62011TJ0637_EN
Parties
Grounds
Operative part
Parties
In Case T‑637/11,
Euris Consult Ltd,
established in Floriana (Malta), represented by F. Moyse, lawyer,
applicant,
v
European Parliament,
represented by L. Darie and F. Poilvache, acting as Agents,
defendant,
supported by
European Commission,
represented by R. Lyal and F. Dintilhac, acting as Agents,
intervener,
APPLICATION for annulment of the decision of the Parliament of 18 October 2011 rejecting the tender submitted by the applicant in the context of the interinstitutional call for tenders MT/2011/EU, concerning translation services into Maltese,
THE GENERAL COURT (Sixth Chamber),
composed of S. Frimodt Nielsen (Rapporteur), President, F. Dehousse and A. Collins, Judges,
Registrar: S. Spyropoulos, Administrator,
having regard to the written procedure and further to the hearing on 28 November 2013,
gives the following
Judgment
Grounds
Background to the dispute
1. On 22 March 2011, the European Parliament published call for tenders MT/2011/EU (‘the call for tenders’) for the provision of translation services into Maltese for the Parliament, the European Court of Auditors, the European Economic and Social Committee and the Committee of the Regions of the European Union.
2. Point 2.2 of the call for tenders stated that tenderers could choose to submit their bids by post or by courier company (point 2.2(a)) or by handing them in to the official mail service of the Parliament (point 2.2(b)).
3. Point 2.4 of the call for tenders stated as follows:
‘In order to maintain the confidentiality and integrity of tenders, they must be sent under double cover. The two envelopes shall be sealed and bear the following:
– the recipient department: …
– the reference of the invitation to tender: …
– and the following: NOT TO BE OPENED BY THE MAIL SERVICE OR BY ANY UNAUTHORISED PERSON.
In every case, and irrespective of the type of package used, tenderers are invited to pay attention to the quality of the envelopes used for submitting their tenders, in order to ensure that they do not arrive torn, thereby no longer ensuring the confidentiality or integrity of their contents.
If self-adhesive envelopes are used, they must be sealed with adhesive tape bearing the signature of the sender. The signature of the sender shall be deemed to comprise either the handwritten signature or the signature and the company stamp.
Any tender which fails to maintain the confidentiality of its contents until the opening of all the tenders will be rejected automatically.
The outer envelope shall also bear the tenderer’s name or business name, together with the exact address at which he can be informed of the decision taken on his tender.
In addition to the two sealed envelopes, the tender reference MT/2011/EU must be indicated on the outer packaging.’
4. On 12 May 2011, the applicant — Euris Consult Ltd, a translation company with its seat in Malta — submitted a tender (‘the tender’). In order to send it to the address indicated in the call for tenders, Euris Consult used the services of a carrier.
5. The tender consisted of an original and two copies. Each of those documents was placed in a self-adhesive brown manila envelope. The flaps of the envelopes were sealed by the signature of Euris Consult’s director, covered by self-adhesive tape. The envelopes were then placed in an outer envelope supplied by the carrier. The outer envelope, made of plastic, was self-adhesive. Euris Consult’s director did not place his signature across a band of adhesive tape on the outer envelope.
6. On 13 May 2011, the tender arrived at the Parliament, which acknowledged receipt. Euris Consult’s tender, together with those of the other tenderers, was stored on the Parliament’s premises, in a closed room to which only authorised persons were allowed access.
7. On 16 June 2011, at 2.30 p.m., the tender opening committee — composed of three persons acting as agents for the Parliament’s Directorate-General for Translation and one agent for the Court of Auditors — opened simultaneously the six tenders received by the deadline, including the tender submitted by Euris Consult. The opening of the tenders took place in the presence of representatives of two of the tenderers. Euris Consult’s representatives did not attend that meeting.
8. The tender opening committee accepted five tenders. Euris Consult’s tender, on the other hand, was rejected at the opening. In the record of the opening of the tenders, the committee stated the following concerning Euris Consult’s tender:
‘The outer courier bag provided by the courier company was closed, but not sealed. The inner envelopes that were the only layer of packaging provided by the tenderer were badly torn to the extent of being completely open. The committee decided that confidentiality was not guaranteed and rejected the tender.’
9. From June until September 2011, the Parliament proceeded with the subsequent stages of the tendering procedure. On 18 October 2011, the results of the procedure were communicated to all tenderers.
10. Accordingly, by registered letter EP/ETU/MHH/pm/D/2011/52280 of 18 October 2011 (‘the contested decision’), the Head of the External Translation Unit of Directorate A – Support and Technological Services for Translation of the Parliament’s Directorate-General for Translation informed Euris Consult that its tender had been rejected at the opening because the tender opening committee had formed the opinion that the confidentiality of Euris Consult’s tender could not be guaranteed.
11. In the contested decision, the Parliament reproduced the findings (set out in paragraph 8 above) made in the record drawn up by the tender opening committee.
12. In the contested decision, Euris Consult was also informed that it could obtain additional information regarding the grounds for the rejection of its tender and, moreover, was informed of the time allowed for lodging an appeal.
13. On 27 October and 10 November 2011, Euris Consult’s representatives visited the Parliament’s Directorate-General for Translation. They were able to examine the premises in which the tenders had been stored and also the envelopes in the state in which the tender opening committee had found them. A number of emails were also exchanged between Euris Consult’s representatives and agents for the Parliament.
