of the applicant’s tenders, those tenders had been placed in a lower position than those selected on the basis of the criteria examined for each lot, and that the details of the points allocated for each criterion allowed the applicant to identify the strong and weak points of its tenders.
13      Next, the Court of Justice set out the main reasons why the applicant’s tenders had been considered to be of a lower quality, namely ‘the lack of concrete elements for applying the proposed means’, ‘little indication of the functional competency management in the profession of the Court’, ‘the relative weakness of the procedure which ensures the transfer from development to maintenance, as regard of the criterion of the guarantees regarding acquisition of skills’ and ‘the small number of elements guaranteeing the stability of the team’.
14      Finally, the Court of Justice set out the reasons why the successful tenders had been considered more advantageous. It explained that the main reasons why the @LEX consortium’s tender was considered to be of high quality were, inter alia, ‘an efficient schedule management’ and ‘the quality of the provision of the requested services’. Similarly, the main reasons why the Logica consortium’s tender was considered to be of high quality were, inter alia, ‘the concrete presentation of the procedures and methods’ and ‘the details guaranteeing that the tenderer will provide the requested services in an optimal way’.
15      On 28 July 2010, the applicant sent another letter to the Court of Justice, in which it complained, inter alia, that the statement of reasons that had been supplied was not adequate. In that context, it objected that the Court of Justice had not provided it with a copy of the evaluation report and had refused to provide even basic information on its tenders and on those of the successful tenderers. The applicant then reiterated its request for a detailed statement of reasons for the decision of 12 July 2010.
16      By letter of 6 August 2010, the Court of Justice first stated that, while it considered that it had fully complied with the case-law regarding the obligation to state reasons when rejecting a bid in a Community tendering procedure, it was prepared to enclose with its letter an extract from the evaluation report for lots 1 and 2. A document entitled ‘Written record of the evaluation and classification of tenders declared to satisfy the requirements’ was annexed to that letter.
17      On the same day, the applicant sent another letter to the Court of Justice, in which it criticised the fact that the extract from the evaluation report did not contain any justification regarding the scores awarded by the evaluation committee to the tenders submitted by the applicant and by the successful tenderers.
18      On 12 August 2010, the Court of Justice sent a letter to the applicant indicating that in its previous letters it had provided the applicant with all the requested information regarding the call for tenders.
Procedure before the General Court and forms of order sought
19      By application lodged at the Registry of the General Court on 21 September 2010, the applicant brought the present action.
20      By letter of 2 December 2011, the General Court requested the Court of Justice to answer questions and produce documents by way of a measure of organisation of procedure, in accordance with Article 64 of the Rules of Procedure of the General Court. The Court of Justice complied with that request within the period prescribed.
21      Acting upon a report of the Judge-Rapporteur, the General Court (Third Chamber) decided to open the oral procedure. The parties presented oral argument and gave their replies to the questions asked by the Court at the hearing on 25 January 2012.
22      The applicant claims, in essence, that the General Court should:
–        annul the decision rejecting its tenders and all further related decisions of the Court of Justice, including the decisions to award the respective contracts to the successful contractors;
–        order the Court of Justice to pay it EUR 5 000 000 for the damage suffered on account of the tendering procedure in question;
–        order the Court of Justice to pay it EUR 500 000 for the damage suffered on account of the loss of opportunity and the damage to its reputation and credibility;
–        order the Court of Justice to pay the costs.
23      The Court of Justice contends that the General Court should:
–        dismiss the action;
–        order the applicant to pay the costs.
24      At the hearing the applicant withdrew its first plea in law, alleging infringement of Article 93(1) and Article 94 of Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 248, p. 1), as amended by Council Regulation (EC) No 1525/2007 of 17 December 2007 (OJ 2007 L 343, p. 9) (‘the Financial Regulation’).
Law
1.     The application for annulment
Admissibility of the application for annulment
25      By its first head of claim, the applicant requests the General Court to annul the decision rejecting its tenders and all further related decisions of the Court of Justice, including the decisions to award the respective contracts to the successful contractors.
26      This application is admissible to the extent that the applicant seeks the annulment of the decision of 12 July 2010, by which the Court of Justice rejected its tenders for lots 1 and 2 of the call for tenders and decided to award the contracts concerning those lots to other tenderers.
27      On the other hand, the application for annulment is inadmissible to the extent that the applicant seeks the annulment of further decisions related to the decision of 12 July 2010. Under the first paragraph of Article 21 of the Statute of the Court of Justice, which applies to the procedure before the General Court by virtue of the first paragraph of Article 53 of that statute, and under Article 44(1)(c) of the Rules of Procedure of the General Court, all applications must indicate the subject‑matter of the dispute and contain a summary of the pleas in law on which the application is based. That statement must be sufficiently clear and precise to enable the defendant to prepare his defence and the Court to exercise its power of review. In order to guarantee legal certainty and the sound administration of justice, it is necessary that the basic legal and factual particulars relied on be indicated, at least in summary form, coherently and intelligibly in the application itself (Case T-89/07 VIP Car Solutions v Parliament [2009] ECR II‑1403, paragraph 96). In the present case, the applicant does not specify what further decisions are covered beyond the decision of 12 July 2010 and does not put forward any lines of argument in support of its request for annulment of those further decisions.
