OPINION OF ADVOCATE GENERAL

MENGOZZI

delivered on 28 September 2017 ( 1 )

Case C‑376/16 P

European Union Intellectual Property Office

(EUIPO)

v

European Dynamics Luxembourg SA,

European Dynamics Belgium SA,

Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE

(Appeal — Public service contracts — Software development and maintenance services — Decision to rank the applicant’s tender in fourth position for the purposes of the cascade contract — Obligation to state reasons)

1. By its appeal, the European Union Intellectual Property Office (EUIPO) asks the Court to set aside the judgment of the General Court of the European Union of 27 April 2016, European Dynamics Luxembourg and Others v EUIPO, ( 2 ) by which the General Court, upholding the action brought by European Dynamics Luxembourg SA, European Dynamics Belgium SA and Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE (collectively ‘European Dynamics and Others’), annulled the decision of EUIPO rejecting the tender submitted by European Dynamics Luxembourg in a tendering procedure published by EUIPO, and ordered EUIPO to compensate European Dynamics Luxembourg for the damage incurred as a result of the loss of opportunity to be awarded the contract.

2. The present case gives the Court of Justice the opportunity to clarify subsequently, in the light of its previous case-law, the requirements which must be satisfied by contracting authorities with regard to the statement of reasons for decisions by which they reject tenders submitted in tendering procedures.

I. Legal context

3. At the material time, the award of public service contracts by EUIPO was governed by Title V of Part One of Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities, ( 3 ) as amended by Council Regulation (EC, Euratom) No 1995/2006 of 13 December 2006 ( 4 ) (‘the Financial Regulation’), and Title V of Part One of Commission Regulation (EC, Euratom) No 2342/2002 of 23 December 2002 laying down detailed rules for the implementation of Regulation No 1605/2002. ( 5 )

4. As set out in Article 100(2) of the Financial Regulation: ‘The contracting authority shall notify all candidates or tenderers whose applications or tenders are rejected of the grounds on which the decision was taken, and all tenderers whose tenders are admissible and who make a request in writing of the characteristics and relative advantages of the successful tender and the name of the tenderer to whom the contract is awarded. However, certain details need not be disclosed where disclosure would hinder application of the law, would be contrary to the public interest or would harm the legitimate business interests of public or private undertakings or could distort fair competition between those undertakings.’

5. Under Article 149(2) of Regulation No 2342/2002, as amended by Regulation No 478/2007: ‘The contracting authority shall, within not more than 15 calendar days from the date on which a written request is received, communicate the information provided for in Article 100(2) of the Financial Regulation.’

II. Background to the dispute

6. The background to the dispute is set out in detail in the judgment under appeal in paragraphs 1 to 20, to which I refer. For the purposes of the present proceedings, I shall merely point out that, in 2011, EUIPO published a call for tenders for the award of a contract for the supply of certain IT services.

7. According to the contract notice, the tender procedure, under which the award was to be made to the most economically advantageous tender, concerned the award of framework contracts for a maximum duration of seven years with three different IT service providers. The framework contracts had to be concluded separately and in accordance with the ‘cascade’ procedure; that mechanism meant that, if the first-ranked tenderer was unable to provide the services required, EUIPO was to turn to the second-ranked tenderer, and so on.

8. By letter of 11 August 2011, EUIPO informed European Dynamics and Others of the outcome of the tendering procedure and told them that their tender had not been successful (‘the decision to reject the tender’). That letter also contained a comparative table setting out the number of points awarded to the tender of European Dynamics and Others and the number of points awarded to the three tenderers which had obtained the highest scores.

