JUDGMENT OF THE GENERAL COURT (Tenth Chamber)
5 October 2022 (*)(1)
(Public procurement – Tendering procedure – Exclusion from the procurement procedure – Abnormally low offer – Attempts to unduly influence the decision-making process – Failure to observe the rules on communication – Proportionality – Obligation to state reasons – Misuse of powers – Non-contractual liability)
In Case T‑761/20,
European Dynamics Luxembourg SA, established in Luxembourg, (Luxembourg), represented by M. Sfyri and M. Koutrouli, lawyers,
applicant,
v
European Central Bank (ECB), represented by I. Koepfer and J. Krumrey, acting as Agents, and by A. Rosenkötter, lawyer,
defendant,
THE GENERAL COURT (Tenth Chamber),
composed, at the time of deliberations, of A. Kornezov, President, E. Buttigieg (Rapporteur) and G. Hesse, Judges,
Registrar: E. Coulon,
having regard to the written part of the procedure,
having regard to the fact that no request for a hearing was submitted by the parties within three weeks after service of notification of the close of the written part of the procedure, and having decided to rule on the action without an oral part of the procedure, pursuant to Article 106(3) of the Rules of Procedure of the General Court,
gives the following
Judgment
1        By its action, the applicant, European Dynamics Luxembourg SA seeks, first, on the basis of Article 263 TFEU, annulment of (i) the decision of the Procurement Committee of the European Central Bank (ECB) of 1 October 2020 to exclude its tenders for the three lots in the procurement procedure Provision of services and works for IT application delivery (‘the decision of 1 October 2020’), (ii) the decision of the ECB Procurement Review Body of 9 December 2020 (‘the decision of 9 December 2020’) and (iii) all the related subsequent decisions of the ECB; second, on the basis of Article 268 TFEU, it seeks compensation for the damage it allegedly suffered as a result of that exclusion.
I.      Background to the dispute
2        By a contract notice published on 20 November 2019 in the Supplement to the Official Journal of the European Union (OJ/S S 224), under reference 2019/S 224-548540, the ECB launched a call for tenders for the provision of services and works for IT application delivery, in accordance with Article 10 of Decision (EU) 2016/245 of the [ECB] of 9 February 2016 laying down the rules on procurement (ECB/2016/2) (OJ 2016 L 45, p. 15), as amended (‘Decision ECB/2016/2’).
3        The procurement procedure was divided into three lots:
–        Lot 1: Development and Maintenance of Bespoke Business Applications – PRO-004801;
–        Lot 2: Development and Maintenance of Data-centric Applications – PRO-005110;
–        Lot 3: Application Delivery, Integration and Support – PRO-005112.
4        The call for tenders provided for the selection of a maximum of six contractors for lot 1, four for lot 2 and three for lot 3. It included information on the evaluation process, the selection criteria and the methodology to be applied.
5        On 21 January 2020, the applicant submitted a tender for each of the three lots, proposing company A, established in Germany (‘A’), as main subcontractor. A is a subsidiary of group B, whose registered office is in Paris (France).
6        On 25 May 2020, in connection with the analysis of the offers received for lot 3, the ECB sent the applicant a request for additional information concerning the apparently abnormally low price it was offering. A similar request was also sent to the applicant on 30 May 2020 in respect of lot 1.
7        On 28 May 2020, in parallel to the launching of enquiries in respect of the applicant’s apparently abnormally low tenders, the ECB sent to all the short-listed tenderers for lot 3, which included the applicant, a letter requesting the production of documents proving the eligibility of their tenders.
8        By letters of 8 and 12 June 2020 concerning lots 3 and 1 respectively, the applicant replied to the requests for information concerning its price offers, explaining, in particular, that it used qualified workers recruited in Greece, Bulgaria and Poland, who are less expensive than workers with similar qualifications established in Germany.
9        On 4 July 2020, the ECB sent the applicant a second letter concerning its tender for lot 3, which included several questions aimed at ensuring that the price offered did not constitute an abnormally low tender.
10      By letter of 17 July 2020, the applicant replied to those various questions by stating, inter alia, that, for the three lots, it intended to draw on all the human resources of its group or that of its main subcontractor and of all their subsidiaries.
11      On the same day, A sent a letter to the President of the ECB to express its concern about the negative consequences, in particular for its reputation, of the ongoing enquiries into the applicant’s apparently abnormally low tenders.
12      On 17 and 19 August 2020, the applicant sent two letters by email to the head of the ECB’s Procurement Committee (‘the Procurement Committee’), responsible for dealing with the call for tenders at issue, in which it referred to the three lots and requested, inter alia, that the contracting authority begin an investigation in order to ascertain if there were possible conflicts of interest; it also raised several questions about a current supplier to the ECB which, according to the applicant, had obtained ‘numerous contracts of a value of many millions of EURO’.
13      On 20 August 2020 the Procurement Committee sent a letter to A and the applicant to inform them of its intention to exclude the applicant from the three lots in the procurement procedure at issue on account of the sending of the three letters referred to in paragraphs 11 and 12 above, which could be considered, both in terms of their content and the identity of the recipients, as attempts to unduly influence the ECB’s decision-making process in the call for tenders and thus as being covered by the ground for exclusion set out in Article 30(5)(g) of Decision ECB/2016/2. In addition, the Procurement Committee considered that the fact that the applicant had deliberately contacted ECB representatives directly, in breach of the tender’s communication rules, could lead to categorising the applicant’s statement in the tender submission form, that it adheres to the terms and conditions of the tender procedure, as misrepresentation within the meaning of Article 30(5)(f) of Decision ECB/2016/2.
14      On 26 August 2020, after being asked by the ECB to present any observations on the matter that they might have, the applicant and A submitted, in essence, that, first, the sending of the letters referred to in paragraphs 11 and 12 above could not be regarded as an attempt to unduly influence the ECB’s decision-making process since the letters had been sent after the final closure of the evaluation procedure and that, second, the sole purpose of A’s letter of 17 July 2020 had been to clarify the situation in order to protect its reputation from the consequences of an accusation of an abnormally low price offer, with the seriousness of the concerns being such as to justify its action in taking the matter directly to the President of the ECB.
15      On 10 September 2020, the ECB sent a new letter to the applicant to inform it that the explanations it had provided in its letters referred to in paragraphs 8 and 10 above appeared to differ from its statements in its initial tenders and, therefore, constituted another possible example of misrepresentation coming under the ground for exclusion laid down in Article 30(5)(f) of Decision ECB/2016/2.
16      On 21 September 2020, the applicant submitted its viewpoint, arguing, in essence, that the explanations it had provided did not alter or contradict any part of its tenders.
17      By decision of 1 October 2020, the Procurement Committee excluded the applicant from the tenders for the three lots under, first, Article 30(5)(g) of Decision ECB/2016/2, read with Article 26(1) of that decision; second, Article 30(5)(f) of Decision ECB/2016/2; and, third, on the basis of a modification of the applicant’s tenders after their submission or, alternatively, under Article 33(3) of that decision.
18      On 2 October 2020, the applicant requested that the ECB provide further information on the reasons for its exclusion, in accordance with Article 34(3) of Decision ECB/2016/2.
19      On 12 October 2020, the ECB replied to the applicant’s request for an investigation made on 17 and 19 August 2020 (see paragraph 12 above), explaining that owing to the principles of equal treatment and fair competition, it could not provide information on the ongoing procurement procedures beyond that detailed already in the documentation for the tenders concerned.
