ORDER OF THE COURT (Tenth Chamber)
20 May 2022 (*)
(Appeal – Article 181 of the Rules of Procedure of the Court of Justice – European Union public contracts – Tendering procedure – Award of contracts – Decision to reject a tender and award the contract to another tenderer – Award criteria – Quality control – Distortion of the facts and evidence – Misuse of powers – Obligation to state reasons – Appeal in part manifestly inadmissible and in part manifestly unfounded)
In Case C‑233/21 P,
APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 9 April 2021,
Germann Avocats LLC, established in Geneva (Switzerland), represented by N. Scandamis, dikigoros,
appellant,
the other party to the proceedings being:
European Commission, represented by B. Araujo Arce and J. Estrada de Solà, acting as Agents,
defendant at first instance,
THE COURT (Tenth Chamber),
composed of I. Jarukaitis, President of the Chamber, D. Gratsias and Z. Csehi (Rapporteur), Judges,
Advocate General: G. Pitruzzella,
Registrar: A. Calot Escobar,
having decided, after hearing the Advocate General, to give a decision by reasoned order, pursuant to Article 181 of the Rules of Procedure of the Court of Justice,
makes the following
Order
1        By its appeal, Germann Avocats LLC asks the Court of Justice to set aside the order of the General Court of the European Union of 4 February 2021, Germann Avocats v Commission (T‑352/18, not published, EU:T:2021:64; ‘the order under appeal’), by which the General Court dismissed its action seeking, first, the annulment of the decision of the European Commission to reject the bid submitted by the appellant in response to the call for tenders JUST/2017/RDIS/FW/EQUA/0042 (‘Follow-up study on trade union practices on non-discrimination and diversity’ (2017/S 215-446067)) (‘the decision at issue’) and, second, compensation for the damage allegedly suffered by the appellant following the adoption of that decision.
Background to the dispute
2        The background to the dispute was set out by the General Court in paragraphs 1 to 10 of the order under appeal, which are worded as follows:
‘1      On 9 November 2017, the European Commission published in the Supplement to the Official Journal of the European Union (OJ 2017/S 215-446067) a public procurement notice concerning the award, through an open procedure, of a service contract entitled “Follow-up study on trade union practices on non-discrimination and diversity”.
2      Point 4 of the tender specifications for the call for tenders which was the subject of that contract notice provided as follows:
“The evaluation is based solely on the information provided in the submitted tender. It involves the following: verification of non-exclusion of tenderers on the basis of the exclusion criteria; selection of tenderers on the basis of selection criteria; verification of compliance with the minimum requirements set out in these tender specifications; evaluation of tenders on the basis of the award criteria …
The tenders will be assessed in the order indicated above. Only tenders meeting the requirements of one step will pass on to the next step.”
3      Point 4.3 of the specifications set out the award criteria as follows:
“The tenders will be evaluated following the award criteria outlined below producing a total score out of 100%.
No
Award criteria
Weighting
1
Quality of the proposed methodology
…
70
2
Organisation of the work and resources
…
20
3
Quality control
This criterion will assess the quality control system applied to the service foreseen in this tender specification concerning the quality of the deliverables, the language quality check, and continuity of the service in case of absence of a member of the team.
The quality system should be detailed in the tender and specific to the tasks at hand; a generic quality system will result in a low score.
10
Total number of points
100
Tenders must score minimum 60% for each criterion and minimum 70% in total. Tenders that do not reach the minimum quality levels will be rejected and will not be ranked.”
4      Eight tenders were submitted, including a tender submitted jointly by [the appellant], Germann Avocats …, and another entity.
5      On 28 March 2018, following the evaluation of the tenders, the Commission decided to award the contract to A (“the successful tenderer”). By letter of the same day, [constituting the decision at issue,] the Commission informed [the appellant] that its tender had not been selected as it did not present the minimum required quality level … The letter further stated that [the appellant’s] tender had obtained a total of 46 points in the evaluation of the three award criteria mentioned above, as follows:
–        35 points out of 70 for criterion 1 …
–        10 points out of 20 for criterion 2 …
–        1 point out of 10 for criterion 3 (Quality control). The reasons given for that score were as follows:
“The bid does not identify any specific quality control system or risk-assessment”.