9. By letter of 26 August 2011, EUIPO provided European Dynamics and Others with an extract of the evaluation report comprising the qualitative evaluation of their tender on the basis of three criteria — namely quality of software maintenance, business case, and quality of customer services — and sent them the names of the tenderers ranked first, second and third, as well as two tables, namely (i) a ‘comparative table of technical tenders’, setting out the scores obtained by the successful tenderers and European Dynamics and Others for their technical tenders and the number of points obtained for each of the three aforementioned qualitative criteria, and (ii) a ‘table of comparative evaluation of tenders from the aspect of their economically advantageous nature’, setting out the number of points obtained by the three successful tenderers and European Dynamics and Others for the qualitative criteria and for the financial evaluation, and also the total number of points obtained. ( 6 )

10. In a letter dated 15 September 2011, addressed to European Dynamics and Others, EUIPO referred to the statement of reasons set out in the letters mentioned in the two previous points, which it deemed to be sufficient, but nevertheless supplied further details concerning the financial criteria and provided an additional comparative table. That table showed, for the three successful tenderers and European Dynamics and Others, the number of points obtained by each of them for the two criteria used for the financial evaluation, as well as the total number of financial points and that figure after weighting. ( 7 )

III. The action before the General Court and the judgment under appeal

11. On 21 October 2011, European Dynamics and Others brought an action before the General Court in which they claimed that it should annul the decision to reject its tender and all other related decisions of EUIPO, and order EUIPO to pay compensation of EUR 6750000 for the harm suffered by them owing to the loss of an opportunity. In support of their action, European Dynamics and Others put forward three pleas in law, ( 8 ) alleging (i) infringement of the duty to state reasons, (ii) a number of manifest errors of assessment, and (iii) infringement of the principle of equal treatment.

12. In the judgment under appeal, the General Court first assessed the third plea, alleging infringement of the principle of equal treatment. After having rejected the first two parts of the plea, the Court upheld the third part. It held that EUIPO had clearly breached its duty of diligence when investigating, in respect of one of the tenderers, the existence of a ground for exclusion. ( 9 )

13. The Court then assessed the second plea, concerning a number of manifest errors of assessment. The Court partly upheld and partly rejected that plea. It pointed out in that regard that, inasmuch as it established, in that context, the existence of manifest errors of assessment or inadequate reasoning vitiating the lawfulness of the assessment of the bid of European Dynamics and Others, those illegalities, by themselves, justified the annulment of the decision to reject the tender.

14. Next, with regard to the first plea, the Court held that the decision to reject the tender was vitiated by several shortcomings in the statement of reasons in respect of Article 100(2) of the Financial Regulation, read in conjunction with the second paragraph of Article 296 TFEU, and that it had to be annulled on that ground, too.

15. Finally, the General Court upheld the claim of European Dynamics and Others for damages inasmuch as it sought compensation for the loss of opportunity. However, with respect to the amount payable by way of compensation, the Court asked the parties, subject to a subsequent decision of the Court, to reach agreement on that amount, and to inform the Court, within three months from the date of delivery of the judgment, of the amount to be paid, reached by agreement, failing which they were to send the Court a statement of their views with supporting figures within the same period.

IV. Procedure before the Court of Justice and forms of order sought

16. By its appeal, EUIPO claims that the Court should: – set aside the judgment under appeal in its entirety, and dismiss the application for annulment of the decision to reject the tender and the claim for damages made by European Dynamics and Others; – in the alternative, set aside the judgment under appeal in its entirety and refer the case back to the General Court; – in the further alternative, set aside the judgement under appeal in so far as it orders EUIPO to compensate European Dynamics and Others for the loss of opportunity to be awarded the framework contract, and refer the case back to the General Court; and – order European Dynamics and Others to pay the costs of both sets of proceedings.

17. European Dynamics and Others contend that the Court should: – dismiss the appeal as unfounded; and – order EUIPO to pay the entire costs of the proceedings.

V. Analysis

18. EUIPO raises four grounds in support of its appeal. By its first ground of appeal, EUIPO contends that the General Court ruled ultra petita or made an error in law in the interpretation and application of the principles of equal opportunities and diligence and, in any event, distorted the facts. By its second ground of appeal, EUIPO submits that the General Court made errors of law in the interpretation and application of the criterion relating to manifest errors of assessment. By its third ground of appeal, EUIPO submits that the General Court erred in law in the application of Article 100(2) of the Financial Regulation, read in conjunction with the second paragraph of Article 296 TFEU. By its fourth ground of appeal, EUIPO contends that the judgment under appeal is vitiated by errors in law and a lack of reasoning in the award for damages for loss of opportunity.