28      Consequently, it is appropriate to examine the merits of only the request for annulment relating to the decision of 12 July 2010, by which the Court of Justice rejected the applicant’s tenders for lots 1 and 2 of the call for tenders and decided to award the contracts concerning those lots to other tenderers (‘the contested decision’).
Merits of the application for annulment
29      Having withdrawn its first plea in law, alleging infringement of Article 93(1) and Article 94 of the Financial Regulation, the applicant founds its application for annulment of the contested decision on three pleas, namely a plea alleging an infringement of the obligation to state reasons (second plea), a plea alleging an infringement of the principle of non-discrimination (third plea) and a plea alleging confusion between the selection and award criteria (fourth plea).
30      The Court considers that it is appropriate to examine the fourth plea first.
The fourth plea, alleging confusion between the selection criteria and award criteria
31      In its fourth plea, the applicant complains that the Court of Justice infringed Article 138 of Commission Regulation (EC, Euratom) No 2342/2002 of 23 December 2002 laying down detailed rules for the implementation of Regulation No 1605/2002 (OJ 2002 L 357, p. 1), as amended by Commission Regulation (EC, Euratom) No 478/2007 of 23 April 2007 (OJ 2007 L 111, p. 13) (‘the Implementing Rules’), by evaluating the curricula vitae of the members of the teams proposed by the tenderers not only in the context of the selection phase but also in the context of the award phase.
32      This plea divides into two parts, concerning, first, confusion between the selection and award phases and, second, failure of the Court of Justice to observe the limitation restricting use of the curricula vitae to the selection phase.
–       The first part: confusion between the selection and award phases
33      The applicant complains that the Court of Justice confused the selection phase and the award phase by evaluating the curricula vitae of the members of the proposed team in both phases.
34      It should be recalled that under Article 97(1) of the Financial Regulation ‘contracts shall be awarded on the basis of award criteria applicable to the content of the tender after the capability of economic operators not excluded under Articles 93, 94 and 96(2)(a) [of that regulation] has been checked in accordance with the selection criteria contained in the documents relating to the call for tenders’.
35      It follows that a distinction must be drawn between selection criteria and award criteria. Whilst, in theory, the Financial Regulation and the Implementing Rules do not preclude the examination of the tenderers’ suitability and the award of the contract from taking place simultaneously, those two procedures are nevertheless distinct and are governed by different rules (judgment of 8 December 2011 in Case T-39/08 Evropaïki Dynamiki v Commission, not published in the ECR, paragraph 18; see, by analogy, Case 31/87 Beentjes [1988] ECR 4635, paragraph 16, and Case C‑532/06 Lianakis and Others [2008] ECR I‑251, paragraph 26).
36      In the context of the selection phase, the tenderers’ suitability is verified by contracting authorities in accordance with Article 137 of the Implementing Rules, paragraph 1 of which provides that, inter alia in procurement procedures for services, technical and professional capacity of economic operators is to be assessed with regard in particular to their know-how, efficiency, experience and reliability.
37      On the other hand, the award arrangements for the contract and the award criteria are regulated in Article 138 of the Implementing Rules, paragraph 2 of which provides that the tender offering the best value for money is to be the one with the best price-quality ratio, taking into account criteria justified by the subject of the contract. This provision contains a non-exhaustive list of criteria such as the price quoted, technical merit, aesthetic and functional characteristics, environmental characteristics, running costs, profitability, completion or delivery times, after-sales service and technical assistance. Contracting authorities may therefore determine award criteria other than those referred to in Article 138(2) of the Implementing Rules, provided that they are aimed at identifying the tender which is economically the most advantageous (see, by analogy, Beentjes, paragraph 35 above, paragraph 19, and Lianakis and Others, paragraph 35 above, paragraph 29).
38      It follows that the contracting authority’s examination in the context of the award phase must relate to the quality of the tenders themselves and not to the selection criteria, such as the tenderers’ technical capacity, which have already been checked at the stage of selecting tenderers and which cannot be taken into account again for the purpose of comparing the tenders (Case T-169/00 Esedra v Commission [2002] ECR II‑609, paragraph 158, and Case T-148/04 TQ3 Travel Solutions Belgium v Commission [2005] ECR II‑2627, paragraph 86).
39      Therefore, award criteria do not include criteria that are not aimed at identifying the tender which is economically the most advantageous, but are instead essentially linked to the evaluation of the tenderers’ ability to perform the contract in question (see, by analogy, Lianakis and Others, paragraph 35 above, paragraph 30).
40      Consequently, the use in the award phase of a criterion based on the tenderers’ experience does not accord with Article 138 of the Implementing Rules, since the criterion involved is aimed at establishing a tenderer’s ability to perform a contract and not at determining which tender is economically the most advantageous (Evropaïki Dynamiki v Commission, paragraph 35 above, paragraph 23; see, by analogy, Lianakis and Others, paragraph 35 above, paragraph 31, and Case C-199/07 Commission v Greece [2009] ECR I‑10669, paragraph 56).
