CELEX: 62010CO0289
Language: en
Date: 2011-09-12 00:00:00
Title: Order of the Court (Seventh Chamber) of 12 September 2011.#Evropaïki Dynamiki - Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE v European Commission.#Appeal - Public service contracts - Call for tenders - Analysis, development, maintenance and support of telematic systems for the monitoring of products subject to excise duty - Rejection of the tender - Failure to state reasons for that rejection.#Case C-289/10 P.

ORDER OF THE COURT (Seventh Chamber)
      12 September 2011 (*)
      
      (Appeal – Public service contracts – Call for tenders – Analysis, development, maintenance and support of telematic systems for the monitoring of products subject to excise duty
         – Rejection of the tender – Failure to state reasons for that rejection)
      
      In Case C‑289/10 P,
      APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 10 June 2010,
      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, acting as Agent, with an address for service in Luxembourg,
      
      defendant at first instance,
      THE COURT (Seventh Chamber),
      composed of D. Šváby, President of the Chamber, E. Juhász (Rapporteur) and J. Malenovský, Judges,
      Advocate General: P. Cruz Villalón,
      Registrar: A. Calot Escobar,
      after hearing the Advocate General,
      makes the following
      Order
      1        By its appeal, Evropaïki Dynamiki – Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE (‘Evropaïki Dynamiki’)
         seeks to have set aside the judgment of the General Court of the European Union of 19 March 2010 in Case T‑50/05 Evropaïki Dynamiki v Commission [2010] ECR II‑0000 (‘the judgment under appeal’), in which the General Court dismissed its application for annulment of the
         Commission’s decision of 18 November 2004 to reject the tender submitted by the consortium which it had formed with another
         company in the context of a call for tenders for the supply of IT services concerning the specification, development, maintenance
         and support of telematic systems to control the movements of products subject to excise duty within the European Community
         under the excise-duty suspension arrangement and to award the contract to another tenderer (‘the contested decision’).
      
      2        So far as concerns the legal background to the case, the facts giving rise to the dispute and the procedure before the General
         Court, it is appropriate to refer to paragraphs 1 to 34 of the judgment under appeal.
      
       Forms of order sought
      3        By its appeal, Evropaïki Dynamiki requests the Court to set aside the judgment under appeal and the contested decision and
         to order the European Commission to pay the costs, including those incurred at first instance.
      
      4        The Commission requests the Court to dismiss the appeal and to order Evropaïki Dynamiki to pay the costs.
      
       The appeal
      5        Under Article 119 of its Rules of Procedure, where the appeal is, in whole or in part, clearly inadmissible or clearly unfounded,
         the Court may at any time, acting on a report from the Judge-Rapporteur and after hearing the Advocate General, by reasoned
         order dismiss the appeal in whole or in part.
      
      6        The appeal consists of four grounds of appeal, alleging, firstly, a misapplication of Article 89(1) 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 infringement of the principles of equal treatment, non-discrimination,
         transparency and free competition; secondly, the error in law made by the General Court by reason of its rejection of the
         plea alleging that the contested decision was insufficiently reasoned; thirdly, breach of Article 97 of the Financial Regulation
         and of Article 17(1) of 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); and, fourthly, a manifest error of assessment vitiating the judgment under
         appeal.
      
       The first ground of appeal: misinterpretation of Article 89(1) of the Financial Regulation and infringement of the principles
            of equal treatment, non-discrimination, transparency and free competition
      7        First, it should be noted that the first ground of appeal does not specifically relate to the principles of equal treatment,
         non-discrimination, transparency and free competition, but is based on Article 89(1) of the Financial Regulation, which provides
         that all public contracts financed in whole or in part by the EU budget must comply with those principles.
      
      8        It should also be noted that the arguments put forward in support of this ground of appeal centre on the communication, first,
         of the exact specifications of the computerised system for monitoring the movement of excisable goods (‘EMCS’), enabling the
         Member States to obtain real-time information on those movements and to carry out the requisite checks, and, second, of the
         source-code for the new computerised transit system (‘NCTS’), as well as technical information relating to the EMCS.
      