14. The framework contract was concluded on 21 December 2011 with the successful tenderer.
Procedure and forms of order sought
15. By application lodged at the Court Registry on 15 December 2011, Euris Consult brought the present action.
16. By separate document, lodged at the Court Registry on 16 December 2011, Euris Consult applied to suspend the operation of the contested decision, pending the Court’s decision in the present action. That application was dismissed by order of the President of the General Court of 25 January 2012.
17. By document lodged at the Court Registry on 23 July 2012, the European Commission sought leave to intervene in the present proceedings in support of the form of order sought by the Parliament. By order of 4 September 2012, the President of the First Chamber of the Court granted leave to intervene. As the application to intervene had been submitted after the expiry of the six-week period allowed under Article 115(1) of the Rules of Procedure of the General Court, the Commission was granted leave to submit its observations during the oral procedure, in accordance with Article 116(6) of the Rules of Procedure.
18. Following a change in the composition of the Chambers of the Court, the Judge-Rapporteur was assigned to the Sixth Chamber, to which this case was, consequently, assigned.
19. Upon hearing the report of the Judge-Rapporteur, the Court (Sixth Chamber) decided to open the oral procedure.
20. Euris Consult claims that the Court should:
– annul the contested decision;
– declare that it is entitled to seek compensation for the harm sustained as a result of the contested decision;
– order the Parliament to pay the costs.
21. The Parliament contends that the Court should:
– dismiss the action;
– order Euris Consult to pay the costs.
22. At the hearing on 28 November 2013, the parties presented oral argument and their answers to the questions put by the Court.
23. At the hearing, the Commission contended that the action should be dismissed in so far as it is based on a plea of inapplicability of Article 143 of Commission Regulation (EC, Euratom) No 2342/2002 of 23 December 2002 laying down detailed rules for the implementation of Council Regulation (EC, Euratom) No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 357, p. 1), as amended (‘the Implementing Rules’).
24. At the hearing Euris Consult withdrew its second head of claim and the Court took formal notice of that withdrawal.
Law
25. In support of its application for annulment of the contested decision, Euris Consult raises five pleas in law. In the first plea, Euris Consult alleges an infringement of Article 98(1) of Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 248, p. 1), as amended (‘the Financial Regulation’), Article 143 of the Implementing Rules and point 2.4 of the call for tenders and, in the alternative, it submits that Article 143 of the Implementing Rules and point 2.4 of the call for tenders are inapplicable. The second plea alleges a breach of the principle of proportionality. By its third plea, Euris Consult takes issue with the Parliament for having breached the principle of equal treatment. The fourth plea alleges an infringement of Article 41(2)(a) of the Charter of Fundamental Rights of the European Union. By its fifth plea, which it is appropriate to consider first, Euris Consult claims that the reasons given for the contested decision are insufficient.
A – Fifth plea: insufficiency of the reasons given for the contested decision
1. Arguments of the parties
26. In its fifth plea, Euris Consult submits that the reasons given as a basis for the contested decision are insufficient. It maintains that, by not explaining the reasons why the inner envelopes were found to be torn when the tenders were opened, the Parliament did not enable Euris Consult to assess the merits of the contested decision. As the Parliament provided it with no other information, Euris Consult maintains that it was forced to bring the present action in order to enable the Court to review the lawfulness of the contested decision.
27. Nor, it is maintained, did the Parliament fully cooperate and satisfy its obligation to supply further information. The attitude of the persons acting as agents for the Parliament who met with Euris Consult’s representatives at two meetings was hostile. Likewise, the Parliament provided incomplete answers to the questions sent to it on several occasions by email. The Parliament thus prevented Euris Consult from properly preparing its action.
28. In so doing, the Parliament acted in breach of Article 296 TFEU, Article 100(2) of the Financial Regulation and Article 149(3) of the Implementing Rules.
29. The Parliament disputes Euris Consult’s arguments.
2. Findings of the Court
30. As provided in the second paragraph of Article 296 TFEU, legal acts are to state the reasons on which they are based.
31. It is settled case-law that the statement of reasons required by the second paragraph of Article 296 TFEU must be appropriate to the act at issue and disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in question, in such a way as to enable the persons concerned to ascertain the reasons for the measure 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 to whom it is of direct and individual concern, 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 the second paragraph 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 Case C‑367/95 P Commission v Sytraval and Brink’s France
[1998] ECR I‑1719, paragraph 63 and the case-law cited).
32. The scope of that requirement to state reasons is specified, as regards the award of public contracts by the institutions, bodies, offices and agencies of the European Union, in Article 100(2) of the Financial Regulation and in Article 149(3) of the Implementing Rules.
33. Thus, in the case of tenderers whose tender is rejected before the competition stage, it is clear from Article 100(2) of the Financial Regulation that the contracting authority is required to notify them of the grounds on which the decision was taken. Article 149(3) of the Implementing Rules further provides that those tenderers may request additional information about the reasons for their rejection in writing by mail, fax or email.
34. In the present case, it must be noted that, in the contested decision, the Parliament notified Euris Consult of the reason for the rejection of its tender, that is to say, the fact that the opening committee found itself unable to guarantee the confidentiality of that tender, because only one layer of envelope had been sealed in accordance with the requirements of the call for tenders and, moreover, because those envelopes had been found to be badly torn to the extent of being completely open (see paragraphs 8, 10 and 11 above).