6      On 3 April 2018, [the appellant] sent a first letter to the Commission, asking it to review [the decision at issue]. …
7      On 17 April 2018, the Commission replied to [that letter], specifying, with regard to … award criterion 3, … that the evaluators had acknowledged the fact that in its tender [the appellant] had indicated that the work would be done according to the ISO 9001 standard, whereas point 4.3 of the tender specifications clearly required a more detailed and tailored quality system. The Commission also pointed out that the procurement rules on the evaluation of the award criteria prohibited taking into account or referring at that stage to curricula vitae, profiles, qualifications, skills, experience, expertise, knowledge of the subject, technical capacity and previous contracts, as these parameters clearly referred to selection criteria, which were a different part of the evaluation process. It concluded that the rules on public procurement had been respected with regard to the call for tenders at issue and, consequently, that there was no need to organise a second round of evaluation.
8      On 18 April 2018, [the appellant] sent a second letter to the Commission in which it criticised the consistency and reliability of the information presented by the Commission in its letter of 17 April 2018. In addition, [the appellant] requested information aimed at providing assurance that there had been no discrimination in the evaluation of the submitted tenders on the basis of the nationality of the tenderers. It also asked for the identity of the successful tenderer for the public contract in question.
9      On 2 May 2018, the Commission informed [the appellant] of the identity of the successful tenderer for the contract in question and stated that no discrimination on the basis of nationality had taken place during the award procedure at issue.
10      [The appellant] subsequently sent further letters, dated 3, 11 and 18 May 2018, claiming various pieces of information concerning the successful tenderer.’
Procedure before the General Court and the order under appeal
3        By application lodged at the Registry of the General Court on 5 June 2018, the appellant brought an action seeking, first, the annulment of the decision at issue; secondly, compensation for the damage, amounting to EUR 35 000, which it claimed to have suffered; and, thirdly, an order requiring the Commission to provide legally satisfactory transparency in the form of pertinent information and a quantitative and qualitative analysis of the competition-related situation for the tender procedure at stake.
4        In support of its claim for annulment, the appellant raised three pleas in law alleging (i) infringement of the obligation to state reasons and the existence of several manifest errors of assessment, (ii) infringement of the principles of equal treatment, legal certainty, sound administration and good faith, and (iii) infringement of the principle of transparency and of the protection of legitimate expectations as to fair competition.
5        By separate document lodged at the Registry of the General Court on 5 April 2019, the Commission raised an objection of inadmissibility.
6        By the order under appeal, the General Court, after dismissing that objection of inadmissibility, dismissed the action, in so far as it sought the annulment of the decision at issue, as being in part manifestly inadmissible and in part manifestly lacking any foundation in law. As to the claim for damages, the General Court observed that it was based on the same allegedly unlawful conduct as that relied on in support of the application for annulment of the decision at issue. However, since the General Court found no unlawful conduct on the part of the Commission, it held that the claim for damages also had to be rejected as
manifestly unfounded.
Forms of order sought by the parties before the Court of Justice
7        By its appeal, the appellant claims that the Court should:
–        uphold paragraphs 24 to 48 of the order under appeal, dismissing the objection of inadmissibility raised by the Commission in its entirety;
–        set aside the order under appeal as to the remainder, including point 2 of the operative part of that order, which requires the appellant to pay the costs of the proceedings before the General Court;
–        annul, pursuant to Article 263 TFEU, the decision at issue;
–        order the Commission to pay damages pursuant to Article 41(3) of the Charter of Fundamental Rights of the European Union and Article 268 TFEU in the amount of EUR 1, as a symbolic amount, on account of (i) the general public interest at stake for the European Union, namely the proper functioning of the procedure for democratic decision-making in a politically liberal democracy based on the rule of law, and
(ii) the harm suffered as a result of a manifest misuse of powers, the frustration of legitimate expectations that there would be a competitive environment ensuring equal opportunities for all tenderers, and the loss of the opportunity to perform the contract in question, as well as the infringement of the principles of equal treatment, legal certainty relating to the statement of reasons, sound administration, and good faith in the procedure which led to the adoption of the decision at issue;
–        alternatively, refer the case back to the General Court; and in any event
–        order the Commission to pay the costs.