41      Furthermore, a criterion for assessing a tenderer’s capacity to make a team available to the contracting authority from its own resources is not an award criterion within the meaning of Article 138 of the Implementing Rules. Since such a criterion is directed, at least in part, at the tenderers’ ability to perform the contract, it does not relate solely to the quality of the services provided. Therefore, it is not aimed solely at identifying the tender which is economically the most advantageous (judgment of 20 September 2011 in Case T-461/08 Evropaïki Dynamiki v EIB, not yet published in the ECR, paragraph 148).
42      On the other hand, a criterion based on the technical skills and professional experience of the members of a team which a tenderer proposes for performance of a framework contract may, in certain situations, constitute an award criterion within the meaning of Article 138 of the Implementing Rules. First of all, it should be recalled that the award criteria are not necessarily all required to be quantitative (Evropaïki Dynamiki v EIB, paragraph 41 above, paragraph 147). Also, in a case where both a framework contract relates to services of a highly technical nature and the precise subject-matter of the services to be provided must be determined progressively as performance of that contract proceeds, the technical skills and professional experience of the members of the team proposed are liable to have an impact upon the quality of the services rendered under the contract. In such a situation, the technical skills and professional experience may therefore determine the technical value of a bidder’s tender and, consequently, its economic value.
43      Regard should be had to those considerations when considering the merits of the applicant’s plea, according to which the Court of Justice infringed Article 138 of the Implementing Rules by examining the curricula vitae submitted as part of the applicant’s tenders for a first time in the context of the selection phase and for a second time in the context of the award phase.
44      In this situation, all the points in the tendering specifications that relate to the curricula vitae should be examined.
45      Pursuant to point 4.4.4.6 of the tendering specifications and Annex H thereto, tenderers were required to submit, for each lot, 34 curricula vitae of persons having certain required profiles (project leader, project manager, senior and junior programmer-analyst, technical expert). It is clear in particular from point 3.1 of the tendering specifications that the team proposed by the tenderer to perform the contract must, in principle, be formed from those 34 persons. In point 4.4.4.6 of the tendering specifications, the Court of Justice explained why 34 curricula vitae had to be submitted, whilst it was apparent from point 3.5.2 of the tendering specifications that the approximate size of the intra-muros team was limited to 22 persons. According to the Court of Justice, the aim of this difference in numbers was to ensure that the successful tenderers would have sufficient human resources, first, to form not only the intra-muros team but also the extra-muros team and, second, to compensate for any staff turnover.
46      In addition, it is apparent from point 4.4.4.8 of the tendering specifications and Annex H thereto that tenderers could not merely submit the 34 curricula vitae referred to above. They also had to indicate a significantly higher number of persons having the required profiles who could be made available to the Court of Justice for possible assignments on its premises. However, tenderers did not have to lodge curricula vitae for those persons.
47      The criteria for the examination of the 34 curricula vitae that the Court of Justice carried out in the context of the selection phase are determined in point 5.3.2.1 of the tendering specifications. Pursuant to that point and using the information contained in Annexes G and H to the tendering specifications, the Court of Justice analysed whether the tenderers were capable of making available to it a team for the intra-muros and extra-muros services having the minimum technical skills and additional persons having those skills in order to meet any needs of the Court of Justice. In that context, the Court of Justice examined in particular whether the 34 curricula vitae submitted by the applicant corresponded to the minimum requirements of the various required profiles. However, as is apparent from point 5.3.2.1 of the tendering specifications, the Court of Justice reserved the right to check all the data included in the tables in Annexes G and H and in the curricula vitae ‘by any means possible’. It thus reserved the right to examine also the tenderers’ capacity to make other persons available to it in order to meet any additional needs.
48      The examination of the curricula vitae that is provided for in point 5.3.2.1 of the tendering specifications was therefore designed to assess the tenderers’ ability to perform the contract, in accordance with Article 137 of the Implementing Rules.
49      The examination of the curricula vitae of the members of the proposed team that the Court of Justice carried out in the context of the award phase is provided for in point 5.4.1.1 of the tendering specifications. Under this point, one of the criteria examined in the context of the award phase is the skill, experience, organisation and training of the proposed team within the area covered by the respective lots. It is apparent from this point that the Court of Justice examined that criterion using in particular the 34 curricula vitae submitted. The analysis of the curricula vitae in this situation was different from the analysis which the Court of Justice had carried out in the context of the selection phase, since it did not merely examine whether the curricula vitae displayed the minimum characteristics required, but sought to evaluate the technical quality of the proposed team.
50      It should be examined whether such an examination accords with Article 138 of the Implementing Rules.
51      It is to be noted at the outset that, under points 5.4 and 5.5 of the tendering specifications, the method of awarding the contracts in question was that of the most economically advantageous tender.
52      It must be held that the examination of the curricula vitae which the Court of Justice carried out in the context of the award phase was intended to identify the tender that was economically the most advantageous.
53      First, it should be recalled that the technical quality and professional experience of the members of the team proposed by a tenderer for performance of the framework contract may correspond to a criterion that serves to establish the technical value of a tender. That is in particular the case where both the proposed team must provide services of a highly technical nature and the precise subject-matter of the services that are to be provided is not yet determined in the framework contract, but must be determined progressively as performance of that contract proceeds (see paragraph 42 above).
