ORDER OF THE COURT (Seventh Chamber)
29 November 2011 (*)
(Appeal – Article 119 of the Rules of Procedure – Public contracts awarded by the European Union institutions on their own behalf – Call for tenders concerning the provision of IT and user support services relating to the Community emissions trading scheme (CITL and CR) – Rejection of tender – Obligation to state the reasons on which the decision is based – Principle of equal treatment – Appeal clearly inadmissible and clearly unfounded)
In Case C‑235/11 P,
APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 12 May 2011,
Evropaïki Dynamiki – Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE, established in Athens (Greece), represented by N. Korogiannakis and M. Dermitzakis, dikigoroi,
appellant,
the other party to the proceedings being:
European Commission, represented by D. Calciu, acting as Agent, with an address for service in Luxembourg,
defendant at first instance,
THE COURT (Seventh Chamber),
composed of J. Malenovský, President of the Chamber, G. Arestis and T. von Danwitz (Rapporteur), Judges,
Advocate General: P. Cruz Villalón,
Registrar: A. Calot Escobar,
after hearing the Advocate General,
makes the following
Order
1        By its appeal, Evropäiki Dynamiki – Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE (‘Evropaïki Dynamiki’) seeks to have set aside the judgment of the General Court of the European Union of 3 March 2011 in Case T‑589/08 Evropäiki Dynamiki v Commission (‘the judgment under appeal’), by which that Court dismissed (i) Evropaïki Dynamiki’s action for the annulment of the decisions of the Commission of 13 October 2008 to reject the bids submitted by it for each of the three lots relating to Invitation to Tender DG ENV.C2/FRA/2008/0017 for the conclusion of framework contracts for Emission Trading Scheme – CITL/CR and to award those contracts to another tenderer (‘the contested decisions’) and (ii) Evropaïki Dynamiki’s claim for compensation for the damage it allegedly suffered in that respect.
Legal context
2        The award of public service contracts by the Commission is governed by the provisions of Title V of Part One 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) (‘the Financial Regulation’) and by the provisions of Title V of Part One 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 1261/2005 of 20 July 2005 (OJ 2005 L 201, p. 3) (‘the Implementing Rules’).
3        Article 100(2) of the Financial Regulation provides:
‘The contracting authority shall notify all candidates or tenderers whose applications or tenders are rejected of the grounds on which the decision was taken, and all tenderers whose tenders are admissible and who make 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.
However, certain details need not be disclosed where 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.’
4        Article 149(2) of the Implementing Rules provides:
‘The contracting authority shall, within not more than fifteen calendar days from the date on which a written request is received, communicate the information provided for in Article 100(2) of the Financial Regulation.’
5        The third subparagraph of Article 149(3) of the Implementing Rules provides:
‘Unsuccessful tenderers or candidates may request additional information about the reasons for their rejection in writing by mail, fax or email, and all tenderers who have put in an admissible tender may obtain information about the characteristics and relative merits of the tender accepted and the name of the successful tenderer, without prejudice to the second subparagraph of Article 100(2) of the Financial Regulation. The contracting authority shall reply within no more than fifteen calendar days from receipt of the request.’
Background to the dispute
6        The factual background to the dispute is set out as follows in paragraphs 2 to 11 of the judgment under appeal:
‘2      On 31 March 2008, the Directorate-General for the Environment of the Commission of the European Communities issued an invitation to tender under the reference DG ENV.C2/FRA/2008/0017 “Framework contract for Emission Trading Scheme – CITL/CR” (“the invitation to tender at issue”). A contract notice was published in the Supplement of the Official Journal of the European Union on 12 April 2008, (OJ 2008 S 72, p. 96229).
3      The invitation to tender at issue concerned a framework contract for the provision of information technology services and user support in connection with the Community Independent Transaction Log (“the CITL”) and the Community Registry (“the CR”). The CITL and the CR are part of the Greenhouse Gas Emissions Trading Scheme. That scheme is the cornerstone of the European Union’s strategy for meeting its targets for the reduction of greenhouse gas emissions in the light of the commitments laid down in the Kyoto Protocol. To that end, Community legislation established, on the one hand, the CITL, which is a software platform which works like a clearing house that records and checks the issue and transfer of emission allowances that take place in the registries, and, on the other hand, the CR, which is a software platform which works like a bank account that records emission allowances and makes it possible to trade them. That system has been in place in the European Union since 2005.
