Case C‑376/16 P

European Union Intellectual Property Office (EUIPO)

v

European Dynamics Luxembourg SA and Others

(Appeal — Public service contracts — Provision of external services for programme and project management and technical consultancy in the field of information technologies — Cascade procedure — Article 21 of the Statute of the Court of Justice of the European Union — Article 76 and Article 84(1) of the Rules of Procedure of the General Court — Ruling ultra petita prohibited — Weighting of sub-criteria within award criteria — Manifest errors of assessment — Regulation (EC, Euratom) No 1605/2002 — Article 100(2) — Decision rejecting a tender — Failure to state reasons — Loss of opportunity — Non-contractual liability of the European Union — Claim for damages)

Summary — Judgment of the Court (Fourth Chamber), 3 May 2018

Acts of the institutions—Statement of reasons—Obligation—Scope—Decision, in the context of the procedure for the award of a public service contract, not to accept a tender—Use, in the calculation of the tenderers’ score, of a formula allowing points to be deducted in respect of certain award sub-criteria and allocated to other tenders—Failure by the contracting authority to explain the correlation between the negative assessments of a tender and the deductions of points made—Not permissible

Acts of the institutions—Statement of reasons—Obligation—Scope—Decision, in the context of the procedure for the award of a public service contract, not to accept a tender—Obligation for the contracting authority to provide a detailed comparative analysis of the successful tender and the unsuccessful tender—None—Obligation to disclose the evaluation committee’s report—None

Action for annulment—Pleas in law—Action against a decision rejecting a tender submitted by a tenderer in the context of a public procurement procedure launched by an EU institution—Plea in law alleging a manifest error of assessment on the part of the contracting authority—Burden of proof—Obligation for the Courts of the European Union to verify the effect on the contested decision of errors invoked but not substantiated—None

European Union public contracts—Tender procedure—Award of contracts—Exclusion of tenderers—Obligation for the Courts of the European Union to examine, of their own motion, whether there has been infringement of the rules regarding exclusion—None

(Art. 263 TFEU; Statute of the Court of Justice, Art. 21; Rules of Procedure of the General Court, Arts 76 and 84(1); Council Regulation No 1605/2002, Arts 93 and 94; Commission Regulation No 2342/2002, as amended by Regulation No 478/2007, Arts 133a and 134b)

Action for annulment—Jurisdiction of the Courts of the European Union—Scope—Ruling ultra petita prohibited—Obligation to comply with the framework of the dispute as defined by the parties—No jurisdiction to rule on a plea withdrawn by a party during the proceedings

It follows from the rules governing the procedure before the Courts of the European Union, in particular Article 21 of the Statute of the Court of Justice and Article 76 and Article 84(1) of the Rules of Procedure of the General Court, that the dispute is in principle determined and circumscribed by the parties and that the Courts of the European Union may not rule ultra petita. It is therefore necessary to set aside a decision of the General Court finding that an agency of the Union clearly breached its duty of diligence when investigating the existence, in particular, of the ground for exclusion of a tenderer from a public procurement procedure provided for in Article 93(1)(e) of Regulation No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities and in Articles 133a and 134b of Regulation No 2342/2002 laying down detailed rules for the implementation of Regulation No 1605/2002 although the applicant had withdrawn its argument in that regard at the hearing before the General Court. In those circumstances, the General Court no longer had jurisdiction to rule on whether Articles 93 and 94 of Regulation No 1605/2002 had been infringed. (see paras 33, 34)

While it is true that the provisions concerning the exclusion of tenderers from a public procurement procedure laid down in Articles 93 and 94 of Regulation No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities are of some importance as regards compliance with the law on EU public procurement, their infringement nevertheless does not satisfy the conditions for classification as an infringement of essential procedural requirements. Consequently, a plea alleging infringement of those provisions does not constitute a matter of public policy which must be examined by the Courts of the European Union of their own motion. (see para. 35)

In the context of an action by an unsuccessful tenderer against the decision rejecting its tender in which it invokes manifest errors of assessment on the part of the contracting authority, review by the Courts of the European Union does not, in principle, mean that those Courts are obliged to verify that a manifest error of assessment concerning the evaluation of the tender has had no effect on the ranking of that tender and, hence, ultimately, on the award decision, when the contracting authority has not provided any details as to that lack of effect. In that regard, in the context of an appeal brought by the contracting authority against the decision handed down at first instance by the Courts of the European Union, it is for the contracting authority to explain how, and establish that, the decision rejecting the tender could not have been more favourable to the unsuccessful tenderer even if those errors had not been made. (see paras 46, 47)

See the text of the decision. (see para. 52)

See the text of the decision. (see paras 57-59)

Regarding the obligation to state the reasons for decisions rejecting tenders submitted by tenderers in the context of a public procurement procedure, it is not, in principle, necessary for a specific weighting to be attached to every negative or positive comment in the evaluation of the unsuccessful tender. That being said, in a situation where the procurement documents contain specific quantified weightings attached to criteria or sub-criteria, the principle of transparency requires a quantified evaluation to be given in respect of those criteria or sub-criteria. However, the case is otherwise where, first, the evaluation committee has applied a mathematical formula or has awarded fractions of points in respect of sub-criteria or sub-points and the evaluation report contains specific negative assessments in that regard which have given rise to specific deductions of points, and, second, the contracting authority has not disclosed the number of points, together with a breakdown by sub-criteria, obtained by the unsuccessful tenderers and by the successful tenderers. The contracting authority does not entirely meet the requirements concerning the obligation to state the reasons for the outcome of the evaluation of the tenders if it is impossible for the unsuccessful tenderers either to understand the respective weightings 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 have had an impact on that total score. (see paras 63, 65-67)