20      By letter of 23 October 2020, the ECB responded to the applicant’s request referred to in paragraph 18 above by stating that it had already communicated to the applicant, inter alia in its previous letter of 10 September 2020 and in its decision of 1 October 2020, all the information concerning the reasons for its exclusion from the procurement procedure at issue.
21      On 7 November 2020, the applicant lodged an appeal under Article 39 of Decision ECB/2016/2, requesting that the ECB, in particular, review and annul the decision of 1 October 2020 (‘the internal appeal’).
22      By decision of 9 December 2020, the Procurement Review Body of the ECB (‘the Procurement Review Body’) dismissed the applicant’s internal appeal as unfounded.
23      On 14 December 2020, the applicant sent a letter to the President of the ECB to request that she, inter alia, conduct an investigation into the alleged irregularities of the procurement procedure at issue and suspend the signing of the contracts until all those irregularities had been dealt with.
II.    Forms of order sought
24      The applicant claims that the Court should:
–        annul the Procurement Committee decision of 1 October 2020;
–        annul the decision of the Procurement Review Body of 9 December 2020;
–        annul all the subsequent related decisions of the ECB and in particular ‘any award decision which was never communicated to [it]’;
–        order the ECB, ‘according to Articles 256, 268 and 340 TFEU’ to pay damages to it of EUR 23.29 million for loss of profit, loss of opportunity and damage to its reputation;
–        order the ECB to pay the costs and other expenses incurred in connection with the present action.
25      The ECB contends that the Court should:
–        dismiss the action;
–        order the applicant to pay the costs.
III. Law
A.      The applications for annulment
1.      Admissibility of the third head of claim
26      The ECB submits that the action is inadmissible in so far as it seeks the annulment of ‘all the subsequent related decisions of the ECB’. In response to the Court’s measures of organisation of procedure, it stated that the applicant was required to identify, in the application, precisely which measure it sought to have annulled and that where such a detail was missing, as in the present case, the application was inadmissible on the ground that its subject matter was unknown.
27      The applicant, also questioned on this issue in the context of the measures of organisation of procedure of the Court, submitted that in using the expression ‘all the subsequent related decisions of the ECB’ in the present proceedings, it was referring to all the decisions that had been taken by the ECB concerning the procurement procedure at issue, other than the ones explicitly identified in the application, which were not notified to it but which affected its interests and were inevitably, due to their nature, associated with the present procedure, ‘i.e. the award decisions of the respective tendering procedures’.
28      It should be borne in mind that in accordance with Article 21 of the Statute of the Court of Justice of the European Union and Article 76(d) and (e) of the Rules of Procedure of the General Court, the subject matter of the proceedings and the form of order sought by the applicant are two essential elements which must be included in the application initiating the proceedings (order of 7 May 2013, TME v Commission, C‑418/12 P, not published, EU:C:2013:285, paragraph 32; judgment of 23 May 2014, European Dynamics Luxembourg v ECB, T‑553/11, not published, EU:T:2014:275, paragraph 52).
29      It is also important to note that heads of claim that seek the annulment of all the related acts subsequent to the challenged acts, including those of which the applicant has no knowledge, where those acts are not identified, must be declared inadmissible as a result of the lack of precision of their subject matter (see, to that effect, judgments of 23 May 2014, European Dynamics Luxembourg v ECB, T‑553/11, not published, EU:T:2014:275, paragraph 54, and of 7 December 2018, GE.CO.P. v Commission, T‑280/17, EU:T:2018:889, paragraph 36 (not published)).
30      In the present case, the applicant has not precisely identified in the application those ECB decisions which could be regarded in the context of the procurement procedure at issue as ‘related’ decisions that are subsequent to those of 1 October and 9 December 2020.
31      That finding is not undermined by the fact that it has been held, first, that the contested measure can be identified by implication from the statements and from the whole argument set out in the application and, second, that an application formally brought against a decision which is part of a group of decisions forming a whole could be regarded as directed also, so far as necessary, against the others (order of 13 April 2011, Planet v Commission, T‑320/09, EU:T:2011:172, paragraph 23). Such a deduction is impossible in the present case since no element in the application serves to identify which measures the applicant would thereby be referring to.
32      It follows from the foregoing considerations that the third head of claim is inadmissible.
2.      Substance
33      In support of its claims for annulment, the applicant relies on three pleas in law, alleging, first, in essence, manifest errors of assessment, second, the introduction of a new, vague and unknown criterion at the stage of the evaluation of the tenders and, third, misuse of powers.
34      The first plea in the application, by which the applicant alleges that the ECB committed several manifest errors of assessment, is divided into five parts. By the first part, the applicant submits that the information it provided during the enquiry into the abnormally low nature of the offers did not contradict its price offers, as the ECB claims. The second part is divided into three complaints, alleging that the ECB was wrong to consider, first, that the supposedly contradictory information in its initial tenders amounted to serious misrepresentation within the meaning of Article 30(5)(f) of Decision ECB/2016/2, second, that the applicant had modified its offers after they had been submitted and, third, that notwithstanding the aforementioned information no reasonable assurance had been provided that its initial tenders complied with German employment law. By the third part, the applicant denies that it tried to unduly influence the decision-making process in the procurement procedure at issue and submits therefore that the ECB made a manifest error of assessment by excluding its tenders under Article 30(5)(g) of Decision ECB/2016/2, in conjunction with Article 26(1) of that decision. By the fourth part, it submits that its declaration in the tender forms, by which it undertook to comply with the terms and conditions of the procedure, including the communication rules of the call for tenders, did not constitute serious misrepresentation. Lastly, by the fifth part, the applicant argues that the exclusion decision infringes both the principle of proportionality and the ECB’s obligation to state reasons.
35      By the second plea, the applicant complains that the ECB introduced a new, vague and unknown criterion at the stage of the evaluation of the offers.
36      By the third plea, the applicant submits that the ECB misused its powers during the procurement procedure at issue.
(a)    Preliminary observations
37      As a preliminary matter, it is appropriate to examine whether it is necessary in the present case, in view of the content and scope of the decision of 9 December 2020 and the claims directed against it by the applicant, to examine specifically the lawfulness of that decision.
38      In that regard, it should be noted that the Procurement Review Body did not confine itself in its decision of 9 December 2020 to setting out or expanding the arguments raised by the Procurement Committee in its exclusion decision, but that it also responded to the arguments put forward by the applicant in support of the internal appeal; accordingly, it rejected complaints relating, inter alia, to misinterpretation of Article 30(5)(f) of Decision ECB/2016/2, infringement of the principle of proportionality, and a lack of substantiation in the decision of 1 October 2020.
39      Although the decision of 9 December 2020 rejecting the internal appeal therefore contains a more detailed statement of reasons in law and fact than the decision of 1 October 2020, it nevertheless, in essence, has the same scope as the decision of 1 October 2020 that is the subject matter of that appeal, namely the applicant’s exclusion from the tendering procedure referred to in paragraph 2 et seq. above.
