European Union Intellectual Property Office v European Dynamics Luxembourg SA and Others.
Date: 2018-05-03
33


It follows from the rules governing the procedure before the Courts of the European Union, in particular Article 21 of the Statute of the Court of Justice of the European Union and Article 76 and Article 84(1) of the Rules of Procedure of the General Court, that the dispute is in principle determined and circumscribed by the parties and that the Courts of the European Union may not rule ultra petita (judgment of 3 July 2014, Electrabel v Commission, C‑84/13 P, not published, EU:C:2014:2040, paragraph 49 and the case-law cited).
35


As regards the question whether, in those circumstances, the plea alleging infringement of those provisions constitutes, as European Dynamics Luxembourg and Others seem to be asserting, a matter of public policy which must be examined by the Courts of the European Union of their own motion, it should be noted that, while it is true that those provisions are of some importance as regards compliance with the law on EU public procurement, their infringement nevertheless does not satisfy the conditions laid down by the Court for classification as an infringement of essential procedural requirements (see, in particular, judgment of 4 April 2017, Ombudsman v Staelen, C‑337/15 P, EU:C:2017:256, paragraph 85 and the case-law cited).
47


Indeed, it is for the person bringing the appeal to explain how, and establish that, the decision rejecting the tender could not have been more favourable to European Dynamics Luxembourg and Others even if those errors had not been made (see, by analogy, judgment of 20 December 2017, EUIPO v European Dynamics Luxembourg and Others, C‑677/15 P, EU:C:2017:998, paragraphs 52 and 53). EUIPO has not adduced the necessary evidence in that regard.
57


However, it is apparent from the case-law of the Court that the contracting authority cannot be required to communicate to an unsuccessful tenderer, first, in addition to the reasons for rejecting its tender, a detailed summary of how each detail of its tender was taken into account when the tender was evaluated and, second, in the context of notification of the characteristics and relative advantages of the successful tender, a detailed comparative analysis of the successful tender and of the unsuccessful tender (judgment of 4 October 2012, Evropaïki Dynamiki v Commission, C‑629/11 P, not published, EU:C:2012:617, paragraph 21 and the case-law cited).
58


Similarly, the contracting authority is not obliged to provide an unsuccessful tenderer, upon written request from that tenderer, with a full copy of the evaluation report (judgment of 4 October 2012, Evropaïki Dynamiki v Commission, C‑629/11 P, not published, EU:C:2012:617, paragraph 22 and the case-law cited).
59


In addition, it should be borne in mind that, according to the settled case-law of the Court, the statement of reasons required under the second paragraph of Article 296 TFEU must be assessed in the light of the circumstances of each case, in particular the content of the measure in question and the nature of the reasons given (judgment of 4 October 2012, Evropaïki Dynamiki v Commission, C‑629/11 P, not published, EU:C:2012:617, paragraph 23 and the case-law cited).
91


It should be borne in mind from the outset that, according to the settled case-law of the Court, for EUIPO to be non-contractually liable, a set of cumulative conditions must be satisfied, namely, the unlawfulness of its conduct, the fact of damage and the existence of a causal link between the alleged conduct and the damage complained of (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). Similarly, it is apparent from the case-law of the Court that, in order for the non-contractual liability of the European Union to be capable of being established, the damage must be actual and certain and must flow 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).
92


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 that 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 20 December 2017, EUIPO v European Dynamics Luxembourg and Others, C‑677/15 P, EU:C:2017:998, paragraph 100 and the case-law cited).