1 By their appeals, Instituto Cervantes (‘IC’) and the Kingdom of Spain ask the Court of Justice to set aside the judgment of 14 June 2023, Instituto Cervantes v Commission (T‑376/21, ‘the judgment under appeal’, EU:T:2023:331), by which the General Court dismissed the action brought by IC seeking annulment of the decision of the European Commission of 19 April 2021 by which it awarded Lot 3 (Language learning in Spanish) of the contract relating to Framework Contracts for Language Training for the Institutions, Bodies and Agencies of the European Union (HR/2020/OP/0014) in first place to the consortium CLL Centre de Langues-Allingua (‘the CLL consortium’) and in second place to IC (‘the decision at issue’).
2 Recital 90 of Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC (OJ 2014 L 94, p. 65) states: ‘Contracts should be awarded on the basis of objective criteria that ensure compliance with the principles of transparency, non-discrimination and equal treatment, with a view to ensuring an objective comparison of the relative value of the tenders in order to determine, in conditions of effective competition, which tender is the most economically advantageous tender. … …’
3 Under Article 67 of that directive: ‘1. … contracting authorities shall base the award of public contracts on the most economically advantageous tender. 2. The most economically advantageous tender from the point of view of the contracting authority shall be identified on the basis of the price or cost …, and may include the best price-quality ratio, which shall be assessed on the basis of criteria, including qualitative, environmental and/or social aspects, linked to the subject matter of the public contract in question. … …’
4 Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council of 18 July 2018 on the financial rules applicable to the general budget of the Union, amending Regulations (EU) No 1296/2013, (EU) No 1301/2013, (EU) No 1303/2013, (EU) No 1304/2013, (EU) No 1309/2013, (EU) No 1316/2013, (EU) No 223/2014, (EU) No 283/2014, and Decision No 541/2014/EU and repealing Regulation (EU, Euratom) No 966/2012 (OJ 2018 L 193, p. 1), was repealed by Regulation (EU, Euratom) 2024/2509 of the European Parliament and of the Council of 23 September 2024 on the financial rules applicable to the general budget of the Union (OJ L 2024/2509). However, Regulation 2018/1046 was applicable to the public procurement procedure at issue in the present cases.
5 Recital 106 of that regulation stated: ‘Contracts should be awarded on the basis of the most economically advantageous tender in line with Article 67 of Directive 2014/24/EU.’
6 Article 149 of Regulation 2018/1046, entitled ‘Submission of application documents’, which fell within Section 3 (‘IT systems and e-government’) of Chapter 2 (‘Rules applicable to direct and indirect management’) of Title V (‘Common rules’) of that regulation, provided, in paragraph 1 thereof: ‘The arrangements for the submission of application documents shall be determined by the authorising officer responsible who may choose an exclusive method of submission. The means of communication chosen shall be such as to ensure that there is genuine competition and that the following conditions are satisfied:
7 Article 160 of Regulation 2018/1046, entitled ‘Principles applicable to contracts and scope’, fell within Chapter 1 (‘Common provisions’) of Title VII (‘Procurement and concessions’) of that regulation and provided, in paragraph 1 thereof: ‘All contracts financed in whole or in part by the budget shall respect the principles of transparency, proportionality, equal treatment and non-discrimination.’
8 Article 167 of that regulation, entitled ‘Award of contracts’, which also fell under Chapter 1, stated in paragraph 4 thereof: ‘The contracting authority shall base the award of contracts on the most economically advantageous tender, which shall consist in one of three award methods: lowest price, lowest cost or best price-quality ratio. … For the best price-quality ratio, the contracting authority shall take into account the price or cost and other quality criteria linked to the subject matter of the contract.’
9 Article 170 of that regulation, which is contained in the same chapter, entitled ‘Award decision and information to candidates or tenderers’, provided, in paragraph 3 thereof: ‘The contracting authority shall inform each tenderer … whose tender is compliant with the procurement documents and who makes a request in writing, of any of the following: …’
10 Under point 16, entitled ‘Procurement documents’, of Annex I to that regulation: ‘… 16.2. The invitation to tender shall: … 16.3. The tender specifications shall contain the following: …’
11 Article 88(1) of the Rules of Procedure of the General Court states: ‘Measures of organisation of procedure and measures of inquiry may be taken or modified at any stage of the proceedings either of the General Court’s own motion or on the application of a main party.’
12 Article 145 of the Rules of Procedure provides: ‘1. The intervener may submit a statement in intervention within the time limit prescribed by the President. 2. The statement in intervention shall contain: …’
13 The background to the dispute is set out in paragraphs 2 to 20 of the judgment under appeal and may be summarised as follows.
14 On 20 November 2020, the Commission launched Open Call for Tenders HR/2020/OP/0014, entitled ‘Framework Contracts for Language Training for the Institutions, Bodies and Agencies of the European Union’. The contract was divided into eight lots, one of which was Lot 3, entitled ‘Language learning in Spanish’.
15 The tender specifications stated that the contracting authority would award the contract on the basis of the most economically advantageous tender, having regard to price (weighted at 30%) and quality (weighted at 70%).
16 Quality, for which the maximum score was 100 points, had to be assessed on the basis of two criteria, namely criterion 1, entitled ‘Quality of the proposed courses’ (maximum score of 70 points), and criterion 2, entitled ‘Quality control and work monitoring’ (maximum score of 30 points).
17 Each of those two criteria was divided into three sub-criteria: - Sub-criterion 1.1: ‘Content’ (30 points); - Sub-criterion 1.2: ‘Pedagogy’ (30 points); - Sub-criterion 1.3: ‘Online Platforms’ (10 points); - Sub-criterion 2.1: ‘Method of staff selection’ (6 points); - Sub-criterion 2.2: ‘Quality control’ (15 points), and - Sub-criterion 2.3: ‘Procedure management’ (9 points).
18 The tender specifications stated that, in order to comply with the minimum requirements, tenders had to achieve at least a ‘minimum score’ for each criterion and sub-criterion, which was specified in those specifications. In addition, the tenders had to achieve a total of at least 70 points out of 100.
19 According to the tender specifications, tenders had to be ranked according to the best price-quality ratio. Furthermore, the contract was to be awarded to the two highest-ranked tenders which, first, complied with the minimum requirements specified in the procurement documents and were submitted by tenderers with access to the procurement procedure; second, were not in an exclusion situation; and, third, fulfilled the selection criteria. The ranking would determine the sequence in which the contractors would be offered specific contracts during implementation of the framework contract.
20 The rules governing the submission of tenders, in the tender specifications, provided, inter alia, that tenders had to be submitted via the electronic application eSubmission.
21 Six tenderers, including IC, submitted tenders for Lot 3.
22 On 10 March 2021, the evaluation report for the tenders was prepared by the committee set up for that purpose. The contractors proposed for Lot 3 were in first place the CLL consortium and in second place IC.