19. In accordance with the request of the Court of Justice, this Opinion will be confined to analysis of EUIPO’s third ground of appeal, alleging infringement of Article 100(2) of the Financial Regulation, read in conjunction with the second paragraph of Article 296 TFEU. This ground of appeal indeed concerns a significant point of law, namely that of the extent of the obligation on a contracting authority to state reasons for a decision to reject a tender, particularly with regard to the correlation between the specific negative assessments set out in the evaluation report and the deductions of net points made by the contracting authority.

A. Summary of the relevant points of the judgment under appeal

20. In its third ground of appeal, EUIPO contests the General Court’s analysis in paragraphs 238 to 259 of the judgment under appeal and its conclusion that the decision to reject the tender was vitiated by several shortcomings in the statement of reasons in respect of Article 100(2) of the Financial Regulation, read in conjunction with the second paragraph of Article 296 TFEU.

21. With regard to the plea put forward by European Dynamics and Others alleging infringement of the obligation to state reasons, in the judgment under appeal the General Court pointed out first of all that, according to the case-law relating to the obligation to state reasons in the case of tendering procedures, the contracting authority in principle has a broad discretion as to the choice of prioritised award criteria and points to be awarded in respect of the various criteria and sub-criteria and is not required to provide the unsuccessful tenderer with a detailed summary of how each detail of its tender was taken into account for the evaluation thereof. ( 10 )

22. The General Court noted, however, that it is also apparent from the case-law that, in the event that the contracting authority made such a choice, the EU judicature must be able to verify, on the basis of the tender specifications and statement of reasons of the award decision, the respective weight of the various technical award criteria and sub-criteria in the assessment, that is to say, in the calculation of the total score, and the minimum and maximum number of points for each of those criteria or sub-criteria. ( 11 )

23. The Court held, moreover, that, when the contracting authority makes specific assessments as to the manner in which the tender in question fulfils or otherwise those criteria and sub-criteria, which are clearly relevant to the overall score of the tender, the duty to state reasons necessarily includes the need to explain how, in particular, negative assessments gave rise to the deduction of points. ( 12 )

24. The Court then held that compliance with that requirement was all the more necessary in a case such as the one in point, in which any deduction of net points in respect of certain sub-criteria automatically resulted, under the formula applied by the contracting authority, in the increase in the number of gross points to be allocated to the successful tenderers’ tenders in respect of their technical quality. In such a situation, it was therefore in the interest of European Dynamics and Others to know how points were deducted for each of the sub-criteria in respect of which the evaluation report contains a negative assessment in order to be in a position to argue that, given the manifestly erroneous nature of that assessment, that deduction — entailing a corresponding increase in points in favour of the other tenderers — was not justified. ( 13 )

25. The Court then found that, for the purposes of the assessment of the tenders having regard to the three qualitative criteria, the evaluation committee had applied a mathematical formula or, at least, awarded fractions of points in respect of sub-criteria or sub-points, and that EUIPO had not informed European Dynamics and Others of the method of calculation and the detailed breakdown of the points awarded in respect of the various sub-criteria or sub-points. According to EUIPO, European Dynamics and Others were not entitled to be provided with these and disclosure of the final overall score for each of the three technical or qualitative criteria was sufficient. ( 14 )

26. That being so, the Court found that it was impossible, both for European Dynamics and Others and for the Court, to understand the calculation or precise breakdown of the points deducted for each sub-criterion, or even for each of the sub-points, and that it was therefore also not possible to verify whether and to what extent those deductions actually corresponded to the negative assessments made in the evaluation report and, accordingly, whether they were justified or not, or, at the very least, sufficiently plausible. ( 15 )

27. On that basis, the General Court concluded that the decision to reject the tender was inadequately reasoned with respect to the correlation between the specific negative assessments set out in the evaluation report, on the one hand, and the contracting authority’s deductions of net points, on the other. ( 16 )

B. Arguments of the parties

28. EUIPO contends that the General Court erred in law when it decided that, by not demonstrating which negative comment led to which deduction of points for each specific sub-criterion or sub-point, EUIPO failed to provide sufficient reasons. According to EUIPO, neither Article 100(2) of the Financial Regulation nor the case-law of the Court of Justice imposes such a requirement.