      9        It is appropriate, therefore, to examine the two parts of the first ground of appeal in turn.
      
       The first part of the first ground of appeal, concerning the specifications for the EMCS
      –       Arguments of the parties
      10      By this first part of the first ground of appeal, Evropaïki Dynamiki submits that the General Court erred in law in rejecting
         its plea alleging breach of the Financial Regulation by the Commission, in so far as the latter refused to provide it with
         the detailed specifications for the EMCS. The appellant maintains that the General Court erred, at paragraphs 71 to 74 of
         the judgment under appeal, in accepting that the specifications for the EMCS did not exist or were embryonic. Evropaïki Dynamiki
         claims that the time which had elapsed since the date of the award of the EMCS contract was long enough to allow the contractors
         for the contracts already awarded to acquire critical information in this field.
      
      11      The Commission contends, principally, that the first part of the first ground of appeal is inadmissible and, alternatively,
         that it is unfounded.
      
      –       Findings of the Court
      12      It is necessary to note that the General Court stated, at paragraph 68 of the judgment under appeal, that the contractor for
         the earlier contract at issue had begun to work on the specifications for the EMCS in June 2004 and that it had finished in
         April 2005, whereas the call for tenders for the contract forming the subject of the action brought by Evropaïki Dynamiki
         (‘the contract at issue’) was published in July 2004, with a deadline for the submission of tenders set at 31 August 2004.
         In the light of the fact that only three months elapsed between the start of that work and the deadline for the submission
         of tenders for the contract at issue, the General Court took the view, at paragraph 71 of the judgment under appeal, that,
         during the call for tenders procedure, no tenderer could have had more information than Evropaïki Dynamiki regarding the specifications
         for the EMCS, since those specifications did not exist, or were at an embryonic stage.
      
      13      Furthermore, the General Court pointed out at paragraph 73 of the judgment under appeal that, even if the contractor for the
         earlier contract had managed to draw up specifications capable of being used for the formulation of tenders for the contract
         at issue, that was not decisive since its offer was not successful. In the same paragraph, the General Court also pointed
         out that there was no basis for claiming that the contractor for the earlier contract had given the benefit of privileged
         access to those specifications to any tenderer.
      
      14      At paragraph 74 of the judgment under appeal, the General Court concluded that Evropaïki Dynamiki had not shown that certain
         tenderers had more information than it had with regard to the specifications for the EMCS and that, therefore, there had been
         no unequal treatment of tenderers.
      
      15      In this respect, it is appropriate to point out, firstly, that the arguments raised in support of that first part of the first
         ground of appeal are limited to disputing the factual assessments of the General Court and the conclusion which it drew from
         those assessments.
      
      16      Secondly, Evropaïki Dynamiki does not allege that the General Court distorted those facts.
      
      17      The appraisal of the relevant facts and the evidence does not, however, save where the facts or evidence have been distorted,
         constitute a point of law which is subject, as such, to review by the Court of Justice on appeal.
      
      18      Under the second subparagraph of Article 256(1) TFEU and the first paragraph of Article 58 of the Statute of the Court of
         Justice of the European Union, an appeal lies on points of law only. The General Court thus has exclusive jurisdiction to
         find and appraise the relevant facts and to assess the evidence (see, to that effect, judgment in Case C‑214/05 P Rossi v OHIM [2006] ECR I‑7057, paragraph 26; orders of 30 June 2010 in Case C-448/09 P Royal Appliance International v OHIM, paragraph 77, and of 15 December 2010 in Case C-156/10 P Goncharov v OHIM, paragraph 38).
      
      19      In those circumstances, the first part of the first ground of appeal is clearly inadmissible.
      
       The second part of the first ground of appeal, concerning the NCTS
      –       Arguments of the parties
      20      By this second part of the first ground of appeal, Evropaïki Dynamiki claims that the General Court erred in law in rejecting
         its plea alleging breach of the Financial Regulation by the Commission, inasmuch as the Commission had refused to make available
         to it the NCTS source-code as well as technical information concerning the EMCS.
      