23 On 19 April 2021, pursuant to the recommendations of the evaluation committee, the Commission adopted the decision at issue. On the same day, it wrote to IC notifying it, inter alia, that its tender for Lot 3 had been successful and that it had been ranked in second place with a qualitative score of 82 points out of 100, a tender price of EUR 2 670 560 and a total score of 87.40 points out of 100. The Commission also stated that it would apply a 10-day standstill period before signing the framework contract.
24 An annex to that letter set out, in the form of an evaluation grid, the reasons for the assessment of IC’s tender in the light of the quality criteria set out in the tender specifications.
25 After receiving that letter, IC requested the Commission to inform it of the name, characteristics and advantages of the highest-ranked entity.
26 By email of 26 April 2021, replying to that request, the Commission informed IC that the CLL consortium had been ranked in first place with a quality score of 94 points out of 100, a tender price of EUR 3 469 020 and a total score of 88.89 points out of 100.
27 Those emails of 19 and 26 April 2021 disclosed that, as regards the sub-criteria, the award of points had been as follows: - Sub-criterion 1.1: 28/30 for the CLL consortium and 22/30 for IC; - Sub-criterion 1.2: 27/30 for the CLL consortium and 21/30 for IC; - Sub-criterion 1.3: 10/10 for both the CLL consortium and IC; - Sub-criterion 2.1: 6/6 for both the CLL consortium and IC; - Sub-criterion 2.2: 14/15 for the consortium CLL and 15/15 for IC, and - Sub-criterion 2.3: 9/9 for the CLL consortium and 8/9 for IC.
28 By email of 10 May 2021, in reply to IC’s request, claiming that insufficient information had been provided in the light of the requirements of Article 170(3) of Regulation 2018/1046, the Commission set out the reasons for its assessment of the CLL consortium’s tender in the light of the quality criteria. Attached to that e-mail was the evaluation grid for the CLL consortium’s tender. That grid reproduced the evaluation committee’s comments for each of the criteria and sub-criteria set out in the tender specifications. In that email, the Commission also undertook to respect a new standstill period of 10 days before signing the framework agreement.
29 By letter of 25 May 2021, the Commission furnished further explanations and referred, as to the remainder, to the information already sent, and indicated that the standstill period had now expired.
30 In the evaluation grid provided on 19 April 2021, and in its emails of 10 and 25 May 2021, the Commission informed IC that it had not evaluated the information which IC had, for the purpose of describing its tender, made accessible only via hypertext links incorporated in that tender. The Commission stated that it had rejected that information on the ground that the use of hypertext links was not compliant with the tender specifications and that there was a risk, if such links were used, that information could be modified after the deadline for the submission of tenders. In so far as the information made accessible via hypertext links corresponded to documents required by the tender specifications, the Commission found that those documents were missing (‘the incomplete documentation’).
31 By an action brought on 2 July 2021, IC sought the annulment of the decision at issue.
32 By decision of 3 February 2022, the Kingdom of Spain was granted leave to intervene in support of the form of order sought by IC.
33 By a separate document lodged on 29 September 2021 the Commission raised a plea of inadmissibility on the ground that the action was out of time.
34 That plea was rejected in the judgment under appeal, since IC was only given information about the evaluation of the qualities of the CLL consortium’s tender in the email of 10 May 2021. Therefore, from that date, IC was able effectively to exercise its right to bring proceedings and the period for instituting proceedings under the sixth paragraph of Article 263 TFEU began to run.
35 On the substance, IC, supported by the Kingdom of Spain, put forward five pleas in law in support of its action.
36 By its first plea, it alleged that the Commission failed to state reasons in the decision at issue, in that it was not possible to ascertain the relative advantages of the CLL consortium’s tender.
37 By its second plea, IC alleged that the Commission had infringed Article 167(4) of Regulation 2018/1046, in that that institution had carried out only an isolated assessment of each of the tenders, instead of comparing them directly in relation to each other.
38 By its third plea, IC alleged that the Commission committed a manifest error of assessment by excluding the information describing the tender which was made accessible via hypertext links.
39 The fourth plea was subsidiary to the first plea and was divided into three parts. First, it alleged that the decision at issue was vitiated by a failure to state reasons in relation to the individual evaluation of IC’s tender, since the correlation between the comments made and the score awarded is incomprehensible, and a manifest error of assessment because there is no rational correlation between the evaluation and the score awarded for sub-criteria 1.1 and 1.2. Second, it alleged that the decision at issue was vitiated by a manifest error of assessment in that the Commission attached disproportionate importance to the incomplete nature of the documentation. Third, by attaching disproportionate importance to the incomplete nature of the documentation, the Commission retrospectively created a new evaluation rule.
40 The fifth plea was based on an infringement of several principles relating to the award of public contracts, namely the principle of opening up contracts to the broadest possible competition, the principle of transparency and the principle of equal treatment, in that the Commission awarded all the lots to the same tenderer, namely the CLL consortium.
41 By the judgment under appeal, the General Court rejected each of those pleas and, accordingly, dismissed the action in its entirety.
42 By its appeal in Case C‑534/23 P, IC claims that the Court should: - set aside the judgment under appeal; - annul the decision at issue; and - order the Commission to pay the costs.
43 By its appeal in Case C‑539/23 P, the Kingdom of Spain claims that the Court should: - set aside the judgment under appeal; - annul the decision at issue; - in the alternative, refer the case back to the General Court, after setting aside the judgment under appeal, so that it may take the evidence unduly refused and rule on the substance of the case.
44 The Commission contends that the Court should: - dismiss the appeals; and - order IC and the Kingdom of Spain to pay the costs.
45 Cases C‑534/23 P and C‑539/23 P were joined by decision of the President of the Court of 20 November 2023.
46 IC puts forward two grounds in support of its appeal, alleging, first, distortion of the facts and failure to state reasons in the assessment of the third plea in law in the action before the General Court and, second, an error of law and distortion of the facts in the assessment of the second plea in that action.
47 The Kingdom of Spain puts forward four grounds in support of its appeal, alleging, first, infringement of Article 41(2)(c) of the Charter of Fundamental Rights of the European Union (‘the Charter’) and absence of a finding by the General Court of a failure to state reasons for the decision at issue, second, infringement of the principles of legal certainty and the protection of legitimate expectations, third, infringement of the principles of equal treatment and the prohibition of arbitrariness in the assessment of tenders, and infringement of Article 145(c) of the Rules of Procedure of the General Court, and fourth, failure to observe the requirement of objective impartiality and the principle of transparency.
48 It is appropriate, first of all, to examine IC’s first ground of appeal and the Kingdom of Spain’s second ground of appeal together. In the course of that examination, account will be taken of the fact that IC’s first ground of appeal, which, according to its heading, is based on a distortion of the facts and a failure to state reasons, in fact contains arguments alleging errors of law, which overlap to a large extent with the arguments put forward in the Kingdom of Spain’s second ground of appeal alleging breach of the principles of legal certainty and the protection of legitimate expectations.
