II - 313Case T-70/05
Evropaïki Dynamiki – Proigmena Systimata Tilepikoinonion 
Pliroforikis kai Tilematikis AE
v
European Maritime Safety Agency (EMSA)
(Public service contracts — EMSA tendering procedures — Provision of 
information technology services — Rejection of the tender — Action for 
annulment — Jurisdiction of the Court — Non-compliance of a tender — Equal 
treatment — Compliance with the award criteria set out in the tender specifications 
or the contract notice — Establishment of sub-criteria for the award criteria — 
Manifest error of assessment — Duty to state reasons)
Judgment of the General Court (Third Chamber), 2 March 2010   .   .   .   .   .   . II - 319
Summary of the Judgment
1. Community law — Principles — Right to effective judicial protection
(Art. 230 EC; Art. 263, first para., TFEU)
2. European Communities’ public procurement — Tender procedure — Obligation to comply 
with the principle of equal treatment of tenderers
(
Council Regulation No  1605/2002, Arts 89(1), and  98(1); Commission Regulation 
No 2342/2002, Art. 143(2))
SUMMARY — CASE T-70/05
II - 3143. European Communities’ public procurement — Tender procedure — Award of contracts — 
Most economically advantageous tender — Award criteria
(
Council Regulation No  1605/2002, Art. 97(1) and  (2); Commission Regulation 
No 2342/2002, Art. 138(2) and (3))
4. European Communities’ public procurement — Tender procedure — Award of contracts — 
Most economically advantageous tender — Award criteria
(
Council Regulation No  1605/2002, Arts 89(1), and  97; Commission Regulation 
No 2342/2002, Art. 138(3))
5. Acts of the institutions — Statement of reasons — Obligation — Scope — Decision in a pro -
cedure for the award of a public contract not to accept a tender
(Art. 253 EC; Council Regulation No  1605/2002, Art. 100(2); Commission Regulation 
No 2342/2002, Art. 149)
6. European Communities’ public procurement — Conclusion of a contract following a call for 
tenders — Award of contracts
(
Commission Regulation No 2342/2002, Arts 146(1), and 147(3))
1 . The European Community is a com -
munity based on the rule of law and the 
Treaty has established a complete system 
of legal remedies and procedures de-
sig
ned to permit the Court of Justice to 
review the legality of measures adopted by the institutions
 . The general scheme 
of the Treaty is to make a direct action a
vailable against all measures adopted 
by the institutions which are intended to have legal effects
 .
Thus, any act adopted by a body such as the European Maritime Safety Agency 
(EMSA), which is intended to have legal 
effects vis-à-vis third parties, must be amenable to review by the Courts
 .It is true that EMSA is not one of the in -
stitutions referred to in Article  230 EC  . 
Nevertheless, such bodies are endowed w
ith the power to adopt acts intended 
to have legal effects vis-à-vis third par -
tie
s – which is without any doubt the 
case where, in public procurement pro -
cedures, those bodies adopt decisions rejecting the tender of one tenderer and  
awarding the contract to another ten -
derer  . It cannot therefore be acceptable, in 
a community based on the rule of law, that 
such acts escape all review by the Courts  .
It follows that decisions which are adopt -
ed by EMSA in public procurement 
EVROPAÏKI DYNAMIKI v EMSA
II - 315procedures and are intended to have 
legal effects vis-à-vis third parties are 
acts open to challenge  . That solution is  
c
onfirmed by the first paragraph of 
 Article 263 TFEU, pursuant to which the 
Court of Justice of the European Union ha
s jurisdiction to review the legality of 
acts of bodies, offices or agencies of the Union intended to produce legal effects vis-à-vis third parties
 .
(see paras 64-67, 75)
2 . The contracting authority is required to 
ensure at each stage of a tendering pro -
cedure equal treatment and, thereby, equality of opportunity for all the tender
-
ers . A system of undistorted competition, 
as laid down in the Treaty, can be guaran -
t
eed only if equality of opportunity is se -
c
ured as between the various economic 
operators  . In the light of that principle, a 
tender submitted by a tenderer by post,  
r
eceived by the contracting authority 
 after the closing date fixed, without a post  
office stamp or proof that it was sent by 
registered mail in accordance with the 
requirements under the relevant contract notice, must be neither opened nor ac -
c
epted by the contracting authority since, 
in the absence of a post office stamp as evidence and of proof that it was sent by 
registered mail, such a tender must be 
deemed to have reached the contracting authority on the date of its receipt
 .A procedural defect leads to the annul -
men
t in whole or in part of a decision only 
if it is shown that, but for that defect, the administrative procedure could have had a different outcome and, consequently, 
the contested decision might have been 
different
 . Where a tender submitted in 
the circumstances described above is the t
ender which is finally accepted by the 
contracting authority, the administrative procedure would clearly have had a dif
-
f
erent outcome, since that tender would  
not have been evaluated by the evalu -
ation committee and the award decision would clearly have been different
 .
Furthermore, if only one tender remains on conclusion of the procurement pro -
cedure for the contract in question, the contracting authority – since it was no  
longer in a p
osition to compare the 
 prices or the other characteristics of vari -
ou
s tenders in order to award the contract 
to the most economically advantageous is not required to award the contract to the only tenderer judged to be suitable and 
can cancel such a contract and launch a 
fresh call for tenders
 .