4      The general objective of the contract was, in particular, to provide technical support in the context of the CITL and the CR. The framework contract covered support services for the CITL, and the CR and users. Each area relates to a specific lot in the invitation to tender at issue, which therefore consisted of three lots.
5      On 28 May 2008 the applicant submitted its tender in response to each of the three lots in the invitation to tender at issue.
6      In three letters of 13 October 2008 (one for each lot), DG “Environment” informed the applicant that none of its bids had been selected in the procurement procedure, on the ground that its proposals did not obtain a sufficient number of points to satisfy the award criteria. [More particularly, the proposals did not satisfy the criterion “Project management and availability” for which the minimum number of points was not obtained. In addition,] the applicant’s tenders did not obtain the minimum number of total points. The Commission therefore decided to reject the bids submitted by the applicant for each of those three lots and to award the contract for each lot of the invitation to tender at issue to another tenderer …
7      On 14 October 2008, the applicant sent three letters to the DG “Environment” requesting to be provided, with respect to each lot of the invitation to tender at issue, with the name of the successful tenderer and the name of its partners and subcontractors if any, the scores awarded for each award criterion in the successful tenderer’s technical proposal and a thorough analysis of the strong and weak points of the applicant’s tender for each award criterion compared with all the other offers fulfilling the conditions required, as well as a detailed copy of the evaluation committee’s report [“the evaluation report”] and the financial offer of the successful tenderer.
8      DG “Environment” replied to the applicant by three separate letters dated 28 October 2008, each referring to a different lot, informing the applicant that all the lots of the invitation to tender at issue had been awarded to Trasys SA, the company which had developed the initial software for the CITL and the CR. By the same letters DG “Environment” provided the applicant with the scores awarded in each award criterion for its technical offer and that of the successful tenderer and the latter’s financial offer.
9      The points awarded by the evaluation committee can be summarised as follows:
Lot 1 (CITL)
Max.
Min.
EuroDyn
Trasys
Understanding
30
18
18
27
Methodology
40
24
26
37
Project management and availability
30
18
16
27
Total
100
65
60
91
Lot 2 (CR)
Max.
Min.
EuroDyn
Trasys
Understanding
30
18
21
27
Methodology
40
24
25
37
Project management and availability
30
18
17
28
Total
100
65
63
92
Lot 3
(User Support)
Max.
Min.
EuroDyn
Trasys
Understanding
30
18
20
28
Methodology
40
24
25
35
Project management and availability
30
18
16
28
Total
100
65
61
91
10      By letters of 27, 30 and 31 October 2008, the applicant informed DG “Environment” of its intention to bring an action. The applicant also urged it to suspend signature of the contract and to review the evaluation committee’s assessment.
11      In response to the applicant’s letters, DG “Environment” sent the applicant a letter on 17 November 2008 informing it that the Commission stood by its initial decision. It also stated that the contracts had been awarded and that the public procurement procedure would not be annulled. The Commission concluded the contract with Trasys on 29 October 2008.’
Proceedings before the General Court and the judgment under appeal
7        By application lodged at the Registry of the General Court on 22 December 2008, Evropäiki Dynamiki sought annulment of the contested decisions and an order, first, that the Commission pay it EUR 920 000 – which might be increased to EUR 1 700 000 depending on the final amount of the CITL project – for the harm suffered on account of the tendering procedure at issue and, second, an order for costs.
8        In support of its action, Evropäiki Dynamiki alleged in its first plea in law, inter alia, that the Commission had made manifest errors of assessment and that the decision to reject its tender was insufficiently reasoned. In that connection, in paragraphs 48 to 55 of the judgment under appeal, the General Court held as follows with regard to the role of the environmental experts:
‘48      In its report, the evaluation committee stated as follows:
“The role of the [environmental experts] is quite essential for the proper carrying out of the requested services … Yet the project management does not include any environmental expert in the team for the specific task, so it is not possible to evaluate how they would be integrated into the team and calls into question the ability of the tenderer to deliver the required objectives of the [tender specification].”
49      The applicant does not deny the absence of an environmental expert in the team for the specific task. However, it challenges both the need to use environmental experts and the possibility of including such experts in the team. According to the applicant, the evaluation committee assessed Criterion No 3 on the basis of the constraints formulated in the context of Criterion No 2, thereby introducing a posteriori a new evaluation criterion.
