Evropaïki Dynamiki - Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE v Agence européenne pour la sécurité maritime (EMSA).
Date: 2011-07-21
29. It should be noted at the outset that, where a contract is to be awarded by the best-value-for-money procedure, in accordance with Article 97(2) of the Financial Regulation and Article 138(1) of the implementing rules, the contracting authority must define and specify in the tender specifications the award criteria enabling evaluation of the content of tenders. In addition, those criteria must, in accordance with Article 138(2) of the implementing rules, be justified by the subject of the contract. According to Article 138(3), the contracting authority must also specify, in the contract notice or in the tender specifications, the weighting it will apply to each of the criteria for determining the best value for money. Those provisions seek to ensure compliance with the principles of equal treatment and transparency at the stage of evaluation of tenders with a view to award of the contract (see, by analogy, Case 31/87 Beentjes  [1988] ECR 4635, paragraphs 21 and 22, and Case C‑470/99 Universale-Bau and Others  [2002] ECR I‑11617, paragraphs 90 to 92).
30. Consequently, in order to ensure compliance with the principles of equal treatment and transparency, potential tenderers should be aware of all the elements to be taken into account by the contracting authority in identifying the tender offering the best value for money and, if possible, their relative importance, when they prepare their tenders (see, to that effect, ATI EAC e Viaggi di Maio and Others , paragraph 24; and Lianakis and Others , paragraph 36).
31. It follows that a contracting authority cannot apply, in respect of the award criteria, sub-criteria which it has not previously brought to the tenderers’ attention (see, to that effect, Lianakis and Others , paragraph 38).
32. It should be recalled that, at paragraphs 44 and 45 and in the operative part of Lianakis , the Court interpreted Directive 92/50 read in the light of the principle of equal treatment of economic operators and the ensuing obligation of transparency. Accordingly, the legality of the use of sub-criteria and the corresponding weighting must always be assessed on the basis of those principles. The Court did not establish a total or absolute ban on contracting authorities’ specifying in more detail a criterion previously brought to the tenderers’ attention and giving it weighting.
33. Accordingly, it is possible for a contracting authority to determine, after expiry of the time-limit for submitting tenders, weighting factors for the sub-criteria which correspond in essence to the criteria previously brought to the tenderers’ attention, provided that three conditions apply, namely, that that subsequent determination, firstly, does not alter the criteria for the award of the contract set out in the contract documents or contract notice; secondly, does not contain elements which, if they had been known at the time the tenders were prepared, could have affected that preparation; and, thirdly, was not adopted on the basis of matters likely to give rise to discrimination against one of the tenderers (see, to that effect, ATI EAC e Viaggi di Maio and Others , paragraph 32, and Lianakis and Others , point 43).
35. For that purpose, it must be considered that an evaluation committee must be able to have some leeway in carrying out its task. Accordingly, it may, without amending the contract award criteria set out in the contract documents or the contract notice, structure its own work of examining and analysing the submitted tenders.
46. According to settled case-law, the obligation of the General Court to state reasons, pursuant to the first sentence of Article 36 and the first paragraph of Article 53 of the Statute of the Court of Justice of the European Union, does not require the General Court to provide an account that follows exhaustively and point by point all the reasoning articulated by the parties to the case. The reasons may therefore be implicit, provided that they enable the person affected by a decision of the General Court to acquaint himself with the reasons for that decision and the Court of Justice to have sufficient information in order to exercise its power of review (see, in particular, judgment of 22 May 2008 in Case C-266/06 P Evonik Degussa  v Commission , paragraph 103 and case-law cited).
54. It follows from Article 256 TFEU, the first paragraph of Article 58 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. That requirement is not satisfied by an appeal which, without even including an argument specifically identifying the error of law allegedly vitiating the judgment under appeal, merely reproduces the pleas in law and arguments previously submitted to the General Court. Such an appeal amounts in reality to no more than a request for re‑examination of the application submitted to the General Court, which the Court of Justice does not have jurisdiction to undertake (see, in particular, Case C‑352/98 P Bergaderm and Goupil  v Commission  [2000] ECR I‑5291, paragraphs 34 and 35; Case C‑76/01 P Eurocoton and Others  v Council [2003] ECR I‑10091, paragraphs 46 and 47; and Case C‑280/08 P Deutsche Telekom  v Commission  [2010] ECR I‑0000, paragraph 24).