1. In its appeal, Evropaïki Dynamiki - Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE (‘Evropaïki Dynamiki’) asks the Court to set aside the judgment of the General Court of the European Union of 20 September 2011 in Case T‑298/09 Evropaïki Dynamiki v Commission (‘the judgment under appeal’), by which that Court dismissed (i) its application for annulment of the decisions of the Commission, communicated in two separate letters of 12 May 2009, ranking it, for its tenders in response to the call for tenders EAC/01/2008 for external service provision for educational programmes (ESP-ISEP) (OJ 2008/S 158-212752), for Lot No 1 (IS (information system) Development and Maintenance) and for Lot No 2 (IS (information system) Studies, Testing, Training and Support), as second contractor for each of those lots (‘the contested decisions’), and (ii) its claim for compensation for the damage it allegedly suffered in that respect. Legal context
2. The award of public service contracts by the European Commission is governed by the provisions of Title V of Part One of Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 248, p. 1) (‘the Financial Regulation’) and by the provisions of Title V of Part One of Commission Regulation (EC, Euratom) No 2342/2002 of 23 December 2002 laying down detailed rules for the implementation of Regulation No 1605/2002 (OJ 2002 L 357, p. 1) (‘the Implementing Rules’).
3. Article 100(2) of the Financial Regulation provides: ‘The contracting authority shall notify all candidates or tenderers whose applications or tenders are rejected of the grounds on which the decision was taken, and all tenderers whose tenders are admissible and who make a request in writing of the characteristics and relative advantages of the successful tender and the name of the tenderer to whom the contract is awarded. However, certain details need not be disclosed where disclosure would hinder application of the law, would be contrary to the public interest or would harm the legitimate business interests of public or private undertakings or could distort fair competition between those undertakings.’
4. As provided in Article 149(2) of the Implementing Rules: ‘The contracting authority shall, within not more than fifteen calendar days from the date on which a written request is received, communicate the information provided for in Article 100(2) of the Financial Regulation.’ Factual background to the dispute
5. The factual background to the dispute is set out as follows at paragraphs 1 to 11 of the judgment under appeal: ‘1 [Evropaïki Dynamiki] is a company incorporated under Greek law and operating in the field of information technology and communications. 2 By a contract notice of 16 August 2008 published in the Supplement to the Official Journal of the European Union (OJ 2008 S 158) under reference 2008/S 158-212752, the Commission launched the call for tenders EAC/01/2008 for external service provision for educational programmes (ESP-ISEP) comprising two lots, namely Lot No 1 (IS (information system) Development and Maintenance) and Lot No 2 (IS (information system) Studies, Testing, Training and Support) [“the call for tenders at issue”]. 3 In the tendering specifications the Commission stated that, for each lot, multiple framework contracts would be signed with the tenderers who submitted the three best tenders. Those specifications stated that such contracts could be awarded to a maximum of three tenderers per lot. They further set out the criteria to be used for the technical evaluation of the various tenders, their respective weighting in the evaluation and the minimum and maximum number of points for each award criterion. For Lots Nos 1 and 2 the weighting factor for the technical criteria was 70% and for the price criterion 30%. 4 On 6 October 2008, [Evropaïki Dynamiki] submitted tenders for Lots Nos 1 and 2. By letter of 10 March 2009, the Commission asked [Evropaïki Dynamiki] for certain clarification, which it provided by letter of 17 March 2009. 5 On 12 May 2009, the Commission informed [Evropaïki Dynamiki], in two separate letters, of [the contested] decisions … It stated, among other things, that [Evropaïki Dynamiki] could request additional information. 6 By letter of 12 May 2009, [Evropaïki Dynamiki] asked the Commission to send it certain information, in particular the names of the “successful tenderers” and of their partners or subcontractors, if any, the scores awarded in each award criterion for both [Evropaïki Dynamiki]’s and the “successful tenderers’” tenders, a thorough analysis of the strong and weak points of its tenders and of those of the “successful tenderers”, a detailed copy of the evaluation report, the names of the members of the evaluation committee in order to check potential conflicts of interest and details as to how the financial offers of the “successful tenderers” compared with [Evropaïki Dynamiki]’s. 7 In the absence of any reply by the Commission to its letter of 12 May 2009, [Evropaïki Dynamiki] reiterated its request by faxes dated 26 May and 8 June 2009. 