      21      Evropaïki Dynamiki maintains that the General Court erred, at paragraphs 76 to 82 of the judgment under appeal, in holding
         that it was not necessary for the tenderers to have access to the NCTS source-code. It takes issue with the assessment, made
         at paragraph 82, according to which the NCTS and the EMCS are different and maintains that that assessment contradicts paragraphs
         85 and 86 of the same judgment, according to which that code could be re-used.
      
      22      According to Evropaïki Dynamiki, the General Court erred at paragraphs 87 to 91 of the judgment under appeal by not accepting
         that the tenderers were required to re-use the NCTS source-code in order to reduce the cost of the project as much as possible.
         Evropaïki Dynamiki maintains that the General Court was wrong to find, at paragraph 90 of that judgment, that the information
         contained in that code was not necessary or useful for the formulation of tenders relating to the contract at issue and that
         the Commission could communicate only part of the documentation relating to it without thereby giving an advantage to the
         successful tenderer. Evropaïki Dynamiki submits that the description of work package No 7.1 of the contract at issue bears
         out its view.
      
      23      Evropaïki Dynamiki claims that the General Court, at paragraph 92 of the judgment under appeal, wrongly confirmed the Commission’s
         position, according to which the concept of ‘components of the NCTS’ covers, in addition to the NCTS design and technical
         documentation and source-code, other aspects of the NCTS, such as methodology, quality assurance procedures and test procedures.
      
      24      According to Evropaïki Dynamiki, the General Court also erred, at paragraphs 93 to 98 of the judgment under appeal, in finding
         that Evropaïki Dynamiki had not demonstrated the impact, as regards the production of the tender and determination of the
         price, of a lack of knowledge of the NCTS source-code and the technical documentation and design relating thereto. Evropaïki
         Dynamiki claims that the Commission obliged the tenderers to make clear estimations requiring a detailed knowledge of that
         code and that documentation.
      
      25      Furthermore, Evropaïki Dynamiki criticises the General Court for not establishing the similarity between the case which gave
         rise to the judgment in Case T‑345/03 Evropaïki Dynamiki v Commission [2008] ECR II‑341 and the case at present under appeal.
      
      26      The Commission contends, primarily, that the second part of the first ground of appeal is inadmissible and, alternatively,
         that it is unfounded.
      
      –       Findings of the Court
      27      Firstly, so far as concerns the first limb of the second part of the first ground of appeal, relating to paragraphs 76 to
         81 of the judgment under appeal, it must be noted that, in the light of the case-law cited at paragraph 18 of the present
         order, it is clearly inadmissible, given that those paragraphs contain only findings of fact and that no distortion of the
         facts is alleged in regard to them.
      
      28      Secondly, as regards the second limb of that second part of the first ground of appeal, challenging the assessment at paragraph
         82 of the judgment under appeal, and the alleged contradiction between that paragraph and paragraphs 85 and 86 of that judgment,
         it must be noted, first, that, given that no distortion of the facts is alleged in regard to such an assessment made by the
         General Court, that assessment cannot be subject to review by the Court of Justice in the present appeal.
      
      29      Furthermore, the appellant has not established any contradiction between paragraph 82 of the judgment under appeal, according
         to which there are differences between the NCTS and the EMCS, and paragraphs 85 and 86 of that judgment, which indicate a
         possible re-use of the NCTS for the purposes of the EMCS. The fact that the NCTS is capable of being re-used for the EMCS
         does not exclude the possibility that there may be differences between them.
      
      30      Consequently, the second limb of that second part of the first ground of appeal is in part clearly inadmissible and in part
         clearly unfounded.
      