8        The Commission contends that the Court should:
–        dismiss the appeal as being inadmissible and, failing that, as being unfounded; and
–        order the appellant to pay the costs.
The appeal
9        Pursuant to Article 181 of the Rules of Procedure of the Court of Justice, where an appeal is, in whole or in part, manifestly inadmissible or manifestly unfounded, the Court may at any time, acting on a proposal from the Judge-Rapporteur and after hearing the Advocate General, decide by reasoned order to dismiss that appeal in whole or in part.
10      That provision should be applied to the present appeal.
11      In support of its appeal, the appellant raises three grounds of appeal, alleging (i) distortion of the facts and evidence,
as well as errors of law and manifest errors of assessment, (ii) distortion of the facts, an error of law, misuse of powers, denial of justice and infringement of the principles of equal treatment, legal certainty, sound administration, good faith, transparency and the protection of legitimate expectations, and (iii) infringement of the obligation to state reasons and contradictory reasoning in the order under appeal, denial of justice, infringement of its right to be heard, distortion of the facts and evidence, and an error of law.
12      In addition, the appellant asks the Court to declare the response lodged by the Commission to be inadmissible on the ground that it was signed by agents of that institution who do not have the requisite independence to act on its behalf. In that context, the appellant asks the Court to designate an Advocate General to be the person responsible for guaranteeing the Commission’s right to be heard.
13      In that regard, it should be borne in mind that, under Article 169(1) of the Rules of Procedure, an appeal is to seek to have set aside, in whole or in part, the decision of the General Court as set out in the operative part of that decision. Accordingly, those requests, in so far as they do not seek to have the order under appeal set aside, must be rejected as being manifestly inadmissible. It should also be borne in mind that, under Article 19 of the Statute of the Court of Justice of the European Union, the institutions of the Union are to be represented before the Court of Justice of the European Union by an agent appointed for each case. The Commission was therefore duly represented by its agents when it lodged its response. It follows that the requests made by the appellant are, in any event, manifestly unfounded, since, moreover, under the second paragraph of Article 252 TFEU, it is the duty of the Advocate General, acting with complete impartiality and independence, to make, in open court, reasoned submissions on cases which, in accordance with the Statute of the Court of Justice of the European Union, require his or her involvement:
it is not his or her duty to represent the interests of a party to the proceedings.
The claim seeking to uphold paragraphs 24 to 48 of the order under appeal
14      As regards the claim that the Court should uphold paragraphs 24 to 48 of the order under appeal, dismissing the objection of inadmissibility raised by the Commission in its entirety, it is sufficient to note that, pursuant to Article 169(1) of the Rules of Procedure, that head of claim must be rejected as being manifestly inadmissible.
The claim that the order under appeal should be set aside
15      As a preliminary point, it should be borne in mind that, in accordance with the requirements stemming from Article 256 TFEU, the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union, and Article 168(1)(d) and Article 169 of the Rules of Procedure, an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside and the legal arguments specifically advanced in support of the appeal, failing which the appeal or the ground of appeal concerned may be inadmissible (judgment of 23 November 2021, Council v Hamas, C‑833/19 P, EU:C:2021:950, paragraph 50 and the case-law cited).
16      More specifically, according to the case-law, a ground of appeal supported by an argument that is not sufficiently clear and precise to enable the Court to exercise its powers of judicial review, in particular because essential elements on which the ground of appeal relies are not indicated sufficiently coherently and intelligibly in the text of the appeal, which is worded in a vague and ambiguous manner in that regard, does not satisfy
those requirements and must be declared
inadmissible. The Court has also held that an appeal lacking any coherent structure which simply makes general statements and contains no specific indications as to the points of the decision under appeal which may be vitiated by an error of law must be dismissed as being manifestly inadmissible (judgment of 15 April 2021, FV v Council, C‑875/19 P, not published, EU:C:2021:283, paragraph 27 and the case-law cited). Those requirements are also not satisfied
by an appeal which, without even including an argument specifically identifying the error of law allegedly vitiating the decision under appeal, merely reproduces the pleas in law and arguments previously submitted to the General Court. Such an appeal amounts in reality to no more than a request for re-examination of the application submitted to the General Court, which the Court of Justice does not have jurisdiction to undertake (judgment of 15 July 2021, DK v
EEAS, C‑851/19 P, EU:C:2021:607, paragraph 32 and the case-law cited).