8 By letter of 5 June 2009, the Commission notified [Evropaïki Dynamiki], for each lot, of the name of the best-ranked tenderer and [Evropaïki Dynamiki]’s and that tenderer’s score sheets, as well as the comments made by the evaluation committee for each award criterion. It also stated that no contract had yet been signed and that [Evropaïki Dynamiki] had three working days to submit comments which could justify, if appropriate, suspension of the signature of the contracts. 9 By letter of 9 June 2009, [Evropaïki Dynamiki] drew attention to the delay with which the Commission had replied to its request of 12 May 2009, as well as to the irregular dispatch of the framework contracts to “the winning tenderers” before “the standstill period” had elapsed and even before communicating to all tenderers the results of the call for tenders in question. It also mentioned the fact that those tenderers had not fulfilled their obligations under other contracts with the Commission and expressed its doubts, in particular with regard to the application of the exclusion criteria, relating to their participation in new contract-award procedures. [Evropaïki Dynamiki], in addition, noted that the average person-day rate of the best-ranked tenderer for Lot No 1 was equivalent to its own and that that rate of the best-ranked tenderer for Lot No 2 was much higher. Finally, it reserved the right to prove, as soon as the Commission’s Directorate-General for Education and Culture supplied it with detailed information on the evaluation, that the evaluation was based on serious errors of assessment and that its tender should have been ranked first for each of the lots. 10 By letter of 12 June 2009, the Commission assured [Evropaïki Dynamiki] that the rules of procedure had been complied with [and] stated that there were no grounds justifying a further examination of the tenders and that it was therefore going to proceed with the signing of the contracts. By letter of the same day, [Evropaïki Dynamiki] replied to the Commission that it regretted that its arguments had been rejected and took note of the Commission’s refusal to provide the information requested. 11 By letters of 16 July 2009, the Commission informed the three best-ranked tenderers for each of Lots Nos 1 and 2, including [Evropaïki Dynamiki], that, owing to delays, it had not signed the contracts within the period of nine months laid down in the call for tenders and asked them to extend by three months the period of their tenders’ validity. By letter of 28 July 2009, [Evropaïki Dynamiki] agreed to extend the validity of its tenders for those lots. However, it expressed certain reservations, indicating that it felt forced to acquiesce, whilst reserving all its rights, since a refusal on its part would lead the Commission to eliminate it from the award procedure. The other tenderers concerned agreed to the extension.’ The proceedings before the General Court and the judgment under appeal
6. By application lodged at the Registry of the Court of First Instance (now ‘the General Court’) on 22 July 2009, Evropaïki Dynamiki sought annulment of the contested decisions, an order requiring the Commission to pay compensation for the damage suffered as a result of the contested tendering procedure and an order for costs against the Commission.
7. In support of its action, Evropaïki Dynamiki raised three pleas in law, of which only the second is the subject of the appeal brought before the Court. That plea alleged breach of Article 100(2) of the Financial Regulation.
8. First, the General Court, at paragraph 34 of the judgment under appeal, decided that, in order to determine whether the Commission had satisfied its duty to state reasons, it was necessary to examine, in addition to the letters of 12 May 2009 notifying Evropaïki Dynamiki of the contested decisions, the letter of 5 June 2009.
9. In that regard, the General Court found, at paragraph 35 of the judgment under appeal, that ‘[t]he fact that the letter of 5 June 2009 was sent eight days later than the time-limit laid down in Article 149(2) of the Implementing Rules of fifteen calendar days from the date of the request’s receipt, though regrettable, did not however restrict [Evropaïki Dynamiki]’s opportunity of asserting its rights before the Court and cannot, by itself, lead to the annulment of the contested decisions … It is apparent from the contents of the court file that [Evropaïki Dynamiki] made use of the information contained in that letter to bring the present action’.
