ORDER OF THE COURT (Seventh Chamber)
13 October 2011 (*)
(Appeal – Public service contracts – Management and maintenance of the ‘Your Europe’ portal – Rejection of the tender – Regulations (EC, Euratom) No 1605/2002 and No 2342/2002 – Full copy of the evaluation report – Principles of transparency and equal treatment – Rights to good administration and to a fair hearing – Errors of law – Distortion of the evidence – Clear inadmissibility – Clearly unfounded ground of appeal)
In Case C‑560/10 P,
APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 19 November 2010,
Evropaïki Dynamiki – Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE, established in Athens (Greece), represented by N. Korogiannakis, dikigoros,
appellant,
the other party to the proceedings being:
European Commission, represented by S. Delaude and N. Bambara, acting as Agents, with an address for service in Luxembourg,
defendant at first instance,
THE COURT (Seventh Chamber),
composed of E. Juhász (Rapporteur), acting as President of the Seventh Chamber, T. von Danwitz and D. Šváby, Judges,
Advocate General: N. Jääskinen,
Registrar: A. Calot Escobar,
after hearing the Advocate General,
makes the following
Order
1        By its appeal, Evropaïki Dynamiki – Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE (‘Evropaïki Dynamiki’) asks the Court to set aside the judgment of the General Court of the European Union of 9 September 2010 in Case T‑300/07 Evropaïki Dynamiki v Commission [2010] ECR II‑0000 (‘the judgment under appeal’), in so far as, in that judgment, the General Court dismissed, first, Evropaïki Dynamiki’s application for annulment of the Commission’s decision not to accept its tender submitted in tendering procedure ENTR/05/78 for Lot 1 (Editorial Work and Translations) for the management and maintenance of the ‘Your Europe’ portal (OJ 2006/S 143‑153057), and to award the contract to another tenderer (‘the contested decision’) and, second, its claim for damages.
2        So far as concerns the legal framework of the case, the facts giving rise to the dispute and the procedure before the General Court, reference is made to paragraphs 1 to 40 of the judgment under appeal.
Forms of order sought
3        By its appeal, Evropaïki Dynamiki asks the Court to set aside the judgment under appeal and the contested decision in part, to refer the case to the General Court and to order the European Commission to pay the costs, including those incurred at first instance.
4        The Commission contends that the Court should dismiss the appeal and order Evropaïki Dynamiki to pay the costs.
The appeal
5        Under Article 119 of the Rules of Procedure of the Court of Justice, 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.
6        The present appeal consists of three grounds, alleging, first, misinterpretation of Article 100(2) 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 of Article 149 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’), second, an inadequate statement of reasons in the judgment under appeal, and infringement of the rights to good administration and to a fair hearing, and, third and finally, errors of law and distortion of the evidence.
The first ground of appeal, alleging misinterpretation of Article 100(2) of the Financial Regulation and Article 149 of the Implementing Rules
7        By the first plea, Evropaïki Dynamiki claims that the General Court misinterpreted Article 100(2) of the Financial Regulation and Article 149 of the Implementing Rules and submits that the Commission ought to have provided it, further to its written request, with a full copy of the evaluation report. It invokes paragraph 135 of the judgment of 10 September 2008 in Case T‑59/05 Evropaïki Dynamiki v Commission in order to demonstrate that there is such an obligation.
8        According to Evropaïki Dynamiki, the General Court erred in law in holding, in paragraphs 57 to 61 of the judgment under appeal, that, as its tender had not reached the 70% threshold, Article 100(2) of the Financial Regulation and Article 149 of the Implementing Rules did not oblige the contracting authority to disclose the characteristics and the relative merits of the winning tenderer’s bid. It submits that, since the tenders which successfully passed the exclusion and, subsequently, the selection phases could not be considered inadmissible under Article 146 of the Implementing Rules, it should have received the requested information. Otherwise, an evaluation committee could be tempted to exclude the tenderer which has submitted the least expensive offer, depriving it subsequently of its rights to information on the relative merits of the winning tender, thereby ensuring that the contract is awarded to a preferred contractor.
9        Evropaïki Dynamiki states that the General Court’s reasoning that there was no comparative assessment of the merits of its tender and of that of the winning tenderer is erroneous, since at the award phase, all the tenders are necessarily examined in comparison with one another. Moreover, when two tenderers are evaluated against the same tendering specifications, they are evaluated indirectly against each other.
10      The Commission contends that this ground of appeal is unfounded.
11      In that regard, 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 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. The second subparagraph of Article 100(2) provides, however, that 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.
