Agriconsulting Europe SA v European Commission.
Date: 2017-10-19
29


In that regard, it should be recalled that, in paragraph 55 of the judgment under appeal, the General Court set out the case-law of the Court of Justice which indicates that the abnormally low nature of a tender must be assessed by reference to the composition of the tender and the services at issue (see, by analogy, judgment of 18 December 2014, Data Medical Service, C‑568/13, EU:C:2014:2466, paragraph 50). Next, in paragraph 56 of the judgment under appeal, the General Court summarised the content of the Commission’s letter of 25 March 2013, in which the Commission informed the appellant that its tender had been rejected, and the content of the final evaluation report. In paragraph 57 of that judgment, it noted that the anomalies which led the evaluation committee to find that the appellant’s tender was abnormally low referred more specifically to certain additional tasks. However, in paragraphs 58 to 61 of that judgment, the General Court found inter alia that, in view of the economic and financial significance of the additional tasks in the price of the contract in question, the anomalies identified were liable to undermine the consistency of Agriconsulting’s overall bid. It thus concluded, in paragraph 62 of that judgment, that the evaluation committee had conducted its assessment of the abnormally low nature of Agriconsulting’s tender by reference to the composition of the tender and the services at issue, taking account of the factors that were relevant in the light of those services.
30


That being so, as regards, in the first place, a possible distortion of the evidence by the General Court, it must be recalled that such distortion must be obvious from the documents before the Court of Justice, without there being any need to carry out a new assessment of the facts and the evidence (judgments of 20 November 2014, Intra-Presse v Golden Balls, C‑581/13 P and C‑582/13 P, not published, EU:C:2014:2387, paragraph 39 and the case-law cited, and of 26 October 2016, Westermann Lernspielverlage v EUIPO, C‑482/15 P, EU:C:2016:805, paragraph 36 and the case-law cited).
31


Nevertheless, in the present case, by alleging a distortion of the evidence, Agriconsulting is, in reality, seeking to obtain a fresh assessment of the facts, which falls outside the jurisdiction of the Court of Justice at the stage of an appeal (see, by analogy, judgments of 2 September 2010, Calvin Klein Trademark Trust v OHIM, C‑254/09 P, EU:C:2010:488, paragraph 49, and of 19 March 2015, MEGA Brands International v OHIM, C‑182/14 P, EU:C:2015:187, paragraph 47 and the case-law cited).
34


In the second place, with regard to Agriconsulting’s claims that the General Court failed to fulfil its duty to state reasons, it must be pointed out that the question whether the grounds of a judgment of the General Court are contradictory or inadequate is, admittedly, a question of law which is amenable to review on appeal (judgment of 16 July 2009, Der Grüne Punkt — Duales System Deutschland v Commission, C‑385/07 P, EU:C:2009:456, paragraph 71 and the case-law cited).
51


Thus, that provision means that the contracting authority is under a duty, first, to identify suspect tenders, secondly to allow the tenderers concerned to demonstrate their genuineness by asking them to provide the details which it considers appropriate, thirdly to assess the merits of the explanations provided by the persons concerned and, fourthly to take a decision as to whether to admit or reject those tenders (see, by analogy, judgment of 27 November 2001, Lombardini and Mantovani, C‑285/99 and C‑286/99, EU:C:2001:640, paragraph 55).
55


In that regard, in the absence of a definition of the notion of an ‘abnormally low tender’ or of rules making it possible to identify such a tender under Article 139(1) or Article 146(4) of Regulation No 2342/2002, it falls to the contracting authority to determine the method used to identify abnormally low tenders (see, by analogy, judgment of 18 December 2014, Data Medical Service, C‑568/13, EU:C:2014:2466, paragraph 49 and the case-law cited), provided that that method is objective and non-discriminatory (see, by analogy, judgment of 27 November 2001, Lombardini and Mantovani, C‑285/99 and C‑286/99, EU:C:2001:640, paragraphs 68 and 69).
77


In the light of the cumulative nature of the conditions governing the non-contractual liability of the European Union, as contemplated in the second paragraph of Article 340 TFEU, the considerations set out in paragraphs 74 to 76 above suffice to dismiss Agriconsulting’s appeal without having to rule on the fourth ground of appeal relating to the examination by the General Court of the loss of profit which it suffered as a result of the rejection of its tender (see, by analogy, judgments of 19 April 2007, Holcim (Deutschland) v Commission, C‑282/05 P, EU:C:2007:226, paragraph 57, and of 14 October 2014, Giordano v Commission, C‑611/12 P, EU:C:2014:2282, paragraph 54).