50      As regards the need to provide environmental experts, the Court considers that the Commission has shown that the task at issue was not purely an information technology task and that environmental expertise was therefore necessary. The execution of the specific task required knowledge of the relevant rules and regulations on the presentation of reports on the CITL and the ability to give advice on that subject. Furthermore, the applicant’s assertion is contradictory since environmental experts are in fact provided for in its tender. In that regard, the specific task does not differ qualitatively from the specific services to be provided by the successful tenderer.
51      As regards the possibility of including environmental experts, it must be stated that the tender specification explicitly required the tenderers to employ only the types of profile suggested therein and that it did not provide, at least expressly, for environmental experts. Having regard to the constraints in the tender specifications, the applicant indeed provided for the use of environmental experts in its tender, but it anticipated that they would be used only in the context of the overall framework contract and that their approach would be horizontal. Therefore, it did not include them in the team responsible for the specific task in the tender specifications.
52      The question thus arises whether, notwithstanding the remark on page 8/57 of the tender specifications that “the offer from the contractor must conform to the profile description with the requested level of expertise and to the specific requirements indicated in the request form” and the fact that it did not provide for any environmental experts, it was possible to include those experts in the tender formulated by one or other tenderers. If the tender specification had excluded the possibility of including profiles other than those set out on page 8/57 the assessment of the evaluation committee would be manifestly incorrect.
53      Therefore, the Court put a written question in that regard to the Commission. In its reply and at the hearing, the Commission submitted, first, that the tender specification did not stipulate that it was forbidden to include additional profiles. Second, it submitted that anything which could constitute an improvement of the tender was permitted. Although the Commission did not invite the tenderers to add any extra profiles, it took the view that an additional profile could thus represent an added value. On page 28/57, the tender specifications state that “tenders should elaborate on all points addressed in order to score as many points as possible”. Third, it must be held that both the successful tenderer and the applicant itself included additional profiles in their tenders.
54      Therefore, it must be held that the remark quoted in paragraph 52 does not prevent the inclusion of experts not provided for by the heading “Definition of profiles” which precedes that remark.
55      In those circumstances, the Court considers that the Commission is correct in asserting that, in the absence of an accurate description of the manner in which the environmental experts would be employed in the team for the specific task, it would be impossible to evaluate how they would be integrated into the team and therefore whether the proposed project management would be able to achieve the required objectives. That assertion also referred to the third award criterion, so that no new evaluation criterion was introduced a posteriori.’
9        In addition, in paragraph 65 of the judgment under appeal, the General Court held as follows with regard to the fact the evaluation report did not mention that Evropaïki Dynamiki’s tender included an expert responsible for monitoring the quality of the information technology services provided (the ‘quality manager’):
‘In the present case, the Commission communicated to the applicant the reasons for the rejection of its tender and provided, at the latter’s request, the characteristics and relative advantages of the successful tender and the name of the successful tenderer. Therefore, it has fulfilled its obligations under the rules applicable. It is true that it did not mention the quality manager provided for in the applicant’s bid. However, given the brevity of the evaluation report, it could not mention all the details of that bid. In the light of the case-law and the applicable provisions, the mere fact that there was no mention in the evaluation report of the presence of a quality manager cannot constitute defective reasoning.’
10      Since it went on to reject the remaining pleas in law relied on by Evropäiki Dynamiki in support of its action, the General Court dismissed the action and rejected Evropäiki Dynamiki’s claim for compensation.
Forms of order sought
11      In its appeal, Evropaïki Dynamiki asks the Court to set aside the judgment under appeal and to annul the contested decisions, to refer the case to the General Court and to order the Commission to pay all the costs of both sets of proceedings.
12      The Commission contends that the appeal is inadmissible and, in the alternative, unfounded. It also seeks an order that Evropaïki Dynamiki pay the costs incurred both before the General Court and the Court of Justice.
The appeal
13      Under Article 119 of its Rules of Procedure, where the appeal is, in whole or in part, clearly inadmissible or clearly unfounded, the Court may at any time, acting on a report from the Judge-Rapporteur and after hearing the Advocate General, dismiss the appeal in whole or in part by reasoned order.
14      In support of its appeal, Evropäiki Dynamiki puts forward four grounds. The first ground of appeal alleges various errors of assessment on the part of the General Court. The second ground of appeal alleges an error of law in the interpretation of Article 100(2) of the Financial Regulation and Article 149(2) of the Implementing Rules. By its third ground of appeal, Evropäiki Dynamiki alleges that the General Court infringed the principle of equal treatment. The fourth ground of appeal alleges infringement of Article 41 of the Charter of Fundamental Rights of the European Union (‘the Charter’) on the basis that the judgment under appeal was insufficiently reasoned.
