CELEX: 62010CO0561
Language: en
Date: 2011-09-20 00:00:00
Title: Order of the Court (Seventh Chamber) of 20 September 2011.#Evropaïki Dynamiki - Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE v European Commission.#Appeal - Public service contracts - Invitation to tender - Computing services for the maintenance of the SEI-BUD/AMD/CR systems - Rejection of the tender - Inadequate statement of reasons - Incorrect assessment of the facts and evidence.#Case C-561/10 P.

ORDER OF THE COURT (Seventh Chamber)
      20 September 2011 (*)
      
      (Appeal – Public service contracts – Invitation to tender – Computing services for the maintenance of the SEI-BUD/AMD/CR systems – Rejection of the tender – Inadequate statement of reasons – Incorrect assessment of the facts and evidence)
      In Case C‑561/10 P,
      APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 19 November 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 S. Delaude and N. Bambara, acting as Agents, 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 T. von Danwitz, Judges,
      Advocate General: N. Jääskinen,
      Registrar: A. Calot Escobar,
      after hearing the Advocate General,
      makes the following
      Order
      1        In its appeal, Evropaïki Dynamiki – Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE (‘Evropaïki Dynamiki’)
         asks the Court to set aside the judgment of the General Court of the European Union of 9 September 2010 in Case T-387/08 Evropaïki Dynamiki v Commission (‘the judgment under appeal’), by which that Court dismissed, first, its action for annulment of the decision of the Publications
         Office of the European Union of 20 June 2008 to reject the tender submitted by the appellant, filed in response to the call
         for tender No AO 10185 in respect of the conclusion of framework contracts for computing services for the maintenance of the
         SEI-BUD/AMD/CR systems and related services and of the decision to award the contract to another bidder (‘the contested decision’)
         and, second, its claim for damages.
      
      2        So far as concerns the legal framework of the case, the facts giving rise to the dispute and the procedure before the General
         Court, reference is made to paragraphs 1 to 25 of the judgment under appeal.
      
       Forms of order sought
      3        In its appeal, Evropaïki Dynamiki asks the Court to set aside the judgment under appeal and the contested decision, to award
         it damages and to order the European Commission to pay the costs, including those incurred at first instance.
      
      4        The Commission contends that the Court should dismiss the appeal and order Evropaïki Dynamiki to pay the costs in both sets
         of proceedings.
      
       The appeal 
      5        Under Article 119 of its Rules of Procedure, where the 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,
         dismiss the appeal in whole or in part by reasoned order.
      
      6        The appeal consists of four grounds of appeal alleging, first, an inadequate statement of reasons for the judgment under appeal,
         second, misinterpretation of Article 100(2) 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), as amended by Council Regulation
         (EC, Euratom) No 1995/2006 of 13 December 2006 (OJ 2006 L 390, p. 1) (‘the Financial Regulation’), and of Article 149 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), as amended by Commission Regulation (EC, Euratom) No 478/2007 of 23 April 2007 (OJ 2007
         L 111, p. 13) (‘the Implementing Rules’), third, misinterpretation of Article 97 of the Financial Regulation and of Article 138
         of the Implementing Rules, as well as, fourth, distortion and incorrect assessment of the facts and evidence.
      
       First ground of appeal: inadequate statement of reasons
      7        By the first part of its first ground of appeal, Evropaïki Dynamiki claims that the General Court did not give sufficient
         grounds for the rejection of its plea that the contested decision was inadequately reasoned. According to the appellant, the
         General Court erred in finding, in a summary and generic manner, in paragraphs 48 to 60 of the judgment under appeal, in respect
         of award criteria Nos 1 to 5 and award sub-criteria Nos 2.1 to 2.3, 3.1, 4.1, 5.1 and 5.3 to 5.7, that the explanations with
         regard to the number of points awarded to the appellant were sufficient, whereas it set out detailed reasons for its findings
         as regards award sub-criteria Nos 2.4, 2.5, 2.7, 3.2, 4.2, and 5.2, in respect of which there was found to be an inadequate
         statement of reasons. 
      
      8        In that regard, it must be stated that, contrary to Evropaïki Dynamiki’s contention, not only do paragraphs 48 to 50 of the
         judgment under appeal concern the marks awarded for award criteria Nos 1 to 5 and award sub-criteria Nos 2.1 to 2.3, 3.1,
         4.1, 5.1 and 5.3 to 5.7, but paragraphs 80 to 157 of that judgment, which deal with the Publication Office’s assessment of
         the tender by reference to those award criteria and award sub-criteria, also concern those marks.
      
