4 October 2012 (*)

(Appeal – Public contract awarded by the Commission – Rejection of a tender – Obligation to state reasons – Regulation (EC, Euratom) No 1605/2002 – Article 89 – Regulation (EC, Euratom) No 2342/2002 – Articles 140 and 141 – Period allowed for the receipt of tenders – Period allowed for the submission of requests for information)

In Case C‑597/11 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 18 November 2011,

Evropaïki Dynamiki – Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE, established in Athens (Greece), represented by N. Korogiannakis, dikigoros,

appellant,

the other party to the proceedings being:

European Commission, represented by M. Wilderspin, acting as Agent, with an address for service in Luxembourg,

defendant at first instance,

THE COURT (Seventh Chamber),

composed of J. Malenovský, President of the Chamber, E. Juhász and T. von Danwitz (Rapporteur), Judges,

Advocate General: P. Cruz Villalón,

Registrar: A. Calot Escobar,

makes the following

1.1 By its appeal, Evropaïki Dynamiki – Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE (‘Evropaïki Dynamiki’) seeks to have set aside the judgment of the General Court of the European Union of 9 September 2011 in Case T‑232/06 Evropaïki Dynamiki v Commission (‘the judgment under appeal’), in which the General Court dismissed, first, Evropaïki Dynamiki’s application for annulment of the Commission’s decision of 19 June 2006 not to select the tender submitted by the consortium formed by Evropaïki Dynamiki and other companies in connection with a call for tenders for specification, development, maintenance and support of customs IT services relating to IT projects ‘CUST-DEV’ and to award the contract to another tenderer (‘the contested decision’) and, second, Evropaïki Dynamiki’s claim for compensation for the damage which it had allegedly suffered in that respect.

2.2 The awarding of public service contracts by the European Commission is subject to the provisions of Title V of Part 1 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 to those 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’), in the versions applicable to the facts of the present case.

3.3 Under Article 89(1) of the Financial Regulation, all public contracts financed in whole or in part by the budget must comply with the principles of transparency, proportionality, equal treatment and non‑discrimination.

4.4 Under Article 140 of the Implementing Rules, in the version applicable to the present case:

‘1. The time-limits for the receipt of tenders and requests to participate … shall be long enough to allow interested parties a reasonable and appropriate period to prepare and submit their tenders …

…

5.5 Under Article 141(2) of the Implementing Rules, in the version applicable prior to 5 August 2005:

‘2. Provided it has been requested in good time, additional information relating to the specifications shall be supplied simultaneously to all economic operators who have requested the specifications or expressed interest in submitting a tender no later than six days before the deadline for the receipt of tenders or, in the case of requests for information received less than eight calendar days before the deadline for receipt of tenders, as soon as possible after receipt of the request.’

6.6 That provision was amended by Article 1(25) of Commission Regulation (EC, Euratom) No 1261/2005 of 20 July 2005 (OJ 2005 L 201, p. 3), which entered into force on 5 August 2005, by means of the addition of the following words: ‘[c]ontracting authorities are not bound to reply to requests for additional information made less than five working days before the deadline for submission of tenders’. Under Article 2 of Regulation No 1261/2005:

‘Public procurement … procedures launched before [the] entry into force of this Regulation shall continue to be subject to the rules applicable at the time when those procedures were launched’.

Background to the dispute

7.7 The factual background to the dispute is set out as follows in paragraphs 6 to 17 of the judgment under appeal:

‘6 By prior information notice of 6 April 2005, published in the [s]upplement to the Official Journal of the European Union (OJ 2005 S 67), the Commission announced the publication of a call for tenders relating to a contract for “Specification, development, maintenance and support of customs IT systems (CUST DEV)”.

7 By contract notice of 18 June 2005, published in the [s]upplement to the Official Journal of the European Union (OJ 2005 S 117), the Commission Directorate-General for Taxation and Customs Union (“the contracting authority”) issued a call for tenders for the contract at issue.

8 Point III.2.1.2 of the contract notice provided that tenderers were required to demonstrate their economic and financial capacity to perform the contract. One of the conditions laid down in that regard was that the average annual turnover during the previous three years had to be at least equal to EUR 15 000 000 and that the average annual turnover concerning the goods or services to be covered by the contract for that period had to be at least EUR 10 000 000. In the case of joint tenders, that condition had to be satisfied by each member (see Point III.2.1.2.3 of the contract notice and the last sentence of Point III.2.1.2 thereof).

9 The contract had to be awarded to the most economically advantageous tender, that is to say, to the tender presenting the best quality-price ratio (see Point IV.2 of the contract notice). The deadline for the receipt of tenders was 26 August 2005 (see Point IV.3.3 of the contract notice).

10 By a corrigendum dated 23 August 2005, published in the [s]upplement to the Official Journal of the European Union (OJ 2005 S 161), the contracting authority amended the turnover condition laid down in Point III.2.1.2.3 of the contract notice, stating that that condition had to be satisfied by the group or consortium as a whole and not by each individual member. That amendment was made following a request to that effect from [Evropaïki Dynamiki], the applicant in the present case. In order to take account of that change, the deadline for the submission of requests for information was postponed to 2 September 2005 (see Point IV.3.2 of the contract notice) and the deadline for the receipt of tenders was postponed until 30 September 2005 (see Point IV.3.3 of the contract notice).