29. First, Article 100(2) of the Financial Regulation does not provide for any legal obligation to give a detailed overview of all the negative comments which were taken into consideration in assessing the tender of an unsuccessful tenderer. A fortiori, that provision does not contain any obligation to attach a deduction of points to each negative comment and to state specifically how many points were in fact deducted on the basis of such a comment. That provision only provides for the obligation to inform the unsuccessful tenderer of the reason for the rejection of its tender (the tender not presenting the best value for money after the application of the award formula in the present instance) and of the characteristics and relative advantages of the successful tender. Furthermore, since, in the present instance, European Dynamics and Others received the best technical score for each award criterion, there was no information to disclose about the relative advantages of the successful tender.

30. Secondly, the case-law of the Court of Justice confirms that it cannot be expected that a contracting authority provides the rejected tenderer with a detailed analysis of how each detail of its tender was taken into account in the evaluation. EUIPO refers specifically to the judgment of the Court of Justice of 4 October 2012, Evropaïki Dynamiki v Commission. ( 17 ) EUIPO maintains that, by analogy, it cannot be expected that a contracting authority should specify for each specific comment whether it led to a deduction of points (and how many) or to an increase of points (and how many). Moreover, by requesting that the contracting authority make clear the exact correlation between the negative comments and the scores awarded for each sub-point, without looking at the broader context of the whole evaluation of that award criterion, the General Court departed from the established case-law of the Court of Justice and applied a much stricter test regarding the duty to state the reasons than the one imposed under Article 100(2) of the Financial Regulation.

31. European Dynamics and Others defend the approach taken by the General Court. They consider that disclosure of the breakdown of the points assessed was necessary. In the present instance, the General Court was unable to exercise its power of review without having information about the points that were attributed to the specific qualitative criteria, sub-criteria and sub-points. Accordingly, by demanding production of the breakdown of the points, the General Court did not in any way apply a stricter test than the provisions of the Financial Regulation and the guidance in the case-law.

C. Assessment

32. The question which arises in connection with EUIPO’s third ground of appeal is, in essence, whether the General Court was right in holding that the decision to reject the tender did not satisfy the requirements to state reasons stemming from Article 100(2) of the Financial Regulation and the second paragraph of Article 296 TFEU, as interpreted by the case-law, or whether the General Court applied an overly strict test compared with the aforementioned provisions and the relevant case-law of the Court of Justice.

33. In the judgment under appeal, the General Court held, in essence, that the reasons stated for the decision to reject the tender were not adequate because, on the basis of the reasons given by EUIPO in its various letters to European Dynamics and Others, neither they nor the General Court itself had been able to understand the calculation or precise breakdown of the points deducted for each sub-criterion, or even for each of the sub-points, under the award criteria, so that it had not been possible to understand the correlation between the negative assessments concerning several of those sub-criteria and the related deductions of net points made by EUIPO. That being so, the General Court held that it was unable to verify whether and to what extent those deductions corresponded to those assessments or to verify whether the deductions and, therefore, the total score were lawful.

34. As regards the obligation imposed on contracting authorities to state reasons, it must first be borne in mind that, according to the first subparagraph of Article 100(2) of the Financial Regulation, the contracting authority is to notify all candidates or tenderers whose applications or tenders are rejected of the grounds on which the decision was taken, and all tenderers whose tenders are admissible and who make a request in writing of the characteristics and relative advantages of the successful tender and the name of the tenderer to whom the contract is awarded.