      9        Since, by the first part of the first ground of appeal, Evropaïki Dynamiki alleges an inadequate statement of reasons, but
         fails to address paragraphs 80 to 157 of the judgment under appeal, this first part of the first ground of appeal must be
         rejected as being manifestly unfounded.
      
      10      By the second part of its first ground of appeal, Evropaïki Dynamiki claims that the General Court did not give sufficient
         grounds for the rejection of its plea alleging infringement of the principle of equal treatment and of the obligation of transparency.
         Furthermore, according to the appellant, paragraphs 72 to 75 of the judgment under appeal do not scrutinise fully and individually
         its arguments concerning that infringement.
      
      11      In that regard, it must be noted that Evropaïki Dynamiki, in its action brought before the General Court, essentially alleged,
         in accusing the Publications Office of having infringed the principles of transparency and of equal treatment, that there
         had been non-disclosure of the relative merits of the successful tenderer as well as confusion with regard to the selection
         criteria and award criteria.
      
      12      In that action, the appellant neither relied on any other forms of infringement of the principles of transparency and of equal
         treatment, nor provided any explanation as to the exact manner, apart from the claims of non-disclosure and confusion, in
         which those principles had been infringed.
      
      13      It must be stated that the arguments of Evropaïki Dynamiki concerning the non‑disclosure of the relative merits of the successful
         tenderer and confusion with regard to the selection criteria and award criteria were examined sufficiently, first, in paragraphs
         42, 44 and 62 to 68 of the judgment under appeal and, second, in paragraphs 72 to 75 of that judgment.
      
      14      As regards the claims based on infringement of the principles of transparency and of equal treatment, apart from the claims
         of non-disclosure and confusion, suffice it to note that those claims were not raised, in substance, before the General Court
         and must therefore be declared inadmissible in the present appeal proceedings (see, to that effect, Case C­‑407/04 P Dalmine v Commission [2007] ECR I‑829, paragraph 121 and the case-law cited there).
      
      15      Lastly, it should be noted that the second and third grounds of appeal relate expressly to the examination of those arguments
         by the General Court.
      
      16      In those circumstances, the second part of the first ground of appeal, in so far as it alleges an inadequate statement of
         reasons for the rejection of the plea concerning infringement of the principles of equal treatment and of transparency, as
         well as a lack of an exhaustive and individual examination of the infringement of those principles, is in part manifestly
         inadmissible and in part manifestly unfounded.
      
      17      Consequently, the first ground of appeal must be rejected as being in part manifestly inadmissible and in part manifestly
         unfounded.
      
       Second ground of appeal: misinterpretation of Article 100(2) of the Financial Regulation and of Article 149 of the Implementing
            Rules
      18      By its second ground of appeal, Evropaïki Dynamiki claims that the General Court misinterpreted Article 100(2) of the Financial
         Regulation and Article 149 of the Implementing Rules.
      
      19      According to Evropaïki Dynamiki, the General Court misinterpreted those provisions by failing to find that, pursuant to those
         provisions, the Publications Office ought to have provided it, further to its written request, with a full copy of the evaluation
         report.
      
      20      Moreover, according to Evropaïki Dynamiki, the General Court erred in law in finding, in paragraphs 62 to 66 of the judgment
         under appeal, that, as its tender had not reached the 70% threshold, Article 100(2) of the Financial Regulation and Article
         149 of the Implementing Rules did not require the contracting authority to notify it of the characteristics and relative merits
         of the successful tenderer. Evropaïki Dynamiki claims that, as the bids which had successfully passed the selection phase
         could not be considered to be inadmissible within the terms of those provisions, it ought to have received information on
         the relative merits of the successful tenderer. 
      
      21      In that regard, it must be borne in mind that, according to the first subparagraph of Article 100(2) of the Financial Regulation,
         the contracting authority is required to notify all candidates or tenderers whose applications or tenders are rejected of
         the grounds on which the decision was taken, and to notify 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 has been awarded. The second subparagraph of Article 100(2) provides, however, that 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.
      
      22      In accordance with the fourth subparagraph of Article 149(3) of the Implementing Rules, unsuccessful tenderers may request
         additional information about the reasons for their rejection in writing, and all tenderers who have put in an admissible tender
         may obtain information about the characteristics and relative merits of the successful tender and the name of the tenderer
         to whom the contract has been awarded, without prejudice to the second subparagraph of Article 100(2) of the Financial Regulation.
         
