Commission of the European Communities v CAS Succhi di Frutta SpA.
Date: 2004-04-29
48. As regards the admissibility of this plea, it must be recalled that, according to settled case-law, it follows from Article 225 EC, the first paragraph of Article 51 of the Statute of the Court of Justice and Article 112(1)(c) of the Rules of Procedure of the Court of Justice that an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of the appeal (see, in particular, Case C-41/00 P Interporc Im- und Export v Commission  [2003] ECR I‑2125, paragraph 15).
49. Where an appeal merely repeats or reproduces verbatim the pleas in law and arguments previously submitted to the Court of First Instance, including those based on facts expressly rejected by that Court, it fails to satisfy the requirements to state reasons under those provisions (see inter alia the judgment in Interporc , cited above, at paragraph 16).
50. However, provided that the appellant challenges the interpretation or application of Community law by the Court of First Instance, the points of law examined at first instance may be discussed again in the course of an appeal. Indeed, if an appellant could not thus base his appeal on pleas in law and arguments already relied on before the Court of First Instance, an appeal would be deprived of part of its purpose (see inter alia the judgment in Interporc , cited above, at paragraph 17).
68. It must be pointed out that, in accordance with the case-law of the Court of Justice, where one of the grounds adopted by the Court of First Instance is sufficient to sustain the operative part of its judgment, any defects that might vitiate other grounds given in the judgment concerned in any event have no bearing on that operative part and, accordingly, a plea relying on such defects is ineffective and must be dismissed (see, inter alia, Case C-326/91 P de Compte v Parliament [1994] ECR I-2091, paragraph 94, and order in Case C‑49/96 P Progoulis  v Commission [1996] ECR I-6803, paragraph 27).
108. The Court has consistently held, in cases concerning public procurement, that the contracting authority is required to comply with the principle that tenderers should be treated equally (see, inter alia, Joined Cases C-285/99 and C-286/99 Lombardini and Mantovani [2001] ECR I-9233, paragraph 37, and Case C-315/01 GAT  [2003] ECR I-6351, paragraph 73).
109. It is also clear from the case-law that the abovementioned principle implies an obligation of transparency in order to permit verification that it has been complied with (see, inter alia, Case C-92/00 HI  [2002] ECR I-5553, paragraph 45, and Case C-470/99 Universale-Bau and Others  [2002] ECR I-11617, paragraph 91).
110. Under the principle of equal treatment as between tenderers, the aim of which is to promote the development of healthy and effective competition between undertakings taking part in a public procurement procedure, all tenderers must be afforded equality of opportunity when formulating their tenders, which therefore implies that the tenders of all competitors must be subject to the same conditions.
111. The principle of transparency which is its corollary is essentially intended to preclude any risk of favouritism or arbitrariness on the part of the contracting authority. It implies that all the conditions and detailed rules of the award procedure must be drawn up in a clear, precise and unequivocal manner in the notice or contract documents so that, first, all reasonably informed tenderers exercising ordinary care can understand their exact significance and interpret them in the same way and, secondly, the contracting authority is able to ascertain whether the tenders submitted satisfy the criteria applying to the relevant contract.
112. In view of their significance, objective and effectiveness those principles must also be observed in the case of a special tendering procedure such as that at issue, while any special features of that procedure can be taken into account if necessary.
115. Against that background, it consequently falls to the Commission, in its capacity as contracting authority, strictly to comply with the criteria which it has itself laid down on that basis not only in the tendering procedure per se , which is concerned with assessing the tenders submitted and selecting the successful tenderer, but also, more generally, up to the end of the stage during which the relevant contract is performed.
117. Consequently, in a situation such as that arising here, the contracting authority could not, once the contract had been awarded and, moreover, by a decision which derogates in its substance from the provisions of the earlier regulations, amend a significant condition of the invitation to tender such as the condition relating to the arrangements governing payment for the products to be supplied.
118. Should the contracting authority wish, for specific reasons, to be able to amend some conditions of the invitation to tender, after the successful tenderer has been selected, it is required expressly to provide for that possibility, as well as for the relevant detailed rules, in the notice of invitation to tender which has been drawn up by the authority itself and defines the framework within which the procedure must be carried out, so that all the undertakings interested in taking part in the procurement procedure are aware of that possibility from the outset and are therefore on an equal footing when formulating their respective tenders.
121. Furthermore, a practice of that kind would inevitably lead to infringement of the principles of transparency and equal treatment as between tenderers since the uniform application of the conditions of the invitation to tender and the objectivity of the procedure would no longer be guaranteed.
127. The fact that the Court – again at paragraph 81 – refers to the initiation of a new tendering procedure in the event that the contracting authority is not authorised to substitute other fruit for that specified does not in any way contradict the reasoning set out above. It is true that nothing in that case would have prevented the contracting authority from laying down different conditions, but at least those conditions would have applied in the same way to all the tenderers. Just as in the situation described in the previous paragraph of this judgment, the principles of equal treatment and transparency would have been fully observed in that case too.