The first ground of appeal
Arguments of the parties
15      In support of its first ground of appeal, Evropäiki Dynamiki sets out a number of errors of law allegedly made by the General Court, which it claims, inter alia, amount to a distortion of the arguments which it had put forward in support of its action.
16      As regards Lot No 1, Evropäiki Dynamiki submits, first, that the General Court erred in law and distorted the facts by endorsing – in paragraphs 40 to 47 of the judgment under appeal – the evaluation committee’s assessment that the number of days indicated by Evropaïki Dynamiki for the performance of the works seemed too low. In that connection, Evropäiki Dynamiki notes that it had stated at first instance that, as the invitation to tender at issue entailed a fixed-price bid, the number of ‘person‑days’ did not have to be specified, and that there were other parameters that should have been taken into consideration to explain the difference between the estimate in the tender specifications and the estimate provided in its tender. In addition, Evropäiki Dynamiki submits that the General Court also erred in law, in paragraph 44 of the judgment, in holding that it had not established that its team had more experience than the successful tenderer’s team.
17      Second, Evropäiki Dynamiki complains that the General Court employed contradictory reasoning, in paragraphs 51 to 54 of the judgment under appeal concerning the role of the environmental experts, and distorted the content of the tender specifications in that regard. While the General Court stated – correctly in Evropaïki Dynamiki’s view – in paragraph 51 that the tender specifications explicitly require tenderers to submit only the expert profiles provided for therein, in paragraph 54 the General Court accepted the Commission’s misconceived argument that under the tender specifications it is not forbidden to include additional profiles not referred to therein. In Evropäiki Dynamiki’s submission, either ‘only specific types of profiles must be submitted’ or ‘other types can also be submitted’, but both statements cannot be consistent with the tender specifications.
18      As regards Lot No 2, Evropäiki Dynamiki submits that the General Court erred in holding, in paragraphs 92 and 93 of the judgment under appeal, that, under the tender specifications, the correct profile for performing tests on the IT services provided was that of ‘tester’ and not ‘analyst programmer’. In so deciding, the General Court failed to examine the correct profile for performing the tasks relating to Lot No 2 and distorted the content of the tender specifications.
19      As regards Lot No 3, Evropäiki Dynamiki alleges, in essence, various errors of law on the part of the General Court. The General Court thus erred, in paragraph 108 of the judgment under appeal, in holding that none of the persons which Evropaïki Dynamiki envisaged appointing to support roles had been mentioned in its bid. Similarly, the General Court erred, in paragraphs 109 and 110 of that judgment, in ignoring the curricula vitae of the environmental experts and in failing to have regard to the case-law arising from the judgment in Case C-532/06 Lianakis and Others [2008] ECR I-251.
20      The Commission maintains that this first ground of appeal is inadmissible. First, Evropäiki Dynamiki merely repeats the arguments put forward at first instance. Second, it seeks a new appraisal of the facts by the Court of Justice. In any event, the present ground of appeal is unfounded.
Findings of the Court
21      As regards, in the first place, Evropaïki Dynamiki’s arguments in relation to Lot No 1, it should be recalled that assessment of the facts does not, save where they have been distorted, constitute a question of law submitted as such for review by the Court of Justice on appeal (see, inter alia, Case C‑95/04 P British Airways v Commission [2007] ECR I-2331, paragraph 78, and order in Case C-536/10 P MPDV Mikrolab v OHIM [2011] ECR I-0000, paragraph 26).
22      As regards the argument concerning the assessment that the capacity of Evropäiki Dynamiki’s team, in terms of ‘person-days’, seemed too low, it should be noted that the General Court did take account of the fact that the contract concerned involved a fixed-price bid. However, it concluded, without erring in law, that the indication of the number of person-days was relevant in order to assess the reliability of Evropäiki Dynamiki’s offer. Since the number of person-days suggested by the latter was 25% lower than the indicative estimate provided in the invitation to tender at issue, the General Court was entitled to consider that such a discrepancy required a convincing explanation.
23      On that point, the General Court then concluded that Evropäiki Dynamiki had failed to provide such an explanation, and that the Commission was therefore entitled to take the view that the number of person-days indicated by Evropäiki Dynamiki raised serious doubts as to the reliability of its offer. In so doing, the General Court carried out an assessment of the facts. Therefore, Evropäiki Dynamiki’s argument concerning that assessment is inadmissible.