49 IC notes, as a preliminary point, that, in the context of the third plea in its action before the General Court, it maintained that it had a legitimate expectation that any tender submitted via the eSubmission application could contain hypertext links to documents describing the tender accessible on a website. On the basis of that legitimate expectation, it included hypertext links to a number of documents relevant to the evaluation of its tender, such as documents describing how it would ensure remote teacher-learner interaction in the performance of that contract for language training services.
50 IC also submits that, in response to a question put by the General Court, it put forward evidence showing that other tenderers had also included hypertext links in their tenders.
51 IC disputes the General Court’s assessment, set out in paragraph 142 of that judgment, based on the prohibition on modifying those documents after the deadline for the submission of tenders, that a reasonably well-informed tenderer exercising ordinary care could not consider that it was permissible to include in its tender hypertext links to documents on a website under its control. According to IC, neither Regulation 2018/1046 nor the tender specifications indicated that the use of hypertext links was irregular.
52 IC points out that the documents which it made accessible via hypertext links were in a closed electronic space dedicated exclusively to the contract at issue. The Commission could therefore have ascertained, by asking IC to submit evidence in that regard, that those documents had been attached to those hypertext links before the deadline for the submission of tenders and that they had not subsequently been modified. The General Court therefore erred in law in holding, in paragraph 142 of the judgment under appeal, that, where hypertext links are used, it is not possible to guarantee that the documents concerned remain unchanged after that deadline.
53 Accordingly, IC also disputes the assessment in paragraph 143 of that judgment that the Commission was entitled to refuse to take account of documents made accessible via hypertext links, even where it transpires, after verification, that those documents were not modified after the deadline for the submission of tenders.
54 IC also criticises paragraph 144 of the judgment under appeal, which refers to the evidence given by IC’s IT manager at the hearing before the General Court, from which it followed that the documents describing the tender could, from a technical point of view, still be modified by IC. According to IC, that aspect is irrelevant, since it is only necessary to determine whether those documents were modified and not whether they could be modified. Since any modification would leave a trace in the computer system, IC could have shown that it did not modify those documents after the deadline for the submission of tenders.
55 In any event, it would be unacceptable for a contracting authority to reject documents on the sole ground that it is not in a position to determine whether those documents have been incorporated. Documents lodged in support of a tender can be rejected only in cases of proven irregularity, not on the basis of merely potential irregularity.
56 IC states that it previously participated in procurement procedure HR/2020/OP/0004, in respect of which the tender specifications required, in terms corresponding to those used in the tender specifications at issue in the present case, the submission of tenders via the eSubmission application. In that procedure, the tender submitted on that application by IC included a hypertext link to annexes. In the assessment of that tender, notified to IC by the Commission on 7 September 2020, the content of those annexes was described and evaluated.
57 IC submits that, as a result of the Commission’s notification, which it received while preparing its tender for the contract at issue in the present case, on the one hand, and of the absence, in the procurement documents, of an explicit statement that the use of hypertext links was now prohibited, on the other hand, it could legitimately believe that such use was authorised. Contrary to what the General Court held in paragraph 148 of the judgment under appeal, it must be held that IC may rely, in such circumstances, on a legitimate expectation.
58 IC observes, in that context, first of all, that the obligation to use the eSubmission application, at the material time, was recent. In those circumstances, it argues that the General Court erred in requiring, in paragraph 148 of the judgment under appeal, proof that the Commission had given IC ‘consistent’ assurances. In that regard, the General Court distorted the facts by disregarding the fact that procurement procedure HR/2020/OP/0004 was the only instance where the question of the use of hypertext links in a tender submitted on the eSubmission application had previously arisen.
59 Next, paragraph 148 of the judgment under appeal wrongly relies on case-law which concerns the situation where an assurance given by the Commission does not comply with a standard. In the present case, there is no such ‘standard’, since neither Regulation 2018/1046 nor any other EU legislative instrument requires tenders to be submitted on the eSubmission application.
60 Lastly, while accepting that the use, in the present case, of hypertext links in the tender may be regarded as incorrect, IC submits that a significant number of tenderers had been led to make that mistake, in particular by the Commission’s previous practice. That aspect is essential for the purposes of establishing the existence of a ‘legitimate expectation’ within the meaning of the case-law of the Court of Justice.
61 IC adds that it asked the Court to require the Commission to produce information enabling it to determine whether other tenderers had also used hypertext links in their tenders and whether the Commission had systematically refused to take account of the documents accessible via those links. According to IC, contrary to what the General Court stated in paragraph 150 of the judgment under appeal in order to justify the rejection of that request for a measure of inquiry, that information was necessary in order to rule on the argument alleging an infringement of the principle of the protection of legitimate expectations.
62 In that regard, IC observes that the principle of the protection of legitimate expectations is the corollary of the principle of legal certainty. It is therefore essential that the rules laid down by the contracting authority for the award of a public contract be clear and precise and that their application be foreseeable for tenderers. That requirement cannot be considered to have been met where several tenderers have interpreted a rule, such as the obligation to submit tenders on the eSubmission application, differently to how the Commission advocated.
63 IC submits, moreover, that the General Court failed to state sufficient reasons in law for dismissing the third plea in law.
64 According to the Kingdom of Spain, the rejection of IC’s third plea before the General Court is incompatible with the principles of legal certainty and the protection of legitimate expectations.
65 That Member State submits that there was, first, a situation of uncertainty in that the tender specifications were silent as regards the possibility of attaching documents to a tender via hypertext links and, second, an administrative practice of the Commission, which the Commission communicated to IC, which gave rise to a legitimate expectation on the part of IC that it was permissible to do so.
66 The Kingdom of Spain criticises the General Court, first of all, for having limited its analysis to the possibility that documents attached to a tender via hypertext links may be modified after the deadline for the submission of tenders. It thus turned a potential risk of unlawful conduct into an insurmountable obstacle, making it impossible to use hypertext links to submit documents describing a tender.
67 Even assuming that the use of such links is irregular, the General Court erred, in paragraph 147 of the judgment under appeal, in inferring from the judgment of 10 October 2013, Manova (C‑336/12, EU:C:2013:647), which concerns the possibility of amending or supplementing a tender in order to provide clarification or correct obvious clerical errors, that the Commission was not required to invite IC to resubmit the documents by uploading them to the eSubmission application. Contrary to what the General Court held, that case-law could have been applied by analogy to conclude that it was appropriate to allow IC to submit directly, on the eSubmission application, the documents which it had initially made accessible via hypertext links or to prove that those documents had not been altered after the deadline for the submission of tenders.
68 Next, the General Court erred in finding that it was irrelevant, first, that, in the context of procurement procedure HR/2020/OP/0004, the Commission had accepted the submission of documents via hypertext links, and, second, that the Commission had, as is apparent from paragraph 133 of the judgment under appeal, evaluated, under sub-criterion 1.3, the tenderers’ online platforms, which are hosted on external servers and accessible via such links. In that regard, the General Court also erred in confining itself to stating, in paragraph 145 of the judgment under appeal, that IC received the maximum number of points for sub-criterion 1.3.