35. This information was fully sufficient to enable Euris Consult to understand the reasons for the rejection of its tender and to challenge the substance of those reasons, as it has done in the first four pleas of the present action.
36. Furthermore, it follows from a reading of the contested decision that the Parliament did not in any way base the rejection of Euris Consult’s tender on the reasons why the envelopes inside the outer envelope provided by the carrier were found by the opening committee to be badly torn. In those circumstances, contrary to what Euris Consult claims, the Parliament was not required to explain those reasons to Euris Consult; moreover, it has not been established that the Parliament knew of those reasons.
37. Likewise, since the reasons given for the contested decision were sufficient, the Parliament was not required, in order to fulfil the obligation to state reasons, to provide detailed answers to the numerous questions sent to it by email or that were put at the two meetings arranged at the request of Euris Consult (see paragraph 13 above).
38. Lastly, the hostility which, according to Euris Consult, was demonstrated in this case by the persons acting as agents for the Parliament has not been established in any way, and, in any event, is irrelevant as regards the question whether the Parliament communicated to it the reasons for the rejection of its tender with sufficient clarity and precision.
39. It follows from the foregoing that the fifth plea in the action, alleging infringement of the obligation to state reasons, must be rejected.
B – First plea: infringement of the Financial Regulation, the Implementing Rules and the call for tenders
1. Arguments of the parties
a) Arguments of Euris Consult
40. By the first plea it is alleged that, in so far as the tender was rejected at the opening by reason of a breach of the obligation to maintain confidentiality, the contested decision is in breach of the relevant rules, namely, Article 98(1) of the Financial Regulation, Article 143 of the Implementing Rules and point 2.4 of the call for tenders. In substance, the first plea consists of three parts. By the first part, Euris Consult maintains that the confidentiality of the tender had been guaranteed up until the moment at which the tenders were opened by the tender opening committee. By the second part, Euris Consult maintains that it met the obligation to submit the tender under double cover. By the third part, Euris Consult disputes the grounds on which the Parliament relied in the contested decision as a basis for its finding that the confidentiality of the tender could not be guaranteed. In the alternative, Euris Consult raises by that third part the objection that, if Article 143 of the Implementing Rules and point 2.4 of the call for tenders fall to be construed as having the meaning attributed to those provisions by the Parliament in the contested decision, they are inapplicable.
Observance of the confidentiality of the tender
41. In the first place, Euris Consult maintains that there was full compliance in the present case with Article 98(1) of the Financial Regulation, which requires that there is to be genuine competition between tenders and that the secrecy of their contents is to be protected until they are simultaneously opened. The rejection of the tender in the contested decision therefore constituted an infringement of that provision.
42. In Euris Consult’s submission, the Parliament was wrong to take the view in the contested decision that the confidentiality of the tender was not guaranteed.
43. First, the confidentiality of the tender had been guaranteed up until the moment when the outer envelope was opened by the tender opening committee, since it is common ground that that envelope was correctly closed until the time when that committee opened it.
44. Secondly, from the time when the package delivered by the carrier arrived at the Parliament until the time when the outer envelope was opened by the tender opening committee, the tender was constantly in the custody of the Parliament. The Parliament itself had stated in that regard that the tender had been placed in a locked room to which access by any unauthorised persons was prohibited and which was never left unattended.
45. Thirdly, it is common ground that the carrier’s outer envelope arrived at the Parliament intact, as the Parliament’s mail service does not accept damaged packages.
46. Fourthly, the only really confidential information in the tenders is the price. The Parliament remained unaware of the price until the tender was opened.
47. According to Euris Consult, those facts show that the Parliament was wrong, in the contested decision, to conclude that the confidentiality of the tender was not guaranteed and to reject the tender on that ground without examining it.
The obligation to submit the tender under double cover and the scope of the obligation to seal the outer envelope
48. In the second place, Euris Consult maintains that it complied with the obligation to submit the tender under double cover, as prescribed by the applicable rules.
49. Euris Consult argues that it had satisfied the requirements under Article 143 of the Implementing Rules and point 2.4 of the call for tenders, since the tender and two copies were placed in sealed envelopes in accordance with those provisions, and all those envelopes had been placed in an outer envelope supplied by the carrier.
50. Contrary to the Parliament’s contention in the defence, the call for tenders does not make clear what obligations are placed on tenderers in relation to the sealing of the envelopes, as the concept of ‘sealed’ is not defined with sufficient precision.
51. Euris Consult states, moreover, that during 2011 it participated in three other tenders and submitted them in exactly the same way. Yet none of those tenders was rejected for breach of confidentiality. According to Euris Consult, that bears out the lack of precision of the words ‘sealed envelope’, by reason of which the rejection of its tender in the present case amounts to breach of the principle of equal treatment.
52. In particular, Euris Consult maintains that it is not clear from the call for tenders that, if the tenderer decides to use a private carrier, the outer envelope supplied by that carrier is to be regarded as a self-adhesive envelope for the purposes of the applicable rules and is to be sealed by having a signature placed on it which is then covered by adhesive tape.
The merits of the grounds relied on in the contested decision
53. In the third place, Euris Consult disputes the merits of the three complaints relied on by the Parliament in support of the contested decision (see paragraphs 8 and 11 above).
– The sealing of the outer envelope
54. Firstly, in Euris Consult’s submission, the Parliament is wrong in stating that ‘the outer courier bag … was closed, but not sealed’.