24      The same applies, in particular, to Evropäiki Dynamiki’s argument whereby it complains that the General Court found, in paragraph 44 of the judgment under appeal, that Evropäiki Dynamiki had not established that its team had more experience than the successful tenderer’s team.
25      That argument seeks to obtain a fresh assessment of the facts by the Court of Justice, in that it questions whether the General Court was correct to endorse the Commission’s assessment that, in relation to the successful tenderer’s experience, Evropäiki Dynamiki’s experience could not justify its team having a lower capacity in terms of ‘person‑days’ having regard to the estimate in the tender specifications.
26      As regards the allegedly contradictory reasoning and distortion of the tender specifications in paragraphs 51 to 54 of the judgment under appeal, first, it should be noted that – contrary to what Evropäiki Dynamiki claims – the General Court’s reasoning in paragraphs 52 to 54 does not amount to a distortion of the tender specifications.
27      There is such distortion where, without the need for recourse to new evidence, a finding of fact made by the General Court appears to be clearly incorrect (see the order in MPDV Mikrolab v OHIM, paragraph 27 and case-law cited).
28      However, in paragraph 54 of the judgment under appeal, the General Court was correct to infer from the remark on page 8/57 of the tender specifications – which stated, essentially, that the tenderer’s bid had to conform to the profile description in those tender specifications – that that remark did not prevent the inclusion of experts not provided for by the heading ‘Definition of profiles’. Although the tenderer’s bid must include as a minimum the expert profiles provided for in the tender specifications, extra profiles may nevertheless be added in order to supplement the tenderer’s bid. Moreover, it is apparent from paragraph 53 of the judgment under appeal that the General Court had already held that both the successful tenderer and Evropäiki Dynamiki itself had included additional profiles in their tenders.
29      Second, according to the settled case‑law of the Court of Justice, the question whether the grounds of a judgment of the General Court are contradictory is indeed a question of law which is amenable, as such, to judicial review on appeal (see, in particular, Case C-385/07 P Der Grüne Punkt – Duales System Deutschland v Commission [2009] ECR I-6155, paragraph 71 and case‑law cited).
30      In that connection, the statement of the reasons on which a judgment is based must clearly and unequivocally disclose the General Court’s reasoning in such a way as to enable the persons concerned to ascertain the reasons for the decision taken and the Court of Justice to exercise its power of review (see Case C-280/08 P Deutsche Telekom v Commission [2010] ECR I‑0000, paragraph 136 and case‑law cited).
31      In the present case, at first sight, there appears to be a certain tension between paragraph 51 of the judgment under appeal, which states that ‘the tender specifications explicitly required the tenderers to employ only the types of [expert] profile suggested therein and that [they] did not provide, at least expressly, for environmental experts’, and the conclusion drawn in paragraph 54 of that judgment, according to which contractors in the invitation to tender at issue were entitled to include expert profiles in their tenders which had not been provided for, such as that of environmental expert.
32      However, it is apparent from paragraphs 52 and 53 of the judgment under appeal that the General Court reached that unequivocal conclusion on the basis of a number of factors, taking as the starting point the precise wording of the tender specifications, the relevant extract of which is cited in paragraph 52 of that judgment. In those circumstances, the initial, specific statement in paragraph 51 thereof does not undermine the overall coherence of the reasoning in the subsequent paragraphs.
33      Accordingly, the inconsistency alleged by Evropäiki Dynamiki cannot be regarded, in the context, as an error of reasoning which could justify the annulment of the judgment under appeal (see, to that effect, Case C-326/91 P de Compte v Parliament [1994] ECR I‑2091, paragraph 96).
34      In the second place, as regards Lot No 2, Evropäiki Dynamiki alleges that the General Court distorted the content of the tender specifications and erred in law in that it mistakenly held that the correct profile for undertaking tests on the work to be done in the context of that lot was that of ‘tester’ and not ‘analyst programmer’.
35      In this instance, in the light of Evropäiki Dynamiki’s arguments and the case-law of the Court of Justice cited in paragraph 27 above, it is not manifestly apparent that the General Court’s findings amount to a distortion of the tender specifications. In particular, the General Court was correct to find that, although the tender specifications require that a ‘tester’ is included in a tenderer’s bid, Evropäiki Dynamiki’s bid did not contain a person with that profile.
36      Consequently, as Evropäiki Dynamiki seeks a declaration from the Court of Justice that the General Court failed to determine the correct profile for performing tests relating to the work carried out in the context of Lot No 2, it is sufficient to note that it thereby seeks to obtain a review of the findings of fact made by the General Court, for which the Court of Justice has no jurisdiction on appeal.