54      In the present case, the call for tenders concerned the making available of a team that had to provide services for the maintenance, development and support of information technology applications. The precise nature of those services was not yet determined and had to be determined progressively as performance of the contract proceeded. The technical quality and professional experience of the proposed team therefore had an impact upon the technical value of the tender and thus upon its economic value, as is apparent from the content of the call for tenders.
55      In this connection, the Court of Justice rightly observes that the information technology applications which are covered by lots 1 and 2 are used by its staff. The effectiveness and speed displayed by a team when dealing with problems concerning the maintenance of those applications or when developing new applications are therefore liable to affect the effectiveness of the work of a large proportion of the staff of the Court of Justice and could therefore have a not inconsiderable impact on the management costs incurred by it. Consequently, examination of the curricula vitae serves to determine the technical value of a bidder’s tender and, consequently, its economic value.
56      Second, it should be stated that the examination of the curricula vitae that is provided for in point 5.4.1.1 of the tendering specifications did not have the objective of examining whether the respective profiles met the minimum requirements. It was designed to assess the technical value of the teams proposed by the various tenders in order to be able to compare their economic value, as provided for by Article 138 of the Implementing Rules.
57      Third, it is to be observed that, in examining the 34 curricula vitae, the Court of Justice assessed the technical quality of the tender: it is clear in particular from point 3.1 of the tendering specifications that the team that had to be made available to it was in principle to be formed from the 34 persons for whom a curriculum vitae had been submitted.
58      Consequently, the examination of the curricula vitae which the Court of Justice carried out in the context of the award phase pursuant to point 5.4.1.1 of the tendering specifications was intended to determine which tender was economically the most advantageous.
59      This finding is borne out by point 4.4.3 of the tendering specifications, according to which the price requested by a tenderer may depend on the profile of the standard team proposed to the Court of Justice.
60      The aforesaid finding is not called into question by the fact that the Court of Justice noted in point 5.4.1.1 of the tendering specifications that tenderers had to prove that they had the experience and resources to enable them to meet its demands effectively and had to assist the team working at the Court if the demands could not be effectively satisfied by that team.
61      Admittedly, in so far as the Court of Justice referred to the tenderer’s experience and resources, criteria are involved that might concern, at least partially, the capacity of tenderers to perform the contract.
62      However, it cannot be deduced from point 5.4.1.1 of the tendering specifications that the Court of Justice examined the tenderers’ ability to perform the contract in the context of the award phase. It is clear from the way in which this point is formulated, in particular from the words ‘on the understanding that’, that this is simply a reminder of the requirements that the Court of Justice examined during the selection phase. This reminder does not in any way alter the fact that the criterion examined pursuant to point 5.4.1.1 of the tendering specifications was that of the quality of the proposed team and that the evaluation of the 34 curricula vitae was therefore intended to examine the proposed team’s technical quality.
63      The Court of Justice therefore did not infringe Article 138 of the Implementing Rules by examining the curricula vitae for a first time in the context of the selection phase and for a second time in the context of the award phase. Consequently, the first part of the fourth plea must be dismissed.
–       The second part: failure of the Court of Justice to observe the limitation restricting use of the curricula vitae to the selection phase
64      The applicant complains that the Court of Justice examined the curricula vitae in the context of the award phase, although the applicant had submitted them only for the selection phase.
65      This second part of the fourth plea is unfounded.
66      As the Court of Justice has rightly observed, it is clear from point 5.4.1.1 of the tendering specifications that it was going to analyse the curricula vitae not only in the context of the selection phase but also in the context of the award phase.
67      The second part must therefore be dismissed, as must the fourth plea in its entirety.
The second plea, alleging an infringement of the obligation to state reasons
68      The applicant complains that the Court of Justice infringed the obligation to state reasons as provided for in Article 100(2) of the Financial Regulation and Article 149(2) of the Implementing Rules. It submits, in essence, that the Court of Justice provided neither an adequate statement of reasons for rejecting its tenders nor adequate information with regard to the relative advantages of the tenders selected. In addition, it requests the General Court to adopt measures of organisation of procedure for the production of certain documents.
Infringement of the obligation to state reasons
69      First of all, it should be borne in mind that the Court of Justice, like the other institutions, has a broad discretion with regard to the factors to be taken into account for the purpose of deciding to award a contract following an invitation to tender. The judicial review of the exercise of that discretion is therefore limited to checking that the rules governing the procedure and statement of reasons have been complied with, the facts have been accurately stated and there has been no manifest error of assessment or misuse of powers (Case 56/77 Agence européenne d’intérims v Commission [1978] ECR 2215, paragraph 20, and TQ3 Travel Solutions Belgium v Commission, paragraph 38 above, paragraph 47).
70      It must also be noted that, where an institution has a broad discretion, respect for the rights guaranteed by the European Union 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. Only in this way can the European Union judicature verify whether the factual and legal elements upon which the exercise of the discretion depends were present (Case C‑269/90 Technische Universität München [1991] ECR I‑5469, paragraph 14, and judgment of 9 September 2010 in Case T-387/08 Evropaïki Dynamiki v Commission, not published in the ECR, paragraph 31).