55. First of all, according to Euris Consult, it is common ground that the outer envelope supplied by the carrier served its purpose in protecting the confidentiality of the tender, since it remained intact until it was opened by the tender opening committee. Accordingly, the objectives of Article 98(1) of the Financial Regulation were not compromised.
56. Next, the outer envelopes supplied by the carrier are plastic and are sealed by means of a closing system which guarantees that they cannot be opened without being destroyed. Euris Consult argues that they are not therefore ‘self-adhesive envelopes’ for the purposes of Article 143 of the Implementing Rules and point 2.4 of the call for tenders and, consequently, the requirements in relation to self-adhesive envelopes for the placing of a signature across the flap and for the affixing of additional adhesive tape that are laid down in those provisions do not apply to the envelope supplied by the carrier in the present case.
57. Furthermore, even if it were accepted — which Euris Consult disputes — that the envelope supplied by the carrier must be regarded as a self-adhesive envelope for the purposes of Article 143 of the Implementing Rules and point 2.4 of the call for tenders, it would, Euris Consult argues, have to be accepted that the closing system employed on that envelope offers, in respect of the confidentiality of its contents, guarantees at least equivalent to those ensured through the placing of a signature and additional adhesive tape across an ordinary self-adhesive envelope. In those circumstances, the placing of the signature of one of Euris Consult’s representatives under adhesive tape would not have given the confidentiality of the tender any added value.
58. Lastly, and in the alternative, Euris Consult objects on the basis of Article 277 TFEU that the provisions laid down in Article 143 of the Implementing Rules, reproduced at point 2.4 of the call for tenders, are inapplicable if they fall to be construed as having been infringed owing to the absence of the signature of Euris Consult’s representative under the additional adhesive tape on the envelope supplied by the carrier.
59. In support of that plea, Euris Consult argues that such requirements go beyond what is necessary to guarantee the confidentiality of tenders. In so doing, they go further than is required under Article 98(1) of the Financial Regulation, and constitute a breach of the principle of proportionality.
60. Consequently, in Euris Consult’s submission, the Court should declare that the tender satisfied the conditions laid down in Article 98(1) of the Financial Regulation and annul the contested decision.
– The obligation to submit the tender under double cover
61. Secondly, Euris Consult argues that the Parliament — which stated in the contested decision that ‘[t]he inner envelopes … were the only layer of packaging provided by the tenderer’ (see paragraph 11 above) — cannot criticise it for having provided only the inner envelopes in which the original and the copies of the tender were placed. Although the outer envelope had been supplied to Euris Consult by a carrier, it was on Euris Consult’s initiative that the package as a whole, consisting of the outer envelope, the inner envelopes and the documents containing the tender, was sent to the Parliament. All the items going to make up the package must therefore be regarded as having originated with Euris Consult.
– The condition of the inner envelopes
62. Thirdly, Euris Consult disputes the assertion that rejection of its tender without examination is justified because ‘[t]he inner envelopes … were badly torn to the extent of being completely open. The [Parliament] decided that confidentiality was not guaranteed and therefore rejected the tender’ (see paragraph 11 above).
63. First of all, Euris Consult observes that that assertion is based solely on the Parliament’s statements and relies on the discretion of the Court as regards finding the facts.
64. Next, Euris Consult maintains that, even were it accepted that the inner envelopes were found to be torn when the tenders were opened, neither the confidentiality nor the integrity of the documents constituting the tender was put in doubt, since they had been protected until then by the outer envelope which had remained intact until the tender opening committee intervened. Consequently, Euris Consult submits that the fact that the inner envelopes were found to be torn, when the integrity of the outer envelope was not in doubt, did not permit the Parliament to reject the tender without examining it.
b) Arguments of the Parliament and of the Commission
65. The Parliament and the Commission dispute Euris Consult’s arguments.
2. Findings of the Court
66. In the first plea in the present action, Euris Consult disputes the material existence of the facts on which the Parliament based the contested decision and, moreover, the assessment on the basis of which those facts — assuming them to be established — warranted rejection of its tender under Article 98(1) of the Financial Regulation, Article 143 of the Implementing Rules and point 2.4 of the call for tenders. Euris Consult claims, therefore, that those provisions were infringed in the present case.
a) The correctness of the facts relied on in the contested decision
67. In view of the scope of that challenge, it is necessary, in the first place, to consider whether Euris Consult is in a position to establish that the Parliament based the contested decision on materially incorrect facts (see, to that effect, Case C‑390/95 P Antillean Rice Mills and Others
v Commission
[1999] ECR I‑769, paragraph 29, and Case C‑47/10 P Austria
v Scheucher-Fleisch and Others
[2011] ECR I‑10707, paragraphs 57 and 58 and the case-law cited).
68. In that regard, as Euris Consult confirmed, moreover, at the hearing, it is common ground that Euris Consult’s tender consisted of an original document and two copies, and that each of those documents was placed in a self-adhesive brown manila envelope, the flap of which was sealed by the placing across of it of the signature of Euris Consult’s director, covered by additional self-adhesive tape. It is also undisputed that, thus sealed, tho se three envelopes were placed in a single outer envelope supplied by a courier company. In addition, it is common ground that that outer envelope arrived at the Parliament intact, and that that envelope, closed by a self-adhesive flap, was not sealed by placing the signature of Euris Consult’s director across an additional band of self-adhesive tape. All those facts, which are neither disputed by Euris Consult nor contradicted by anything on the file, must be considered as established.
