European Union Intellectual Property Office v European Dynamics Luxembourg SA and Others.
Date: 2017-12-20
28


By its arguments, which, European Dynamics Luxembourg and Others allege are inadmissible, EUIPO criticises as a matter of law the merits of the solution adopted by the General Court (see, to that effect, the judgment of 29 November 2007, Stadtwerke Schwäbisch Hall and Others v Commission, C‑176/06 P, not published, EU:C:2007:730, paragraph 17).
31


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 (judgments of 18 October 2001, SIAC Construction, C‑19/00, EU:C:2001:553, paragraph 43, and of 18 November 2010, Commission v Ireland, C‑226/09, EU:C:2010:697, paragraph 59 and the case-law cited).
32


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 (judgment of 24 January 2008, Lianakis and Others, C‑532/06, EU:C:2008:40, paragraph 38).
33


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, to that effect, judgments of 24 November 2005, ATI EAC and Viaggi di Maio and Others, C‑331/04, EU:C:2005:718, paragraph 32; of 21 July 2011, Evropaïki Dynamiki v EMSA, C‑252/10 P, not published, EU:C:2011:512, paragraphs 32 and 33; and 14 July 2016, TNS Dimarso, C‑6/15, EU:C:2016:555, paragraph 26).
36


As the conclusion in paragraph 53 of the judgment under appeal is vitiated by an error of law, it follows that it must be found, as the Advocate General observed in point 49 of his Opinion, that the judgment under appeal is also vitiated by another error in law, in that, by upholding the ninth complaint in the first part of the third plea in law at first instance, the General Court concluded there had been a manifest error of assessment in relation to the first award criterion in question. If it is not possible to rely on that conclusion, paragraphs 91 and 96 of that judgment are deprived of all reason. Such inadequate reasoning is a matter of public policy, which must be raised by the EU judicature of its own motion (see, to that effect, judgment of 11 April 2013, Mindo v Commission, C‑652/11 P, EU:C:2013:229, paragraph 30 and the case-law cited).
50


In such a situation, the grounds alleging such irregularities are ineffective (see, by analogy, judgments of 12 July 2001, Commissionand France v TF1, C‑302/99 P and C‑308/99 P, EU:C:2001:408, paragraph 27, and of 26 April 2007, Alcon v OHIM, C‑412/05 P, EU:C:2007:252, paragraph 41).
52


In particular, EUIPO does not explain how or establish that, in the present case, the decision at issue could not have been more favourable to European Dynamics Luxembourg even in the absence of the various irregularities established by the General Court.
53


In those circumstances, EUIPO is not entitled to criticise the General Court for failing to examine whether the error of assessment relating to the second award criterion and the inadequacies which it found in the reasoning for the decision at issue might have had an effect on the operative part of that decision.
59


Furthermore, the requirements to be satisfied by the statement of reasons under the second paragraph of Article 296 TFEU depend on the circumstances of each case, in particular the content of the measure in question and the nature of the reasons given. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons for a measure meets the requirements of Article 296 TFEU must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see, to that effect, judgment of 12 September 2017, Anagnostakis v Commission, C‑589/15 P, EU:C:2017:663, paragraph 29 and the case-law cited).
99


In that regard, it is the Court’s settled case-law that in order for EUIPO to incur non-contractual liability, a number of conditions must be satisfied: the institution’s conduct must be unlawful, actual damage must have been suffered and there must be a causal link between the conduct alleged and the damage pleaded (see, to that effect, judgment of 10 July 2014, Nikolaou v Court of Auditors, C‑220/13 P, EU:C:2014:2057, paragraph 52 and the case-law cited). In order for the non-contractual liability of the European Union to be capable of being established, according to case-law, there must be actual damage which flows sufficiently directly from the unlawful conduct of the institutions (judgment of 30 May 2017, Safa Nicu Sepahan v Council, C‑45/15 P, EU:C:2017:402, paragraph 61 and the case-law cited).
100


In all circumstances, according to the Court’s established case-law, it is the party seeking to establish the European Union’s non-contractual liability which must adduce conclusive proof as to the existence and extent of the damage it alleges and as to the existence of a sufficiently direct causal nexus between the conduct of the institution concerned and the damage alleged (judgment of 30 May 2017, Safa Nicu Sepahan v Council, C‑45/15 P, EU:C:2017:402, paragraph 62 and the case-law cited).