17      Furthermore, it follows from Article 256 TFEU and from the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union that an appeal is to be limited to points of law. The General Court thus has exclusive jurisdiction to find and appraise the relevant facts and to assess the evidence. The assessment of those facts and that evidence does not therefore, save where it distorts those facts and evidence, constitute a point of law which is, as such, subject upon appeal to review by the Court of Justice. Such distortion must be obvious from the documents in the Court’s file, without there being any need to carry out a new assessment of the facts and the evidence (judgment of 21 October 2021, Parliament v UZ, C‑894/19 P, EU:C:2021:863, paragraph 46 and the case-law cited). The appellant must indicate precisely the evidence alleged to have been distorted by the General Court and show the errors of appraisal which, in its view, led to that distortion (judgment of 28 October 2021, Vialto Consulting v Commission, C‑650/19 P, EU:C:2021:879, paragraph 59 and the case-law cited).
18      It is in the light of the foregoing considerations that the present appeal must be examined.
The first ground of appeal, alleging distortion of the facts and evidence, as well as errors of law and manifest errors of assessment
–       Arguments of the parties
19      By its first ground of appeal, the appellant complains, in the first place, that the General Court, in paragraphs 52 to 92 of the order under appeal, distorted the evidence and erred in law in finding that the decision at issue was based on clear, precise and exhaustive award criteria. However, the appellant had provided clear and robust evidence that the award criteria were designed to favour the successful tenderer as a ‘serial contractor’ for contracts concluded with the Commission, in particular by comparing them with the much more precise award criteria used by the Court of Justice of the European Union
in connection with another tendering procedure of lower complexity and contractual value; an argument which the General Court wrongly held, in paragraph 78 of the order under appeal, to be irrelevant.
20      In the second place, as regards the evaluation of award criterion 3, the appellant claims that the General Court’s findings of fact, in particular in paragraph 70 of the order under appeal, are incorrect and that the General Court manifestly distorted the evidence produced in support of those findings. In that regard, it maintains that it alleged and proved in its action at first instance that its tender did not merely refer to the ISO 9001 standard, but presented detailed information on substantial ‘additional specific measures pertaining to quality assurance’.
21      In the third place, as regards award criteria 1 and 2, the appellant claims that the General Court did not take into consideration the fact that the Commission had set out specific requirements in respect of award criterion 1, such as lists of academic publications, not in its tender specifications, but only after the decision at issue was adopted. In addition, the General Court also failed to take into account the Commission’s failure to state the reasons why the detailed information provided by the appellant on the organisation of its work, covered by award criterion 2, was insufficient.
22      In the fourth place, the appellant submits that, in paragraph 83 of the order under appeal, the General Court erred in law when it held that there was no need to examine all the award criteria, referring, in that regard, to paragraph 185 of the judgment of 4 October 2018, Proof IT v EIGE (T‑914/16, not published, EU:T:2018:650). That judgment is not relevant in the present case because the award criteria were drafted differently in each of those cases. Since the award criteria at issue in the present case
were drafted in an incomprehensible manner, the scores obtained are irrelevant.
23      In the fifth place, the appellant claims that the General Court wrongly held, in paragraphs 62, 63 and 75 of the order under appeal, that the weighting of the three award criteria was relevant, even though it was arbitrary.
24      The Commission contends that the first ground of appeal is manifestly inadmissible and, in any event, manifestly unfounded.
–       Findings of the Court
25      As regards, in the first place, the appellant’s line of argument as set out in paragraph 19
of the present order, it is sufficient to note that the appellant does not in any way specify the rules of law allegedly infringed by the General Court and that, as regards the alleged distortions, it does not indicate precisely the evidence alleged to have been distorted by the General Court or show the errors of appraisal which, in its view, led to those distortions, contrary to the requirements of the case-law referred to in paragraphs 15 to 17 of the present order. The appellant’s line of argument is, in fact, confined to requesting a fresh assessment of the facts and evidence, which, by virtue of the case-law cited in paragraph 16
of the present order, falls outside the jurisdiction of the Court of Justice at the appeal stage. That line of argument must therefore be rejected as being manifestly inadmissible, in accordance with the case-law referred to in paragraph 16
of the present order.