69. By contrast, Euris Consult observed at the hearing that it was not in a position to confirm that, as the Parliament stated in the contested decision, the three inner envelopes ‘were badly torn to the extent of being completely open’ when the opening committee opened the outer envelope.
70. That statement in the contested decision reproduces the record drawn up by the opening committee — composed of persons acting as agents for the Parliament from various departments and one person acting as agent for the Court of Auditors — at the end of the meeting during which, in the presence of two tenderers, all the tenders lodged in the tender procedure at issue in this case were opened. It should also be borne in mind that Euris Consult, which had the option of being represented at the opening of the tenders, did not attend that meeting.
71. Furthermore, it must be noted that Euris Consult does not put forward any prima facie evidence that would cast doubt on the veracity of the findings of fact mentioned in the record drawn up by the opening committee. In those circumstances, those findings, which are not disproved by anything on the file, must be considered as established.
72. The Court must therefore ascertain whether the facts as established warranted the rejection of Euris Consult’s tender, which, in turn, requires an explanation of the scope of the rules applicable in the present case, the clarity and, in part, the lawfulness of which are disputed by Euris Consult.
b) The applicable rules
The scope of the rules applied in the contested decision
73. Contrary to what Euris Consult claims, the obligations of the tenderers who took part in the tender procedure at issue in the present case, in relation to the dispatch of their tenders, were clear from points 2.2 and 2.4 of the call for tenders, the provisions of which were set out in paragraphs 2 and 3 above.
74. Thus, first, tenderers had the choice of lodging their tenders themselves, by handing them in to the official mail service of the Parliament, or of sending them by post or carrier (point 2.2 of the call for tenders). Secondly, the tenders were required to reach the Parliament under double cover in sealed envelopes, each envelope being required to bear details of the recipient department, the reference of the invitation to tender and the words ‘not to be opened …’ (first subparagraph of point 2.4 of the call for tenders). Thirdly, where self-adhesive envelopes were to be used, they had to be sealed, that is to say, ‘sealed with adhesive tape bearing the signature of the sender’, which had to be either handwritten or accompanied by the company stamp (third subparagraph of point 2.4 of the call for tenders). Fourthly, tenderers were in principle held responsible for the condition in which the envelopes containing their tender arrived, and were therefore invited to pay ‘attention to the quality of the envelopes used’ (second subparagraph of point 2.4 of the call for tenders). Fifthly, the fourth subparagraph of point 2.4 of the call for tenders expressly provided that ‘[a]ny tender which [failed] to maintain the confidentiality of its contents until the opening of all the tenders [would] be rejected automatically’.
75. Contrary to what Euris Consult claims, it is clear and unequivocal from the provisions of the call for tenders reproduced in paragraph 74 above that the tenders were required to be placed in two envelopes and that if those envelopes were self-adhesive, each one was required to be sealed. As regards the meaning of that latter expression, it is also clear from the call for tenders that it meant that the two envelopes should be closed and that an authorised representative of the tenderer should sign, on each envelope, across the flap and across an additional band of self-adhesive tape.
76. Thus, in order to satisfy the obligations laid down by the call for tenders, a tenderer who decided to use a carrier had a choice between either, if the characteristics of the carrier’s envelope permitted it, using that as the second outer envelope, meaning that it would have to be sealed by the placing of a signature across an additional band of adhesive tape, placing all the required information on the carrier’s envelope, and then using only one inner envelope to contain the tender; or placing the contents of its tender in two sealed envelopes bearing the required information, then placing that double envelope in the carrier’s outer envelope, which in that case could remain unsealed and would not need to bear all the requisite information.
77. By contrast, Euris Consult’s interpretation, according to which the carrier’s outer envelope, although not sealed in the manner just described, should be regarded as being one of the two envelopes required by the call for tenders and as complying with the requirements of point 2.4 of that call for tenders, cannot be accepted. Even if it is assumed, as it is by Euris Consult, that the system of closing envelopes supplied by a carrier offers guarantees in terms of the protection of the confidentiality of their contents that are equivalent to those offered by the seal required by the call for tenders, the fact remains that where a tenderer has breached the clear, precise and unconditional obligation arising under the call for tenders to send his tender under double cover in sealed envelopes, he must be regarded as having failed to comply with the requirements imposed on all the tenderers who decided to submit a tender in the tender procedure at issue in the present case.
78. The infringement of those clear requirements of the call for tenders in itself enabled the Parliament to reject any tender that did not comply; indeed it was obliged to do so, under the fourth subparagraph of point 2.4 of that call for tenders, if, moreover, it formed the view that the confidentiality of that tender could not be guaranteed until the simultaneous opening of all the tenders.
79. It follows that the Court must reject the first two parts of the first plea, by which Euris Consult maintains, respectively, that in any event the conditions in which it dispatched its tender offered guarantees in terms of confidentiality equivalent to those which would have resulted had the obligations laid down in the call for tenders been strictly applied, and that, owing to the lack of clarity in the provisions of the call for tenders, it must be regarded as having sent a tender under double cover in sealed envelopes.
The applicability in the present case of Article 143 of the Implementing Rules and of the third subparagraph of point 2.4 of the call for tenders
80. Nevertheless, in the third part of the first plea, Euris Consult disputes the lawfulness of that obligation and, consequently, the applicability in the present case of the provisions of the third subparagraph of point 2.4 of the call for tenders and of Article 143 of the Implementing Rules.