      
      23      It follows from those provisions that the Publications Office was required, in the present case, to notify Evropaïki Dynamiki
         of the characteristics and relative merits of the successful tender and of the name of the tenderer to whom the contract had
         been awarded.
      
      24      However, it is clear from the documents in the file that the Publications Office complied with that obligation to inform and
         that, as the General Court correctly stated in the judgment under appeal, first, information concerning the relative merits
         of the successful tenderer to whom the contract had been awarded was communicated by the Publications Office to Evropaïki
         Dynamiki and, second, that information indicated the characteristics and relative merits of the successful tender.
      
      25      As regards the specific arguments raised by Evropaïki Dynamiki, it must be stated, first, that it does not follow from the
         wording of those provisions or from the judgment of 10 September 2008 in Case T‑59/05 Evropaïki Dynamiki v Commission, relied on by Evropaïki Dynamiki, that, upon written request from an unsuccessful tenderer, the contracting authority is
         under an obligation to provide it with a full copy of the evaluation report.
      
      26      Second, so far as concerns the arguments in respect of the information on the relative merits of the successful tenderer,
         it is apparent, first of all, from paragraph 42 of the judgment under appeal that the Publications Office reproduced, in the
         contested decision, the conclusions of the Evaluation Committee by stating the name of the successful tenderer, the value
         of the contract which it had proposed and the number of points which it had scored by reference to each of the award criteria.
         Next, it is clear from paragraph 43 of that judgment that the Publications Office provided, by its letter of 25 June 2008,
         a comparative table of the points scored by the appellant and by the successful tenderer by reference to each of the award
         criteria and sub-criteria. Lastly, as is apparent from paragraphs 44 and 45 of that judgment, the Publications Office, in
         its letter of 24 July 2008, provided more detailed assessments by reference to the award criteria and sub-criteria in question,
         together with a table of the points scored by the successful tenderer accompanied by a brief commentary on each of the award
         criteria and sub-criteria, and the comments put forward in that letter were to be taken into account, provided that those
         comments did not replace the original statement of reasons contained in the contested decision and in the letter of 25 June
         2008.
      
      27      Furthermore, in the context of notification of the characteristics and relative merits of the successful tender, the contracting
         authority cannot be required, on the basis of the first subparagraph of Article 100(2) of the Financial Regulation and the
         fourth subparagraph of Article 149(3) of the Implementing Rules, to undertake a detailed comparative analysis of the successful
         tender and of the unsuccessful tender.
      
      28      In those circumstances, the General Court did not err in finding, in paragraphs 63 to 66 of the judgment under appeal, after
         having noted that the statement of reasons provided by the Publications Office in respect of the numerous award criteria and
         sub-criteria was adequate, that the contested decision was not based on a comparison of the deliverables of the various tenderers
         and that, in the present case, the information concerning the successful tenderer which was communicated by the Publications
         Office was sufficient in the light of the relevant requirements.
      
      29      Consequently, the second ground of appeal must be rejected as being manifestly unfounded.
      
       Third ground of appeal: misinterpretation of Article 97 of the Financial Regulation and of Article 138 of the Implementing
            Rules
      30      By its third ground of appeal, Evropaïki Dynamiki claims that the General Court misinterpreted Article 97 of the Financial
         Regulation and Article 138 of the Implementing Rules by accepting the repetition, during the award stage, of the review carried
         out by the Publications Office during the selection phase. Evropaïki Dynamiki submits that, as those phases must be separated,
         the General Court should not have approved, under those provisions, such a double review of the best practice criteria by
         reference to award sub-criterion No 3.2 and that the contract should have been awarded to the tenderer who had submitted the
         tender with the best price-quality ratio.
      
      31      As regards the review phase and the best-value-for-money procedure, it must be borne in mind that Article 97 of the Financial
         Regulation provides that contracts are to be awarded on the basis of the award criteria applicable to the content of the tender
         after the capability of economic operators not excluded has been checked in accordance with the selection criteria contained
         in the documents relating to the call for tenders, and that the contract is to be awarded by the best-value-for-money procedure.
         