26      As regards, in the second place, the appellant’s line of argument as set out in paragraph 20
of the present order, it should be noted that, by that line of argument, the appellant has neither established nor even claimed that the General Court erred in law, but is in fact seeking, without in any way establishing the distortion which it alleges, to have the Court of Justice carry out a fresh assessment of the evidence. In accordance with the case-law referred to in
paragraph 16
of the present order, that line of argument must be rejected as being manifestly inadmissible.
27      As regards, in the third place, the appellant’s line of argument as set out in paragraph 21
of the present order, it is sufficient to note that, by that line of argument, the appellant does not identify any error of law on the part of the General Court, but merely criticises that court, in general terms, for failing to take certain circumstances into consideration, without even alleging that the General Court failed, in that regard, to fulfil its obligation to state reasons. That line of argument must therefore be rejected as being manifestly inadmissible, in accordance with the case-law referred to in paragraphs 15 and 16 of the present order.
28      As regards, in the fourth place, the appellant’s line of argument as set out in paragraph 22
of the present order, it must be noted that it is true that, in paragraph 83 of the order under appeal, the General Court held that ‘in so far as [the appellant’s] tender did not obtain the minimum score required by the tender specifications for award criterion 3 and that reason alone was sufficient to reject it, there is no need to examine whether [the appellant’s] arguments are capable of demonstrating a manifest error of assessment with regard to award criteria 1 and 2’, referring, in that regard, to paragraph 185 of the judgment of 4 October 2018, Proof IT v EIGE (T‑914/16, not published, EU:T:2018:650). However, it follows from a reading of paragraphs 75 to 83 of the order under appeal as a whole that, first, paragraph 83 of that order is merely the consequence of the General Court’s finding in paragraph 82 thereof that award criterion 3 did not lack clarity and that the Commission had not made any manifest error of assessment in the evaluation of that award criterion of the appellant’s bid, and, second, that finding follows from the analysis carried out in paragraphs 75 to 81 of that order, in which the General Court did not rely in any way on the judgment of 4 October 2018, Proof IT v EIGE (T‑914/16, not published, EU:T:2018:650). Consequently, it is apparent from that reading as a whole that the reference to that judgment was made by the General Court not because of an alleged similarity between the award criteria at issue in the case giving rise to that judgment and those at issue in the present case, but merely in order to support its assessment that, in the light of the requirements set out in the tender specifications, failure on a single criterion was sufficient for the tender to be rejected, since, moreover, that assessment was not disputed by the appellant. That line of argument, which is based on a misreading of the order under appeal, must therefore be rejected as being manifestly unfounded.
29      In the fifth place, it should be noted that, by its line of argument as set out in paragraph 23
of the present order, the appellant merely puts forward observations of a general nature, without identifying the error of law allegedly vitiating the order under appeal as regards the weighting of the criteria carried out by the General Court, with the result that that line of argument must be rejected as being manifestly inadmissible, in accordance with the case-law referred to in paragraph 16
of the present order.
30      Consequently, the first ground of appeal must be rejected as being in part manifestly inadmissible and in part manifestly unfounded.
The second ground of appeal, alleging distortion of the facts, an error of law, misuse of powers, denial of justice and infringement of the principles of equal treatment, legal certainty, sound administration, good faith, transparency and the protection of legitimate expectations
–       Arguments of the parties
31      In the first place, the appellant states that, by its second ground of appeal, it will draw attention to the evidence submitted to the General Court in order to establish that the Commission misused its powers and will set out the manner in which the General Court distorted those facts and erred in law in its assessment of the plea which the appellant had based on that misuse of powers. In that regard, the appellant states, first of all, that, by omitting to duly consider the allegation that the successful tenderer is an ‘habitué’ of large contracts and a ‘serial contractor’ of the Commission which took advantage of its dominant market position in the call for tenders at issue, the General Court distorted those facts in paragraph 10 of the order under appeal. In public procurement procedures, ‘path dependence’, which exists where new decisions are dependent on previous decisions or conditioned by experiences in the past, is in breach of the requirements of equal treatment between ‘insider’ and ‘outsider’ tenderers and of legal certainty for that second category of competitors. According to the appellant, sustaining and reinforcing ‘path dependence’ as a public authority should be legally classified as a misuse of powers, as well as an infringement of the principles of sound administration and good faith.
