JUDGMENT OF THE COURT (Eighth Chamber)

3 December 2009 ( )

(Appeal – Regulations (EC, Euratom) Nos 1605/2002 and 2342/2002 – Public contracts awarded by the Community institutions on their own account – Error in the evaluation committee’s report – Obligation to state reasons for the rejection of the tender’s bid)

In Case C‑476/08 P,

APPEAL under Article 56 of the Statute of the Court of Justice, brought on 28 October 2008,

Evropaïki Dynamiki – Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE, established in Athens (Greece), represented by N. Korogiannakis, dikigoros,

appellant,

the other party to the proceedings being:

European Commission, represented by M. Wilderspin and E. Manhaeve, acting as Agents, with an address for service in Luxembourg,

defendant at first instance,

THE COURT (Eighth Chamber),

composed of R. Silva de Lapuerta, President of the Seventh Chamber, acting as the President of the Eighth Chamber, E. Juhász (Rapporteur) and T. von Danwitz, Judges,

Advocate General: P. Mengozzi,

Registrar: C. Strömholm, Administrator,

having regard to the written procedure and further to the hearing on 10 September 2009,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1 By its appeal, Evropaïki Dynamiki – Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE (‘Evropaïki Dynamiki’) seeks to have set aside the judgment of the Court of First Instance of the European Communities of 10 September 2008 in Case T-59/05 Evropaïki Dynamiki v Commission (‘the judgment under appeal’), by which the Court of First Instance:

– dismissed the action brought by Evropaïki Dynamiki for annulment of the decision of the Commission of the European Communities of 23 November 2004 not to accept the tender submitted by the appellant in the tendering procedure for the provision of development, maintenance and related support services for the financial information systems of the Directorate-General for Agriculture (DG AGRI), and to award the contract to the successful tenderer (‘the decision at issue’);

– ordered the Commission to bear its own costs and to pay one fifth of the costs incurred by Evropaïki Dynamiki, and

– ordered Evropaïki Dynamiki to bear four fifths of its costs.

Legal context

2 The award of service contracts by the Commission is governed by the provisions of 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 (OJ 2002 L 248, p. 1) (‘the Financial Regulation’) and by the provisions of 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 the Financial Regulation (OJ 2002 L 357, p. 1) (‘the Implementing Rules’). That body of provisions is based on the Community directives on the subject, in particular, in the case of public service contracts, Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts (OJ 1992 L 209, p. 1), as amended.

3 Article 100 of the Financial Regulation provides:

‘1. The authorising officer shall decide to whom the contract is to be awarded, in compliance with the selection and award criteria laid down in advance in the documents relating to the call for tenders and the procurement rules.

2. 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.’

4 Article 149(2) of the Implementing Rules provides:

‘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.’

Background

5 The facts are set out in paragraphs 10 to 33 of the judgment under appeal, as follows:

‘10 The applicant [Evropaïki Dinamiki] is a company incorporated under Greek law, active in the area of information technology and communications.

11 By a contract notice of 24 March 2004, published in the Supplement to the Official Journal of the European Union (OJ 2004 S 59) under reference 2004/S 59-050031, the Commission issued a call for tenders relating to development, maintenance and support services for financial information systems of the Directorate-General for Agriculture (DG AGRI). The outcome of that tender process was to be the signing of a framework contract for a period of 36 months, renewable for a period of 12 months.

…

14 Section 9 of the tender specifications, relating to the evaluation of tenders and award of the contract, is worded as follows:

“9. Evaluation of tenders and award of the contract

…

9.3. Evaluation of tenders – award criteria

The Commission will award the contract after comparing the tenders in the light of the following criteria:

9.3.1. Award criteria

– Quality of the tenderer’s proposal in terms of completeness, clarity and concision, relevance of information and documentation provided, lack of ambiguity (20%);

– The proposed methodology and the organisation of the services to cover the needs of the Commission/DG AGRI; in particular, the measures proposed to ensure the timely availability of adequate resources for the proposed skills, and an effective and efficient project management and communication with the DG AGRI (40%);

– The quality control of the delivered services and the guarantees offered to respect the proposal (40%).