40      It follows from the foregoing that there is no need specifically to examine the lawfulness of the decision of 9 December 2020, but that it is appropriate to conduct a review of the lawfulness of the exclusion of the applicant by taking into account all the reasons relied on by the competent bodies of the ECB during the procedure and bearing in mind that in public procurement the obligation to state reasons pertaining to a decision may be fulfilled in several stages (see, to that effect and by analogy, judgments of 19 March 2010, Evropaïki Dynamiki v Commission, T‑50/05, EU:T:2010:101, paragraph 133 and the case-law cited, and of 22 May 2012, Sviluppo Globale v Commission, T‑6/10, not published, EU:T:2012:245, paragraph 29), and must be assessed in the light of information available to the applicant at the time of bringing the action (judgments of 25 February 2003, Strabag Benelux v Council, T‑183/00, EU:T:2003:36, paragraph 58, and of 25 February 2003, Renco v Council, T‑4/01, EU:T:2003:37, paragraph 96).
(b)    The third part of the first plea, alleging that the ECB committed a manifest error of assessment by excluding the applicant’s tenders under Article 30(5)(g) of Decision ECB/2016/2, in conjunction with Article 26(1) of that decision
41      The Court finds it appropriate to examine first of all the third part of the first plea, which alleges that the ECB committed a manifest error of assessment in excluding the applicant’s tenders under Article 30(5)(g) of Decision ECB/2016/2, in conjunction with Article 26(1) of that decision.
42      In support of that part of the plea, the applicant asserts that the ECB was wrong to find that it had tried to unduly influence the decision-making process in the procurement procedure at issue.
43      In the present case, the ECB found, in essence, in its decisions of 1 October and 9 December 2020 that the ground for exclusion laid down in Article 30(5)(g) of Decision ECB/2016/2, in conjunction with Article 26(1) thereof, was satisfied. The ECB considered that the applicant’s letters of 17 and 19 August 2020 addressed to the head of the Procurement Committee and the letter of 17 July 2020 sent by A to the President of the ECB, with a copy to the ECB’s Director-General for Services, were intended to unduly influence the decision-making process in the procurement procedure at issue, since, first, they had been sent outside the communication channels specifically set out in the invitations to tender and, second, their content was perceived as intimidating and misleading. In that situation, the ECB found that the purpose of sending those letters was to influence the enquiry into the tenders that appeared to be abnormally low and secure the award of the contract at issue.
44      In the first place, the applicant submits that Article 30(5)(g) of Decision ECB/2016/2 does not apply to communications between the contracting authority and tenderers. It argues that only Article 26(1) of that decision should apply in the present case, but that failure to comply with that provision should nevertheless not constitute a ground for exclusion. It states that in the decision of 9 December 2020 the ECB found, however, that an exclusion penalty was applicable in the event of an infringement of Article 26(1) of Decision ECB/2016/2 because that penalty was specified in the invitations to tender for the three lots and also the applicant had not raised any objection in that regard.
45      In addition, the applicant states that the ECB itself deviated systematically from the communication rules laid down in the call for tenders. In that regard, the applicant submits that it cannot be the case that the ECB may communicate with any person it deems suitable whereas the applicant itself, failing which it would be excluded, is obliged to deal with the contact person referred to in the invitations to tender, regardless of the purpose of that communication and the ECB representative with whom it communicates.
46      In the second place, the applicant submits that it had no interest in influencing to its advantage the outcome of the procurement procedure at issue because it was certain that the evaluation of the tenders had been completed and that, at the end of that evaluation, it would have been ranked first in respect of the award of that contract. In that regard, it submits that the sole purpose of the letters of 17 July and of 17 and 19 August 2020 was to request that the addressees become involved in the conduct of the procedure in order to assess its lawfulness.
47      More specifically, the applicant asserts that A’s letter of 17 July 2020 was intended to draw the attention of the ECB to the consequences, for a company listed on the stock exchange, of a prolonged, erroneous and very serious accusation of the use of fraudulent dumping techniques, and states that that letter was not sent unduly since that accusation called into question the applicant’s and A’s integrity and also their right to be awarded a public contract. As regards the other two letters, of 17 and 19 August 2020, the applicant submits that they were intended to request the opening of an investigation to ensure that certain members of the tender evaluation team were not in a situation of a conflict of interests.
48      The ECB disputes the applicant’s arguments.
49      As is apparent from paragraphs 44 to 48 above, the parties disagree both as to the interpretation of Article 30(5)(g) of Decision ECB/2016/2 and to the application in the present case of that article, in conjunction with Article 26(1) of that decision.
50      Those two questions must therefore be examined in turn.
(1)    Interpretation of Article 30(5)(g) of Decision ECB/2016/2
51      Article 30(5)(g) of Decision ECB/2016/2 provides as follows:
‘The ECB may exclude candidates or tenderers from participation at any time if: … (g) they contact other candidates or tenderers with the purpose of restraining competition, or try to unduly influence the decision-making process in the procurement procedure.’
52      According to the applicant, that provision applies only to communication between candidates or tenderers with other candidates or tenderers and not with the ECB. By contrast, according to the ECB, that provision is applicable to all types of contact, including contacts between candidates or tenderers and the contracting authority which relate to the decision-making process of the procurement procedure and are intended to influence it unduly and disrupt its proper course.
53      It is settled case-law that in interpreting a provision of EU law, it is necessary to consider not only its wording but also the context in which it occurs and the objects of the rules of which it is part (see judgment of 7 June 2005, VEMW and Others, C‑17/03, EU:C:2005:362, paragraph 41 and the case-law cited).
54      In the first place, as regards the terms in which Article 30(5)(g) of Decision ECB/2016/2 is worded, it must be borne in mind that EU legislation is drafted in various languages and that the different language versions are all equally authentic, such that an interpretation of a provision of EU law involves a comparison of the different language versions (judgments of 6 October 1982, Cilfit and Others, 283/81, EU:C:1982:335, paragraph 18, and of 6 October 2005, Sumitomo Chemical and Sumika Fine Chemicals v Commission, T‑22/02 and T‑23/02, EU:T:2005:349, paragraph 42).
55      In that regard, the Court notes that in some language versions, such as the Spanish, Czech, German, Greek, English, Portuguese, Slovak and Slovenian versions, the syntax of the phrase ‘ … contact other candidates or tenderers with the purpose of restraining competition, or try to unduly influence the decision-making process in the procurement procedure’ has a two-part structure, separated by the conjunction ‘or’, as follows: ‘ … contact other candidates or tenderers with the purpose of restraining competition’ (first type of situation) or ‘try to unduly influence the decision-making process in the procurement procedure’ (second type of situation). The conjugation of the verb ‘try’ in the present indicative and in the third person plural means that it cannot be linked to the prepositional phrase ‘with the purpose of’ and therefore suggests that the second part of the phrase is not subordinate to the first. It shows that two distinct situations are involved, the first, placed before the ‘or’, relating to contacting other candidates or tenderers in order to restrain competition, and the second, placed after the ‘or’, relating to attempts to unduly influence the decision-making process in the procurement procedure.
56      Those examples show that Article 30(5)(g) of Decision ECB/2016/2 may be understood as meaning that the second type of situation foreseen is not restricted to contacts between candidates or tenderers and their competitors, but more generally concerns any method of unduly influencing the decision-making process. Accordingly, in those language versions, the provision at issue covers two situations in which a candidate or tenderer may be excluded from participating in a tender. The first of those situations is that of a candidate or tenderer who contacts other candidates or tenderers with the purpose of restraining competition. The second is that of a candidate or tenderer who attempts in any way whatsoever to unduly influence the decision‑making process in the procurement procedure.