35. However, it is apparent from the settled case-law of the Court of Justice that the contracting authority cannot be required to communicate to an unsuccessful tenderer, first, in addition to the reasons for rejecting its tender, a detailed summary of how each detail of its tender was taken into account when the tender was evaluated and, secondly, in the context of notification of the characteristics and relative advantages of the successful tender, a detailed comparative analysis of the successful tender and of the unsuccessful tender. ( 18 )

36. Nor is the contracting authority under an obligation to provide an unsuccessful tenderer, upon written request from it, with a full copy of the evaluation report. ( 19 )

37. Furthermore, it must be noted that, according to settled case-law, the statement of reasons required under the second paragraph of Article 296 TFEU must be assessed in the light of the circumstances of each case, in particular the content of the measure in question and the nature of the reasons given. ( 20 )

38. In the present instance, it is apparent from paragraphs 12 to 18 of the judgment under appeal, summarised in points 8 to 10 of this Opinion, that EUIPO provided the reasoning for the decision to reject the tender, which was contested before the General Court, in three letters, dated 11 August 2011, 26 August 2011 and 15 September 2011.

39. It is not in dispute that in those letters EUIPO provided European Dynamics and Others with an extract of the evaluation report comprising the qualitative evaluation of their tender, the names of the three successful tenderers and three tables setting out the scores which those three successful tenderers and European Dynamics and Others had obtained, more specifically, a comparative table of the technical tenders, a table of comparative evaluation of the tenders from the aspect of their economically advantageous nature and a comparative table concerning the financial criteria. Those tables enabled European Dynamics and Others to have an overall view of the points awarded to their tender and to those of the successful tenderers as regards both the qualitative criteria and the financial criteria, and of their effect on the final overall score.

40. However, as is apparent from paragraph 252 of the judgment under appeal, the General Court found, and this is not disputed by EUIPO, that the evaluation committee had applied a mathematical formula or had awarded fractions of points in respect of sub-criteria or sub-points and that the evaluation report had made specific negative assessments in that regard which had led to specific deductions of points.

41. It is to be noted that EUIPO did not disclose the number of points obtained by European Dynamics and Others in comparison with the successful tenderers broken down each time in respect of sub-criteria, nor did it explain the method of calculation actually used by the evaluation committee to attribute a specific weight to each of those sub-criteria in the overall evaluation.

42. That being so, it was not possible, for European Dynamics and Others or for the General Court, to understand the respective weight of those sub-criteria in the evaluation, that is to say, in the determination of the total score, or to establish a correlation between the specific negative comments and the deductions of points, which had had an impact on the total score.

43. Although it is true that, according to the case-law, the requirements to be satisfied by the statement of reasons depend on the circumstances of each case, and 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, the fact remains that the statement of reasons required under Article 296 TFEU must disclose clearly and unequivocally 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 court having jurisdiction to exercise its powers of review. ( 21 )

44. It follows that a decision which does not enable a tenderer to understand the reasons why its tender has been rejected and to identify the characteristics and relative advantages of the successful tenderers and which does not enable the EU judicature to verify the legality of the assessment contained therein cannot be considered to meet the requirements to be satisfied by the statement of reasons under the first subparagraph of Article 100(2) of the Financial Regulation, read in conjunction with the second paragraph of Article 296 TFEU.

45. Accordingly, I consider that the General Court did not err in law in holding that the decision to reject the tender was not adequately reasoned.

46. That finding cannot be called into question by the various arguments put forward by EUIPO.

47. As regards, first, EUIPO’s reliance on the judgment of the Court of Justice of 4 October 2012, Evropaïki Dynamiki v Commission, ( 22 ) it is sufficient to point out that in that case, contrary to the position in the present instance, (i) the extracts of the evaluation reports disclosed by the European Commission made it possible to deduce the number of points obtained by the appellant in question in comparison with the successful tenderer, broken down each time for each sub-criterion, and the weight of each sub-criterion in the overall evaluation, and (ii), the comments of the evaluation committee which were disclosed explained, for each award criterion, on the basis of which sub-criteria the Commission had found the tender of the successful tenderer or that of the appellant in question to be the best. ( 23 )