(see paras 85, 90, 92, 96, 99, 102-105)
3 . When a contract is awarded by the best-
value-for-money procedure, the con -
trac
ting authority must define in the 
SUMMARY — CASE T-70/05
II - 316tender specifications the award criteria 
enabling evaluation of the content of ten-
ders  . In addition, those criteria must, in 
accordance with Article 138(2) of Regu -
l
ation 2342/2002, laying down detailed 
rules for the implementation of the Fi -
nanc
ial Regulation, be justified by the 
subject of the contract  . In accordance 
with Article  138(3), the contracting au -
t
hority must also specify, in the contract 
notice or in the tender specifications, the weighting it will apply to each of the criteria for determining best value for 
money
 . Those provisions seek to ensure 
compliance with the principles of equal 
tr
eatment and of transparency at the 
stage of evaluation of the tenders with a view to award of the contract
 .
The aim of those provisions is, according -
ly, to allow all reasonably well-informed 
and normally diligent tenderers to inter -
pret the award criteria in the same way 
and, consequently, to have equal oppor -
t
unity in formulating the terms of their 
tenders  .
Although it is true that the criteria which contracting authorities may apply are 
not listed exhaustively in Article  138(2) 
of the implementing rules and that that provision therefore leaves it open to con
-
tracting authorities to select the cri -
teria on which they propose to base their award of the contract, their choice is ne
vertheless limited to criteria aimed at 
identifying the tender which is econom -
ically the most advantageous  .
In addition, the criteria used by the con -
trac
ting authority to identify the most 
economically advantageous tender must not necessarily be either quantitative or related solely to prices
 . Even if award cri -
teria which are not expressed in quantita-
tive terms are included in the tendering  
documents, they can be applied ob -
jectively and uniformly in order to com -
p
are the tenders and are clearly relevant 
for identifying the most economically ad -
vantageous tender  .
(see paras 129-132)
4 . As set out under Article 97 of the Regu -
lation No  1605/2002 on the Financial  
 Regulation applicable to the general 
budget of the European Communities, and Ar
ticle  138(3) of Regulation No 
2342/2002 laying down detailed rules for the implementation of the Financial Regulation, when a contract is awarded 
by the best-value-for-money procedure, 
the contracting authority must indicate, in the tender specifications or in the con
-
trac
t notice, the award criteria applicable 
and their weighting  .
EVROPAÏKI DYNAMIKI v EMSA
II - 317Those provisions, read in the light of 
the principles of equal treatment of eco -
nomic operators and of transparency, referred to in Article 89(1) of the Finan -
cial Regulation, require that potential 
tenderers be aware of all the features to 
be taken into account by the contracting authority in identifying the economically 
most advantageous tender and their rela -
tive im
portance when they prepare their 
tenders  .
It follows that a contracting authority 
cannot apply sub-criteria for award cri -
teria which it has not previously brought to the tenderers’ attention
 .
It is, none the less, possible for a contract -
ing authority, after expiry of the period 
for submission of tenders, to determine 
weighting coefficients for sub-criteria of award criteria previously established, 
on three conditions, namely that that ex 
post determination, firstly, does not alter the criteria for the award of the contract 
set out in the contract documents or the 
contract notice; secondly, does not con -
tain elements which, if they had been known at the time the tenders were pre-
pared, could have affected that prepara -
tion; and, thirdly, was not adopted on the basis of matters likely to give rise to dis -
crimination against one of the tenderers  .
(see paras 145-148)
5 . No contracting authority is obliged, on 
the basis of its duty to state reasons for a 
de
cision rejecting a tender, to enter into 
a debate on the merits of the tender sub -
mit
ted by a tenderer as opposed to those 
of the tender accepted  .
It is clear from Article 100(2) of Regula -
tion No  1605/2002 on the Financial   
Regulation applicable to the general 
budget of the European Communities 
and from Article  149 of Regulation No 2342/2002 laying down detailed rules 
for the implementation of the Financial 
Regulation that, in public procurement matters, the contracting authority fulfils 
its duty to state reasons if it confines it -
self, first of all, to notifying immediately 
all tenderers whose tenders are rejected of the grounds on which the decision was 
taken and subsequently informs tender -
ers whose tenders were admissible and 
who make an express request of the char -
acteristics and relative advantages of the successful tender and the name of the ten -
derer to whom the contract was awarded, 
SUMMARY — CASE T-70/05
II - 318within 15 calendar days of the date on 
which a written request is received  .
That manner of proceeding satisfies the purpose of the duty to state reasons en -
shrined in Article  253 EC, according to which the reasoning followed by the au -
t
hority which adopted the measure in 
question must be disclosed in a clear and unequivocal fashion so as, on the one hand, to make the persons concerned 
aware of the reasons for the measure and 
thereby enable them to assert their rights; and, on the other, to enable the Court to exercise its supervisory jurisdiction
 .
Compliance with the duty to state rea-
s
ons must be assessed in the light of the 
information available to the applicant at the time the application was brought
 . 
The requirements to be satisfied by the st
atement of reasons depend on the cir -
c
umstances of each case, in particular 
the content of the measure, 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 indi -
v
idual concern, may have in obtaining 
explanations  .
(see paras 166-171)6 . The definitive decision on award of a 
contract by public procurement pro -
cedure is taken by the contracting au -
t
hority in accordance with Article 147(3) 
of Regulation No 2342/2002 laying down detailed rules for the implementation of Regulation No 1605/2002 on the Finan -
c
ial Regulation applicable to the general 
budget of the European Communities  .
The decision of the evaluation commit -
t
ee, appointed by the authorising officer 
and responsible for giving an advisory opinion in accordance with the second subparagraph of Article  146(1) of the 
implementing rules, as to the proposal of 
the future contractor and the reasons for that choice can only be collective, since 
each committee member’s evaluation is 
absorbed into the final report
 . Accord -
ingly, any argument seeking to prove that 
there was a manifest error of assessment 
can, where appropriate, be directed only against the evaluation report adopted by 
the evaluation committee and only in the 
event that the final decision of the con -
trac
ting authority is in fact based on that 
report  .
(see paras 204-206)