32      Next, the appellant claims to have demonstrated that the combination of the award criteria being drafted in a vague, equivocal and incomplete ‘telegraphic style’ and the fact that the successful tenderer is an ‘habitué’ of large contracts and a ‘serial contractor’ has severely distorted competition among tenderers in the call for tenders at issue and therefore constitutes in itself a misuse of powers by the Commission in breach of the principles of equal treatment, sound administration, legal certainty and good faith, since it favours ‘path dependence’. By failing to take that classification into account, the General Court infringed EU law.
33      Lastly, the appellant submits that it provided the General Court with ample objective, relevant and consistent evidence capable of showing that, by rejecting its tender, the Commission pursued an aim other than that of evaluating that tender in accordance with the powers conferred on it for that purpose and, thus, misused its powers, in reality pursuing the objective of supporting and reinforcing ‘path dependence’ in favour of the successful tenderer. Consequently, the Commission acted in breach of the principles of equal treatment, legal certainty, sound administration and good faith in the procedure, as well as the principles of transparency and the protection of legitimate expectations in the competitive environment, which must be strictly adhered to in the context of tendering procedures in order to ensure equal treatment between competitors.
34      In the second place, according to the appellant, the General Court erred in law, denied it justice and distorted the facts by confusing the first plea with the second and third pleas and by remaining silent on the Commission’s misuse of powers, which reinforced ‘path dependence’, in breach of the rules on fair competition. By rejecting the additional evidence offered in that regard by the appellant, the General Court also infringed the appellant’s right to be heard and the principle of equality of arms.
35      The Commission contends that the second ground of appeal should be rejected.
–       Findings of the Court
36      In the first place, as regards the appellant’s arguments as set out in paragraphs 31 to 33 of the present order, it should be noted, first of all, that, in so far as the appellant, through those arguments, makes statements of a general nature and relies on certain facts without explaining how the General Court distorted those facts, it seeks, in essence, a new assessment of the facts and evidence which, in accordance with the case-law referred to in paragraph 17
of the present order, falls outside the jurisdiction of the Court of Justice.
37      Next, in so far as, by those arguments, the appellant relies on a number of infringements which the Commission is alleged to have committed, it must be borne in mind that arguments in an appeal which criticise the decision in respect of which an application for annulment has been submitted to the General Court, rather than the decision handed down by the General Court following that application for annulment, are inadmissible (see, to that effect, order of 13 January 2012, Evropaïki Dynamiki v EEA, C‑462/10 P, not published, EU:C:2012:14, paragraph 36).
38      Lastly, in so far as the appellant claims, in essence, that, by failing to acknowledge the alleged misuse of powers, the General Court erred in law, it must be held that, in making that claim, the appellant does not indicate precisely the contested elements of the order under appeal or develop any legal argument specifically supporting that assertion, with the result that that part of the second ground of appeal is also manifestly inadmissible, in accordance with the case-law referred to in paragraph 15
of the present order.
39      In the second place, as regards the appellant’s line of argument as set out in paragraph 34
of the present order, it is appropriate, first, to note that the Court has repeatedly held that a mere abstract statement of the grounds in the application does not alone satisfy the requirements of Article 21 of the Statute of the Court of Justice of the European Union and Article 168(1)(d) of the Rules of Procedure (order of 12 December 2006, Autosalone Ispra v Commission, C‑129/06 P, not published, EU:C:2006:775, paragraph 30 and the case-law cited), and, second, to refer to the case-law set out in paragraph 16
of the present order. It follows that that line of argument, consisting of a mere abstract statement of grounds, confined to general statements and containing no specific indications as to the paragraphs of the order under appeal allegedly vitiated by an error of law, must be rejected as being manifestly inadmissible.
40      Moreover, in so far as the appellant complains that the General Court did not accept the additional evidence offered to it by the appellant, thus infringing the appellant’s right to be heard and the principle of equality of arms, it should be recalled that the General Court is the sole judge of any need to supplement the information available to it in respect of the cases before it. Whether or not the evidence before it is sufficient is a matter to be appraised by it alone and is not subject to review by the Court of Justice on appeal, except where that evidence has been distorted or the inaccuracy of the findings of the General Court is apparent from the documents in the case file (judgments of 11 September 2008, Germany and Others v Kronofrance, C‑75/05 P and C‑80/05 P, EU:C:2008:482, paragraph 78, and of 27 October 2011, Austria v Scheucher-Fleisch and Others, C‑47/10 P, EU:C:2011:698, paragraph 99 and the case-law cited).