69 Lastly, the Kingdom of Spain submits that, before the General Court, it noted that certain documents made accessible via hypertext links were registered under an ISBN (International Standard Book Number) and could not therefore be modified. In paragraph 131 of the judgment under appeal, the General Court distorted that argument and failed to rule on the failure to evaluate such documents.
70 The Commission disputes the arguments put forward by IC and the Kingdom of Spain.
71 It must be borne in mind, first of all, that any person in respect of whom the EU administration has given justified hopes may rely on the principle of the protection of legitimate expectations. In whatever form it is given, information which is precise, unconditional and consistent and comes from authorised and reliable sources constitutes assurances capable of giving rise to such expectations (see, to that effect, judgment of 19 September 2024, Coppo Gavazzi and Others v Parliament, C‑725/20 P, EU:C:2024:766, paragraph 95 and the case-law cited).
72 By contrast, if a prudent and alert person can foresee the adoption of an EU measure likely to affect his or her interests, that person cannot plead the principle of protection of legitimate expectations if that measure is adopted (judgment of 19 September 2024, Coppo Gavazzi and Others v Parliament, C‑725/20 P, EU:C:2024:766, paragraph 96 and the case-law cited).
73 In the present case, the General Court found, in paragraph 142 of the judgment under appeal, that in the procedure for the award of the public contract at issue, any reasonably well-informed tenderer exercising ordinary care was in a position to know that it was not permitted to include, in support of its tender, hypertext links referring to documents accessible on a website which remain under its control and may therefore, technically, be modified after the deadline for the submission of tenders.
74 That assessment is based on the considerations set out in paragraphs 138 to 141 of that judgment, which are not disputed by IC.
75 Those considerations include the quotation, in paragraph 138 of that judgment, of a passage from page 79 of the tender specifications, according to which ‘tenders are to be submitted via the eSubmission application according to the instructions laid down in the Invitation to tender letter and the eSubmission Quick Guide’.
76 As the General Court noted, in essence, in paragraph 139 of the judgment under appeal, that instruction in the tender specifications indicated that the documents describing the tender had to be uploaded to the eSubmission application.
77 The fact, emphasised by the Kingdom of Spain, that it was necessary, under sub-criterion 1.3 in the procurement documents, on ‘online platforms’, to assess an inherently modifiable component, namely the online language training platform proposed by the tenderer, is irrelevant in that regard. The present dispute does not concern the application of sub-criterion 1.3 but whether the information included in the tender to document the content and pedagogy of the proposed language training (sub-criteria 1.1 and 1.2) had to be uploaded to the eSubmission application or could be made accessible via hypertext links.
78 In the light of the considerations set out in paragraphs 138 to 141 of the judgment under appeal, and in particular those set out in paragraphs 75 and 76 above, neither the fact relied on by IC and the Kingdom of Spain that the Commission, in the context of a previous call for tenders, took into account documents made accessible via hypertext links, nor the fact, assuming it were established, that other tenderers had, like IC, considered that documents provided in support of their tender could be submitted in that way, can be classified as ‘legitimate expectations’ arising from ‘information which is precise, unconditional and consistent and comes from authorised and reliable sources’, within the meaning of the case-law cited in paragraph 71 above. The General Court therefore correctly held, in paragraph 150 of the judgment under appeal, that it was not necessary for the resolution of the dispute to examine the extent to which the other tenderers had included in their tenders hypertext links providing access to documents describing those tenders.
79 Furthermore, it must be stated that, in a situation such as that described by IC, where the Commission evaluated the documents made accessible via hypertext links in the first and - at the time of the facts giving rise to the present dispute - only procurement procedure following the mandatory use of the eSubmission application, the fact that the administrative practice in question is necessarily of an isolated nature precludes, in principle, a finding, on the basis of that aspect alone, that there are legitimate expectations.
80 In the light of the foregoing, the General Court was fully entitled to hold, in paragraph 148 of the judgment under appeal, that IC had not demonstrated the existence of consistent assurances on the part of the Commission that hypertext links could be used.
81 Next, in so far as IC and the Kingdom of Spain plead that there has been a breach of the principle of legal certainty, the corollary of which is the principle of the protection of legitimate expectations, it should be borne in mind that that principle requires that rules of law be clear and precise, so that the application of those rules is predictable for individuals. All legislation must enable those concerned to ascertain their rights and obligations unequivocally and take steps accordingly (see, to that effect, judgment of 3 June 2021, Jumbocarry Trading, C‑39/20, EU:C:2021:435, paragraph 48, and the case-law cited).
82 It must be held that the rules on the submission of documents in support of a tender submitted in the context of an EU call for tenders are sufficiently clear and precise.
83 In that regard, it should be noted that, in accordance with point 16.2 of Annex I to Regulation 2018/1046, the rules governing the submission of tenders must be set out in the invitation to tender. In the present case, it is common ground that that invitation provided that tenders had to be submitted via the eSubmission application and that, to that end, tenderers had to follow the instructions set out in the quick guide to that application. That instruction was repeated in the abovementioned passage of page 79 of the tender specifications, which referred to those instructions, which state that any document submitted in support of the tender must be uploaded to the dedicated area of the eSubmission application.
84 The unambiguous nature of that instruction is underlined by the presence of a requirement of ‘data integrity’, which is laid down, as regards the online submission of documents in support of a request addressed to the EU administration, in Article 149(1) of Regulation 2018/1046. In accordance with that requirement, the online filing system used by tenderers must be designed in such a way that the application documents remain unchanged throughout the administrative procedure. EU public procurement procedures are no exception to that rule. Data integrity must therefore be ensured before the deadline for the submission of tenders, which means that any document submitted in support of a tender must be submitted in a form and in accordance with detailed rules that prevent it from being modified at a later stage.
85 The inclusion of the requirement of data integrity in Regulation 2018/1046 also invalidates IC’s argument that the submission of documents in support of a tender in the context of a public procurement procedure by the European Union is not covered by any ‘standard’. The General Court was therefore fully entitled to find, in essence, in paragraph 148 of the judgment under appeal, that even if the Commission had given IC assurances to the effect that the documents describing content and pedagogy could be submitted via hypertext links, those assurances would have been incompatible with the standards in force. Those standards include, moreover, not only the requirement of data integrity but also the principles governing the award of public contracts, including observance of the principles of transparency and equal treatment in accordance with Article 160 of Regulation 2018/1046.
86 Those standards and good administration concerns may justify the application of the instruction to upload all documents submitted in support of the tender without providing exceptions for certain categories of documents that would be extremely difficult or even impossible to amend for technical or legal reasons. Therefore, even if the Kingdom of Spain’s argument that the documents registered under an ISBN could not be modified were correct and, as the Kingdom of Spain asserts, had been misinterpreted by the General Court, such a fact is not capable of vitiating the decisive reasoning, followed in the judgment under appeal, according to which IC could not expect the Commission to evaluate documents that were not uploaded to the eSubmission application but were made accessible only via hypertext links.
