Source: EURLEX
Language: en
Format: md

Case C‑677/15 P

European Union Intellectual Property Office (EUIPO)

v

European Dynamics Luxembourg SA and Others

(Appeal — Public services contracts — Provision of external services for programme and project management and technical consultancy in the field of information technologies — Cascade procedure — Weighting of sub-criteria within the award criteria — Principles of equal opportunity and transparency — Manifest errors of assessment — Failure to state reasons — Loss of opportunity — Non-contractual liability of the European Union — Claim for damages)

Summary — Judgment of the Court (Fourth Chamber), 20 December 2017

1. European Union public contracts—Tender procedure—Award of contracts—The most economically advantageous tender—Award criteria—Observance of the principle of equal treatment of tenderers and of the principle of transparency—Later fixing by the contracting authority of the weighting coefficients for the sub-criteria of the award criteria laid down in the contract documents or in the contract notice—Lawfulness—Conditions

   (Council Regulation No 1605/2002, Art. 89(1))
2. Appeal—Grounds—Inadequate statement of reasons—Scope of the obligation to state reasons—Ground involving a question of public policy—Considered of the Court's own motion

   (Art. 256(1), second para., TFEU; Statute of the Court of Justice, Arts 36 and 53, first para.)
3. Appeal—Grounds—Criticism of grounds having no influence on the operative part of the judgment under appeal—Invalid plea in law
4. Acts of the institutions—Statement of reasons—Obligation—Scope—Decision, in the procedure for the award of a public service contract, not to accept a tender—Obligation to communicate, following a written request, the characteristics and relative advantages of the tender accepted and the name of the successful tenderer—Obligation on the contracting authority to provide a detailed comparative analysis of the tender accepted and the tender of the unsuccessful tenderer—No such obligation

   (Art. 296 TFEU; Council Regulation No 1605/2002, Art. 100(2))
5. Non-contractual liability—Conditions—Causal link—Concept—Burden of proof

   (Art. 340, second para., TFEU)

1. Admittedly, the principle that procurement procedures must ensure equal treatment and be transparent means that the adjudicating authority must interpret the award criteria in the same way throughout the entire procedure. Accordingly, a contracting authority cannot apply weighting rules or sub-criteria in respect of the award criteria which it has not previously brought to the tenderers’ attention.

   Nevertheless, it is possible for a contracting authority to determine, after expiry of the time-limit for submitting tenders, weighting factors for sub-criteria which correspond in essence to the criteria previously brought to the tenderers’ attention. That subsequent determination must, however, satisfy three conditions, namely, it must not: (i) alter the criteria for the award of the contract set out in the contract documents or contract notice; (ii) contain elements which, if they had been known at the time the tenders were prepared, could have affected that preparation; and (iii) have been adopted on the basis of matters likely to give rise to discrimination against one of the tenderers.

   (see paras 31-33)
2. See the text of the decision.

   (see para. 36)
3. See the text of the decision.

   (see paras 49, 50)
4. See the text of the decision.

   (see paras 58, 59)
5. See the text of the decision.

   (see paras 99, 100)

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