41      In the present case, it must be held that the appellant’s line of argument as set out in paragraph 34
of the present order does not satisfy those requirements. Consequently, the General Court cannot be criticised for finding that the evidence in the file was sufficient to enable it to give a decision, without any further measures of organisation of procedure being necessary. Accordingly, the alleged infringements of the appellant’s right to be heard or of the principle of equality of arms are manifestly not established.
42      In the light of all of the foregoing, the second ground of appeal must be rejected as being in part manifestly inadmissible and in part manifestly unfounded.
The third ground of appeal, alleging infringement of the obligation to state reasons and contradictory reasoning in the order under appeal, denial of justice, infringement of the right to be heard, distortion of the facts and evidence, and an error of law
–       Arguments of the parties
43      By its third ground of appeal, the appellant complains that the General Court did not address the issue of ‘path dependence’ and the Commission’s resulting misuse of powers, which it nevertheless raised and substantiated in detail. In that regard, the General Court merely dealt with the second and third pleas in law, which concerned
those elements, by incorrectly and arbitrarily confusing them with the first plea in law and referring to its analysis of that plea. In so doing, and by also noting in paragraphs 95 and 105 of the order under appeal that the appellant did not substantiate to the requisite legal standard its arguments relating to that issue, the General Court failed to fulfil its obligation to state reasons for the order under appeal.
44      Accordingly, first, the appellant submits that there is a contradiction in the reasoning of the General Court in so far as, whereas, in paragraphs 95 and 99 of the order under appeal, the General Court claimed that it had not understood the appellant’s arguments relating to ‘path dependence’, it held, in paragraph 99 and paragraphs 103 to 105 of the order under appeal, that the arguments put forward in that regard ‘were to be understood as in fact invoking a misuse of powers’, while referring to the appellant’s arguments relating, in particular, to the need to avoid dependence on the same contractors and to the fact that the award criteria must ensure equal treatment.
45      Secondly, the appellant criticises the General Court for summarily and wrongly rejecting, in paragraphs 96 and 104 of the order under appeal, its arguments on distortion of competition as ‘mere hypotheses’. In its view, those ‘mere hypotheses’ must be classified as clearly and precisely substantiated facts. In that regard, the appellant adds that, even if it were correct to classify the arguments which it put forward as ‘hypotheses’, that classification would be manifestly inconsistent with the requirement of objective impartiality laid down in Article 41(1) of the Charter of Fundamental Rights and Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, since the General Court rejected consistently established and demonstrated evidence as ‘hypotheses’ or ‘suspicions’.
46      Thirdly, according to the appellant, by refusing to appropriately examine the key claim in its action, relating to ‘path dependence’, the General Court denied the appellant justice and infringed its right to be heard, thereby erring in law with regard to the pleas relating to the Commission’s misuse of powers. In addition, by classifying, in paragraphs 103 and 104 of the order under appeal, the appellant’s allegations, substantiations, related evidence and legal arguments as hypotheses, the General Court misrepresented and distorted the facts and evidence and, therefore, erred in law.
47      In that regard, the appellant refers to the level of precision and detail of the award criteria used in another call for tenders, issued by the Court of Justice of the European Union, which establishes that the Commission misused its powers by sustaining and reinforcing ‘path dependence’. The rejection of that comparison, in paragraph 78 of the order under appeal, is manifestly arbitrary and lacking any foundation in law.
48      The Commission contends that that ground of appeal must be rejected.
–       Findings of the Court
49      In the first place, in so far as, by the third ground of appeal, the appellant claims, in general terms, that the General Court’s treatment of the second and third pleas is vitiated by a failure to state reasons, it should be noted that 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 of the European Union, 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 (order of 29 November 2011, Evropaïki Dynamiki v Commission, C‑235/11 P, not published, EU:C:2011:791, paragraph 66 and the case-law cited).