71      For the award of public service contracts, the obligation to state reasons is given concrete expression in Article 100(2) of the Financial Regulation and Article 149 of the Implementing Rules, from which it is apparent that a contracting authority meets its obligation to state reasons if it, first of all, merely informs the unsuccessful tenderers immediately of the rejection of their tender and, subsequently, notifies tenderers who expressly so request of the characteristics and relative advantages of the successful tender and of the name of the tenderer to whom the contract is awarded, within 15 days from receipt of a request in writing.
72      This manner of proceeding satisfies the purpose of the obligation to state reasons laid down in Article 296 TFEU, whereby the reasoning followed by the authority which adopted the measure must be disclosed in a clear and unequivocal fashion so as, on the one hand, to enable the persons concerned to ascertain the reasons for the measure and thereby enable them to assert their rights and, on the other, to enable the Court to exercise its power of review (Case T-166/94 Koyo Seiko v Council [1995] ECR II-2129, paragraph 103, and Evropaïki Dynamiki v Commission, paragraph 70 above, paragraph 38).
73      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 (see Case C‑367/95 P Commission v Sytraval and Brink’s France [1998] ECR I‑1719, paragraph 63 and the case-law cited).
74      It is in the light of the abovementioned principles that it should be examined whether the Court of Justice infringed its obligation to state reasons. In order to determine whether, in this instance, the requirements of the obligation to state reasons that is laid down by the Financial Regulation and the Implementing Rules have been complied with, it is necessary to examine the Court of Justice’s letters of 12 July 2010, of 22 July 2010 – which was sent to the applicant following the request for additional information about the rejection of the tender – and of 6 August 2010.
–       The letter of 12 July 2010
75      In the present case, the Court of Justice informed the applicant by its letter of 12 July 2010 that it had rejected the applicant’s tenders. In its letter, first, the Court of Justice merely indicated that the applicant’s tenders had not been the best ones. Next, it informed the applicant of the possibility of requesting additional information on the grounds for the rejection of its tenders, in particular the characteristics and relative advantages of the successful tenders and the name of the tenderers to whom the contracts had been awarded. Finally, it stated that certain details of the abovementioned tenders would not be disclosed if disclosure would hinder application of the law, would be contrary to the public interest or would harm the legitimate business interests of public or private undertakings, or could distort fair competition between those undertakings.
76      That letter, although somewhat formulaic in nature, was drafted in accordance with Article 100(2) of the Financial Regulation. It is, however, to be remembered that that provision also requires a contracting authority to notify all unsuccessful tenderers whose tenders were admissible and who have 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.
–       The letter of 22 July 2010
77      Following the applicant’s request of 12 July 2010 for additional information concerning the contested decision, the Court of Justice sent it a second letter, on 22 July 2010.
78      As regards this letter, first, it is to be noted that the Court of Justice replied to the applicant’s written request of 12 July 2010 within the period, prescribed by Article 149(2) of the Implementing Rules, of not more than 15 calendar days from the date on which that request was received.
79      Second, it must be found that the Court of Justice stated the names of the consortia selected for lots 1 and 2 and the names of their members, as required by Article 100(2) of the Financial Regulation.
80      Third, it should therefore be examined whether the letter of 22 July 2010 contains a description of the characteristics and advantages of the successful tenders that meets the requirements of Article 100(2) of the Financial Regulation.
81      This letter contained the following two tables:
Lot 1: Development of information systems
Points available
European Dynamics
@Lex
Quality criteria
70
45.40
55.92
Aspects common to both lots
50
31.40
39.92
Guarantees on the stability of the team
7
2.58
5.00
Guarantees regarding acquisition of skills
7
4.00
5.33
Guarantees that the work time schedules will be observed
10
6.33
8.00
Quality assurance
10
7.67
8.67
Proposal for the contract start-up stage
3
1.87
2.50
The technical quality of the proposed team
10
7.10
7.92
Quality of the tender file
3
2.05
2.50
Lot 1 – Development
20
14.00
16.00
Reusable technical elements
10
7.00
9.00
Guarantees as to the proper assessment of development costs
10
7.00
7.00
Price criteria
30
27.89
24.13
The lump-sum amounts of the start-up services
6
4.00
6.00
The prices per unit of time proposed for the services
24
23.89
18.13
Total
100
73.29
80.05
Lot 2: Maintenance of information systems
Points available
European Dynamics
Logica
Quality criteria
70
43.95
61.97
Aspects common to both lots
50
30.15
44.37
Guarantees on the stability of the team
7
2.58
5.92
Guarantees regarding acquisition of skills
7
3.83
6.42
Guarantees that the work time schedules will be observed
10
5.25
9.00
Quality assurance
10
7.67
9.08
Proposal for the contract start-up stage
3
1.87
3.00
The technical quality of the proposed team
10
7.10
8.20
Quality of the tender file
3
2.05
2.75
Lot 2 – Maintenance
20
13.80
17.60
Workload management
10
7.20
9.00
Guarantees on handling the large portfolio of technologies
10
6.80
8.60
Price criteria
30
27.89
26.44
The lump-sum amounts of the start-up services
6
4.00
6.00
The prices per unit of time proposed for the services
24
23.89
20.44
Total
100
71.84
88.41
82      The Court of Justice stated in the letter that the applicant’s tenders had been placed in a lower position than those selected on the basis of the criteria examined for each lot and observed that the details of the points allocated for each criterion enabled the stronger and the weaker points of its tender to be identified.