81. In that regard, it must be observed that although, in requiring tenders to be sent under double cover in sealed envelopes, the third subparagraph of point 2.4 of the call for tenders reproduces, without departing therefrom, the requirements relating to the sealing of self-adhesive envelopes contained in Article 143(3) of the Implementing Rules, only the first of those two provisions was directly applied in the present case. However, in reply to a question put to it at the hearing, Euris Consult confirmed that the plea of inapplicability which it put forward in support of the third part of the first plea covered both the third subparagraph of point 2.4 of the call for tenders and Article 143(3) of the Implementing Rules.
82. There is no need to rule on whether Euris Consult may validly plead, on the basis of Article 277 TFEU, the inapplicability of Article 143(3) of the Implementing Rules, which was applied only indirectly in the present case (see, to that effect, Case 32/65 Italy v Council and Commission
[1966] ECR 389, p. 409, and Joined Cases T‑394/08, T‑408/08, T‑453/08 and T‑454/08 Regione autonoma della Sardegna and Others
v Commission
[2011] ECR II‑6255, paragraphs 206 to 210 and the case-law cited), it being sufficient that the Court finds that that plea, founded on the alleged unlawfulness of those provisions in the light of Article 98(1) of the Financial Regulation and the principle of proportionality, is entirely without substance.
83. First, Article 143(3) of the Implementing Rules and the third subparagraph of point 2.4 of the call for tenders merely specify the conditions in which the requirement of confidentiality of tenders laid down by Article 98(1) of the Financial Regulation may be regarded as being satisfied. As the Parliament maintains, Article 143 of the Implementing Rules supplements Article 98(1) of the Financial Regulation without contradicting it. By contrast, for the Court to accept Euris Consult’s proposition that Article 143 of the Implementing Rules infringes Article 98(1) of the Financial Regulation, because it sets out conditions which are not laid down by the latter article, would be tantamount to challenging, as a matter of principle, the lawfulness of the Implementing Rules as a whole, since their purpose is precisely to specify and to supplement the basic rules set out in the Financial Regulation.
84. Nor, secondly, do Article 143(3) of the Implementing Rules and the third subparagraph of point 2.4 of the call for tenders breach the general principle of proportionality. According to that principle, measures adopted by EU institutions must not exceed the limits of what is appropriate and necessary in order to attain the legitimate objectives pursued by the legislation in question, and where there is a choice between several appropriate measures, recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued (see Case T‑13/99 Pfizer Animal Health
v Council
[2002] ECR II‑3305, paragraph 411, and Case T‑75/06 Bayer CropScience and Others
v Commission
[2008] ECR II‑2081, paragraph 223 and the case-law cited).
85. The obligation set out in Article 143(3) of the Implementing Rules and in the third subparagraph of point 2.4 of the call for tenders enables the confidentiality of tenders to be deemed to be guaranteed where such tenders are found by the tender opening committee to be under double cover in envelopes that are sealed and intact. That rule thus contributes to legal certainty by ruling out any risk of arbitrary assessment during the opening of the tenders, at an insignificant marginal cost in terms of financial and technical resources, given the overall costs involved in the preparation of a tender. Euris Consult is not, therefore, justified in claiming that that obligation breaches the principle of proportionality.
86. It follows that the plea of inapplicability raised by Euris Consult must be rejected.
c) The validity of the exclusion of Euris Consult’s tender
87. It follows from the foregoing that, having correctly found that Euris Consult had not complied with the obligation to submit its tender under double cover in sealed envelopes, the Parliament was entitled to reject it.
88. None of the objections put forward by Euris Consult in the third part of the first plea is such as to cast doubt on that assessment.
89. First, it is common ground, as stated in paragraph 68 above, that, contrary to Euris Consult’s assertions, it did not comply with the obligation to dispatch its tender under double cover in sealed envelopes, since the relevant rules clearly specified the formalities that had to be completed with regard to the sealing of the envelopes and, moreover, the outer envelope supplied by the carrier chosen by Euris Consult — a self-adhesive envelope, as the photographs which Euris Consult attached to its application show — was not sealed.
90. Secondly, Euris Consult’s complaint that, in stating that ‘[t]he inner envelopes … were the only layer of packaging provided by the tenderer’, the Parliament was not justified in criticising Euris Consult for having provided only the inner envelopes in which the original and the copies of the tender were placed, is based on a misreading of the contested decision.
91. In the relevant passage of that decision, the Parliament merely indicated that, for the purpose of assessing compliance with the obligation to submit tenders under double cover in sealed envelopes, it could not take into consideration the outer envelope supplied by the carrier because that outer envelope was not sealed. As observed in paragraph 76 above, since Euris Consult did not seal the envelope provided by the carrier, it ought to have placed its tender under double cover in sealed envelopes inside the carrier’s envelope, in order to comply with the requirement laid down in the third subparagraph of point 2.4 of the call for tenders.
92. Thirdly, as stated in paragraph 71 above, it must be regarded as established — whatever doubts Euris Consult may have in that regard — that the inner envelopes were found to be badly torn when the tenders were opened.
93. Euris Consult’s argument that that did not permit the Parliament to reject its tender must be rejected as ineffective, since it follows from the findings in paragraph 77 above that the infringement of the requirement relating to the submission of tenders under double cover in sealed envelopes was sufficient to justify that rejection.