The assessment of each individual quality criterion should be at least 50% of the maximum scoring set for that criterion. Those [tenders] which will not receive these minimum scorings shall be rejected.

The overall assessment (sum of points for all criteria) should be at least 65 points out of 100. Those offers which will not receive this minimum overall scoring shall be rejected, even if they received the minimum scoring for each individual criterion.

…

9.3.2. Price criteria

…

9.4. Award of the contract

The contract will be awarded to the tender with the highest Performance/Price ratio (best value-for-money procedure) …”

…

16 On 25 March 2004 the applicant expressed its interest in taking part in the call for tenders in question and asked to be sent the contract tender documents. Those documents were sent to the applicant on 30 March 2004.

17 By registered post of 14 April 2004 the applicant sent to the Commission an initial request for clarification in respect of some of the specifications in the tender documents.

18 On 16 April 2004 the applicant sent to the Commission a second and third request for additional clarification relating to the selection and award criteria set out in the tender specifications.

19 The Commission replied to those requests by letter of 20 April 2004.

20 On the same day, in the light of the Commission’s reply, the applicant requested additional clarification.

21 The Commission replied to that request by letter of 21 April 2004.

22 On the same day, the applicant sent to the Commission a fresh request for clarification.

23 The Commission replied to the applicant’s final request by e-mail on 22 April 2004, stating that it could not answer the questions put to it because they had arrived after the date fixed for that purpose in section 7.6 of the tender specifications, namely six days before the closing date for submission of tenders.

24 On 26 April 2004, the deadline for receipt of tenders, the applicant, in consortium with Software AG Belgium SA … , submitted a proposal in the tendering procedure at issue.

25 The 12 tenders received by DG AGRI were examined by an evaluation committee set up for that purpose and comprising 6 officials from 4 Directorates–General of the Commission. The contract was awarded on the criterion of which offer was the best value–for–money. The evaluation committee checked that the tenders submitted satisfied the exclusion and selection criteria and then declared the 12 tenders to be eligible for the award phase. Of the 12 tenders, only 2, which did not obtain the minimal total score of 65 points required by the tender specifications, were eliminated. The results of the evaluation as regards the applicant’s tender and that of the successful tenderer, showing the points awarded on each quality criterion, and the weighted prices of each of those tenders, can be presented as follows:

Tenderer Weighted price (EUR) Points out of 100 Points/price (rounded to four decimal places) Rank [Evropaïki Dynamiki] 381.40 74.33 0.1949 4 IBM [Belgium SA] 393.03 90.70 0.2308 1





26 By letter of 23 November 2004, sent on 30 November 2004, the Commission informed the applicant of the result of the evaluation of its tender and of the fact that it had not been successful in so far as it “did not achieve the highest quality/price ratio according to which the [contract] was awarded”.

27 By fax and registered letter of 2 December 2004 the applicant asked the Commission to provide it, within 15 calendar days from receipt of its request, with the following information:

– the identity of the successful tenderer, and of any partners or subcontractors and, where appropriate, the percentage of the market to be allocated to it or them;

– the score awarded on each award criterion concerning the applicant’s technical offer and that of the successful tenderer;

– the content of the evaluation committee’s report;

– information as to how the applicant’s tender compared with that of the successful tenderer and, in particular, the scores awarded to the applicant’s financial offer and that of the successful tenderer.

28 By letter in reply of 10 December 2004, sent on 13 December 2004, the Commission informed the applicant that the successful tenderer was IBM Belgium SA … , and that ARHS Developments SA was the subcontractor. The Commission annexed an extract from the evaluation committee’s report relating to the applicant’s tender and that of the successful tenderer, while stating that, in order to protect the legitimate business interests of other tenderers, it was not possible to send to it a complete copy of that report, which contained information relating to other tenders which had been submitted but had been unsuccessful. The annexed extract from the evaluation committee’s report indicated the points obtained by the applicant and the successful tenderer on each of the quality criteria in the light of which the tenders had been assessed. The annexed extract also contained the general observations of the evaluation committee arising from comparison of the applicant’s tender with that of the successful tenderer, in the following terms:

“[The applicant’s offer is a] good but rather general offer, more a collection of best practices than tailored to the specific aspects of DG AGRI addressed by the tendering specifications (notably, the guarantees offered to cope with the business aspects of financial systems).”