10. Next, at paragraphs 36 and 37 of the judgment under appeal, the General Court rejected Evropaïki Dynamiki’s arguments alleging failure to state reasons as unfounded, stating that the Commission had informed Evropaïki Dynamiki, for each lot, of the name of the best-ranked tenderer, Evropaïki Dynamiki’s and that tenderer’s scores and the comments made by the evaluation committee for each award criterion.
11. In respect of, finally, the arguments regarding the inadequacy of the statement of reasons, the General Court ruled as follows at paragraphs 39 to 51 of the judgment under appeal: ‘39 In this instance, the Commission’s letter of 5 June 2009 enclosed two annexes each containing an evaluation report extraction concerning Lot No 1 and Lot No 2 respectively. 40 Those evaluation report extractions include, first of all, for each lot, a first section on the technical evaluation, which makes reference to the criteria specified in the call for tenders with their respective weighting and the maximum and minimum number of points, a table containing, for each criterion, the points obtained by [Evropaïki Dynamiki]’s and best-ranked tenderer’s offers, as well as the evaluation committee’s comments. A more detailed table concerning the technical evaluation of the offers with a comparison of [Evropaïki Dynamiki]’s and that tenderer’s appears also at the foot of each annex. 41 The evaluation report extractions contain next, for each lot, a section on the financial evaluation of the offers with, among other things, the calculation formula used and a table containing the prices offered by [Evropaïki Dynamiki] and [the] best-ranked tenderer. 42 Those extractions contain, finally, a table recapitulating the results of the evaluation as regards [Evropaïki Dynamiki]’s and [the] best-ranked tenderer’s offers. 43 As regards the evaluation committee’s comments for each award criterion concerning Lot No 1, they state, as regards the first three and the fifth criteria, the reason or reasons for which the best-ranked tenderer’s offer was considered the best for each criterion and, as regards the fourth criterion relating to the “quality of the technical offer” for Lot No 1, the reason or reasons for which that offer and [Evropaïki Dynamiki]’s were considered to be of equal quality. 44 Thus, for the first criterion of Lot No 1 relating to the overall management of the service, the best-ranked tenderer’s offer was considered to be of higher quality regarding the management of the ordering process, the management of the running contracts, the monitoring of the service management quality parameters and service performance and the proposal for service reports. For the second criterion of Lot No 1 relating to the ordering of services, that offer was considered to be of higher quality regarding the measuring and monitoring of the ordering process service quality indicators and service performance values. For the third criterion of Lot No 1 relating to the delivery of the services, that offer was considered to be the best because of the follow-up methodology for the execution of a specific contract and the proposed measurement and monitoring of the delivery service quality indicators and service performance values. For the fifth criterion of Lot No 1 relating to the development infrastructure of that lot, although [Evropaïki Dynamiki]’s offer was considered to be adequate, the offer at issue was considered to be the best as it was the only offer which took account not only of organisational and physical security aspects but also of security measures for secure software development. 45 In addition, the evaluation committee’s comments were supplemented by the table of the technical evaluation of the offers for Lot No 1, which gives the results obtained by [Evropaïki Dynamiki] and the best-ranked tenderer setting out those results for each of the sub-criteria. 46 Therefore, for Lot No 1, although the prices offered by [Evropaïki Dynamiki] and the best‑ranked tenderer were roughly equivalent, the reasons for which the latter’s offer was considered to be the best are clear from the Commission’s letter of 5 June 2009 and its annexes. 47 Likewise, as regards the evaluation committee’s comments for each award criterion concerning Lot No 2, they also state the reasons for which another tenderer’s offer was considered to be the best, despite the lower price offered by [Evropaïki Dynamiki] as against the price offered by that tenderer. 