57      However, in other language versions, the syntactical structure of the phrase in question suggests that the exclusion situation applies only to candidates or tenderers who contact other candidates or tenderers with the purpose either of restraining competition or of trying to unduly influence the decision-making process in the procurement procedure. For example, the French version uses the verb ‘try’ in the infinitive, with the result that it is linked to the prepositional phrase ‘with the purpose of’, as is the verb ‘restrain’, which is also in the infinitive (‘… aux fins de restreindre la concurrence ou de tenter d’influencer la prise de décision dans la procédure de passation de marché’). Otherwise, the verb ‘try’, like the verb ‘contact’, would have been conjugated in the third person plural of the present indicative, as follows: ‘… ou tentent d’influencer indûment …’ The Bulgarian, Italian, Dutch and Polish versions are also to the same effect.
58      Since the literal interpretation of Article 30(5)(g) of Decision ECB/2016/2 does not seem to provide definite guidance owing to various differences in the language versions, it should be recalled that where there is divergence between the various language versions of an EU legal text, the provision in question must be interpreted by reference to the context and objectives of the rules of which it forms part (see, to that effect, judgments of 24 October 1996, C‑72/95, Kraaijeveld and Others, EU:C:1996:404, paragraph 28; of 24 February 2000, Commission v France, C‑434/97, EU:C:2000:98, paragraph 22; and of 7 December 2000, Italy v Commission, C‑482/98, EU:C:2000:672, paragraph 49).
59      In the second place, as regards the teleological interpretation of Article 30(5)(g) of Decision ECB/2016/2, it should be observed that the objective of the ground for exclusion set out in that paragraph is to ensure equal opportunities for candidates, in accordance with the general principles of equal access and treatment, non-discrimination and fair competition, which, first, constitute general principles of law applicable to the ECB during public procurement procedures pursuant to Article 3(1) of Decision ECB/2016/2 and, second, must be complied with throughout the tender procedure. Those general principles may be undermined not only by means of contacts between candidates or tenderers for the purpose of restraining competition, but also when a candidate or tenderer attempts, by other means, to unduly influence the decision-making process in the procurement procedure. An interpretation of Article 30(5)(g) of Decision ECB/2016/2 such that it does not refer to that latter situation would run counter to the underlying objective of that provision.
60      In the third place, as regards the contextual interpretation, it should be noted that the wording of the second part of Article 30(5)(g) of Decision ECB/2016/2 is similar to that of Article 57(4)(i) of Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC (OJ 2014 L 94, p. 65), as amended, which provides that, ‘contracting authorities may exclude or may be required by Member States to exclude from participation in a procurement procedure any economic operator in any of the following situations: … (i) where the economic operator has undertaken to unduly influence the decision‑making process of the contracting authority, to obtain confidential information that may confer upon it undue advantages in the procurement procedure or to negligently provide misleading information that may have a material influence on decisions concerning exclusion, selection or award. …’. By referring to the fact that the economic operator has undertaken to unduly influence the decision‑making process of the contracting authority, the EU legislature did not limit that ground of exclusion solely to contacts between the candidates or tenderers and other candidates or tenderers.
61      In that regard, it should first of all be borne in mind that, according to the case-law, even though the directives concerning the award of public works contracts, public supply contracts and public service contracts govern only contracts concluded by the bodies or contracting authorities of the Member States and are not directly applicable to public contracts concluded by the EU administration, the rules or principles laid down in or derived from those directives can be relied on against that administration when they themselves simply appear to be the specific expression of fundamental rules of the Treaty and of general principles of law which are directly applicable to the EU administration. In a community based on the rule of law, the uniform application of the law is a fundamental requirement and any person is required to comply with the principle of respect for legality. Thus, the institutions are required to comply with the rules of the Treaty and the general principles of law that are applicable to them, in the same way as any other person (see judgment of 10 November 2017, Jema Energy v Joint undertaking Fusion for Energy, T‑668/15, not published, EU:T:2017:796, paragraph 93 and the case-law cited).
62      Moreover, the rules or principles laid down in or derived from those directives may be relied on against the EU administration if, in the exercise of its operational and institutional autonomy and within the limits of the powers conferred on it by the FEU Treaty, it adopts a measure which expressly refers, for the purpose of governing the public contracts which it concludes for its own account, to certain rules or principles laid down in the directives, the effect of which is that those rules and principles are applicable in accordance with the principle patere legem quam ipse fecisti. Where it is necessary to interpret the measure in question, it must be interpreted, in so far as possible, with a view to uniform application of EU law and compliance with the provisions of the FEU Treaty and the general principles of law (see judgment of 10 November 2017, Jema Energy v Joint undertaking Fusion for Energy, T‑668/15, not published, EU:T:2017:796, paragraph 94 and the case-law cited).
63      In the present case, it must be noted that recital 3 of Decision ECB/2016/2 specifically excludes the applicability of Directive 2014/24 to the ECB. However, recital 4 of that decision states that the ECB respects the general principles of procurement law as reflected in Directive 2014/24 and in Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council of 25 October 2012 on the financial rules applicable to the general budget of the Union and repealing Council Regulation (EC, Euratom) No 1605/2002 (OJ 2012 L 298, p. 1), some of which have been set out in paragraph 59 above. Furthermore, Decision ECB/2016/2 makes numerous references to the provisions of Directive 2014/24.
64      Although it is true that Article 30(5)(g) of Decision ECB/2016/2 does not expressly refer to Article 57(4)(i) of Directive 2014/24, the latter provision nevertheless constitutes an expression of the general principles of public procurement law, including, in particular, the principle of equal opportunities and the equal treatment of tenderers, inasmuch as the ground for exclusion laid down in that provision is intended to prevent any attempt to unduly influence the decision-making process in a tendering procedure by any means whatsoever, in order to ensure equal treatment of candidates or tenderers and thereby to guarantee equality of opportunity between them (see, to that effect, judgment of 10 November 2017, Jema Energy v Joint undertaking Fusion for Energy, T‑668/15, not published, EU:T:2017:796, paragraph 101 and the case-law cited).
65      It is thus apparent from a teleological and contextual interpretation of Article 30(5)(g) of Decision ECB/2016/2 that that article covers two different exclusion situations, the second, contrary to what the applicant claims, being intended to apply also to communications addressed by the candidates or tenderers to the contracting authority when they are aimed at trying to exercise undue influence on the decision-making process during the procurement procedure.
66      In the light of the foregoing, it must be concluded that Article 30(5)(g) of Decision ECB/2016/2 must be read as meaning that the ECB may at any time exclude from participation those candidates or tenderers who try to unduly influence the decision-making process in the procurement procedure.
67      It is at this point necessary to examine in greater detail the concept of an attempt to exert undue influence, which the parties also interpret differently.
68      In that regard, it should first be observed that Decision ECB/2016/2 does not define that concept.
69      Nevertheless, the use of the verb ‘try’ suggests that that concept has a scope that is analogous to that used in Article 57(4)(i) of Directive 2014/24 which, as noted in paragraph 60 above, refers to any economic operator who has ‘undertaken’ to influence the decision-making process of the contracting authority. The verb ‘try’, in the same way as ‘undertake’, implies a condition of the means used and not the result. It follows that the mere fact of a candidate or tenderer trying to influence the decision-making process by various means without, however, achieving the result expected, is sufficient to fall within the scope of the second part of Article 30(5)(g) of Decision ECB/2016/2.