      
      32      It must also be borne in mind that, in accordance with Article 138 of the Implementing Rules, the tender offering the best
         value for money is that which has the best price-quality ratio, taking into account criteria justified by the subject of the
         contract, such as the price quoted, technical merit, aesthetic and functional characteristics, environmental characteristics,
         running costs, profitability, completion or delivery times, after-sales service and technical assistance. That article also
         provides that the contracting authority is to specify, in the contract notice or in specifications, the weighting which it
         will apply to each of the criteria for determining best value for money.
      
      33      However, none of the arguments put forward by Evropaïki Dynamiki in the context of the third ground of appeal demonstrates
         that the General Court misinterpreted or infringed those provisions by finding, in paragraph 74 of the judgment under appeal,
         that, whilst the review carried out during the selection stage was, in accordance with the provisions of the specifications,
         a review of the capability of tenderers, the review carried out during the award stage covered compliance with the criterion
         of the number of pages to be included in the tender in relation to that aspect. 
      
      34      The General Court was therefore able to conclude, in that same paragraph of the judgment under appeal, that, if the tender
         at issue had satisfied the selection criterion as to the content of the best practice documents, the Publications Office would
         not in any way have been precluded as a result from taking into account, in its examination of the award criteria and sub-criteria,
         the fact that the volume of best practice documents exceeded the maximum number of pages permitted.
      
      35      In those circumstances, the third ground of appeal must be rejected as being manifestly unfounded.
      
       Fourth ground of appeal: distortion and incorrect assessment of the facts and evidence
      36      In the fourth ground of appeal, Evropaïki Dynamiki claims that the General Court distorted and incorrectly assessed several
         facts and items of evidence, but limits itself to a reasoned challenge to three assessments made in the judgment under appeal.
      
      37      First, it argues, the General Court incorrectly assessed the facts in finding, in paragraphs 86 to 88 of the judgment under
         appeal, that the obvious clerical errors contained in the tables provided by Evropaïki Dynamiki were calculation errors.
      
      38      Second, Evropaïki Dynamiki submits that paragraph 110 of the judgment under appeal is vitiated by a similarly incorrect assessment
         because a clerical error, of a similar type to the aforementioned errors, was there categorised, incorrectly, as a calculation
         error on the part of Evropaïki Dynamiki.
      
      39      Third, according to Evropaïki Dynamiki, the General Court distorted evidence, in paragraph 115 of the judgment under appeal,
         in finding that the reference made by the appellant to meetings also covered video-conferences.
      
      40      With regard to paragraphs 86 to 88 and 110 of the judgment under appeal, it must be noted that the General Court’s assessment
         with regard to the alleged clerical errors is not vitiated by any mistake. 
      
      41      The arguments of Evropaïki Dynamiki do not in any way establish that those errors should not have been taken into account
         by the Publications Office, or that the latter should have been required to correct the tables provided by the appellant.
      
      42      The General Court therefore acted correctly in law in holding that the errors in question were calculation errors which the
         Publications Office could not reasonably have been required to correct.
      
      43      As regards the alleged distortion of evidence, the General Court noted, in paragraph 115 of the judgment under appeal, first
         of all, that the specifications mentioned the need to hold regular meetings throughout the duration of the contract and specifically
         required that, at the very least, the project manager should be physically present at every meeting. Next, the General Court
         held that the appellant nowhere referred to information concerning the physical presence of a member of its staff at every
         meeting. Lastly, the General Court noted the existence of proposals put forward by the appellant in its bid concerning a system
         whereby communication between the parties would be by video-conference, which were likely to reinforce the Publications Office’s
         doubts as to whether Evropaïki Dynamiki’s representatives would be physically present at the meetings.
      
      44      It must accordingly be held that, contrary to the claims made by Evropaïki Dynamiki, the General Court did not distort evidence
         in respect of the meetings and video-conferences. On the contrary, the General Court explained why Evropaïki Dynamiki could
         not reasonably claim that the physical presence of a project manager was implied when it referred to the holding of meetings.
      
      45      The fourth ground of appeal must therefore be rejected as being manifestly unfounded.
      
      46      Consequently, as none of the grounds put forward by Evropaïki Dynamiki in support of its appeal can be upheld, the appeal
         must be dismissed in its entirety as being in part manifestly inadmissible and in part manifestly unfounded.
      
      47      That being so, there is no need to adjudicate on the claim for damages made by Evropaïki Dynamiki.
      
       Costs
      48      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 and Evropaïki Dynamiki has been unsuccessful, Evropaïki Dynamiki must be ordered
         to pay the costs of the appeal before the Court.
      
      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.