94. In any event, the Court must uphold the Parliament’s finding that, although the outer envelope appeared to be intact when the tenders were opened, the mere fact that the inner envelopes were found to be badly torn was sufficient to cast doubt on the confidentiality of Euris Consult’s tender. The attention of tenderers had been drawn to that particular aspect in the second subparagraph of point 2.4 of the call for tenders, where it was indicated that the integrity of the envelopes used would be regarded as guaranteeing both the confidentiality and the integrity of the contents of tenders.
95. It follows from the foregoing that Euris Consult is not justified in maintaining that its tender was rejected in breach of the applicable rules; and, therefore, that the Court must reject the first plea.
C – Second plea: breach of the principle of proportionality
1. Arguments of the parties
96. Euris Consult maintains, in support of its second plea that, in rejecting its tender for lack of confidentiality when the outer envelope was intact, and in not contemplating any alternative measure less detrimental to Euris Consult’s interests, the Parliament acted in breach of the principle of proportionality.
97. The Parliament disputes Euris Consult’s arguments.
2. Findings of the Court
98. According to the case-law, as already noted in paragraph 84 above, the principle of proportionality requires that measures adopted by EU institutions should not exceed the limits of what is appropriate and necessary in order to attain the legitimate objectives pursued by the legislation in question, and where there is a choice between several appropriate measures, recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued (see Pfizer Animal Health v Council, paragraph 84 above, paragraph 411, and Bayer CropScience and Others
v Commission, paragraph 84 above, paragraph 223 and the case-law cited).
99. It should, first of all, be noted that Article 145 of the Implementing Rules precludes the opening of tenders that do not satisfy the requirements of Article 143 of those rules. As pointed out in paragraph 81 above, the third subparagraph of point 2.4 of the call for tenders — the requirements of which were found, in the context of the analysis of the first plea, to have been infringed in the present case — reproduces the provisions of Article 143(3) of the Implementing Rules. It follows from this that the Parliament could not open Euris Consult’s tender without infringing Article 145 of the Implementing Rules.
100. Further, as stated in the context of the assessment of the first plea, in paragraph 78 above, the Parliament was entitled to reject Euris Consult’s tender in so far as it had found that the obligation to send tenders under double cover had not been met and, indeed, was obliged to do so where the confidentiality of that tender appeared to it to be in doubt. It has also been found, in paragraph 94 above, that the Parliament was justified in doubting the confidentiality of Euris Consult’s tender, owing to the condition in which the inner envelopes were found.
101. For both of these reasons, the Parliament was thus required to reject Euris Consult’s tender. The principle of proportionality, the scope of which was recalled in paragraph 98 above, applies only in circumstances where the body that adopted the contested measure has a discretion. Since that is not the case here, it follows that, in the circumstances of this case, reliance on that principle is misplaced.
102. Moreover, in so far as Euris Consult claims in the context of the second plea that the obligations imposed on it in the present case are disproportionate, it is sufficient to reiterate that the assertions regarding the allegedly disproportionate nature of the obligation to submit tenders under double cover in sealed envelopes were rejected in the assessment of the merits of the plea of inapplicability in respect of the third subparagraph of point 2.4 of the call for tenders and Article 143(3) of the Implementing Rules.
103. It follows that the second plea must be rejected.
D – Third plea: breach of the principle of equal treatment
1. Arguments of the parties
a) Arguments of Euris Consult
The application of the principle of equal treatment
104. In the context of the third plea, Euris Consult maintains that, at the time of bringing the action, it had participated in four calls for tenders — including the procedure that forms the background to the present dispute — and had submitted the tenders in exactly the same way and that none of the other three tenders had been rejected on grounds of lack of confidentiality, without being examined. Euris Consult submits that the different treatment given to this tender constitutes a difference in treatment between situations which are the same, with no objective justification. Consequently, Euris Consult maintains that the contested decision is in breach of the principle of equal treatment. According to Euris Consult, in the other three procedures in which it participated, ‘not a single one mentions the condition of the brown envelopes in the “outer courier bag”‘; nor was there any criticism of the outer envelope supplied by the carrier.
Request for a measure of organisation of procedure
105. In order to enable it to prove that the situation in relation to the tender at issue in the present case is the same as that in relation to the other three calls for tenders in which it participated, Euris Consult requests the Court to direct the Parliament, pursuant to Article 64(3)(d) of the Rules of Procedure, to produce the minutes drawn up by the opening committees involved in calls for tenders GENAFF11, HR/2011/EU and TM11/MT.
b) Arguments of the Parliament
106. The Parliament disputes Euris Consult’s arguments and opposes the request for a measure of organisation of procedure.
2. Findings of the Court
107. According to the case-law, the duty of contracting authorities to observe the principle of equal treatment lies at the very heart of EU legislation on public procurement, which is intended in particular to promote the development of effective competition and lays down criteria for the award of contracts which are intended to ensure such competition. The principle of equal treatment requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified (see Bayer CropScience and Others
v Commission, paragraph 84 above, paragraph 236 and the case-law cited; see also, by analogy, Joined Cases C‑21/03 and C‑34/03 Fabricom [2005] ECR I‑1559, paragraphs 26 and 27 and the case-law cited).
108. Euris Consult maintains, by its third plea, that the Parliament could not reject its tender without breaching the principle of equal treatment, in so far as it claims that it submitted other tenders in exactly the same way and that those other tenders were not rejected for failure to submit them under double cover with each envelope being sealed. It thus takes the view that it has been treated differently in a comparable situation and that that difference cannot be objectively justified.