87 Since the General Court found, without disregarding the principles of legal certainty and the protection of legitimate expectations, that, in the light of the need to ensure that the entire file lodged by each tenderer remains unchanged, the documents made accessible via hypertext links could not be taken into account in the evaluation of the tenders, it also held correctly, in paragraphs 143, 144, 146 and 147 of the judgment under appeal, that the Commission was not required to examine, by requesting evidence from tenderers who had made use of hypertext links, whether the documents made accessible via such links had remained unchanged after the deadline for the submission of tenders.
88 In that regard, the General Court rightly stated, in paragraph 147 of the judgment under appeal, that the case-law arising from the judgment of 10 October 2013, Manova (C‑336/12, EU:C:2013:647), could not be understood as meaning that the Commission had to invite IC to regularise the submission of the documents at issue. That judgment concerns the possibility for the contracting authority to invite a tenderer to regularise the submission of its tender by submitting documents describing that tenderer’s situation. Apart from the fact that the documents concerned in the case which gave rise to that judgment did not, unlike the present case, concern the tender itself, that judgment does not impose an obligation on the contracting authority to request regularisation.
89 Finally, it is apparent from the foregoing that the General Court gave clear and unequivocal reasons for its assessments in such a way as to enable the persons concerned to ascertain the reasons for the decision taken and to enable the Court of Justice to exercise its power of review. Accordingly, IC’s claim that the reasons given for the judgment under appeal are insufficient, which is exclusively based on the substantive arguments that have been rejected above and overlap with them, must be rejected as manifestly unfounded.
90 It follows from all the foregoing that IC’s first ground of appeal and the Kingdom of Spain’s second ground of appeal must be rejected.
91 IC notes that, by its second plea raised before the General Court, it criticised the Commission for failing to carry out a comparative examination of the quality of competing tenders. The Commission confined itself to evaluating each tender in isolation and ranking those tenders on the basis of the results obtained at the end of those individual evaluations.
92 The General Court rejected that plea, stating, in essence, that it is not necessary when comparing offers to weigh up the tenderers’ proposals in order to identify the characteristics and advantages in relation to each other.
93 That reasoning is reflected, in particular, in paragraph 165 of the judgment under appeal, in which the General Court found that the CLL consortium’s tender had been evaluated in the light of the award criteria set out in the tender specifications, as IC’s tender had been, with the result that there was nothing to suggest that the Commission did not comply with the requirement to identify the most economically advantageous tender on the basis of objective criteria that ensure compliance with the principles of transparency and equal treatment.
94 According to the applicant, that method of comparing tenders is legally flawed. Where, as in the present case, the application of the award criterion of the most economically advantageous tender requires the identification of the tender offering the best price-quality ratio, the quality of the respective tenders must be compared. Only that direct balancing approach to tenders ensures an ‘objective comparison of the relative value of the tenders in order to determine, in conditions of effective competition, which tender is the most economically advantageous tender’, within the meaning of recital 90 of Directive 2014/24. Recital 90 is relevant for interpreting the scope of Article 67 of that directive, since that article is itself relevant, as is apparent from recital 106 of Regulation 2018/1046, to understand the meaning of the award criterion of the most economically advantageous tender, imposed by Article 167(4) of that regulation.
95 The tender submitted by the CLL consortium for all the lots should have been effectively compared with the bids of the other tenderers, separately for each lot. Such a comparative examination could have led to a different evaluation of the CLL consortium’s tender for each lot. The evaluation committee awarded an identical score to the CLL consortium’s tender for each of the lots, even though the tender specifications stated that if a tender was submitted for multiple lots, an evaluation would be carried out for each lot. Accordingly, the General Court erred when, in paragraph 166 of the judgment under appeal, it accepted the uniform evaluation of the CLL consortium’s tender.
96 The fact that the CLL consortium’s tender was, in essence, identical for each of the lots is irrelevant in that regard, since the bids of the other tenderers differed from one lot to another, which should guarantee a distinct relative value, from one lot to another, of the CLL consortium’s tender compared with those of its competitors.
97 The rejection of the second plea in law is, moreover, vitiated by contradictory reasoning.
98 In that regard, IC observes that it is stated, in paragraph 174 of the judgment under appeal, that ‘the Commission compared the technical proposals. The Commission effectively found that [IC]’s tender contained a shortcoming in relation to self-study. It can in fact be found that the tender was evaluated as being of lower quality than that of the CLL consortium, because it did not specify the self-study.’ According to IC, in expressing that view, the General Court implied that the contracting authority must assess the competing proposals in relation to each other, which is inconsistent with the other grounds for rejecting the second plea in law set out in the judgment under appeal. Alternatively, it should be considered that, in paragraph 174 of the judgment under appeal, the General Court found that the Commission did in fact compare competing tenders in relation to each other. That finding would, in such a situation, be inconsistent with the other findings of the General Court in the judgment under appeal and would, in any event, constitute a distortion of the facts since, in reality, the Commission did not weigh up the competing technical proposals in order to determine their characteristics and relative advantages.
99 The Commission disputes that line of argument.
100 As is apparent from the facts established by the General Court and summarised in paragraph 15 above, the Commission was required, for the purposes of awarding the public contract at issue, to rely, in accordance with Article 167(4) of Regulation 2018/1046, on the criterion of the most economically advantageous tender, since that criterion may, according to that provision, be applied in accordance with the lowest price, lowest cost or the best price-quality ratio method.
101 It is also apparent from those facts that the method followed in the present case was that of the best price-quality ratio.
102 It is true, as IC points out, that that method requires an objective comparison of the ‘relative value’ of the tenders. That requirement is apparent in particular from recital 90 of Directive 2014/24, which is relevant for the interpretation of the scope of Article 67 of that directive, that article itself being, as is apparent from recital 106 of Regulation 2018/1046, relevant for the interpretation of Article 167(4) of that regulation.
103 However, contrary to what IC claims, the General Court’s assessment that such an objective comparison on the basis of the relative value of the tenders was carried out in the present case is not vitiated by an error of law or a distortion of the facts.
104 In that regard, the General Court found, in paragraphs 165 and 166 of the judgment under appeal, that the tenders submitted by the CLL consortium and IC were each evaluated in the light of the criteria laid down in the tender specifications. As noted in paragraphs 23 and 26 above, those appraisals led to a total score of 88.89 points out of 100 for the CLL consortium and 87.40 points out of 100 for IC.
105 Those facts are not disputed by IC.
106 It thus appears that the ‘relative value’ of the tenders was in fact evaluated, since the value of the CLL consortium’s tender was estimated to be 1.49 points higher than the value of IC’s tender.