      31      As regards the third limb of the second part of the first ground of appeal, challenging paragraphs 87 to 92 of the judgment
         under appeal, it is necessary to note that an appeal must indicate precisely the contested elements of that judgment which
         the appellant seeks to have set aside and also the legal arguments specifically advanced in support of the appeal. That requirement
         is not satisfied by an appeal which, without even including an argument specifically identifying the error of law allegedly
         vitiating the judgment under appeal, confines itself to reproducing the pleas in law and arguments previously submitted to
         the General Court. Such an appeal amounts in reality to no more than a request for re‑examination of the application submitted
         to the General Court, which the Court of Justice does not have jurisdiction to undertake (see, inter alia, judgments in Case
         C‑352/98 P Bergaderm and Goupil v Commission [2000] ECR I‑5291, paragraphs 34 and 35, and in Case C‑248/99 P France v Monsanto and Commission [2002] ECR I‑1, paragraph 68; and order of 23 May 2007 in Case C‑99/07 P Smanor and Others v Commission, paragraph 15).
      
      32      It is, however, clear that, by that third limb of the second part of the first ground of appeal, Evropaïki Dynamiki is, in
         essence, asking the Court of Justice to rule again on certain aspects of the dispute, on the basis of arguments already set
         out before the General Court, without invoking any error of law vitiating the assessments made by the General Court at paragraphs
         87 to 92 of the judgment under appeal.
      
      33      It is for that reason clearly inadmissible.
      
      34      As regards the fourth limb of the second part of the first ground of appeal, challenging paragraphs 93 to 97 of the judgment
         under appeal, this is, in the light of the case-law cited at paragraph 31 of this order, also clearly inadmissible.
      
      35      That limb does not contain any legal arguments capable of calling into question either the conclusion arrived at by the General
         Court, at paragraphs 93 and 97 of the judgment under appeal, that Evropaïki Dynamiki had not shown how access to the NCTS
         source-code could have been useful for the purpose of pricing its tenders, or the reasoning, at paragraphs 95 and 96 of that
         judgment, in support of that conclusion.
      
      36      Finally, as regards the fifth limb of the second part of the first ground of appeal, challenging the finding made at paragraph
         98 of the judgment under appeal, as regards the case giving rise to the judgment of the General Court in Case T‑345/03 Evropaïki Dynamiki v Commission, a case in which non-communication of the NCTS source-code had been a factor which led the General Court to annul the Commission’s
         decision excluding the appellant’s tender, it must be noted that, at paragraph 98 of the judgment at present under appeal,
         the General Court drew a distinction with regard to the facts of that earlier case on the ground that, in it, the call for
         tenders had concerned availability and development of the existing system Cordis, whereas, in the present case, the facts
         concerned a call for tenders in respect of the development of a new system.
      
      37      Evropaïki Dynamiki disputes that factual assessment by the General Court, but merely claims that those cases are equivalent,
         without setting out reasons for its disagreement on this point.
      
      38      This limb of the second part of the first ground of appeal is, therefore, in the light of the case-law cited at paragraph
         18 of the present order, clearly inadmissible.
      
      39      In those circumstances, the second part of the first ground of appeal is in part clearly inadmissible and in part clearly
         unfounded.
      
      40      Consequently, the first ground of appeal raised by Evropaïki Dynamiki must be rejected.
      
       The second ground of appeal, challenging the General Court’s rejection of the plea alleging that the contested decision was
            insufficiently reasoned
      –       Arguments of the parties
      41      Evropaïki Dynamiki submits that the General Court erred, at paragraphs 132 to 142 of the judgment under appeal, in finding
         that the Commission had supplied sufficient information to make it possible for that company to assert its rights and to enable
         the General Court to exercise its judicial review of the contested decision. Evropaïki Dynamiki maintains, first, that the
         Commission failed to provide the information which it had asked for concerning the reasons for the rejection of its tender
         as well as the relative advantages of the successful tender and, second, that it should have received a copy of the report
         of the evaluation committee which the contracting authority had set up for the purpose of awarding the contract at issue (‘the
         evaluation committee’), in accordance with paragraph 135 of the General Court’s judgment of 10 September 2008 in Case T-59/05
         Evropaïki Dynamiki v Commission.
      
