CELEX: 62016CO0088
Language: en
Date: 2016-07-07 00:00:00
Title: Order of the Court (Ninth Chamber) of 7 July 2016.#European Dynamics Luxembourg SA and Evropaïki Dynamiki - Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE v European Joint Undertaking for ITER and the Development of Fusion Energy.#Appeal — Article 181 of the Rules of Procedure of the Court of Justice — Public service contracts — Tendering procedure — Supply of IT, consulting, software development, Internet and support services — Rejection of the tender of one tenderer and award of the contracts to other tenderers — Obligation to state reasons.#Case C-88/16 P.

ORDER OF THE COURT (Ninth Chamber)
      7 July 2016 (*)
      
      (Appeal — Article 181 of the Rules of Procedure of the Court of Justice — Public service contracts — Tendering procedure — Supply of IT, consulting, software development, Internet and support services — Rejection of the tender of one tenderer and award of the contracts to other tenderers — Obligation to state reasons)
      In Case C‑88/16 P,
      APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 12 February 2016,
      European Dynamics Luxembourg SA, established in Luxembourg (Luxembourg), 
      
      Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE, established in Athens (Greece),
      
      represented by M. Sfyri, C.-N. Dede and D. Papadopoulou, dikigoroi,
      appellants,
      the other party to the proceedings being:
      European Joint Undertaking for ITER and the Development of Fusion Energy (Fusion for Energy),
      defendant at first instance,
      THE COURT (Ninth Chamber),
      composed of C. Lycourgos, President of the Chamber, E. Juhász (Rapporteur) and C. Vajda, Judges,
      Advocate General: P. Mengozzi,
      Registrar: A. Calot Escobar,
      having decided, after hearing the Advocate General, to give a decision by reasoned order, in accordance with Article 181 of
         the Rules of Procedure of the Court,
      
      makes the following
      Order
      1        By their appeal, European Dynamics Luxembourg SA and Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis
         kai Tilematikis AE seek to have set aside the judgment of the General Court of the European Union of 2 December 2015 in European Dynamics Luxembourg and Evropaïki Dynamiki v Joint Undertaking Fusion for Energy (T‑553/13, not published, ‘the judgment under appeal’, EU:T:2015:918), by which the General Court dismissed their action
         seeking, first, annulment of the decision of the European Joint Undertaking for ITER and the Development of Fusion Energy
         (Fusion for Energy) of 7 August 2013 taken in the context of the tendering procedure F4E-ADM-0464 concerning IT, consulting,
         software development, Internet and support services (OJ 2012/S 213-352451), rejecting the tender submitted by European Dynamics
         Luxembourg and awarding the contracts to other tenderers, and, second, an award of damages.
      
      2        In support of their appeal, the appellants put forward a single ground alleging misinterpretation and distortion of the relevant
         evidence by the General Court in its assessment of whether the contracting authority had complied with its obligation to state
         reasons.
      
       The appeal
      3        Under Article 181 of the Rules of Procedure of the Court of Justice, where an appeal is, in whole or in part, manifestly inadmissible
         or manifestly unfounded, the Court may at any time, acting on a report from the Judge-Rapporteur and after hearing the Advocate
         General, decide by reasoned order to dismiss the appeal in whole or in part.
      
      4        It is appropriate to apply that provision in the present case. 
      
      5        On 30 May 2016, the Advocate General took the following position: 
      
      ‘I propose that the Court should dismiss the appeal in the present case as being in part manifestly inadmissible and in part
         manifestly unfounded and order [the appellants] to pay the costs, in accordance with Article 137 of the Rules of Procedure,
         for the following reasons: 
      
      1.      In support of their appeal, the appellants raise a single ground in which they challenge the analysis made in paragraphs 31
         to 54 of the judgment under appeal, in which the General Court rejected their plea alleging a failure on the part of the contracting
         authority to give reasons. The single ground of appeal is divided into two branches.
      
      2.      In their first branch, the appellants argue that, by misinterpreting and distorting the evidence, the General Court erred
         in law in so far as it held that they had been able to understand the reasons for the rejection of their tender.
      
      3.      In that regard, I note, first, that the appellants’ arguments claiming that there was an erroneous assessment of the evidence,
         and not a distortion of that evidence, must be declared manifestly inadmissible. According to established case-law, the General
         Court has exclusive jurisdiction to assess the evidence and the assessment of that evidence therefore does not, save where
         the facts and evidence are distorted, constitute a question of law which is, as such, amenable to review by the Court of Justice.
      
      4.      With respect, second, to the argument that the vague and generic term ‘better quality and merit’ used for the evaluation of
         the tenders included in the documents sent to the appellants does not indicate clearly and unequivocally the reasoning of
         the contracting authority, it is evident that this corresponds to arguments already put forward before the General Court.
         It must therefore be declared manifestly inadmissible (see, to that effect, judgment of 9 June 2011 in Evropaïki Dynamiki v ECB, C‑401/09 P, EU:C:2011:370, paragraph 55, and order of 12 September 2011 in Evropaïki Dynamiki v Commission, C‑289/10 P, not published, EU:C:2011:572, paragraph 63).
      