107 Furthermore, IC has not adduced any evidence to show that the EU legislation requires the contracting authority to compare the tenderers’ bids in another way or to substantiate its claim that paragraph 174 of the judgment under appeal should be interpreted to that effect. In that regard, it should be noted that, in paragraph 174, which refers to paragraphs 165 to 168 of that judgment, the General Court does not make any assessment which would contradict those set out in those paragraphs. It is merely stated in that paragraph that, by evaluating each of the technical tenders in the light of the tender specifications, the Commission ‘compared the technical proposals’, meaning it was able to do so. That corresponds, in essence, to what is stated in paragraphs 165 to 168.
108 Furthermore, IC has not substantiated its claim that the assessment of the value of the CLL consortium’s tender was uniform for all the lots of the public contract at issue. While it is true that first place was awarded to the CLL consortium for all the lots of that contract, it is not apparent, however, either from the facts established by the General Court or from those relied on by IC that the scores obtained by the tenderers ranked in second place for the various lots of that contract were identical. There is therefore nothing to suggest that the ‘relative value’ of the CLL consortium’s tender was uniform for all the lots.
109 Consequently, none of the arguments put forward by IC in support of the second ground of appeal is capable of establishing that the General Court erred in law or distorted the facts in finding, in paragraph 165 of the judgment under appeal, that there was nothing to support the finding that the Commission failed to comply with the requirement to identify the most economically advantageous tender on the basis of objective criteria which ensure compliance with the principles of transparency, non-discrimination and equal treatment.
110 It follows that IC’s second ground of appeal is unfounded.
111 The Kingdom of Spain claims that, by failing to find that the decision at issue is vitiated by a failure to state reasons, the General Court disregarded the scope of the obligation to state reasons enshrined in Article 41(2)(c) of the Charter.
112 The Kingdom of Spain submits, first, that the total score awarded to the CLL consortium’s tender was only 1.49 points higher than the one awarded to IC’s tender. Second, the incomplete documentation related only to certain components of sub-criteria 1.1 and 1.2. That incomplete documentation was one of the reasons why IC obtained the scores of 22/30 and 21/30 in the assessment of those sub-criteria.
113 The decision at issue does not make it possible to ascertain the precise reasons why those scores were awarded to IC’s tender.
114 It is not sufficient to provide access to an evaluation grid containing a succession of comments on different components of a sub-criterion, without indicating the points added or deducted for each of those components.
115 The General Court rightly recalled, in paragraph 65 of the judgment under appeal, that, for the obligation to state reasons to be fulfilled, it is sufficient that the unsuccessful tenderer is able to understand why the successful tender was superior to the unsuccessful tender. In the present case, however, the General Court erred in failing to recognise that the decision at issue did not precisely enable IC to understand why the CLL consortium’s tender had been scored more favourably.
116 The Kingdom of Spain emphasises that it does not call into question the contracting authority’s broad discretion in allocating the points of each sub-criterion between the various components of that sub-criterion. It maintains, however, that the Commission must specify how many points it awards to each of those components. In support of that argument, it refers to paragraphs 247 to 254 of the judgment of 27 April 2016, European Dynamics Luxembourg and Others v EUIPO (T‑556/11, EU:T:2016:248).
117 It is apparent from that judgment that the lack of correlation between, on the one hand, the positive and negative comments attributed to each component assessed and, on the other hand, a specific award or deduction of points, constitutes an infringement of the obligation to state reasons.
118 Therefore, by holding, in essence, in paragraphs 63, 102, 117 and 118 of the judgment under appeal, that that lack of correlation is irrelevant, the General Court erred in law.
119 The General Court found, in paragraph 90 of the judgment under appeal, that, in the present case, the tender specifications are less detailed than those at issue in the case which gave rise to the judgment of 27 April 2016, European Dynamics Luxembourg and Others v EUIPO (T‑556/11, EU:T:2016:248). According to the Kingdom of Spain, that reasoning of the General Court is legally flawed, since it amounts to stating that the scope of the obligation to state reasons is determined by the precision with which the tender specifications are drafted. The scope of that obligation cannot depend on the procurement documents. In the present case, the fact, established in paragraphs 76 to 78 and 90 of the judgment under appeal, that each sub-criterion contained various components and that those components were specifically assessed by positive or negative comments, should have been regarded by the General Court as decisive.
120 Finally, according to the Kingdom of Spain, the decision taken by the administration should indicate the weight actually awarded in the assessment of each of the components which were separately evaluated.
121 The Commission disputes that line of argument.
122 As regards the Commission’s obligation to state reasons under the second paragraph of Article 296 TFEU and Article 41(2)(c) of the Charter, it is important to note that the statement of reasons must disclose in a clear and unequivocal fashion the reasoning followed by the author of that measure in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent court to exercise its power of review (see, to that effect, judgment of 30 January 2024, Agentsia ‘Patna infrastruktura’ (European funding of road infrastructure), C‑471/22, EU:C:2024:99, paragraph 25 and the case-law cited).
123 The precise scope of the requirements to be satisfied by the statement of reasons thus depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure or other persons concerned may have in obtaining explanations. It is therefore not necessary for the reasoning to go into all the facts and points of law that could be considered to be relevant (judgment of 30 January 2024, Agentsia ‘Patna infrastruktura’ (European funding of road infrastructure), C‑471/22, EU:C:2024:99, paragraph 26 and the case-law cited).
124 The Kingdom of Spain complains that the General Court failed to find that the Commission had infringed its obligation to state reasons in relation to IC. Although it does not dispute that IC was informed, first, of its scores and those obtained by the CLL consortium in respect of each award criterion and sub-criterion and, second, of the positive and negative comments made by the evaluation committee, that Member State considers that the Commission was required to specify the correlation between each of those comments and the score obtained, so that IC was aware of the number of points added or deducted as a result of each comment.
125 However, as the Court has already held, 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 3 May 2018, EUIPO v European Dynamics Luxembourg and Others, C‑376/16 P, EU:C:2018:299, paragraph 57 and the case-law cited).
126 Furthermore, the obligation to state reasons does not, in principle, require a specific weighting to be attached to every negative or positive comment in the evaluation. That being said, in a situation where the procurement documents contain specific quantified weightings attached to criteria or sub-criteria, the principle of transparency requires a quantified evaluation to be given in respect of those criteria or sub-criteria (judgment of 3 May 2018, EUIPO v European Dynamics Luxembourg and Others, C‑376/16 P, EU:C:2018:299, paragraph 63).
127 In the present case, it is common ground that the tender specifications provided for a weighting of points at criterion and sub-criterion level, but that they also distinguished, within each sub-criterion, various components which, for their part, were not individually assigned a specific weighting of points.
128 In those circumstances, as the General Court stated in paragraph 102 of the judgment under appeal, the Commission was not required to calculate, or therefore indicate, in its decision or the evaluation grids sent to IC, the precise extent to which each comment relating to an individual component of a sub-criterion contributed to the score obtained under that sub-criterion, expressed in points.