      42      The Commission takes the view that the judgment under appeal is not vitiated by any error in this regard. 
      
      –       Findings of the Court
      43      Firstly, so far as concerns the allegation that the information and details requested from the Commission by Evropaïki Dynamiki
         were communicated to the latter in a manner which was insufficient to enable it to identify the reasons why its tender had
         been rejected, it should be pointed out that, although the contracting authority is obliged to transmit to a tenderer all
         the relevant factors on which it based its decision, it is not for that tenderer to dictate the form and content of that transmission.
      
      44      In this respect, it must be stated that the General Court acted correctly in law in taking the view, at paragraph 140 of the
         judgment under appeal, that, by communicating, first, the essential grounds for the rejection of Evropaïki Dynamiki’s tender,
         and, subsequently, the sufficiently detailed extract from the evaluation committee’s report, the Commission had provided,
         to the requisite legal standard, the reasons why the tender submitted by the consortium to which that company belonged had
         been rejected.
      
      45      In that regard, that second ground of appeal does not contain any argument capable of calling into question that assessment
         of the General Court.
      
      46      Secondly, as regards the judgment of the General Court in Case T‑59/05 in Evropaïki Dynamiki v Commission, to which Evropaïki Dynamiki refers in this ground of appeal, it must be stated that it does not follow from paragraphs 131
         to 135 of that judgment that the transmission of a copy of the evaluation committee’s report to those tenderers which have
         requested it is a prerequisite for accepting that the contracting authority has fulfilled its obligation to state the reasons
         for its decision rejecting the tender.
      
      47      That judgment cannot therefore reinforce the second ground raised by Evropaïki Dynamiki in support of its appeal and, consequently,
         that ground of appeal must be rejected as being clearly unfounded.
      
       The third ground of appeal: breach of Article 97 of the Financial Regulation and of Article 17(1) of Directive 92/50
      –       Arguments of the parties
      48      Evropaïki Dynamiki claims that the General Court, at paragraphs 104 to 116 of the judgment under appeal, erred in taking the
         view that Evropaïki Dynamiki had not demonstrated that the award criteria were vague and subjective, given that, in light
         of the uncertainty as to the scope of the work and the degree of potential re-use of the NCTS, no tenderer could reasonably
         have produced its tender. Evropaïki Dynamiki considers that the use of criteria that are not well specified in a call for
         tenders and the contract notice constitutes a breach of Article 97(1) of the Financial Regulation and of Article 17(1) of
         Directive 92/50 and that such criteria cannot be used when the tenders are being evaluated by the contracting authorities.
      
      49      The Commission contends that this ground is inadmissible and, in any event, wholly unfounded.
      
      –       Findings of the Court
      50      In the first place, it must be noted that the General Court found, at paragraph 104 of the judgment under appeal, that, pursuant
         to Article 105 of the Financial Regulation, from the date of entry into force of that regulation, namely 1 January 2003, the
         directives relating to the coordination of procedures for the award of public supply, service and works contracts did not
         apply to public contracts awarded by the European Union institutions on their own behalf except as regards questions concerning
         the thresholds which determine publication arrangements, the choice of procedures and corresponding time-limits. The General
         Court thus examined the second plea concerning the criteria for the award of the contract at issue relied on by Evropaïki
         Dynamiki in support of its action before that Court solely in the light of the provisions of the Financial Regulation and
         the rules for its implementation.
      
      51      It is, however, common ground that the third ground relied on by Evropaïki Dynamiki in support of its appeal does not contain
         any argument designed to show that Directive 92/50 is applicable in the present case.
      
      52      Secondly, it must be noted that, at paragraphs 107 to 109 of the judgment under appeal, the General Court found, on the one
         hand, that the contract award criteria, which had, in any event, to be aimed at identifying the offer which was economically
         the most advantageous, did not necessarily have to be quantitative, and, on the other hand, that those criteria appeared both
         in the contract notice at issue and in the specifications annexed to the invitation to tender and therefore fulfilled the
         condition of publicity laid down in Article 97(1) of the Financial Regulation.
      