50      In the present case, the reasons why the General Court did not uphold the second and third pleas are directly apparent from paragraphs 95 to 99 and 103 to 106 of the order under appeal, where, moreover, in order to reject those pleas, the General Court did not simply refer to the analysis carried out in relation to the first plea, but developed and supplemented its reasoning. That complaint is therefore manifestly unfounded.
51      In the second place, in so far as the appellant claims, as shown in paragraph 44
of the present order, that there is a contradiction in the reasoning of the General Court, it should be noted that there is nothing whatsoever in the wording of paragraphs 95 and 99 of the order under appeal, the latter paragraph being in any event superfluous, to suggest that the General Court claimed not to have understood the appellant’s arguments relating to the alleged ‘path dependence’ while holding the opposite to be true in paragraph 99 and paragraphs 103 to 105 of the order under appeal. In paragraph 95 of that order, that line of argument is not addressed, and therefore the content of that paragraph manifestly cannot, in any event, contradict the grounds set out in paragraph 99 and paragraphs 103 to 105 of the order under appeal, relating in particular to the privileged position – or, in other words, ‘path dependence’ – allegedly enjoyed by certain tenderers. Moreover, it may also be added that the General Court, in paragraphs 96 and 105 of the order under appeal, rejected the arguments relating to that alleged dependence on account of their general nature and since they were not substantiated by concrete, verifiable and sufficiently comprehensible evidence. That part of the appellant’s line of argument is therefore manifestly unfounded.
52      It follows, moreover, from the foregoing that the appellant’s argument that, by refusing to appropriately examine the key claim in its action relating to ‘path dependence’, the General Court denied the appellant justice and infringed its right to be heard must also be rejected as being manifestly unfounded.
53      In the third place, it should be noted that the appellant’s line of argument as set out in paragraph 45
of the present order manifestly does not satisfy the requirements of the case-law referred to in paragraphs 15 and 16 of the present order, with the result that it must be rejected as being manifestly inadmissible.
54      In the fourth place, in so far as the appellant again argues that its position concerning the Commission’s alleged misuse of powers is justified by comparing it with a tendering procedure other than the one at issue in the present case, it is sufficient to note that, in so doing, the appellant seeks a fresh assessment of evidence already submitted at first instance. In accordance with the case-law referred to in paragraph 16
of the present order, such a line of argument is manifestly inadmissible.
55      Consequently, the third ground of appeal must be rejected as being in part manifestly inadmissible and in part manifestly unfounded.
56      Lastly, it must be noted that, in accordance with settled case-law, where all the other grounds of appeal have been rejected, any submissions concerning the alleged unlawfulness of the decision of the General Court on costs must be rejected as inadmissible, pursuant to the second paragraph of Article 58 of the Statute of the Court of Justice of the European Union, in accordance with which an appeal may not relate only to the amount of the costs or the party ordered to pay them (order of 14 April 2021, Wagenknecht v European Council, C‑504/20 P, EU:C:2021:305, paragraph 52).
57      In the present case, since all the grounds of appeal have been rejected, both the arguments put forward in the reply, by which the appellant raises irregularities relating to the decision of the General Court on costs, and the head of claim seeking the setting aside of point 2 of the operative part of the order under appeal, must be rejected as being manifestly inadmissible.
58      In light of the foregoing, the appeal must be dismissed in its entirety as being in part manifestly inadmissible and in part manifestly unfounded.
Costs
59      Under Article 137 of the Rules of Procedure, applicable to proceedings on appeal pursuant to Article 184(1) of those rules, a decision as to costs is to be given in the order which closes the proceedings.
60      According to Article 138(1) of the Rules of Procedure, which also applies to appeal proceedings by virtue of Article 184(1) of those rules, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
61      Since the Commission has applied for costs and Germann Avocats has been unsuccessful in its appeal, the latter must be ordered to pay the costs.
On those grounds, the Court (Tenth Chamber) hereby orders:
1.      The appeal is dismissed as being in part manifestly inadmissible and in part manifestly unfounded.
2.      Germann Avocats LLC is ordered to bear its own costs and to pay those incurred by the European Commission.
Luxembourg, 20 May 2022.
A. Calot Escobar
I. Jarukaitis
Registrar
President of the Tenth Chamber
*      Language of the case: English.