29 As regards the successful tender, the evaluation committee considered that it was a “very good offer, concise and clear” and that it covered well “both technical and business aspects”. The committee added:

“The offer conveys the assurance of the ability of the tenderer to cope successfully with the challenges in the field of financial [IT systems] at DG AGRI.”

30 By fax and registered letter of 29 December 2004 the applicant requested from the Commission more precise information as to why its tender had been rejected and the contract awarded to another tenderer. The applicant also set out certain comments and objections on the process of evaluation of its tender and of that of the successful tenderer, in the light of the quality criteria, and taking account of the information given by the Commission in its letter of 10 December 2004.

31 By fax and registered letter of 30 December 2004 the applicant sent to the Commission certain information on the financial standing of ARHS Developments which it had obtained through market research conducted in the interim. The applicant asked the Commission to open an investigation to check and confirm that information and, if appropriate, to take it into consideration in the tendering procedure at issue.

32 By letter of 13 January 2005 the Commission informed the applicant that it acknowledged receipt of its letters of 29 and 30 December 2004, while adding that the questions raised needed to be examined carefully and that a reply would be provided within the following six weeks.

33 By letter dated 26 January 2005, sent on 7 February 2005, the Commission replied to those letters. The applicant acknowledged receipt on 9 February 2005.’

The action before the Court of First Instance and the judgment under appeal

6 By application lodged at the Registry of the Court of First Instance on 2 February 2005, Evropaïki Dynamiki sought the annulment of the decision at issue and an order that the Commission should pay the costs.

7 The Court of First Instance dismissed that action as being unfounded and ordered the appellant to bear four fifths of its costs.

Forms of order sought by the parties before the Court

8 By its appeal, the appellant claims that the Court should:

– set aside the judgment under appeal;

– annul the decision at issue, and

– order the Commission to pay the costs of the appeal and, even if it is dismissed, the costs of the proceedings at first instance.

9 The Commission contends that the Court should:

– dismiss the appeal, and

– order the appellant to pay the costs relating to the appeal and confirm the judgment under appeal concerning the costs relating to the proceedings before the Court of First Instance.

The appeal

10 In support of its appeal, Evropaïki Dynamiki puts forward two pleas in law, the first alleging a failure to state reasons and the second, which is divided into two parts, alleging an error of law.

The first plea

Position of the parties

11 The appellant claims that the Court of First Instance refused to recognise an evident discrepancy between the award criteria as set out in section 5.2 of the evaluation committee’s report and those mentioned in section 5.4 of that report. By treating that difference as a typographical error, acknowledged as such by the Commission, and by holding that it had no effect on the decision taken by the evaluation committee, the Court of First Instance relied solely on a simple unilateral oral declaration made at the hearing by an agent of the Commission, who obtained that information from an official of DG AGRI present at that hearing, and who was not a member of the evaluation committee. That assertion is not supported by any evidence and no such evidence can be deduced from the evaluation committee’s report, which actually demonstrates the contrary. Consequently, the Court of First Instance infringed its duty to state reasons by not explaining the basis on which it relied in order to hold that the evaluation committee had applied the three qualitative award criteria which had been defined in advance and set out in the tender specifications in accordance with the requirements of the legislation.

12 The Commission states that the criteria used by the evaluation committee, notwithstanding the typographical error affecting in that respect section 5.4 of evaluation committee’s report, were those mentioned in section 5.2 of that report. Those criteria are identical to those included in the document sent to the members of the evaluation committee explaining the method to be followed for the selection of tenders and subsequently adopted in the form of a table in section 5.4 of that report. The Court of First Instance was thus correct to take as its basis the explanations supplied by the Commission and therefore correctly stated the reasons for its decision in paragraph 112 of the judgment under appeal.

Findings of the Court

13 It is apparent from the documents before the Court that there is a patent error in the evaluation committee’s report at issue. The award criteria set out in section 5.2 of the non-confidential version of that report are not the same as those referred to in section 5.4 of that same report.