48. As regards, secondly, the argument that, since European Dynamics and Others had, in the present instance, received the best technical score for each award criterion, they had no interest in receiving information about the relative advantages of the successful tenders, it need only be pointed out that EUIPO does not contest the General Court’s reasoning in paragraph 253 of the judgment under appeal, according to which European Dynamics and Others had an interest in knowing the extent to which the negative assessments put forward by the contracting authority had resulted for them in a deduction of net points. ( 24 )

49. In the light of all these considerations, I consider that EUIPO’s third ground of appeal must be dismissed.

VI. Conclusion

50. Having regard to the foregoing considerations, and without prejudging the merits of the other grounds of appeal, I propose that the Court dismiss the third ground as unfounded. The costs are to be reserved.

( 1 ) Original language: French.

( 2 ) T‑556/11, ‘the judgment under appeal’, EU:T:2016:248.

( 3 ) OJ 2002 L 248, p. 1.

( 4 ) OJ 2006 L 390, p. 1. Regulation No 1605/2002 was repealed, with effect from 1 January 2013, by 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 Regulation No 1605/2002 (OJ 2012 L 298, p. 1).

( 5 ) OJ 2002 L 357, p. 1. That regulation was amended by Commission Regulation (EC, Euratom) No 478/2007 of 23 April 2007 (OJ 2007 L 111, p. 13).

( 6 ) Both tables are reproduced in paragraph 14 of the judgment under appeal.

( 7 ) See paragraph 18 of the judgment under appeal

( 8 ) Following EUIPO’s response to the measures of organisation of procedure and of inquiry of the General Court, European Dynamics and Others raised a new plea in law, alleging that EUIPO infringed the tender specifications by having accepted the financial tender of Informática El Corte Ingles SA — Altia Consultores SA Temporary Association (IECI) even though it contained a variant and a price range. The General Court rejected that plea in paragraph 230 et seq. of the judgment under appeal.

( 9 ) Paragraphs 61 to 78 of the judgment under appeal.

( 10 ) See paragraphs 244 and 250 of the judgment under appeal.

( 11 ) See paragraph 250 of the judgment under appeal.

( 12 ) See paragraph 250 of the judgment under appeal.

( 13 ) See paragraph 251 of the judgment under appeal.

( 14 ) See paragraph 252 of the judgment under appeal.

( 15 ) See paragraph 252 of the judgment under appeal.

( 16 ) See paragraph 254 of the judgment under appeal.

( 17 ) C‑629/11 P, not published, EU:C:2012:617.

( 18 ) Judgment of 4 October 2012, Evropaïki Dynamiki v Commission (C‑629/11 P, not published, EU:C:2012:617, paragraph 21 and the case-law cited).

( 19 ) Judgment of 4 October 2012, Evropaïki Dynamiki v Commission (C‑629/11 P, not published, EU:C:2012:617, paragraph 22 and the case-law cited).

( 20 ) Judgment of 4 October 2012, Evropaïki Dynamiki v Commission (C‑629/11 P, not published, EU:C:2012:617, paragraph 23 and the case-law cited).

( 21 ) See, inter alia, judgments of 2 April 1998, Commission v Sytraval and Brink’s France (C‑367/95 P, EU:C:1998:154, paragraph 63), and of 10 March 2016, HeidelbergCement v Commission (C‑247/14 P, EU:C:2016:149, paragraph 16).

( 22 ) C‑629/11 P, not published, EU:C:2012:617.

( 23 ) See, specifically, paragraphs 26 and 28 of that judgment, and also paragraph 45 of the judgment of the General Court of 20 September 2011, Evropaïki Dynamiki v Commission (T‑298/09, not published, EU:T:2011:496), contested before the Court of Justice in that case (that paragraph is reproduced in paragraph 11 of the judgment of the Court of Justice).

( 24 ) In that regard, see also paragraph 227 and, especially, paragraph 228 of the judgment under appeal.