70      It must, nevertheless, be stated that the provision at issue specifies that the attempt to influence the decision-making process in a procurement procedure must have been made ‘unduly’, that is to say, in a manner contrary to the rules in force.
71      Lastly, it should be noted that the attempt to exercise undue influence must concern, pursuant to Article 30(5)(g) of Decision ECB/2016/2, the decision-making process in the procurement procedure. The decision‑making process is to be understood as the entire phase in which the contracting authority examines the tenders submitted by the different candidates or tenderers in connection with a call for tenders for the purpose of preparing its decisions on exclusion, selection or award. That process therefore starts from the submission of the offers and includes all the successive stages up to the adoption of those decisions. In particular, that process includes the enquiries carried out by the contracting authority on price tenders appearing to be abnormally low and pursuant to which that authority may, under Article 33(2) of Decision ECB/2016/2, after review of the additional information provided by the tenderer, reject the tenderer’s offers, in particular where the information provided does not sufficiently account for the low level of the price or costs, or where the tender and that information do not provide sufficient assurance of proper contract performance. Those enquiries are not separate procedures but constitute a stage in the evaluation of the tenders.
(2)    Application to the present case
72      The Court must examine in the present case whether the ECB was fully entitled to exclude the applicant’s tenders for the three lots from the procurement procedure at issue on the ground that the applicant and A had tried, by sending the letters of 17 July and of 17 and 19 August 2020, to unduly influence the decision-making process in that procedure, within the meaning of the second part of Article 30(5)(g) of Decision ECB/2016/2.
73      First of all, it should be noted that, in its letter of 17 July 2020 to the President of the ECB, A expressed its concern regarding the negative consequences for its reputation of the ongoing enquiry into the abnormally low nature of its tenders and expressed the ‘hope’ that the ‘misunderstanding’ regarding the abnormally low price offers would be resolved ‘immediately’.
74      In its letter of 17 August 2020 to the head of the Procurement Committee, the applicant expressed its concern regarding the evaluation of its tenders and maintained that the letters sent by the ECB concerning the enquiry into abnormally low offers seemed ‘to attempt to create a basis to exclude unreasonably [its] offers from the procedure’. Consequently, it asked the head of the Procurement Committee to investigate and to assure it that its tenders would be evaluated in a fair manner. In addition, the applicant raised various questions, in particular on the identity of the tenderers which would take its place if it were excluded, if they were already holders of a contract with the ECB and if they had received preferential treatment from the ECB. Furthermore, it asked whether the ECB had been in contact with the European Commission before launching the call for tenders, whether the ECB had discussed the applicant with the Commission and whether it could provide it with the minutes of their discussion. It also asked the ECB whether ‘any officer(s) of the ECB, contacted evaluators during the procurement procedure of the call for tenders in subject, before or after submission of [the] tenders, interfering in the evaluation of the tenders, more particularly, as far as [its] own company is concerned’. Lastly, it asked to be sent the names of the evaluators of the evaluation committee for the call for tenders for each of the three lots and stated that it intended to act to protect its interests according to the answers given to its questions.
75      On 19 August 2020, that is to say two days after sending its previous letter, the applicant sent a second letter to the head of the Procurement Committee in order to inform him that it had discovered that the ECB had awarded numerous contracts worth several million euro to a specific company. In that context, it asked him to ascertain whether there were any conflicts of interest between the person evaluating the tenders within the ECB and that company. In addition, the applicant asked to be provided with the name of the person in the ECB whom it could contact in order to examine that issue.
76      In the first place, it should be stated that it is apparent in particular from paragraphs 28 and 30 of the decision of 9 December 2020 that the applicant allegedly did not comply with the channels of communication explicitly established by the ECB, in breach of Article 26(1) of Decision ECB/2016/2 and Sections III.1.1, II.1.2 and II.1.5 of the invitations to tender relating to the three lots.
77      Article 26(1) of Decision ECB/2016/2 provides that, ‘During the tender procedure, candidates and tenderers shall communicate only with the contact person(s) indicated by the ECB. The means of communication shall be generally available and non-discriminatory’.
78      In addition, Section III.1.1 of the invitations to tender states that ‘The contact person for this tender procedure is: [C]’. Furthermore, Section II.1.2 of the invitations provides that ‘Tenderers must address all queries regarding this tender procedure via the ECB’s electronic tendering system through which they have also accessed the present [invitation to tender]. Any type of communication relating to the tender procedure must be made via the ECB’s electronic tendering system (under the tab “Discussions”) as single point of contact. The ECB does not assume any responsibility for queries which are not submitted in writing’. Lastly, Section II.1.5 of the invitations to tender states that ‘During the tender procedure Tenderers shall not contact any other ECB staff members or organisations/persons working for the ECB with regard to this tender procedure … Any violation of this communication rule may lead to the exclusion of the Tenderer in question’.
79      It should also be noted that the applicant undertook, in point 8 of its declaration of adherence to the tender conditions, to ‘not contact any other candidates or tenderers with the purpose of restraining competition, … [and not to] try to unduly influence the decision-making process in the context of the procurement procedure’.
80      In the present case, it must be stated that, as set out in paragraphs 73 to 75 above, the letters of 17 July and of 17 and 19 August 2020 were not sent to the contact person designated by the ECB in the invitations to tender, which the applicant, moreover, does not dispute.
81      In that regard, first of all, the applicant justifies its and A’s approach of not contacting the contact person named by the ECB on account of the alleged confusion caused by the letters which they had received from the ECB.
82      That confusion is said to have stemmed from the fact that the ECB itself regularly departed from the communication rules set out in the call for tenders, for example by contacting A directly on 20 August 2020, thereby bypassing its obligation to use only the single point of contact designated by the applicant.
83      That argument must be rejected. As the ECB rightly stated in paragraph 31 of its decision of 9 December 2020, the prohibition on addressing different contact points applies only to tenderers and not to the ECB.
84      In addition, the confusion is said to have been maintained by the fact that the letters sent by the ECB to the applicant and A were signed by two ECB officers and not solely by the contact person.
85      On that point, it should be noted, as is apparent from paragraphs 30 and 31 of the decision of 9 December 2020, that the letterhead of each of the ECB’s letters of 25 and 30 May 2020 and of 4 July 2020 that were sent to the applicant, thus prior to the letters from the applicant and A of 17 July and of 17 and 19 August 2020, clearly identified the contact person.
86      Furthermore according to the applicant, the fact that it did not address the contact person indicated by the ECB was a reaction to the request made by the ECB at the end of its letter of 4 July 2020 for the response to that letter to be signed by the applicant’s authorised representative, that is to say, the signatory of the forms for the submission of its tenders, and not by the contact person mentioned in those forms. In that regard, the applicant states that this ‘kind of escalation’ is provided for in Section 4 of Annex 1.03 to the invitations to tender, from which it is apparent, according to the applicant, that in the event of a problem between the person responsible for the call for tenders within the ECB and tenderers, the latter may submit an issue to a higher level, the third and final level being the ECB’s senior management. It states, however, that since the post of director-general had remained vacant throughout most of 2020, A had no choice but to contact the President of the ECB directly.
87      The Court finds that that argument is unfounded. As the ECB rightly points out, the excerpt from Annex 1.03 to the invitations to tender to which the applicant refers relates to the contract implementation phase and is therefore irrelevant as regards communication between the contracting authority and the tenderers in the procurement procedure. Moreover, it must be observed that, first, the last paragraph of the letter of 4 July 2020, in which the ECB informs the applicant that the information requested must be provided in the form of a written statement duly signed by its authorised representative, also appears in the ECB’s earlier letters of 25 and 30 May 2020 and, second, the authorised representative of a company is not necessarily the official contact person designated by that company in a procurement procedure.