37      In the third place, as regards the arguments concerning the errors of law allegedly made by the General Court in paragraphs 108 to 110 of the judgment under appeal, relating to Lot No 3, it must be found that they are in part clearly inadmissible and in part clearly unfounded.
38      Thus, as regards, first of all, Evropäiki Dynamiki’s argument which seeks to call in question the General Court’s finding, in paragraph 108 of the judgment under appeal, that it had not mentioned in its tender the highly qualified persons which it intended to appoint to support roles, it is sufficient to note that Evropäiki Dynamiki seeks to obtain a fresh assessment of the findings of fact made by the General Court.
39      Next, as regards the argument complaining that the General Court failed to take into account, in paragraph 109 of the judgment under appeal, the curricula vitae of the environmental experts, that argument cannot succeed in the light of the conclusion in paragraph 55 of that judgment – which is not challenged by Evropäiki Dynamiki – that it was not possible to take account of the environmental experts for the purposes of evaluating Evropäiki Dynamiki’s tender since the manner in which they would be integrated into the team was not accurately described.
40      Lastly, as regards the argument based on the judgment in Lianakis and Others, it should be noted that Evropäiki Dynamiki simply refers to that judgment, without explaining how it applies to the present case and without setting out how the judgment under appeal misconstrues that judgment. According to settled case-law, a mere abstract statement of a plea in an appeal, unsupported by more specific information, does not satisfy the requirements of Article 21 of the Statute of the Court of Justice and Article 112(1)(c) of its Rules of Procedure (Case C-51/92 P Hercules Chemicals v Commission [1999] ECR I-4235, paragraph 113, and Case C-401/09 P Evropaïki Dynamiki v ECB [2011] ECR I-0000, paragraph 61 and case-law cited).
41      Consequently, Evropäiki Dynamiki’s first ground of appeal must be rejected as being in part clearly inadmissible and in part clearly unfounded.
The second ground of appeal
Arguments of the parties
42      By its second ground of appeal, Evropäiki Dynamiki complains that the General Court infringed Article 100(2) of the Financial Regulation and Article 149(2) of the Implementing Rules when it concluded that the reasoning of the evaluation report was consistent with those provisions. All the decisive elements taken into consideration in adopting the contested decisions ought to have been stated, and also how they impacted on the evaluation of the tender. A purely ‘mechanical approach’ by the Commission whereby it simply transmits certain information to the unsuccessful tenderer, without explaining in detail the reasons for the rejection of the bid, cannot fulfil that obligation. It follows from this that, in paragraph 65 of the judgment under appeal, the General Court ought to have penalised the failure to mention, in the evaluation report, the presence of a quality manager in Evropäiki Dynamiki’s bid. That is true all the more so because the evaluation report considered that factor to be an advantage for the successful tenderer’s bid.
43      The Commission contends that the present ground of appeal is inadmissible, since Evropäiki Dynamiki has failed to provide any legal arguments in support of it. In any event, it is unfounded, since the Commission fulfilled its obligations to state reasons, deriving from the Financial Regulation and the Implementing Rules, so that the General Court was in a position to review the legality of the contested decisions. In particular, all the decisive elements that led to the negative evaluation of Evropäiki Dynamiki’s offer were communicated to it by the letter[s] of 13 October 2008. The presence of a quality engineer in Evropäiki Dynamiki’s bid was not a decisive element.
Findings of the Court
44      As regards the argument concerning paragraph 65 of the judgment under appeal, it must be borne in mind that, according to the first subparagraph of Article 100(2) of the Financial Regulation, the contracting authority is required to notify all candidates or tenderers whose applications or tenders are rejected of the grounds on which the decision was taken, and to notify all tenderers whose tenders are admissible and who make 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.
45      In accordance with the third subparagraph of Article 149(3) of the Implementing Rules, unsuccessful tenderers may request additional information about the reasons for their rejection in writing, and all tenderers who have put in an admissible tender may obtain information about the characteristics and relative merits of the tender accepted and the name of the successful tenderer, without prejudice to the second subparagraph of Article 100(2) of the Financial Regulation.
46      If follows from those provisions that, in order to fulfil its obligation to state reasons, the Commission was required to communicate to Evropäiki Dynamiki the reasons for the rejection of its bid, the characteristics and relative merits of the tender accepted, and the name of the successful tenderer.