      53      In that respect, as regards the breach of Article 97 of the Financial Regulation alleged by Evropaïki Dynamiki, it must be
         stated that the latter has not raised any argument in support of its third ground of appeal which is capable of casting doubt
         either on the General Court’s interpretation of that article or on the General Court’s assessment that the contract award
         criteria at issue complied with the requirements of that article.
      
      54      Thirdly, it must be stated that, at paragraphs 111 to 113 of the judgment under appeal, the General Court pointed out that
         Evropaïki Dynamiki had not put forward any evidence to support its claims that the award criteria for the contract at issue
         were vague and subjective, in the sense that they were unjustified and irrelevant in the light of that contract. The General
         Court also noted that, even if those criteria were not quantitative, that fact alone could not be taken to mean that the contracting
         authority had not applied them objectively and uniformly.
      
      55      Evropaïki Dynamiki does not, however, raise any argument in support of its third ground of appeal which is capable of bringing
         into question the General Court’s assessment that no evidence had been submitted by Evropaïki Dynamiki either in support of
         the allegedly vague and subjective nature of the award criteria for the contract at issue or in support of an alleged misapplication
         of those criteria.
      
      56      In those circumstances, that ground of appeal must be considered to be clearly inadmissible.
      
       The fourth ground of appeal: manifest error of assessment
      –       Arguments of the parties
      57      By the first part of its fourth ground of appeal, Evropaïki Dynamiki claims that, at paragraphs 156 to 160 of the judgment
         under appeal, the General Court erred in taking the view that the comment of the evaluation committee was well founded. It
         disputes the findings made by the General Court concerning the Gantt diagrams and maintains that the error relating to the
         first award criterion for the contract at issue was so grave that it also had a serious impact on the second to fourth criteria.
      
      58      By the second part of the fourth ground of appeal, Evropaïki Dynamiki submits that, at paragraphs 161 to 166 of the judgment
         under appeal, the General Court erred in finding that Evropaïki Dynamiki could not offer the Cocomo (‘Constructive Cost Model’)
         methodology. In its view, although the Cosmic FFP (‘Common Software Measurement International Consortium-FFP’) methodology
         is valid when a new project is being started up from zero, when a contractor re-uses the design and technical documentation
         and source-code of an existing IT application, namely NCTS, in order to develop a new application, namely EMCS, then only
         the Cocomo methodology is appropriate.
      
      59      By the third part of the fourth ground of appeal, Evropaïki Dynamiki claims that, at paragraphs 167 to 170 of the judgment
         under appeal, the General Court erred in finding that Evropaïki Dynamiki had failed to show that the evaluation committee
         had made an error of assessment. Evropaïki Dynamiki claims that the evaluation committee, wrongly, pointed to an inconsistency
         in the tender, where it found that, although that tender referred to RUP (‘Rational Unified Process’) as ‘the’ methodology
         to follow, it did not, however, refer to the holding of a licence for the IBM-Rational software, which was required in order
         to use that method, which maintained uncertainty as to the cost of the use of that software. Evropaïki Dynamiki stresses in
         this regard that the tender specifications did not require references to software, that it is self-evident in its business
         that it has licences for the tools used by it and that it is its responsibility to pay the costs relating to them.
      
      60      By the fourth part of the fourth ground of appeal, Evropaïki Dynamiki claims that, at paragraph 174 of the judgment under
         appeal, there is a contradiction in the reasoning of that paragraph. In that respect, Evropaïki Dynamiki claims that, given
         that the General Court acknowledged that the tender specifications did not require tenderers to have customs and excise experience,
         it is for that reason difficult to understand why the fact that Evropaïki Dynamiki referred to such experience in the tender,
         without, however, proving that it had it, should have been regarded as a negative point and have led to lower evaluation marks
         than those of other tenderers.
      
      61      The Commission takes the view, primarily, that this ground of appeal is inadmissible. It claims, alternatively, that it is
         ineffective and, in any event, unfounded.
      
      –       Findings of the Court
      62      So far as concerns the first and third parts of this ground of appeal, it must be noted that these criticise certain of the
         evaluation committee’s comments and are limited to taking issue with the General Court for not upholding those points of criticism.
      