83      The Court of Justice also stated the main reasons why the applicant’s tenders were considered to be of a lower quality, namely ‘the lack of concrete elements for applying the proposed means’, ‘little indication of the functional competency management in the profession of the Court’, ‘the relative weakness of the procedure which ensures the transfer from development to maintenance, as regard of the criterion of the guarantees regarding acquisition of skills’ and ‘the small number of elements guaranteeing the stability of the team’.
84      Furthermore, the Court of Justice mentioned the main reasons why the successful tenders were considered to be better.
85      As regards the tender of the @LEX consortium for lot 1, it indicated that the main reasons were, among others, ‘an efficient schedule management’ and ‘the quality of the provision of the requested services’.
86      As regards the tender of the Logica consortium for lot 2, it stated that the main reasons were, among others, ‘the concrete presentation of the procedures and methods’ and ‘the details guaranteeing that the tenderer will provide the requested services in an optimal way’.
87      It must be found that the statement of reasons contained in the letter of 22 July 2010 does not meet the requirements of Article 100(2) of the Financial Regulation.
88      First, it should be pointed out that, contrary to the Court of Justice’s submissions, the scores set out in the abovementioned tables do not in themselves constitute an adequate statement of reasons.
89      Admittedly, those tables stated not only the overall scores awarded for the various tenders but also the scores relating to the sub-criteria. They therefore enabled the applicant to compare directly for each sub-criterion the scores awarded by the Court of Justice for its tenders and for those of the successful tenderers.
90      However, those scores in themselves did not enable the applicant to ascertain the reasons why they had been awarded for its tenders and for those of the successful tenderers.
91      Contrary to the Court of Justice’s submissions, the award criteria laid down in point 5.4.1.1 of the tendering specifications did not enable the applicant to understand the justification for the scores awarded. It is true that the requirements to be satisfied by the statement of reasons depend on the circumstances of each case and that it should therefore be examined whether the applicant was able to understand the justification for those scores by taking account of the information contained in the tendering specifications. However, those criteria left the Court of Justice a not inconsiderable discretion.
92      As has been explained above, the corollary of the discretion enjoyed by the Court of Justice in the area of public procurement is a statement of reasons that sets out the matters of fact and law upon which the Court of Justice based its assessment. It is only in the light of those matters that an applicant is genuinely in a position to understand the reasons why those scores were awarded. Only such a statement of reasons therefore enables him to assert his rights and the General Court to exercise its power of review (see, to this effect, the judgment of 20 October 2011 in Case T-57/09 Alfastar Benelux v Council, not published in the ECR, paragraphs 38 and 39).
93      In the light of the not inconsiderable discretion that the award criteria laid down in point 5.4.1.1 of the tendering specifications left the Court of Justice, the scores set out in the two tables could not in themselves constitute an adequate statement of reasons.
94      Next, it must be stated that the Court of Justice’s comments on the successful tenders and the applicant’s tenders do not disclose in a clear and unequivocal fashion the reasoning followed by the Court of Justice, so as to enable the applicant to ascertain the reasons for the rejection of its tenders.
95      Admittedly, contrary to the applicant’s submissions, Article 100(2) of the Financial Regulation does not necessarily require the contracting authority to make the evaluation report available to the unsuccessful tenderer or to undertake a detailed comparative analysis of the successful tender and of the unsuccessful tender (order of 20 September 2011 in Case C-561/10 P Evropaïki Dynamiki v Commission, not published in the ECR, paragraphs 25 and 27). Article 100(2) of the Financial Regulation does not preclude as a matter of principle a contracting authority from performing its obligation to state reasons by means of succinct comments on the successful and the rejected tender.
96      However, in order to meet the requirements of Article 100(2) of the Financial Regulation, the contracting authority’s comments must be sufficiently precise to enable the applicant to ascertain the matters of fact and law on the basis of which the contracting authority rejected his offers and accepted those of other tenderers.
97      In the present case, the Court of Justice’s comments did not enable the applicant to ascertain those matters.
98      In its first comment on @Lex’s tender for lot 1, the Court of Justice declared that the ‘efficient schedule management’ militated in favour of that tender. This comment thus refers to the quality criterion headed ‘Guarantees that the work time schedules will be observed’ that is mentioned in point 5.4.1.1 of the tendering specifications. It must be stated that the comment merely reflects the result of the Court of Justice’s assessment and does not provide any fact that substantiates that assessment. Consequently, it does not enable the applicant to understand the reasons why @Lex’s tender for lot 1 was superior to its tender in this respect.
99      In its second comment on @Lex’s tender for lot 1, the Court of Justice referred to ‘the quality of the provision of the requested services’. It can only be deduced from this comment that the Court of Justice was satisfied by the quality of the tender. So vague a comment does not enable the applicant to ascertain the reasons why the Court of Justice preferred @Lex’s tender to its own.
100    In its two comments relating to Logica’s tender for lot 2, the Court of Justice referred, first, to ‘the concrete presentation of the procedures and methods’ and, second, to ‘the details guaranteeing that the tenderer will provide the requested services in an optimal way’. The content of its two comments is limited. They are general comments not referring to specific quality criteria. Furthermore, even if those comments reflect the result of the Court of Justice’s assessment, they do not enable the matters upon which the Court of Justice based its assessment to be ascertained.