14 In that regard, the Commission maintained before the Court of First Instance, as well as in paragraphs 4 to 7 of its response before the Court of Justice, that that difference resulted from a simple drafting error and that the three subparagraphs of section 5.4 of that report, mentioning the incorrect evaluation criteria, were not those which were determinative in the evaluation of the tenders. The table set out in section 5.4 of the report, following the incorrect subparagraphs, which includes the scores awarded to each tender for each of the qualitative criteria and their weighting, clearly shows that those criteria, as well as their weighting, correspond to those which are set out in section 5.2 of the evaluation committee’s report at issue and to paragraph 9.3.1 of the tender specifications.

15 The Court of First Instance accepted the Commission’s contention, in paragraphs 112 and 113 of the judgment under appeal, by holding that that typographical error was of no relevance, since the evaluation committee had applied the three qualitative award criteria which had been determined in advance and set out in the tender specifications in accordance with the requirements of the legislation.

16 In accordance with the case-law of the Court, it is for the Court of First Instance alone to assess the value which should be attached to the items of evidence adduced before it (see Case C-136/92 P Commission v Brazzelli Lualdi and Others [1994] ECR I-1981, paragraph 66, and Case C-362/95 P Blackspur DIY and Others v Council and Commission [1997] ECR I-4775, paragraph 29).

17 The Court of First Instance cannot, subject to its obligation to observe general principles and the Rules of Procedure relating to the burden of proof and the adducing of evidence and not to distort the true sense of the evidence, be required to give express reasons for its assessment of the value of each piece of evidence presented to it, in particular where it considers that that evidence is unimportant or irrelevant to the outcome of the dispute (see Case C-237/98 P Dorsch Consult v Council and Commission [2000] ECR I-4549, paragraph 51).

18 It does not appear that the Court of First Instance, by holding that the error in section 5.4 of the evaluation committee’s report was of no relevance as regards the procedure for the award of the public services contract at issue, failed to comply with that obligation.

19 The award criteria were recorded in paragraph 9.3.1 of the tender specifications, then in paragraph 3.3 of the method of evaluation intended for the evaluation committee and, finally, in section 5.2 of the evaluation committee’s report. In application of those criteria, a summary table of the tenders and the ranking of the tenderers, in which the appellant came in fourth place, were drawn up by the evaluation committee in section 5.4 of the evaluation report, precisely where reference is made to the incorrect evaluation criteria. It follows that the Court of First Instance was correct to hold that the typographical error in section 5.4 was of no relevance as regards the tender procedure.

20 Consequently, the appellant’s complaint that the Court of First Instance relied solely on an oral declaration made at the hearing by an agent of the Commission on the basis of information obtained from an official of DG AGRI of the Commission present at the hearing, and who was not a member of the evaluation committee, has no basis.

21 In any event, an agent of the Commission appointed in accordance with the first sentence of Article 19 of the Statute of the Court of Justice represents the Commission at the hearing before the Court of First Instance and, on that basis, may, at that hearing, make statements on behalf of that institution. For the purposes of assessing the value of such a statement, there is nothing to be gained by making enquiries as to the source, within that institution, from which that agent obtained the information.

22 In the light of the above, it must be held that, by holding that the appellant had not succeeded in establishing to the requisite legal standard that the Commission had committed a manifest error of assessment and, thus, that the typographical error in section 5.4 of the evaluation committee’s report had not affected the procedure for the award of the contract in question, the Court of First Instance correctly stated the reasons for its decision.

23 Consequently, the present plea must be rejected as unfounded.

The second plea

The second part of the plea

– Position of the parties

24 In the second part of its second plea, which should be examined first, the appellant criticises the finding of the Court of First Instance that the evaluation committee’s statement of reasons rejecting its tender, which was sent to it by letter of the Commission dated 10 December 2004, was adequate. The lack of detail relating to the scores and the few general comments from the evaluation committee’s report did not enable the appellant to prepare its defence satisfactorily.

25 The Commission submits that the Court of First Instance did not err in law by holding that the extracts from the non-confidential version of the evaluation committee’s report specifying the name of the successful tenderer, the relative advantages of its tender in the light of the three quality criteria, the details of the calculation by which the quality/price ratio of the tenders was determined, their ranking and the general observations comparing the appellant’s tender with that of the successful tenderer constitute adequate reasons for the rejection of the appellant’s tender. In addition, the fact that the reasons given were succinct and that, initially, the entire report was not communicated, but that fuller explanations were provided subsequently, does not call into question the adequacy of those reasons.