129 Admittedly, the situation may be different where provision is made for awarding fractions of points for one or more components of a sub-criterion. In that case, the principle of transparency and the obligation to state reasons require that the fractions of points awarded on the basis of the positive and negative comments on those components of that sub-criterion be disclosed to the person concerned (see, to that effect, judgment of 3 May 2018, EUIPO v European Dynamics Luxembourg and Others, C‑376/16 P, EU:C:2018:299, paragraphs 65 to 67). However, in the present case, it appears that the various components of the sub-criteria were not individually assigned a specific weighting of points. As stated in paragraph 126 above, the contracting authority has the option to limit a quantified evaluation solely to criterion and sub-criterion level. Accordingly, it is not required to identify, within the score awarded for a sub-criterion, fractions of the score for each individual component of that sub-criterion. The General Court therefore did not err in law in finding that the positive and negative comments expressed in respect of those components should not lead to a numerical weight being assigned to each of those comments.
130 The Kingdom of Spain’s second ground of appeal must therefore be rejected.
131 The Kingdom of Spain observes that the second plea in IC’s action before the General Court concerned the failure to compare the tenders submitted by the CLL consortium and IC and that, by its fifth plea in law, IC complained that the Commission had awarded all the lots of the contract to a single service provider.
132 The Kingdom of Spain submits that, in support of those pleas put forward by IC, it relied before the General Court on an infringement of the principle of equal treatment, by providing a specific illustration of the difference in treatment suffered by IC.
133 That line of argument was incorrectly examined by the General Court in the judgment under appeal.
134 In that regard, first, the Kingdom of Spain observes that it submitted, during the proceedings before the General Court, that the Commission had not carried out any specific assessment of the content of the CLL consortium’s tender relating to the stage of the language training course known as the ‘final summative evaluations’. However, it made a negative comment on that aspect of IC’s tender.
135 In paragraph 176 of the judgment under appeal, even though it acknowledged that difference, the General Court merely found it to be justified on the basis that the documentation in IC’s tender was incomplete. According to the Kingdom of Spain, although the incomplete nature of the documentation may explain the negative comment relating to that tender, it cannot explain the absence of comments concerning the final summary evaluations on the CLL consortium’s tender.
136 Secondly, the Kingdom of Spain claims that it had relied, before the General Court, on the fact that, in the evaluation of sub-criterion 1.1, the Commission had commented positively on the CLL consortium’s tender in respect of certain digital tools proposed by the CLL consortium, whereas, with regard to the digital tools proposed in IC’s tender, the Commission merely stated, without any evaluation, that that tender listed such tools.
137 In paragraphs 179 and 180 of the judgment under appeal, the General Court rejected that argument on the basis that, as regards digital tools, the comment relating to IC’s tender was equivalent to that relating to the CLL consortium’s tender. Such an assessment by the General Court is incorrect since the Commission, in relation to that component of sub-criterion 1.1, failed to formulate an evaluation of IC’s tender.
138 In reality, in view of the absence of a measure of inquiry to compel the Commission to explain its position in that regard, the General Court was not in a position to know whether the Commission had awarded the same score to the CLL consortium and IC for that component of sub-criterion 1.1.
139 The Kingdom of Spain submits that it had therefore requested that the Court ask the Commission to provide the full evaluation of sub-criteria 1.1 and 1.2. According to the Kingdom of Spain, that measure of inquiry was necessary to support the argument that the Commission, when evaluating sub-criterion 1.1, specifically mentioned and evaluated the digital tools proposed by the CLL consortium, but not those proposed by IC, since those tools were not evaluated in order to determine, inter alia, whether they facilitate the consolidation of language learning or whether they allow for continuous evaluation.
140 The Kingdom of Spain adds that, in paragraph 150 of the judgment under appeal, the General Court rejected that request for a measure of inquiry on the ground that it is apparent from Article 88 of the Rules of Procedure of the General Court that such a request cannot be made by an intervener. However, such an interpretation of Article 88 is incorrect since it relies solely on that provision without taking into account its context. That context includes Article 145(2)(c) of the Rules of Procedure, which allows interveners to submit any evidence produced or offered.
141 Third, the Kingdom of Spain observes that it argued before the General Court that the Commission had evaluated the learning methods proposed in IC’s tender but not those proposed in the CLL consortium’s tender.
142 By rejecting that argument in paragraph 178 of the judgment under appeal on the ground that accepting it ‘amounts to treating [IC] even more favourably’, the General Court distorted that argument. Without that distortion, the General Court could have found that the difference in treatment referred to in the preceding paragraph is unacceptable since, if the Commission had evaluated the learning methods proposed by the CLL consortium, it could have arrived at a negative assessment of those methods.
143 Fourth, the Kingdom of Spain states that it maintained before the General Court that the Commission, in its assessment of the CLL consortium’s tender relating to the component ‘organisation of the content’ referred to in sub-criterion 1.1, confined itself to a formal analysis leading to the comment that that organisation was detailed and had a very clear structure, whereas, in its assessment of IC’s tender, it had commented on the content of the courses.
144 In paragraph 182 of the judgment under appeal, the General Court erred in rejecting that argument on the ground that the Commission had made a positive comment on the content of the courses, whereas the Kingdom of Spain disputed the fact that the Commission had not carried out any assessment as regards the organisation of that content.
145 In the light of those four illustrations, the Kingdom of Spain concludes that the General Court erred in finding that the Commission applied a different methodology in the evaluation of IC’s tenders and the CLL consortium. In addition, the judgment under appeal infringes Article 145(2)(c) of the Rules of Procedure of the General Court.
146 The Commission disputes that line of argument.
147 As the Kingdom of Spain states, the paragraphs of the judgment under appeal which it challenges by the third ground of its appeal respond to arguments which it had raised in support of IC’s second and fifth grounds of appeal, by which IC criticised, inter alia, the fact that all the lots of the public contract at issue had been awarded to the CLL consortium. That favourable result for the CLL consortium was the result of lacunae, or even arbitrary treatment, in the comparison of the tenders. According to those arguments put forward by the Kingdom of Spain before the General Court, it was apparent from the evaluation grids for the tenders submitted by the CLL consortium and IC for Lot 3 that the evaluation of the CLL consortium’s tender had not been as thorough on certain aspects as the evaluation of IC’s tender and had been more detailed on other aspects as that evaluation.
148 In that regard, it should be noted that the fact that there are discrepancies, in terms of content or degree of detail, between the comments made by the evaluation committee on the various tenders is not, in itself, evidence of the existence of unequal treatment or arbitrary treatment. Since the tenders differ from one another, the comments made on them may be more detailed in relation to one tenderer than another.
149 Although it is true that unequal treatment or arbitrary treatment must be found to exist where there is precise and consistent evidence of such unlawful conduct, it must be observed that it is not apparent from the paragraphs of the judgment under appeal referred to in the Kingdom of Spain’s third ground of appeal that such evidence was found in the evaluation grids for the tenders of the CLL consortium and IC for Lot 3.
150 That evaluation by the General Court, which is factual in nature, is not subject to review by the Court of Justice on appeal.