47      In the present case, it is clear from the file that the Commission did communicate to Evropäiki Dynamiki, by letters of 13 and 28 October 2008, the reasons for the rejection of its bid and the characteristics and relative merits of the tender accepted and the name of the successful tenderer.
48      The General Court was therefore correct to find, in paragraph 65 of the judgment under appeal, that the Commission had fulfilled its obligation to state reasons under Article 100(2) of the Financial Regulation and Article 149(2) and (3) of the Implementing Rules.
49      The mere fact that the evaluation report failed to take into account the quality manager provided for in Evropäiki Dynamiki’s bid cannot affect that finding.
50      In the context of the obligation to state reasons, the Commission cannot be required to communicate to an unsuccessful tenderer, in addition to the reasons for rejecting its tender, a detailed summary of how each detail of its tender was taken into account when the tender was evaluated.
51      Similarly, as regards the argument that the presence in the successful tenderer’s bid of an engineer responsible for monitoring the quality of the IT services provided (a ‘quality engineer’) was positively evaluated in the evaluation report, it should be noted that, in the context of notification of the characteristics and relative merits of the successful tender, the contracting authority cannot be required to undertake a detailed comparative analysis of the successful tender and of the unsuccessful tender (see order in Case C-561/10 P Evropaïki Dynamiki v Commission [2011] ECR I‑0000, paragraph 27).
52      In those circumstances, the General Court did not err in paragraph 65 of the judgment under appeal.
53      As to the remainder, it must be recalled that, according to settled case‑law, it follows from Article 256 TFEU, the first paragraph of Article 58 of the Statute of the Court of Justice and Article 112(1)(c) of the Rules of Procedure that an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of the appeal (see, inter alia, Case C‑352/98 P Bergaderm and Goupil v Commission [2000] ECR I‑5291, paragraph 34; Case C‑41/00 P Interporc v Commission [2006] ECR I‑2125, paragraph 15; and Case C‑131/03 P Reynolds Tobacco and Others v Commission [2006] ECR I‑7795, paragraph 49).
54      With the exception of the argument directed against paragraph 65 of the judgment under appeal, Evropäiki Dynamiki fails to indicate with sufficient precision, in its appeal, those parts of that judgment to which it objects, but merely develops abstract arguments concerning the scope of the Commission’s obligation to state reasons.
55      Therefore, the second ground of appeal must be rejected as being in part clearly inadmissible and in part clearly unfounded.
The third ground of appeal
Arguments of the parties
56      Evropäiki Dynamiki’s argument relating to the third ground of appeal overlaps to a large extent with the argument alleging breach of the obligation to state reasons raised in support of its second ground of appeal. In addition, Evropäiki Dynamiki complains that the General Court failed to conclude that the principle of equal treatment had been infringed, even though it found, in paragraph 76 of the judgment under appeal, in relation to Lot No 1, that the presence of a quality engineer had been positively evaluated in the case of the successful tenderer, but not in the case of Evropäiki Dynamiki. Lastly, Evropäiki Dynamiki complains that the General Court failed to take account of the fact that many of the merits of the successful tender stemmed from the fact that, as a previous contractor, it had privileged access to the ‘source’ code and technical documentation of the CITL/CR projects.
57      The Commission contends that this ground of appeal is also inadmissible. First, such a ground of appeal amounts to a request for an assessment of the facts and, second, Evropäiki Dynamiki raises a new plea, in so far as it complains that the General Court failed to take account of the advantages enjoyed by the successful tenderer.
Findings of the Court
58      Evropäiki Dynamiki complains, first of all, that the General Court failed to penalise a difference in treatment between itself and the successful tenderer stemming from the fact that the presence of a quality manager in Evropäiki Dynamiki’s tender had been overlooked by the evaluation committee. In that connection, it suffices to find that the General Court was able to conclude, without erring in law, that, in any event, that difference in treatment was objectively justified. Indeed, Evropäiki Dynamiki has not disputed that that quality manager was not included in the team responsible for the specific task in the tender specifications, or that his role or involvement in that task was not clearly set out. In those circumstances, the General Court did not err in law in concluding that the Commission could not take into account the quality manager in evaluating Evropäiki Dynamiki’s bid and that the presence of that manager could not therefore be evaluated positively.
59      In its appeal, Evropäiki Dynamiki then complains that the General Court infringed the principle of equal treatment by failing to take account of the fact that many of the merits of the successful tender stemmed from the tenderer’s privileged access – as a previous contractor – to the ‘source’ codes and technical documentation of the CITL/CR projects.