– Findings of the Court

26 It should be noted that the Commission’s letter of 10 December 2004, as the Court of First Instance states in paragraphs 126 to 129 of the judgment under appeal, provides information on several points in reply to the appellant’s request for detailed explanations, namely the name of the successful tenderer and of the subcontractor, the advantages of the successful tender in comparison with that of the appellant in the light of the three qualitative award criteria laid down in the tender specifications and the comparison of the tenders with regard to price. The information communicated was presented in the form of three tables. The first table enables the appellant’s tender to be compared with that of the successful tenderer in the light of the qualitative criteria and their weighting. The second table analyses, by way of a written summary, the appellant’s tender in comparison with that of the successful tenderer. The third table analyses the quality/price ratio of the appellant’s tender, by comparing it with the successful tender.

27 Thus, it is apparent from that letter of 10 December 2004 that the appellant’s tender had not been ranked, on any of the three qualitative criteria set out in the tender specifications, ahead of the successful tender. In addition, it is apparent from the third table that, in the final ranking, the appellant’s tender was placed in fourth position.

28 Consequently, it must be held that the information communicated by the Commission to the appellant satisfies the requirements laid down in Article 100(2) of the Financial Regulation and Article 149(2) of the Implementing Rules.

29 The Court of First Instance therefore correctly applied the relevant provisions.

30 The second part of the second plea must therefore be rejected as unfounded.

The first part of the plea

– Position of the parties

31 In the first part of its second plea, the appellant objects that the Court of First Instance, while finding that the Commission was late in replying to its additional requests of 29 and 30 September 2004, by letter dated 26 January 2005, actually sent on 7 February 2005, held that that delay had not affected the appellant’s rights of defence with respect to the decision at issue. Consequently, by holding that that plea did not amount to a sufficient reason for annulling that decision, despite a flagrant breach of the duty of diligence and the principle of good administration, the Court of First Instance failed to apply the relevant provisions of Community law and the principles of transparency and equal treatment.

32 The Commission states that the late reply which it gave to the appellant, although constituting a breach of the duty of diligence and good administration, nevertheless did not affect the appellant’s rights of defence with respect to the decision at issue. All the necessary information was communicated to the appellant before the expiry of the period within which it could challenge that decision. Consequently, in the opinion of the Commission, the Court of First Instance did not err in law as it is alleged to have done.

– Findings of the Court

33 The Court of First Instance held in paragraphs 151 to 158 of the judgment under appeal that, by not replying to the appellant’s requests of 29 and 30 December 2004 within a reasonable period of time, the Commission had failed in its duty of diligence and good administration. However, the finding of such a breach, in the view of the Court of First Instance, did not suffice to render the decision at issue unlawful nor to have it annulled, in so far as the Commission’s delay in replying to the appellant’s requests did not affect the appellant’s rights of defence with respect to that decision.

34 Since, as was held in paragraphs 26 and 28 of this judgment, the Commission’s letter of 10 December 2004 provided the information requested, the appellant’s subsequent requests of 29 and 30 December 2004 and the Commission’s reply of 26 January 2005 do not play any role in the consideration of the substance of the case.

35 Therefore, although the Commission failed in its duty of diligence and good administration by being late in replying to those requests, the fact remains that the appellant already had the necessary information in order to protect its rights of defence with respect to the decision at issue.

36 The first part of the second plea must therefore be rejected as unfounded.

37 In those circumstances, the appeal must be dismissed in its entirety as unfounded.

Costs

38 Under Article 69(2) of the Rules of Procedure, which applies to appeal proceedings by virtue of Article 118 thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Commission has applied for costs to be awarded against Evropaïki Dynamiki and the latter has been unsuccessful, Evropaïki Dynamiki must be ordered to pay the costs.

On those grounds, the Court (Eighth Chamber) hereby:

1. Dismisses the appeal;

2. Orders Evropaïki Dynamiki – Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE to pay the costs.

[Signatures]