48 Thus, for three out of four award criteria, the best-ranked tenderer’s offer obtained a higher score than [Evropaïki Dynamiki]’s. For the first criterion, regarding the overall management of the service, that offer was judged to be of higher quality as regards the proposal regarding the management of the ordering process, the management of the running contracts and the monitoring of the service management quality parameters and service performance. For the second criterion relating to the ordering of services, that offer was considered to be of higher quality regarding the measuring and monitoring of the ordering process service quality indicators and service performance values; the quality of the risk analysis was also judged to be better than [Evropaïki Dynamiki]’s. For the third criterion regarding delivery of the services, that offer was considered to provide higher quality regarding follow-up, quality indicators and service performance values. On the other hand, for the fourth criterion regarding the quality of service and methodological proposal in the domain of Lot No 2, [Evropaïki Dynamiki]’s offer was considered to be of higher quality. 49 Those comments of the evaluation committee thus reflect the more detailed results of the table of the technical evaluation of the offers for Lot No 2, which sets out the results obtained by [Evropaïki Dynamiki] and by the best‑ranked tenderer. 50 In view of all the information supplied to [Evropaïki Dynamiki], as well as the specifications contained in the call for tenders, including the weighting relating to the award criteria for each of the lots, [Evropaïki Dynamiki] had sufficient information to enable it, for each lot, to ascertain and understand the results obtained by the best‑ranked tenderer’s offer for each award criterion and to identify the characteristics and relative advantages of that offe r. 51 Therefore, the submission that the statements of reasons for the contested decisions were inadequate must be rejected, without the need to rule on the Commission’s submissions concerning protection of the best-ranked tenderers’ intellectual property rights and commercial interests.’
12. Since it went on to reject the remaining pleas in law relied on by Evropaïki Dynamiki in support of its action, the General Court dismissed the action and rejected Evropaïki Dynamiki’s claim for compensation. Forms of order sought by the parties
13. By its appeal, Evropaïki Dynamiki claims that the Court should: - set aside the judgment under appeal; - annul the contested decisions and award it damages pursuant to Articles 256 TFEU, 268 TFEU and 340 TFEU for the loss suffered as a result of the tendering procedure in question, in the sum of EUR 9 544 480; - in the alternative, refer the case back to the General Court, and - order the Commission to pay all of the costs incurred at first instance and on appeal.
14. The Commission contends that the Court should: - declare inadmissible the three parts of the single plea in law raised by Evropaïki Dynamiki; - in the alternative, dismiss the whole plea in law as unfounded, and - order Evropaïki Dynamiki to pay the costs of the appeal and of the proceedings before the General Court. The appeal
15. In support of its appeal, Evropaïki Dynamiki puts forward a single plea in law, alleging an erroneous interpretation of Article 100(2) of the Financial Regulation and Article 149(2) of the Implementing Rules. Second and third parts of the single plea in law Arguments of the parties
16. By the second and third parts of the single plea in law, which should be considered first, Evropaïki Dynamiki claims that the General Court erred in law in finding that the statement of reasons for the contested decisions, which was communicated to it by the Commission’s letter of 5 June 2009, was sufficient for the purposes of Article 100(2) of the Financial Regulation.
17. In that letter, the Commission merely indicated the title of each award criterion and sub-criterion, the result obtained by Evropaïki Dynamiki’s tender and its relative position in the table of scores, which does not constitute an adequate statement of reasons, and is even tantamount to a failure to state reasons. That also applies to the contents of the supplementing tables annexed to that letter, which relate to the technical evaluation of the tenders for each of the lots and indicate merely the technical results obtained by Evropaïki Dynamiki and the best-ranked tenderer for each of the sub-criteria. The comments of the evaluation committee relating to the various sub-criteria, reproduced at paragraphs 44 and 48 of the judgment under appeal, do not have any added value as regards the tables and do not constitute ‘elements of the motivation’.
18. As regards, in particular, communication of the information relating to the successful tenders, the Commission merely indicated that they were of higher quality than those of the other tenderers, simply repeating the title of the award criteria and sub-criteria and merely putting into words the matters indicated in the table of scores, without giving any explanation which would allow Evropaïki Dynamiki to understand the ‘relative merits’ of the successful tenders. In those circumstances, Evropaïki Dynamiki was not in a position to ascertain the actual reasons why the successful tender had been regarded as being of higher quality.