88      In the second place, it is clear from the content of the aforementioned three letters that, as the Procurement Review Body states in paragraph 16 of the decision of 9 December 2020, the purpose of those letters was to try to unduly influence the decision-making process in the procurement procedure at issue by putting pressure on their recipients to intervene in that procedure and, in particular, in the enquiry into the abnormally low nature of the applicant’s offers.
89      The arguments put forward by the applicant to show that the sole purpose of sending the abovementioned letters was to maintain the integrity and fairness of the tendering procedure are not capable of calling that finding into question.
90      First of all, the applicant’s argument that it had no interest in influencing to its advantage the outcome of the procurement procedure at issue is not substantiated. As is apparent from paragraph 11 of the decision of 9 December 2020, the addressees of the letters of 17 July and of 17 and 19 August 2020 were in fact requested to become involved in the conduct of that procedure, as indeed the applicant itself acknowledges in its application, and to take action to expedite its conclusion in the applicant’s favour.
91      In that regard, it must be noted that the applicant could not have been unaware of the fact that, contrary to what it claims, the enquiry related to the abnormally low nature of its offers had not been completed given that it had received several letters from the ECB, in particular those of 25 and 30 May 2020, that did not point in that direction. Furthermore, the ECB, in its letter of 4 July 2020, had asked the applicant to provide additional explanations in connection with that enquiry.
92      Moreover, the applicant likewise could not have been unaware of the fact that the ECB was required, under Article 33 of Decision ECB/2016/2, to request, in the event of evidence suggesting an abnormally low price offer, explanations of prices or costs proposed in that tender in relation to the products, works or services tendered. The possibility for the ECB to conduct an enquiry into the abnormally low nature of a price offer was also referred to in Section IV.6 of the invitations to tender.
93      In addition, as regards the ECB’s supposed accusations in relation to A concerning the use of fraudulent dumping techniques, it should be stated that such accusations do not appear in any way in the letters sent by the ECB in connection with the enquiry into the price offers that appeared to be abnormally low.
94      As regards the applicant’s assertion that A contacted the President of the ECB to inform her of its concerns about the harm to its reputation resulting from the enquiry into apparently abnormally low tenders, it should be noted that such fears are unfounded since the ECB is subject to a duty of confidentiality and that the applicant has not demonstrated, in this instance, a failure to comply with that duty as regards the enquiry that concerned it. It is clear in particular from Section VI.4.3 of the invitations to tender that ‘the ECB is by law subject to the highest standards of professional secrecy and confidentiality. The ECB may disclose detailed information relating to the tenders: (a) to its staff and other organisations, companies or persons involved in the tender procedure; (b) to other Tenderers, if the information is materially relevant for all Tenderers or if the ECB is required by law to disclose such information in both cases subject to the duty to protect the Tenderer’s commercial interests; (c) to the general public to the extent the ECB is obliged to disclose the information in order to fulfil statutory transparency requirements’. In addition, that section refers to Article 26(4) of Decision ECB/2016/2 – which explicitly provides that ‘the ECB shall ensure that the information provided by candidates and tenderers is treated and stored in accordance with the principles of confidentiality and integrity and, to the extent personal data is provided, with Regulation (EC) No 45/2001 of the European Parliament and of the Council [of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data (OJ 2001 L 8, p. 1)]’ – and also to Article 37 of Protocol No 4 on the Statute of the European System of Central Banks and of the European Central Bank, paragraph 2 of which states that, ‘Persons having access to data covered by Union legislation imposing an obligation of secrecy shall be subject to such legislation’.
95      It must also be found that there is no substantiation at all for the applicant’s claim that the ECB disclosed information about the applicant to third parties from November 2020 and that it intended to sanction it and set an example by excluding its tenders from the three lots. The applicant has not detailed the information concerned or provided evidence which might make it possible to infer that the ECB had the intention to disclose that information to third parties.
96      As regards the applicant’s argument that A amounts to the entirety of group B and not just the German subsidiary of that group, and was therefore required to inform its auditor, bank and insurers about the ongoing enquiry, in order to be able to take measures to mitigate any risk, and, moreover, had to communicate that information to the markets owing to its status as a company quoted on the stock exchange, it should be noted that that argument does not in any way justify the applicant’s action; nor, moreover, is there any substantiation for it, since the applicant has not provided the legal basis for that alleged obligation.
97      Furthermore, in order to justify its fears as to the inequitable nature of the tendering procedure, the applicant submits that other tenderers proposed rates that were equivalent to its own for that same call for tenders without those tenderers being subject to an enquiry. That argument cannot, however, show that the ECB infringed the principle of equal treatment, since, as is apparent from the excerpts from the evaluation reports communicated to the applicant, the price offer of another tenderer had also been subject to an enquiry by the ECB.
98      In addition, as regards the applicant’s argument seeking to establish that the ECB behaved in a biased manner towards to it, the example referred to by the applicant concerning the ECB’s refusal to have its name and logo used on the applicant’s website has no relevance or legal substance in the present case. The ECB, as the owner of the name and rights held over the relevant marks, is empowered to ask contractors to refrain from using its name and logo. In that regard, it must be stated that the logo in question is protected as an emblem under Article 6ter
of the Paris Convention for the Protection of Industrial Property of 20 March 1883, as revised and amended. In addition, the ECB is neither required to explain the reasons why it decided to assert its rights nor to assess whether its approach differs from that adopted in respect of other contractors.
99      Furthermore, the applicant submits that the fact the ECB launched an investigation into a possible conflict of interests, following its letters of 17 and 19 August 2020, confirms the merits of its request for an investigation, sent to a person other than the designated contact person. In that regard, it must be pointed out that the ECB’s letter of 12 October 2020, sent to the applicant in response to its letters of 17 and 19 August 2020, in which the applicant requested that the contracting authority open an investigation to examine possible conflicts of interest, was merely the application of the principle of sound administration, which includes the obligation for the competent institution to examine all the elements relevant to the case at hand, and did not constitute, as the applicant claims, approval of the merits of its request. Indeed, the ECB had clearly informed the applicant, in its letter of 20 August 2020, that the applicant’s request infringed Article 26(1) of Decision ECB/2016/2 and could constitute a ground for exclusion under Article 30(5)(f) and (g) of that decision, which it then confirmed in its decision of 1 October 2020.
100    The Court also observes that, contrary to what is claimed by the applicant, the time taken for the enquiry conducted by the ECB does not appear to be manifestly unreasonable and does not serve to justify sending the letters of 17 July and of 17 and 19 August 2020. As the Procurement Review Body correctly states in paragraph 21 of its decision of 9 December 2020, the ECB’s requests for clarification in relation to the enquiry into the abnormally low nature of the tenders were made on 25 May and 4 July 2020. Consequently, in the light of the circumstances of the case, in particular the various requests for extension submitted by the applicant and the fact that the applicant had not provided adequate replies to the first request for clarification, as it acknowledges in its letter of 17 July 2020, the time taken for the enquiry must be regarded as reasonable in the present case.