101    As regards the Court of Justice’s comments on the applicant’s tenders, it is to be noted at the outset that the Court of Justice did not distinguish between the applicant’s tenders for lot 1 and for lot 2 and that its comments therefore relate to the applicant’s tenders for both lots.
102    By its first comment, the Court of Justice criticised ‘the lack of concrete elements for applying the proposed means’. It therefore recorded a lack of concrete elements in the applicant’s tenders but did not set out the elements that it was expecting. It is true that, under Article 100(2) of the Financial Regulation, which requires the characteristics and relative advantages of the successful tender to be described, such a comment could have sufficed if the Court of Justice had set out in what way the tenders of the successful bidders contained elements that were more concrete. However, as has been stated above, the Court of Justice’s comments on the successful tenders are very general and do not refer to specific matters.
103    The Court of Justice’s second comment refers to the ‘little indication of the functional competency management in the profession of the Court’. The meaning of this comment is not obvious. Even if it were accepted that the applicant was able to understand that the Court of Justice was criticising it for not having taken the Court’s specific requirements into account, this comment would not be sufficiently specific. The Court of Justice failed to state the information that it expected from the applicant’s tenders or to indicate the information contained in the successful tenders.
104    By its third comment on the applicant’s tenders, the Court of Justice criticised the ‘small number of elements guaranteeing the stability of the team’. It is admittedly evident that this comment related to the sub-criterion headed ‘Guarantees on the stability of the team’ that is referred to in point 5.4.1.1 of the tendering specifications. However, the content of the comment remains very vague and does not enable the applicant to ascertain what elements the Court of Justice was expecting from it or the elements that justified higher scores for the successful tenders.
105    In its fourth comment relating to the applicant’s tenders, the Court of Justice criticised ‘the relative weakness of the procedure which ensures the transfer from development to maintenance, as regard of the criterion of the guarantees regarding acquisition of skills’. Although it is evident that this comment refers to the criterion headed ‘Guarantees regarding acquisition of skills’ that is mentioned in point 5.4.1.1 of the tendering specifications, its content remains extremely vague. It does not enable the matters upon which the Court of Justice based its assessment to be identified.
106    Consequently, it must be concluded that the Court of Justice’s comments did not constitute an adequate statement of reasons, even if they were read in conjunction with the scores set out in the table.
107    In this context, it is necessary to reject the Court of Justice’s argument that the applicant’s tenders remained abstract and theoretical and that the applicant could have identified the elements of its tenders that were concerned by the comments with the aid of the content of its own tenders. Even if the view is taken that the applicant’s tenders were abstract and theoretical, it must be found that the statement of reasons provided by the Court of Justice was not adequate in this instance. In order to set out the characteristics and relative advantages of the successful tender as required by Article 100(2) of the Financial Regulation, the contracting authority must at least mention the matters which should have been included in the applicant’s tender or the matters contained in the successful tenders.
108    The letter of 22 July 2010 therefore did not constitute an adequate statement of reasons.
–       The letter of 6 August 2010
109    In response to the applicant’s request of 28 July 2010, the Court of Justice forwarded to it, by letter of 6 August 2010, a document entitled ‘Written record of the evaluation and classification of tenders declared to satisfy the requirements’.
110    That letter was not sent within the period, prescribed by Article 149(2) of the Implementing Rules, of 15 days from the applicant’s first request of 12 July 2010. However, the obligation to state reasons must be assessed in the light of the information available to the applicant at the time when the action was brought, albeit that the contracting authority concerned is not permitted to substitute an entirely new statement of reasons for the original statement of reasons. The content of the document annexed to that letter would therefore be capable of being taken into account in so far as an entirely new statement of reasons was not involved (Case T-183/00 Strabag Benelux v Council [2003] ECR II‑135, paragraph 58, and Case T-4/01 Renco v Council [2003] ECR II‑171, paragraph 96).
111    Nevertheless, it must be found that the document which the Court of Justice annexed to its letter of 6 August 2010 does not contain relevant additional material compared with the letter of 22 July 2010. Apart from the two tables which had already been disclosed in the letter of 22 July 2010, it does not contain any information that may justify the scores awarded to the tenders of the successful bidders and to those of the applicant for the criteria and sub-criteria referred to in point 5.4.1.1 of the tendering specifications. Nor does it contain any comment on the quality of those tenders apart from the statement that the tenders of the successful bidders were the most economically advantageous ones.
112    As for the Court of Justice’s observations after the application was lodged, suffice it to state that they cannot be taken into account when examining the plea alleging infringement of the obligation to state reasons.
113    It follows from the foregoing that the Court of Justice did not provide an adequate statement of reasons for the contested decision.
114    It must therefore be held that the Court of Justice infringed its obligation to state reasons under Article 100(2) of the Financial Regulation and that the contested decision should be annulled.
Measures of organisation of procedure
115    In the context of the second plea, the applicant requests the General Court to adopt measures of organisation of procedure for the production of, first, detailed copies of the successful tenders and of those which were considered better than its own for lots 1 and 2 and, second, a full copy of the evaluation report. In the light of the outcome of the examination of the plea alleging infringement of the obligation to state reasons, it is not necessary to grant this request.