19. The Commission is of the opinion that the second and third parts of the single plea in law are inadmissible, in particular because, in reality, they are designed to obtain a new assessment of the facts, without a clear distortion of the facts being alleged by Evropaïki Dynamiki. In any event, those parts of the single plea in law must be rejected as unfounded. Findings of the Court
20. It must be borne in mind, first, that, according to the first subparagraph of Article 100(2) of the Financial Regulation, the contracting authority is required to notify all candidates or tenderers whose applications or tenders are rejected of the grounds on which the decision was taken, and to notify all tenderers whose tenders are admissible and who make a request in writing of the characteristics and relative advantages of the successful tender and the name of the tenderer to whom the contract has been awarded.
21. However, it is apparent from the case-law that the Commission 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 (see, to that effect, order of 29 November 2011 in Case C‑235/11 P Evropaïki Dynamiki v Commission , paragraphs 50 and 51 and the case-law cited).
22. Similarly, the contracting authority is not under an obligation to provide an unsuccessful tenderer, upon written request from it, with a full copy of the evaluation report (see order of 20 September 2011 in Case C‑561/10 P Evropaïki Dynamiki v Commission , paragraph 25).
23. Furthermore, it must be noted that, according to settled case-law, 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 (see, inter alia, Case C‑367/95 P Commission v Sytraval and Brink’s France [1998] ECR I‑1719, paragraph 63, and judgment of 28 February 2008 in Case C‑17/07 P Neirinck v Commission , paragraph 52).
24. In the present case, it is apparent from paragraphs 8 and 37 of the judgment under appeal that the letter of 5 June 2009 contained the names of the tenderers selected as first contractor for each of the two lots of the call for tenders at issue.
25. In addition, the General Court noted, at paragraph 39 of the judgment under appeal, that the Commission enclosed as annexes to that letter extracts from the two evaluation reports, the content of which is summarised at paragraphs 40 to 42, 44, 45, 48 and 49 of that judgment.
26. It is apparent therefrom that those extracts contained tables relating, in particular, to the technical evaluation of the tenders for both of the lots and indicating, for each award criterion, the number of points obtained by Evropaïki Dynamiki in comparison with the successful tenderer, broken down each time into sub-criteria, as well as the maximum number of points attainable per sub-criterion and the weighting of each of those sub-criteria in the overall evaluation. Summary tables showed, on the basis of the results of the technical and financial evaluation, the final ranking for each of the two lots.
27. It is also apparent therefrom that, according to the information communicated in the letter of 5 June 2009, Evropaïki Dynamiki’s tender was ranked higher than the successful tender solely under the fourth award criterion regarding the quality of the service and the methodological proposal in the domain of Lot No 2. It was also only with regard to the fourth criterion relating to the quality of the technical offer in the domain of Lot No 1 that its tender obtained the same number of points as the successful tender. On the other hand, for all other criteria, Evropaïki Dynamiki’s tender was less well ranked than that of the successful tenderer.
28. Furthermore, the comments of the evaluation committee which were also disclosed indicated, for each award criterion, the sub-criteria on the basis of which the Commission found the successful tenderer’s offer or that of Evropaïki Dynamiki to be the best.
29. Finally, the method applied by the Commission for the technical evaluation of the tenders was clearly set out in the tendering specifications relating to the call for tenders at issue. As is apparent in particular from paragraph 3 of the judgment under appeal, they specified, for each lot, the various award criteria, their respective weighting in the evaluation, that is to say in the calculation of the total score, and the minimum and maximum number of points for each criterion.
30. Accordingly, the General Court was able to conclude, at paragraph 50 of the judgment under appeal, that, in view of all the information supplied to Evropaïki Dynamiki, as well as the specifications contained in the call for tenders, including the weighting relating to the award criteria for each of the lots, Evropaïki Dynamiki had sufficient information to enable it, for each lot, to identify the characteristics and relative advantages of the best ranked tenderer’s offer.