101    Lastly, it must be observed that, as the Procurement Review Body stated in paragraph 18 of the decision of 9 December 2020, the applicant and A had an ample range of possibilities for raising their concerns in compliance with the rules of the procedure. Accordingly, the applicant, in accordance with Section II.2 of the invitations to tender, which refers to Article 28(2) of Decision ECB/2016/2, could have notified the ECB of its objections via the ECB’s electronic tendering system within 15 days of becoming aware of an irregularity, it being noted that, under the abovementioned article of that decision, objections which have not been communicated to the ECB within the time limit stated above may not be raised at a later stage.
102    It follows from the foregoing that the ECB did not err in its assessment when it found that sending the letters of 17 July and of 17 and 19 August 2020 constituted, both in terms of their content and the identity of their recipients, an attempt to unduly influence the decision-making process in the procurement procedure at issue, within the meaning of Article 30(5)(g) of Decision ECB/2016/2.
103    It follows that in the circumstances of the present case the ECB was entitled, without erring in law or in its assessment, to exclude the applicant from the procurement procedure at issue solely on the basis of Article 30(5)(g) of Decision ECB/2016/2, such that it is not necessary to examine the applicant’s arguments concerning Article 26(1) of that decision, also referred to as a legal basis for the exclusion in the decisions of 1 October and 9 December 2020.
104    Consequently, the third part of the first plea must be rejected.
105    Since a single ground is sufficient to justify the exclusion decision, it is not necessary to rule on the other grounds disputed by the applicant in the first, second and fourth parts of the first plea and in the second plea, or, therefore, to examine those parts of the first plea and the second plea (see, to that effect, judgment of 10 September 2015, Dow AgroSciences and Dintec Agroquímica – Produtos Químicos v Commission, T‑446/10, not published, EU:T:2015:629, paragraph 76, and order of 4 February 2021, Germann Avocats v Commission, T‑352/18, not published, EU:T:2021:64, paragraph 83).
(c)    The fifth part of the first plea, alleging infringement of the principle of proportionality and of the obligation to state reasons
106    The fifth part of the first plea includes two complaints, alleging, respectively, infringement of the principle of proportionality and infringement of the obligation to state reasons.
(1)    First complaint, alleging infringement of the principle of proportionality
107    By its first complaint, the applicant submits, in essence, that the ECB committed a manifest error of assessment in finding that its exclusion was proportionate. The applicant denies that, as claimed by the ECB, it engaged in various unacceptable and repeated types of conduct that met the threshold of seriousness required for categorising them as grounds for discretionary exclusion. According to the applicant, its conduct was appropriate and justified in the present case and was therefore not such as to call its integrity into question in the procurement procedure at issue.
108    The ECB disputes the applicant’s arguments. In particular, it submits that the applicant fulfilled several grounds for exclusion and argues that its exclusion from the procurement procedure at issue was the least severe applicable measure for resolving in an appropriate manner the various issues identified.
109    It should be borne in mind that the principle of proportionality, which is a general principle of EU law, requires that measures adopted by the institutions do not exceed the limits of what is appropriate and necessary in order to attain the objectives legitimately pursued, it being understood that, where there is a choice between several appropriate measures, recourse must be had to the least onerous and that the disadvantages caused must not be disproportionate to the aims pursued (see judgment of 10 December 2009, Antwerpse Bouwwerken v Commission, T‑195/08, EU:T:2009:491, paragraph 57 and the case-law cited; judgments of 19 November 2014, European Dynamics Luxembourg and Evropaïki Dynamiki v Europol, T‑40/12 and T‑183/12, not published, EU:T:2014:972, paragraph 135, and of 10 November 2015, GSA and SGI v Parliament, T‑321/15, not published, EU:T:2015:834, paragraph 32).
110    In the present case, it is apparent inter alia from paragraphs 56, 62 and 63 of the decision of 9 December 2020 that the decision to exclude the applicant from the procurement procedure at issue was aimed at safeguarding the integrity and proper conduct of the procedure and also the equality of treatment for all the candidates.
111    In addition, first, it should be noted that, as concluded in paragraph 103 above, the ground for exclusion referred to in Article 30(5)(g) of Decision ECB/2016/2 was satisfied and that the ECB found correctly that the applicant had not provided, pursuant to Article 30(6) of that decision, evidence to demonstrate its eligibility or to attest to its reliability despite the existence of that ground for exclusion.
112    Second, it should be pointed out that, in view of the seriousness of the applicant’s conduct – which moreover was repeated, deliberate and occurred over a short period of time – the ECB was entitled to apply the optional ground for exclusion provided for in Article 30(5)(g) of Decision ECB/2016/2 without erring in law or erring in its assessment.
113    Third, as regards the exclusion period, it should be noted that the applicant was only excluded from the procurement procedure at issue, whereas Article 30(8) of Decision ECB/2016/2 provides for the possibility of excluding a candidate or tenderer from all future procedures for a maximum period of 10 years.
114    It follows from all the foregoing considerations that the decision to exclude the applicant from the procurement procedure at issue was in the present case the least onerous appropriate measure and that the disadvantages caused to the applicant were not disproportionate having regard to the objectives referred to in paragraph 110 above.
115    The Court therefore finds that the ECB did not infringe the principle of proportionality.
116    Consequently, the first complaint of the fifth part of the first plea in law must be rejected.
(2)    The second complaint, alleging infringement of the obligation to state reasons
117    By its second complaint, the applicant submits, in essence, that the decisions of 1 October and 9 December 2020 are vitiated by a failure to state reasons.
118    The ECB disputes that line of argument.
119    It is settled case‑law that the statement of reasons required by Article 296 TFEU must be appropriate to the measure at issue and disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure, in such a way as to enable the persons concerned to ascertain the reasons for it and to enable the competent court to exercise its power of review. The requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure or other parties concerned by it, for the purposes of the fourth paragraph of Article 263 TFEU, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 296 TFEU must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see judgment of 8 September 2011, Commission v Netherlands, C‑279/08 P, EU:C:2011:551, paragraph 125 and the case-law cited).
120    In addition, it should also be borne in mind that the obligation laid down in Article 296 TFEU to state adequate reasons is an essential procedural requirement that must be distinguished from the question whether the reasoning is well founded, which goes to the substantive legality of the measure at issue (judgments of 2 April 1998, Commission v Sytraval and Brink’s France, C‑367/95 P, EU:C:1998:154, paragraph 67; of 22 March 2001, France v Commission, C‑17/99, EU:C:2001:178, paragraph 35; and of 29 September 2011, Elf Aquitaine v Commission, C‑521/09 P, EU:C:2011:620, paragraph 146).
121    Furthermore, as stated in paragraph 40 above, it must be pointed out that in public procurement the obligation to state reasons pertaining to a decision may be fulfilled in several stages (see, to that effect and by analogy, judgments of 19 March 2010, Evropaïki Dynamiki v Commission, T‑50/05, EU:T:2010:101, paragraph 133 and the case-law cited, and of 22 May 2012, Sviluppo Globale v Commission, T‑6/10, not published, EU:T:2012:245, paragraph 29), and must be assessed in the light of the information available to the applicant at the time when the action was brought (judgments of 25 February 2003, Strabag Benelux v Council, T‑183/00, EU:T:2003:36, paragraph 58; and of 25 February 2003, Renco v Council, T‑4/01, EU:T:2003:37, paragraph 96).