The third plea, alleging an infringement of the principle of non-discrimination
116    In its third plea, the applicant alleges that the Court of Justice infringed the principle of non-discrimination by favouring the incumbent contractor. Examination of this plea would be premature. On account of the inadequate statement of reasons for the contested decision, the applicant has been unable to assert its rights effectively and the General Court is not in a position to give final judgment on the question whether the advantages which the incumbent contractor may have had could have had an effect on the award of the contract. Any application for annulment founded on infringement of the principle of non-discrimination can therefore be examined, if necessary, only in the light of the grounds of the decision which replaces the contested decision, (see, to this effect, Alfastar Benelux v Council, paragraph 92 above, paragraph 51).
2.     The application for damages
117    By its second and third heads of claim, the applicant requests the General Court to order that the Court of Justice pay it damages under Articles 268 TFEU and 340 TFEU. First, it requests a sum of EUR 5 000 000 for the loss of the contract, which corresponds, in its submission, to the gross profit that it would have made from lot 1. Second, it requests a sum of EUR 500 000 for loss of opportunity and damage suffered to its reputation and credibility.
118    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 which the institutions are accused must have been 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 (Case 26/81 Oleifici Mediterranei v EEC [1982] ECR 3057, paragraph 16, and Case T-231/97 New Europe Consulting and Brown v Commission [1999] ECR II‑2403, paragraph 29).
119    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 non-contractual liability (Case C-146/91 KYDEP v Council and Commission [1994] ECR I-4199, paragraph 81, and Case T-195/08 Antwerpse Bouwwerken v Commission [2009] ECR II‑4439, paragraph 91).
120    It is in the light of those considerations that it should be examined whether the conditions giving rise to non-contractual liability on the part of the European Union have been satisfied.
121    It is to be observed that the application for damages is based on the same unlawfulness as that put forward in support of the application for annulment of the contested decision.
122    With regard to that unlawfulness, first, it is to be noted that the fourth plea is unfounded. The applicant therefore has not established any unlawfulness of the contested decision in that regard.
123    Next, it is admittedly true that the contested decision is vitiated by an inadequate statement of reasons and must be annulled on that ground. However, the inadequacy of the statement of reasons does not mean that the award of the contracts to the successful tenderers constitutes wrongful conduct or that there is a causal link between that fact and the loss alleged by the applicant (Renco v Council, paragraph 110 above, paragraph 89, and Alfastar Benelux v Council, paragraph 92 above, paragraph 49). There is no ground for concluding that the Court of Justice would have awarded the contract in question to the applicant if the statement of reasons for the contested decision had been adequate. It follows that the application for damages in respect of the alleged harm suffered as a result of the contested decision must be rejected as unfounded in so far as it is based on the inadequate statement of reasons for that decision.
124    Finally, that application cannot be successful in so far as it is based on the unlawful conduct alleged by the applicant in the third plea, concerning infringement of the principle of non-discrimination. It follows from the reasoning set out above relating to the inadequacy of the statement of reasons for the contested decision that the applicant has been unable to assert its rights effectively and that the General Court is not in a position to exercise its power of review in respect of the contested decision properly. As the applicant itself submits, in consequence of the inadequate statement of reasons for the contested decision it is not able to show that it would certainly have been awarded lot 1.
125    It follows from the foregoing that, so far as concerns infringement of the principle of non-discrimination, the application for damages is premature and must be dismissed for that reason. An application for damages can be examined, if necessary, only in the light of the grounds of the decision which replaces the contested decision, following the latter’s annulment by the General Court (see, to this effect, Alfastar Benelux v Council, paragraph 92 above, paragraph 51).
126    Accordingly, the application for damages must be rejected in its entirety.
Costs
127    Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
128    Since the applicant has applied for costs and the Court of Justice has essentially been unsuccessful, the latter must be ordered to pay the costs.
On those grounds,
THE GENERAL COURT (Third Chamber)
hereby:
1.      Annuls the decision of the Court of Justice of the European Union of 12 July 2010 rejecting the tenders submitted by Evropaïki Dynamiki – Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE in tender procedure CJ 7/09 of 11 November 2009 for the maintenance, development and support of computer applications and awarding the contracts to other tenderers;
2.      Dismisses the action as to the remainder;
3.      Orders the Court of Justice to pay the costs.
Czúcz
Labucka
Gratsias
Delivered in open court in Luxembourg on 17 October 2012.
[Signatures]
Table of contents
Background
Procedure before the General Court and forms of order sought
Law
1.  The application for annulment
Admissibility of the application for annulment
Merits of the application for annulment
The fourth plea, alleging confusion between the selection criteria and award criteria
–  The first part: confusion between the selection and award phases
–  The second part: failure of the Court of Justice to observe the limitation restricting use of the curricula vitae to the selection phase
The second plea, alleging an infringement of the obligation to state reasons
Infringement of the obligation to state reasons
–  The letter of 12 July 2010
–  The letter of 22 July 2010
–  The letter of 6 August 2010
Measures of organisation of procedure
The third plea, alleging an infringement of the principle of non-discrimination
2.  The application for damages
Costs
* Language of the case: English.