      5.      Third, the appellants claim that the General Court erred in law inasmuch as it did not find that, in the absence of specific
         comments on the scores awarded to the successful tenders and in the absence of a detailed evaluation report which explains
         and justifies, at least briefly, the purported advantages and benefits of the bids of the successful tenderers, they were
         not in a position to understand the reasons why their tender had been rejected. I conclude that that complaint is manifestly
         unfounded. 
      
      6.      In this regard, I note, first, that in paragraphs 38 to 42 of the judgment under appeal the General Court did indeed set out
         the principles of the settled case-law in this area and in particular the principles that a contracting authority cannot be
         required to communicate to an unsuccessful tenderer either full copies of the evaluation report and of the successful tender
         or, in the context of notification of the characteristics and relative advantages of the successful tender, a detailed comparative
         analysis of the successful tender and of the unsuccessful tender. Subsequently, in paragraphs 43 to 47 of the judgment under
         appeal, the General Court indicated, and then, in paragraphs 48 to 50 of that judgment, reviewed, the information which had
         been provided to the appellants. In that review, it took into account the fact that the comments regarding the evaluation
         of the bids of the successful tenderers were less detailed than those provided in respect of the appellants’ tender.
      
      7.      On the basis of this analysis the General Court was able, without erring, to find that, depending on the circumstances in
         the present case, and in line with the settled case-law in this area, the information relating to the successful tenderer
         provided by the contracting authority was, in the present case, sufficient to enable the appellants to understand why their
         tender had been rejected (see, by analogy, order of 13 October 2011 in Evropaïki Dynamiki v Commission, C‑560/10 P, not published, EU:C:2011:657, paragraphs 16 to 18, and judgment of 4 October 2012 in Evropaïki Dynamiki v Commission, C‑629/11 P, not published, EU:C:2012:617, paragraphs 16 to 32).
      
      8.      Finally, as regards, fourth, the alleged distortion of the evidence, it is far from obvious that the General Court distorted
         the evidence when it took the view that, even though the comments concerning the evaluation of the successful tenders were
         less detailed than those provided in respect of the appellants’ tender, they allowed the appellants, reading them in conjunction
         with the other documents provided, to understand the reasons why their tender had been rejected. By that assessment, the General
         Court has, on the contrary, explained why the lack of precision of the comments did not prevent the appellants from understanding
         the reasons for that rejection.
      
      9.      In the second branch of their single ground of appeal, the appellants submit that the General Court erred in law in stating,
         in paragraph 51 of the judgment under appeal, that they “have failed to identify and to challenge, in a detailed manner, the
         specific points of the reasons … which they could consider to be inadequate”.
      
      10.      In that regard, first, it should be noted that, in paragraph 51 of the judgment under appeal, the General Court indicated
         that the general and unsubstantiated challenges of the appellants were not sufficient to call into question the adequacy of
         the reasons for the award decision, as analysed in paragraphs 48 to 50 of the judgment under appeal. Thus, since the rejection
         of the appellants’ plea was based, to the requisite legal standard, on the analysis of the statement of reasons carried out
         in paragraphs 48 to 50 of the judgment under appeal, the second branch of the single ground of appeal, inasmuch as it relates
         to paragraph 51 of that judgment, is directed against a ground of the judgment under appeal adopted for the sake of completeness
         and is therefore ineffective.
      
      11.      Second, it is clear that, by that branch, the appellants do no more, essentially, than to repeat the argument concerning the
         use of the vague and generic term “better quality and merit” already mentioned in point 4 above and continue to fail to identify
         in detail the specific points and elements of the statement of reasons the inadequacy of which allegedly prevented them from
         understanding why their tender had been rejected. In those circumstances, that second branch is, in my opinion, in any event,
         manifestly unfounded.’
      
      6        For the same reasons as those given by the Advocate General, the appeal must be dismissed. 
      
       Costs
      7        Under Article 137 of the Rules of Procedure of the Court of Justice, applicable to the procedure on appeal pursuant to Article 184(1)
         of those rules, a decision as to costs is to be given in the order which closes the proceedings. In the present case, since
         the present order is adopted before the appeal has been served on the respondent, and therefore before the latter could have
         incurred costs, European Dynamics Luxembourg and Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai
         Tilematikis must be ordered to bear their own costs.
      
      On those grounds, the Court (Ninth Chamber) hereby orders:
      1.      The appeal is dismissed.
      2.      European Dynamics Luxembourg SA and Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis
            AE shall bear their own costs.
      [Signatures]
      * Language of the case: English.