151 As is clear from Article 256(1) TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union, an appeal lies on points of law only. The General Court thus has exclusive jurisdiction to find and appraise the relevant facts and the evidence. The assessment of the facts and evidence does not, save where the facts and evidence are distorted, constitute a point of law which is subject, as such, to review by the Court of Justice on appeal (judgment of 13 March 2025, PKK v Council, C‑72/23 P, EU:C:2025:182, paragraph 113 and the case-law cited). In the present case, the Kingdom of Spain’s arguments concern the General Court’s assessment of the facts, but no mention is made of any distortions of the facts.
152 Consequently, in so far as the Kingdom of Spain’s third ground of appeal alleges infringement of the principle of equal treatment and of the prohibition of arbitrariness in the assessment of tenders, that ground is inadmissible.
153 By contrast, in so far as the Kingdom of Spain claims that the rejection, in paragraph 150 of the judgment under appeal, of its request for a measure of inquiry is based on a misreading of Article 88(1) of the Rules of Procedure of the General Court and thus renders Article 145(2)(c) of those rules of procedure redundant, the Kingdom of Spain raises a question of law.
154 Article 88(1) of those rules of procedure states that measures of inquiry may be taken either of the court’s own motion or at the request of a main party.
155 As is clear from that provision, interveners are not permitted to submit requests for measures of inquiry before the General Court.
156 Contrary to the Kingdom of Spain’s contention, that exclusion of the interveners does not render Article 145(2)(c) of those rules of procedure redundant. That provision, which stipulates that the statement in intervention must include any evidence produced or offered on which the intervener’s pleas and arguments are based, concerns evidence produced or offered by the intervener itself, rather than evidence that another party produces following a measure of inquiry adopted by the General Court.
157 Consequently, in so far as it alleges infringement of Article 145(2)(c) of that regulation, the Kingdom of Spain’s third ground of appeal is unfounded.
158 It follows from the foregoing that the second ground of appeal must be rejected.
159 The Kingdom of Spain recalls that the right to good administration, enshrined in Article 41 of the Charter, includes, inter alia, the requirements of objective impartiality and transparency. By rejecting IC’s fifth plea in law, the General Court failed to have regard to those requirements.
160 In that regard, the Kingdom of Spain submits that, in a public procurement procedure based on the award criterion of the best price-quality ratio, the evaluation of the quality of the tender must be carried out separately from the evaluation of the price. Maintaining such a separation ensures that the evaluation of quality is not influenced by price. Accordingly, the fact that a tender is more expensive would prevent it from being considered as being of higher quality.
161 In paragraph 209 of the judgment under appeal, the General Court correctly found that, by that argument, the Kingdom of Spain did not intend to rely on subjective bias on the part of the members of the evaluation committee. However, in paragraph 208 of that judgment, the General Court misinterpreted that argument, which is based on the requirement of objective impartiality, as meaning that, by that argument, the Kingdom of Spain criticised the Commission for having first evaluated the price and then the quality of the tenders. That reading of its line of argument is incorrect since, in reality, the Kingdom of Spain’s concern relates to the risk of the separation between those two evaluations not being ensured.
162 According to the Kingdom of Spain, the General Court should have found that it could not be ruled out that the Commission simultaneously evaluated the price and quality of the tenders and that it was thus influenced by the high price of the CLL consortium’s tender in order to conclude, on the basis of the price, that that tender was of high quality.
163 In that regard, the Kingdom of Spain notes that, in order to show that the organisation of an administrative procedure does not provide sufficient guarantees to exclude any legitimate doubt as to possible bias, it is not necessary to prove lack of impartiality. It is sufficient for a legitimate doubt to arise which cannot be dispelled.
164 The Commission disputes that line of argument.
165 The fundamental right to good administration, set out in Article 41 of the Charter, includes, under paragraph 1 of that provision, the right to have one’s affairs handled impartially. That requirement of impartiality has a subjective component and an objective component. In accordance with the latter component, each institution, body, office or agency of the European Union must offer sufficient guarantees to exclude any legitimate doubt as to any bias (judgment of 14 March 2024, D & A Pharma v Commission and EMA, C‑291/22 P, EU:C:2024:228, paragraphs 72 and 73 and the case-law cited).
166 In the present case, as is apparent from the facts established by the General Court concerning the evaluation criteria, summarised in paragraphs 15 to 19 above, the tender specifications provided for a separate evaluation of the price, weighted at 30%, and of quality, weighted at 70%. The tender specifications provide for a strict distinction. It follows from the description of the quality-related criteria and sub-criteria that each of them is entirely unrelated to the price of the tender.
167 In paragraphs 208 and 209 of the judgment under appeal, the General Court found that the Kingdom of Spain had not submitted any circumstantial or other evidence that the Commission had not complied with that distinction or organised the procedure in such a way that the quality evaluation was influenced by the price-based evaluation.
168 The Kingdom of Spain does not allege any distortion of the facts in order to challenge that assessment by the General Court.
169 That assessment by the General Court duly enabled it to reject the Kingdom of Spain’s argument alleging infringement of the requirement of impartiality. Even assuming that the concern expressed by the Kingdom of Spain as to possible bias in favour of the most expensive tender has any relevance, the fact remains that a distinction, such as that made in the procurement documents, between price-based and quality-based evaluations provides sufficient guarantees to exclude any legitimate doubt as to such bias.
170 Consequently, in so far as the Kingdom of Spain’s fourth ground of appeal alleges failure to observe the requirement of objective impartiality, it must be rejected as unfounded.
171 Finally, the Kingdom of Spain submits that the General Court failed to have regard to the requirement of transparency, but did not put forward any specific arguments in that regard. In accordance with settled case-law, it is apparent from the second subparagraph of Article 256(1) TFEU, the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union and Article 168(1)(d) of the Rules of Procedure of the Court of Justice that an appeal must indicate precisely the contested elements of the judgment under appeal and the legal arguments specifically advanced in support of the appeal, failing which the appeal or the ground of appeal in question will be dismissed as inadmissible (judgment of 4 October 2024, thyssenkrupp v Commission, C‑581/22 P, EU:C:2024:821, paragraphs 57 and 58). It follows that the Kingdom of Spain’s complaint alleging failure to observe the requirement of transparency is inadmissible.
172 That ground of appeal must therefore be dismissed.
173 Since none of the grounds put forward in support of the appeals has been upheld, those appeals must be dismissed in their entirety.
174 Under Article 184(2) of the Rules of Procedure of the Court of Justice, where the appeal is unfounded, the Court is to make a decision as to the costs.
175 Article 138(1) of the Rules of Procedure, which is applicable to appeal proceedings by virtue of Article 184(1) thereof, provides that the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
176 Since the Commission has applied for costs and IC and the Kingdom of Spain have been unsuccessful, the latter must be ordered to bear their own costs and to pay those incurred by the Commission in the appeals. 1. Dismisses the appeals in Cases C‑534/23 P and C‑539/23 P; 2. Orders Instituto Cervantes and the Kingdom of Spain to bear their own costs and to pay those of the European Commission relating to the appeals.