31. It follows that, in the light of all of the elements of the present case, the General Court did not err in law in finding, at paragraph 51 of the judgment under appeal, that Evropaïki Dynamiki’s argument alleging that the statement of reasons for the contested decisions was inadequate had to be rejected.
32. The second and third parts of the single plea in law must therefore be rejected as unfounded. First part of the single plea in law Arguments of the parties
33. By the first part of the single plea in law, Evropaïki Dynamiki complains that the General Court, at paragraph 35 of the judgment under appeal, while finding that the Commission had sent the information required under Article 100(2) of the Financial Regulation to Evropaïki Dynamiki belatedly, concluded that that delay had not affected its rights of defence and could not, by itself, lead to the annulment of the contested decisions.
34. According to Evropaïki Dynamiki, the obligation to state reasons has been described as an ‘essential procedural requirement’ by the case-law. When such a procedural requirement has the objective of conferring rights on individuals, failure to comply with it can lead to annulment of the act at issue and cannot be remedied by subsequent communication of the statement of reasons.
35. According to Evropaïki Dynamiki, the time-limit of 15 days provided for in Article 149(2) of the Implementing Rules must be seen in relation to the maximum time-limit of two months imposed for bringing an action for annulment. The procedural requirement at issue is thus essential to ensure the protection of the legitimate rights of the tenderer, in particular the right to effective judicial protection, in that the communication of the statement of reasons for a decision rejecting a tender after an unreasonable length of time has a direct effect on the capacity of the unsuccessful tenderer to bring an action for annulment against that decision. In the present case, Evropaïki Dynamiki received the information at issue nine days after the expiry of the time-limit provided for in Article 149(2) of the Implementing Rules, that is to say after the expiry of almost half of the period imposed for bringing an action for annulment.
36. According to the Commission, this part of the single plea in law must be rejected as inadmissible in that, first, it contains a new plea which was not raised at first instance and, second, it is directed against a ground of the judgment under appeal, namely paragraph 35 thereof, which is unnecessary for the ratio of that judgment. In any event, this part of the single plea in law is also unfounded. Findings of the Court
37. The General Court found, at paragraph 35 of the judgment under appeal, that the fact that the letter of 5 June 2009 had been sent eight days later than the time-limit laid down in Article 149(2) of the Implementing Rules, of 15 calendar days from the date of the request’s receipt, though regrettable, did not however restrict Evropaïki Dynamiki’s opportunity of asserting its rights before the General Court and could not, by itself, lead to the annulment of the contested decisions, since it was apparent from the contents of the court file that Evropaïki Dynamiki made use of the information contained in that letter to bring the action before that Court.
38. It should be noted, first, as has been held at paragraphs 24 to 31 of this judgment, that the Commission’s letter of 5 June 2009 contained the information required under Article 100(2) of the Financial Regulation. Second, Evropaïki Dynamiki has not set out reasons why, in the light of the fact that the Commission’s reply was some days late, it would have been deprived of the possibility of bringing an effective action in order to dispute the merits of the contested decisions, when it had more than half of the period for bringing an action left.
39. Therefore, although the Commission failed in its duty of diligence and good administration by being late in fulfilling its obligation to state reasons, the fact remains that, despite that eight days’ lateness, Evropaïki Dynamiki had the necessary information in order to bring an action for annulment of the contested decisions before the General Court. Accordingly, the General Court was correct in finding that the delay could not, by itself, lead to the annulment of the contested decisions.
40. The first part of the single plea in law must therefore be rejected as unfounded.
41. Accordingly, the appeal must be dismissed in its entirety as unfounded. Costs
42. Under Article 69(2) of the Rules of Procedure of the Court of Justice, which applies to appeal proceedings by virtue of Article 118 thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Commission has applied for costs and Evropaïki Dynamiki has been unsuccessful, the latter must be ordered to pay the costs.