12      Under 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 the 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.
13      It follows from those provisions that the Commission was required, in the present case, to notify Evropaïki Dynamiki of the characteristics and relative merits of the successful tender and the name of the successful tenderer.
14      It is, however, apparent from the documents in the file that the Commission complied with that obligation to inform and that, as the General Court rightly found in the judgment under appeal, first, information concerning the relative merits of the successful tenderer to whom the contract had been awarded was communicated by the Commission to Evropaïki Dynamiki and, secondly, that information indicated the characteristics and relative advantages of the successful tender.
15      In that regard, it should be stated, first, that it does not follow from the wording of the first subparagraph of Article 100(2) of the Financial Regulation or of the third subparagraph of Article 149(3) of the Implementing Rules, or from the judgment in Case T‑59/05 Evropaïki Dynamiki v Commission, relied on by Evropaïki Dynamiki, that, upon written request by an unsuccessful tenderer, the contracting authority is under an obligation to provide it with a full copy of the evaluation report.
16      Second, it follows first of all from paragraph 53 of the judgment under appeal that the Commission informed Evropaïki Dynamiki that its tender had not reached the thresholds stated in point 3.3 of the tendering specifications. As is also apparent from paragraph 54 of that judgment, the Commission gave Evropaïki Dynamiki the name of the successful tenderer and stated that the latter had obtained a qualitative score of 72 out of 100 and a final ratio of 1.170. Finally, as is stated in paragraph 55 of that judgment, the Commission sent Evropaïki Dynamiki two extracts from the evaluation report, one providing justification for the scores awarded to its tender for the four technical evaluation criteria, the other containing a comparative table of the points received by Evropaïki Dynamiki and the successful tenderer respectively, under the four qualitative award criteria.
17      Furthermore, in the context of disclosing the characteristics and relative advantages of the successful tender, a detailed comparative analysis of the successful tender and of the offer of the unsuccessful tenderer cannot be required of the contracting authority on the basis of the first subparagraph of Article 100(2) of the Financial Regulation and of the third subparagraph of Article 149(3) of the Implementing Rules.
18      In those circumstances, the General Court did not err in finding, in paragraphs 57 to 61 of the judgment under appeal, that the contested decision did not have to be based on a comparison of the services offered by the various tenderers, that the information on the successful tenderer provided by the Commission was sufficient in the present case from the point of view of the requirements imposed in that regard, and that Article 100(2) of the Financial Regulation and Article 149 of the Implementing Rules had been complied with.
19      It should be added that that finding with regard to those paragraphs of the judgment under appeal cannot be undermined by Article 146 of the Implementing Rules, paragraph (1) of which provides that all tenders declared as satisfying the requirements are to be evaluated and ranked by an evaluation committee on the basis of the exclusion, selection and award criteria, or by Evropaïki Dynamiki’s arguments consisting of theoretical speculation as to possible favouritism on the part of certain evaluation committees towards certain contractors.
20      The first ground of appeal must therefore be rejected as being clearly unfounded.
The second ground of appeal, alleging an inadequate statement of reasons in the judgment under appeal and infringement of the rights to good administration and to a fair hearing
21      By the second ground of appeal, Evropaïki Dynamiki claims, first, that the General Court did not examine its arguments concerning infringement of the principles of transparency and equal treatment or give adequate reasons for rejecting them, which constitutes an obstacle to the Court’s review, and, secondly, that the General Court infringed its rights to good administration and to a fair hearing, as guaranteed by the Charter of Fundamental Rights of the European Union (‘the Charter’). Evropaïki Dynamiki challenges, in particular, paragraph 128 of the judgment under appeal, taking the view that the General Court could not limit itself to finding that the Commission had put forward a number of objective reasons justifying its decision not to award it the contract, without even naming those reasons, leaving Evropaïki Dynamiki in the dark as to why its arguments had been rejected.
22      The Commission contends that the second ground of appeal is unfounded.
23      In so far as concerns the first limb of this ground of appeal, that is to say, the criticism of paragraph 128 of the judgment under appeal and the alleged lack of reasoning in respect of the complaints relating to the principles of transparency and equal treatment, it must be stated that Evropaïki Dynamiki’s arguments are based on a misreading of that paragraph. In that paragraph reference is made, albeit implicitly, to the objective reasons analysed in paragraphs 76 to 121 of that judgment, in the context of the examination of the plea alleging manifest errors of assessment by the Commission. Therefore, Evropaïki Dynamiki cannot argue that it was not adequately informed of the reasons why its arguments were rejected.