60      In that connection, it must be observed that when Evropäiki Dynamiki submitted, at first instance, that the contested decisions infringed the principle of equal treatment, it only disputed, in relation to Lot No 1 and the third award criterion, the difference in treatment referred to in paragraph 58 above.
61      However, the Court of Justice has consistently held that to allow a party to put forward for the first time before it a plea which the party did not raise before the General Court would be to authorise it to bring before the Court of Justice, whose jurisdiction in appeals is limited, a case of wider ambit than that which came before the General Court. In an appeal, the jurisdiction of the Court of Justice is confined to review of the findings of law on the pleas argued before the General Court (see, inter alia, Joined Cases C‑514/07 P, C‑528/07 P and C‑532/07 P Sweden and Others v API and Commission [2010] ECR I‑0000, paragraph 126 and case-law cited).
62      Since, in other respects, Evropäiki Dynamiki simply refers to the principle of equal treatment, without specifying other information capable of substantiating the claim that that principle has been breached – contrary to the case‑law cited in paragraph 40 above – the third ground of appeal must be rejected as being in part clearly inadmissible and in part clearly unfounded.
The fourth ground of appeal
Arguments of the parties
63      By its fourth ground of appeal, Evropäiki Dynamiki submits that the General Court infringed Article 41 of the Charter by failing to provide sufficient reasons in its judgment. The General Court, in particular in paragraph 65 of the judgment under appeal, failed to carry out a proper examination, in the light of the circumstances of the case, of the plea in law raised by Evropäiki Dynamiki at first instance alleging insufficient reasoning of the evaluation report. The General Court thus accepted the vague and general terms used by the Commission and failed, in particular, to invite the latter to submit a detailed copy of the evaluation report and of the successful tender.
64      The Commission contends that the present ground of appeal must be rejected as inadmissible in that it does not satisfy the need for precision and clarity required by the Court’s case-law. In any event, since the General Court fully satisfied its obligation to state reasons under that case-law, the present ground of appeal is unfounded.
Findings of the Court
65      The arguments alleging that the judgment under appeal is insufficiently reasoned – which, in Evropäiki Dynamiki’s submission, constitutes an infringement of Article 41 of the Charter – cannot be upheld.
66      In so far as the present ground of appeal is directed at paragraph 65 of the judgment under appeal – the only paragraph of that judgment addressed in this ground of the appeal – it should be recalled that, according to settled case-law, the obligation of the General Court to state reasons, pursuant to the first sentence of Article 36 and the first paragraph of Article 53 of the Statute of the Court of Justice, does not require the General Court to provide an account which follows exhaustively and one by one all the arguments put forward by the parties to the case. The reasoning may therefore be implicit on condition that it enables the persons concerned to know why the General Court has not upheld their pleas in law or arguments and provides the Court of Justice with sufficient material for it to exercise its power of review (see, inter alia, Joined Cases C-120/06 P and C‑121/06 P FIAMM and FIAMM Technologies v Council and Commission [2008] ECR I-6513, paragraph 96, and Case C-252/10 P Evropaïki Dynamiki v EMSA [2011] ECR I-0000, paragraph 46).
67      It is apparent from paragraph 65 of the judgment under appeal that the General Court explained sufficiently the reasons for which it considered that the Commission had fulfilled its obligations under Article 100(2) of the Financial Regulation and Article 149(2) and (3) of the Implementing Rules, notwithstanding the fact that there was no mention of a quality manager in the evaluation report.
68      As to the remainder, the present ground of appeal is inadmissible, in accordance with the case-law cited in paragraph 53 above.
69      Consequently, the fourth ground of appeal must be rejected as being in part clearly inadmissible and in part clearly unfounded.
70      It follows from the foregoing considerations that none of the grounds relied on by Evropäiki Dynamiki in support of its appeal can be upheld and, accordingly, the appeal must be dismissed in its entirety.
Costs
71      Under Article 69(2) of the Rules of Procedure, which applies to the procedure on appeal by virtue of Article 118 thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Commission has applied for costs to be awarded against Evropaïki Dynamiki and the latter has been unsuccessful, Evropaïki Dynamiki must be ordered to pay the costs.
On those grounds, the Court (Seventh Chamber) hereby orders:
1.      The appeal is dismissed.
2.      Evropaïki Dynamiki – Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE shall pay the costs.
[Signatures]
* Language of the case: English.