      63      Those parts of the ground of appeal do not attempt to demonstrate the existence of errors of law allegedly vitiating the judgment
         under appeal, but seek, by reproducing the arguments relied on in the proceedings at first instance, to secure a re-examination
         of the application submitted to the General Court, something which falls outside the jurisdiction of the Court of Justice
         (see, to that effect, judgments in Case C‑76/01 P Eurocoton and Others v Council [2003] ECR I‑10091, paragraphs 46 and 47, and in Case C‑280/08 P Deutsche Telekom v Commission [2010] ECR I‑0000, paragraph 24).
      
      64      Therefore, those parts must be rejected as being clearly inadmissible.
      
      65      With regard to the second part of the fourth ground of appeal, it is necessary to bear in mind, first, that the General Court
         found that, although the tender specifications for the contract at issue had required use of the Cosmic-FFP system to provide
         estimates, Evropaïki Dynamiki’s tender referred to the Cocomo method and to the Calico (‘Computer-Assisted Language Instruction
         Consortium’) and Costar tools, which are software evaluation tools based on that method.
      
      66      Next, it must be noted that the General Court held, at paragraph 165 of the judgment under appeal, that the evaluation committee
         had criticised Evropaïki Dynamiki’s tender for not specifying the tools that were to be used within the framework of the Cosmic-FFP
         system.
      
      67      Finally, it must be borne in mind that the General Court noted that Evropaïki Dynamiki did not contest those factual elements
         and also did not claim that those elements were of such a nature as to mean that the assessment of the tender carried out
         by the evaluation committee was incorrect.
      
      68      Given that Evropaïki Dynamiki did not dispute the abovementioned facts before the General Court, Evropaïki Dynamiki cannot
         now complain, in its appeal, that the General Court confirmed those facts and drew an unambiguous conclusion.
      
      69      Furthermore, as the Commission maintains, a tenderer cannot impose on a contracting authority the use of a particular IT system.
      
      70      It follows that the second part of the fourth ground of appeal is clearly inadmissible.
      
      71      The fourth part of that ground of appeal is based on a misreading of paragraphs 174 and 175 of the judgment under appeal.
      
      72      In those paragraphs, the General Court found that, although the tender specifications in question did not require tenderers
         to have customs and excise experience, Evropaïki Dynamiki’s tender referred to such experience. The General Court also noted
         that that experience had not been demonstrated in that tender or during the proceedings at first instance. In those circumstances,
         the General Court held that the evaluation committee’s comment, in so far as it was based on those statements and pointed
         out that those matters were inconsistent, was such as to help to clarify matters for the contracting authority and was not
         incorrect.
      
      73      Firstly, however, no argument has been put forward, in support of this fourth part of the fourth ground of appeal, that is
         capable of showing that the General Court erred in the assessment of the evaluation committee’s comment. Furthermore, Evropaïki
         Dynamiki does not claim that that assessment was based on facts which were distorted by the General Court.
      
      74      Secondly, even if that comment were inaccurate, it cannot in any way be inferred from that inaccuracy that the General Court
         committed a manifest error of assessment.
      
      75      The fourth part of the fourth ground of appeal is thus clearly inadmissible.
      
      76      Consequently, the fourth ground of appeal put forward by Evropaïki Dynamiki must be rejected as being clearly inadmissible.
      
      77      In those circumstances, since none of the grounds put forward by Evropaïki Dynamiki in support of its appeal can be upheld,
         that appeal must be dismissed as being in part clearly inadmissible and in part clearly unfounded. 
      
       Costs
      78      Under Article 69(2) of the Rules of Procedure, which is applicable to the procedure on appeal pursuant to Article 118 of those
         Rules, the unsuccessful party is to be ordered to pay the costs if they have been asked 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 (Seventh Chamber) hereby orders:
      1.      The appeal is dismissed.
      2.      Evropaïki Dynamiki – Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE shall pay the costs.
      [Signatures]
      * Language of the case: English.