24      Consequently, the first limb of the second ground of appeal must be rejected as being clearly unfounded.
25      With regard to the second limb of this ground of appeal, that is to say, the alleged infringement of Evropaïki Dynamiki’s rights to good administration and to a fair hearing, which are fundamental rights enshrined in Articles 41 and 47 of the Charter respectively, it must be noted that Evropaïki Dynamiki merely alleges that the reasoning of the judgment under appeal infringes those rights, but without showing how those provisions of the Charter are applicable in the present case and without setting out in what respects the judgment infringes those provisions.
26      According to the Court’s case-law, however, a mere abstract statement of a plea in an appeal, unsupported by more specific information, does not fulfil the duty to state the reasons for an appeal (see, to that effect, the order of 29 November 2007 in Case C‑107/07 P Weber v Commission, paragraphs 24 and 25, and the order of 10 February 2009 in Case C‑290/08 P Correia de Matos v Commission, paragraphs 18 and 19).
27      The second limb of the second ground of appeal must therefore be rejected as being clearly inadmissible.
28      Consequently, the second ground of appeal must be rejected as being in part clearly inadmissible and in part clearly unfounded.
The third ground of appeal, alleging errors of law and distortion of the evidence
29      By the third ground of appeal, Evropaïki Dynamiki claims, in essence, first, that the General Court erred in law by not properly examining its arguments on the manifest errors of assessment vitiating the contested decision and by not finding that the reasoning of the evaluation report was inadequate and used vague terms. Consequently, Evropaïki Dynamiki was unable to provide the evidence required by the General Court to establish those errors.
30      Second, Evropaïki Dynamiki submits that the General Court erred in law in declaring that it had failed to prove the existence of manifest errors of assessment vitiating the contested decision. In particular, Evropaïki Dynamiki claims that the General Court erred in law, in paragraphs 92, 95 and 114 of the judgment under appeal, in finding that the Commission did not make manifest errors of assessment, and that the General Court distorted certain items of evidence in paragraphs 85, 88, 89, 92, 93 and 104 of that judgment.
31      The Commission contends that the third ground of appeal is unfounded.
32      With regard to the allegations made under the first limb of this ground of appeal, relating to errors of law allegedly made by the General Court in the examination of the Commission’s assessments in the contested decision, it should be noted that, by those allegations, Evropaïki Dynamiki essentially takes issue with those assessments and criticises the General Court for not having endorsed those points of criticism.
33      An appeal must indicate precisely the contested elements of the judgment of the General Court which the appellant seeks to have set aside, and also the legal arguments specifically advanced in support of the appeal. That requirement is not satisfied by a ground of appeal which, without even including an argument specifically identifying the error allegedly vitiating the judgment under appeal, merely reproduces arguments previously submitted before the General Court. Such a ground of appeal amounts in reality to no more than a request for a re‑examination of a plea submitted to the General Court, which the Court of Justice does not have jurisdiction to undertake (Case C‑401/09 P Evropaïki Dynamiki v ECB [2011] ECR I‑0000, paragraph 55 and the case-law cited).
34      Accordingly, given that the arguments put forward in support of the first limb of the third ground of appeal do not establish errors of law allegedly vitiating the judgment under appeal but seek, in essence, a re‑examination of the application brought before the General Court, something which falls outside the jurisdiction of the Court, that limb must be rejected as being clearly inadmissible (see, to that effect, Case C‑76/01 P Eurocoton and Others v Council [2003] ECR I‑10091, paragraphs 46 and 47; Case C‑280/08 P Deutsche Telekom v Commission [2010] ECR I‑0000, paragraphs 23 and 24; and order of 12 September 2011 in Case C‑289/10 P Evropaïki Dynamiki v Commission, paragraphs 63 and 64).
35      So far as concerns the arguments in support of the second limb of the third ground of appeal, that is to say, the alleged distortion of the evidence, the Court finds that Evropaïki Dynamiki has failed to show in what respect the paragraphs of the judgment under appeal referred to in that limb contain such a distortion.
36      The second limb of the third ground of appeal is thus clearly unfounded.
37      Therefore, the third ground of appeal must be rejected as being in part clearly inadmissible and in part clearly unfounded.
38      Consequently, the appeal must be dismissed in its entirety as being in part clearly inadmissible and in part clearly unfounded.
Costs
39      Under Article 69(2) of the Rules of Procedure, which is applicable to the procedure on appeal pursuant to Article 118 of those Rules, the unsuccessful party is to be ordered to pay the costs if they have been asked 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.