109. The general principle of equal treatment, in respect of which Article 89(1) of the Financial Regulation constitutes an implementing rule in relation to public procurement, is intended to apply as between tenderers participating in a given procurement procedure. However, as the Parliament contends, to accept Euris Consult’s arguments would result in this instance in a breach of that principle vis-à-vis the other tenderers who submitted tenders in the procurement procedure at issue in this case, since Euris Consult — which was not in a situation comparable to theirs in the light of the requirement to submit its tender under double cover, each envelope to be sealed — was treated in the same way as they were.
110. Furthermore, as regards Euris Consult’s request to be treated in the present case in a way that is comparable to the way in which it was treated in other procedures, it must be observed that, even if it did send other tenders in circumstances that are as irregular as in the present case, it cannot, by invoking the principle of equality, claim the benefit of an illegality. It is evident from the analysis of the first two pleas in this action that where a tenderer does not comply with the obligation to send his tender under double cover with each envelope sealed in accordance with the requirements of Article 143 of the Implementing Rules and of point 2.4 of the call for tenders, the contracting authority is required to reject it.
111. It is not necessary, in those circumstances, to grant the request for a measure of organisation of procedure sought by Euris Consult, the result of which would in any event have no effect on the assessment of the present plea.
112. It follows that the third plea, alleging breach of the principle of equal treatment, must be rejected.
E – Fourth plea: infringement of Article 41(2)(a) of the Charter of Fundamental Rights of the European Union
1. Arguments of the parties
113. By its fourth plea, Euris Consult maintains that the contested decision is an individual measure which adversely affects it. It therefore submits that it ought to have been heard, in accordance with Article 41(2)(a) of the Charter of Fundamental Rights, before the contested decision was adopted. In Euris Consult’s submission, if the tender opening committee had heard its explanations, Euris Consult would have been able to convince it that the confidentiality of the tender had been maintained, and a different decision might have been taken.
114. The Parliament disputes Euris Consult’s arguments.
2. Findings of the Court
115. It should be noted first of all that, in its fourth plea, Euris Consult claims an infringement of the right to be heard before the contested decision was adopted. It maintains that that decision constitutes an individual measure which would affect it adversely within the meaning of Article 41(2)(a) of the Charter of Fundamental Rights. To that extent, its arguments must also be considered in terms of the rights of the defence, which is a general principle of EU law.
116. It has consistently been held that the question whether there is an infringement of the rights of the defence must be examined in relation to the specific circumstances of each particular case, including the nature of the act at issue, the context of its adoption and the legal rules governing the matter in question (see Joined Cases C‑584/10 P, C‑593/10 P and C‑595/10 P Commission
v Kadi [2013] ECR, paragraph 102 and the case-law cited).
117. As regards the applicable rules, it should be borne in mind that the Financial Regulation and the Implementing Rules lay down the form that any contacts between the contracting authorities and the tenderers may take, and that the purpose of those provisions is to ensure that participants have access to procedures for the award of public contracts in compliance with the principles of transparency and equal treatment of candidates. However, there is no provision that requires the contracting authority to seek the views of a tenderer before rejecting his tender for failure to adhere to the formal requirements laid down by the contract documentation, compliance with which is essential.
118. As regards the question whether the right to be heard before the contested decision was adopted that is claimed by Euris Consult could flow from the general principle of respect for the rights of the defence, it should be noted that observance of that principle must be guaranteed even in the absence of any rules governing the procedure in question, but that, in order for such an infringement to result in an annulment, it must be established that, had it not been for that irregularity, the outcome of the procedure might have been different (Case 259/85 France
v Commission [1987] ECR 4393, paragraphs 12 and 13).
119. In that regard it must be observed, in the first place, that the contested decision constitutes a view taken on a tender sent on the initiative of Euris Consult, and that the only reasons for that decision are to be found in the examination of the formal submission of the documents delivered by Euris Consult in the context of a tender procedure, where the formal requirements with which tenderers had to comply were precisely set out in the call for tenders. The contested decision is not, therefore, founded on any consideration of fact or of law of which Euris Consult could reasonably have been unaware. Accordingly, Euris Consult is not justified in maintaining that the Parliament was obliged to hear it before adopting the contested decision.
120. Furthermore, it should also be noted, in the second place, that, owing to Euris Consult’s failure to comply with the formal requirements laid down by the call for tenders, the Parliament — as was established when the first two pleas in the action were examined — found itself obliged to reject Euris Consult’s tender. In those circumstances, the possibility for Euris Consult to submit observations could not have had the slightest influence on the outcome of its tender.
121. Consequently, the fourth plea in the action, alleging infringement of Euris Consult’s asserted right to be heard before the contested decision was adopted must also be rejected, without it being necessary to rule on the question as to whether the infringement of Article 41(2)(a) of the Charter of Fundamental Rights may be validly relied on vis-à-vis a contracting authority in the context of a procedure for the award of a public contract.
122. It follows from all of the foregoing that the present action must be dismissed.
Costs
123. Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since Euris Consult has been unsuccessful, it must be ordered to pay the costs in accordance with the form of order sought by the Parliament.
Operative part
On those grounds,
THE GENERAL COURT (Sixth Chamber)
hereby:
1. Dismisses the action;
2. Orders Euris Consult Ltd to pay the costs.