122    In that regard, it should be noted that the procurement procedure at issue is governed solely by Decision ECB/2016/2, Article 34 of which is worded as follows:
‘1. The ECB shall notify its decision in writing and without undue delay to all candidates or tenderers whose applications or tenders are rejected.
2. The notification of the award decision shall be sent at least 10 days prior to the signature of the contract by the ECB if the notification is sent by fax or electronic means, or at least 15 days prior to the signature of the contract if other means of communication are used.
3. Candidates and tenderers may, within 15 days of receipt of the notification, request the ECB to provide the reasons for rejecting their application or their tender and to provide copies of all documents relating to the evaluation of their application or tender. Unsuccessful tenderers whose tender was admissible may also ask for the name of the successful tenderer as well as the key characteristics and relative advantage of its tender. They may also request copies of all documents relating to the evaluation of the successful tender, subject to paragraph 4.
4. The ECB may decide to withhold certain information where its release would affect other suppliers’ legitimate commercial interests, would hinder the application of the law, might prejudice fair competition between suppliers or would otherwise be contrary to the public interest.
5. The ECB shall publish a contract award notice in line with the requirements of Directive 2014/24/EU in the Official Journal. The notice shall be sent to the Official Journal within 30 days following signature of the contract.’
123    First, the applicant submits that the Procurement Review Body erred in the decision of 9 December 2020 by failing to find that the decision of 1 October 2020 lacked reasoning.
124    However, it should be stated, in the light of the case-law cited in paragraph 121 above, that the Court must assess whether the ECB, in its decisions of 1 October and 9 December 2020 and in its various letters, set out to the requisite legal standard the reasons for excluding the applicant and that it is not its task to consider, as the applicant demands, whether the Procurement Review Body failed to find that the decision of 1 October 2020 was duly reasoned.
125    Second, the applicant submits that the ECB did not state the exact reasons for which the letters that the applicant had sent to the ECB had intimidated it.
126    A reading of the first paragraph of the decision of 1 October 2020 and of paragraphs 5 to 25 of the decision of 9 December 2020 makes it possible, nevertheless, to understand the reasons for which the ECB considered, in particular, that the letters of 17 and 19 August 2020 sent by the applicant to the head of the Procurement Committee were an attempt by the applicant to unduly influence the decision-making process in the procurement procedure at issue.
127    As established in paragraphs 73 to 103 above, the content of those letters, and also the ECB representatives to whom they were sent in breach of the rules of communication for the procurement procedure at issue, are the two main reasons which led the ECB to exclude the applicant from that procedure on the ground set out in Article 30(5)(g) of Decision ECB/2016/2.
128    Consequently, the second complaint of the fifth part of the first plea must also be rejected.
129    In the light of the foregoing considerations, the fifth part of the first plea in law must be rejected in its entirety.
(d)    Third plea in law, alleging misuse of powers
130    In the third plea, the applicant sets out a line of argument intended to show that the ECB misused its powers during the procurement procedure at issue.
131    The applicant claims, in essence, that the Procurement Review Body put forward new arguments in its decision of 9 December 2020 and expanded the allegedly unfounded arguments relied on by the Procurement Committee in its decision of 1 October 2020. Accordingly, by not merely ‘reviewing’ the lawfulness of that decision and examining the arguments put forward only by the applicant, the Procurement Review Body had taken on the role of the contracting authority and exceeded the limits of its discretion, solely for the purpose of excluding the applicant from the procurement procedure at issue.
132    It should be borne in mind in that regard that the main function of the Procurement Review Body is to examine internal appeals brought against a decision taken by the Procurement Committee.
133    It should also be borne in mind that, in accordance with settled case‑law, the concept of misuse of powers refers to cases where an administrative authority has used its powers for a purpose other than that for which they were conferred on it. A decision may amount to a misuse of powers only if it appears, on the basis of objective, relevant and consistent factors, to have been taken for purposes other than those stated (see judgment of 23 May 2014, European Dynamics Luxembourg v ECB, T‑553/11, not published, EU:T:2014:275, paragraph 323 and the case-law cited).
134    In the present case, it must be held that the applicant does not adduce any objective, relevant and consistent factor to show that the decision of 9 December 2020 was adopted for purposes other than those stated.
135    Furthermore, it must be pointed out that Article 39(2) of Decision ECB/2016/2 provides that, in an internal appeal, the Procurement Review Body is required to state the reasons it relied on for taking the decision. However, there is no provision in Decision ECB/2016/2 that restricts or defines the scope of its obligation to state reasons. Consequently, the Procurement Review Body is not required, in the context of its duty to state reasons, to confine itself to substantiating or supplementing the evidence relied on by the Procurement Committee. Accordingly, it is entitled to examine both the arguments put forward by the applicant itself and by the Procurement Committee, and also, contrary to what is claimed by the applicant, to set out its own considerations in responding to those arguments.
136    Accordingly, the third plea, alleging misuse of powers, must be rejected.
137    It follows from the foregoing considerations that the claims for annulment of the decisions of 1 October and 9 December 2020 must be dismissed.
B.      The claim for damages
138    The applicant, in essence, seeks damages to compensate it for harm constituted by loss of profit, loss of opportunity and damage to its reputation. The harm suffered is alleged to arise directly from the supposedly unlawful decisions of the ECB of 1 October and 9 December 2020.
139    It should be borne in mind that, pursuant to the third paragraph of Article 340 TFEU, the Union is, in accordance with the general principles common to the laws of the Member States, to make good any damage caused by itself or by its servants in the performance of their duties.
140    According to well-established case-law, the European Union’s non‑contractual liability under the second paragraph of Article 340 TFEU, is dependent on the coincidence of a series of conditions, namely the unlawfulness of the alleged conduct of the institutions concerned, actual damage and the existence of a causal link between the alleged conduct and the damage pleaded. If any one of those conditions is not satisfied, the action must be dismissed in its entirety and it is unnecessary to consider the other conditions (judgments of 15 September 1994, KYDEP v Council and Commission, C‑146/91, EU:C:1994:329, paragraphs 19 and 81, and of 20 February 2002, Förde-Reederei v Council and Commission, T‑170/00, EU:T:2002:34, paragraph 37). That case-law is applicable to the ECB’s incurring non‑contractual liability under the third paragraph of Article 340 TFEU (see judgment of 23 May 2014, European Dynamics Luxembourg v ECB, T‑553/11, not published, EU:T:2014:275, paragraph 342 and the case-law cited).
141    In the present case, the Court observes that the applicant’s claim for damages is based solely on the same unlawful conduct relied on in support of its claims for annulment of the decisions of 1 October and 9 December 2020. As found in the assessment of those claims, the decisions in question are not vitiated by any unlawfulness.
142    Consequently, since the condition relating to the unlawfulness of the conduct of which the ECB is accused is not fulfilled, the claim for damages must be rejected as unfounded, without it being necessary to examine the other conditions for incurring non‑contractual liability.
143    It follows that the claim for damages must also be rejected.
144    It follows from all the preceding observations that the action must be dismissed in its entirety.
IV.    Costs
145    Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the ECB.
On those grounds,
THE GENERAL COURT (Tenth Chamber)
hereby:
1.      Dismisses the action;
2.      Orders European Dynamics Luxembourg SA to pay the costs.
Kornezov
Buttigieg
Hesse
Delivered in open court in Luxembourg on 5 October 2022.
E. Coulon
M. van der Woude
Registrar
President
* Language of the case: English.
1      The present judgment is the subject of publication in extract form.