11 On 21 September 2005, the Commission sent a letter to the 42 companies which had requested the tender documents, appended to which were the replies to the questions which it had received by 2 September of that year.

12 On 30 September 2005, the CustomSystems Consortium, a temporary association of undertakings led by Evropaïki Dynamiki, responded to the invitation to tender in question.

13 By letter of 19 June 2006, the Commission [adopted the contested decision].

14 By letter of 20 June 2006, Evropaïki Dynamiki asked the Commission to disclose the following information to it: (i) the name of the successful tenderer and, if the successful tenderer had one or more partners or subcontractors, their name(s) and the percentage of the contract to be allocated to the partner(s) or subcontractor(s); (ii) the scores awarded, in respect of each award criterion, to the bid submitted by CustomSystems Consortium and the bid submitted by the successful tenderer; (iii) the content of the Evaluation Committee report; and (iv) an explanation as to how the financial offer made by the CustomSystems Consortium compared with that of the successful tenderer.

15 By letter of 28 June 2006, the Commission gave Evropaïki Dynamiki the name of the successful tenderer and an extract from the Evaluation Committee report comparing the CustomSystems Consortium’s bid with that of the successful tenderer.

16 By letter of 4 July 2006, Evropaïki Dynamiki submitted its observations on that extract from the Evaluation Committee report. It also asked the Commission to reconsider the contested decision and to refrain from entering into a contract with the successful tenderer until it had done so.

17 By letter of 13 July 2006, the Commission informed Evropaïki Dynamiki that it was carefully examining the points raised by the latter in its letter of 4 July 2006 and that it would write to Evropaïki Dynamiki again when that examination was completed.’

The procedure before the General Court and the judgment under appeal

8.8 By application lodged at the Registry of the General Court on 28 August 2006, Evropaïki Dynamiki sought, first, the annulment of the contested decision and, secondly, an order that the Commission pay compensation for the damage suffered as a result of the disputed tendering procedure, and costs.

9.9 In support of its application for annulment, Evropaïki Dynamiki raised three pleas in law: (i) breach of Article 89(1) and Article 98(1) of the Financial Regulation, and of Article 140(1) and (2) and Article 141(2) of the Implementing Rules; (ii) infringement of the principle of equal treatment; and (iii) manifest error of assessment in the evaluation of the tender submitted by the CustomSystems Consortium.

10.10 In support of its application for damages, Evropaïki Dynamiki claimed that the contested decision was unlawful and unfounded, and that it had caused Evropaïki Dynamiki to sustain damage amounting to between 40% and 50% of the value of the tender submitted by the CustomSystems Consortium.

11.11 The General Court, at paragraphs 28 to 32 of the judgment under appeal, dismissed the application for damages as inadmissible and, at paragraphs 33 to 197 of that judgment, rejected the three pleas and consequently dismissed the action in its entirety.

Forms of order sought by the parties

12.12 By its appeal, the appellant claims that the Court should:

–set aside the judgment under appeal;

–exercise its unlimited jurisdiction and annul the contested decision;

–in the alternative, remit the case to the General Court for a decision on its merits; and

–order the Commission to pay the appellant’s legal and other costs, including those incurred in connection with the proceedings at first instance.

13.13 The Commission contends that the Court should:

–dismiss the appeal;

–in the alternative, remit the case to the General Court for a decision on its merits; and

–order the appellant to pay the costs, including the costs of the proceedings before the General Court.

The appeal

14.14 Under Article 119 of its Rules of Procedure, where an appeal is, in whole or in part, clearly inadmissible or clearly unfounded, the Court may at any time, acting on a report from the Judge-Rapporteur and after hearing the Advocate General, dismiss the appeal in whole or in part by reasoned order.

15.15 In support of its appeal, the appellant puts forward four grounds of appeal. The first ground of appeal alleges an erroneous interpretation of Articles 89(1) and 98(1) of the Financial Regulation, and of Articles 140(1) and (2) and 141(2) of the Implementing Rules, and of the principles of equal treatment, non-discrimination, transparency and freedom of competition. By its second ground of appeal, the appellant alleges misinterpretation and distortion of the evidence. By its third ground of appeal, the appellant alleges errors of law and an erroneous interpretation of the amendment of the selection criteria. By its fourth ground of appeal, the appellant criticises the General Court for having failed to examine the third plea put forward at first instance, for having committed manifest errors of assessment in the evaluation of the tender submitted by the CustomSystems Consortium, and for having providing an insufficient statement of reasons.

16.16 The Commission takes the view that those grounds of appeal are inadmissible or, in any event, unfounded.

The first ground of appeal

17.17 According to the title of the first ground of appeal, the appellant claims that Articles 89(1) and 98(1) of the Financial Regulation, Articles 140(1) and (2) and 141(2) of the Implementing Rules, and the principles of equal treatment, non-discrimination, transparency and freedom of competition have been infringed.

18.18 By this ground of appeal, the appellant claims, in essence, that the General Court infringed the principle of equal treatment in taking the view that the extension of the period allowed for the receipt of tenders by 35 days instead of by 52 days was in conformity with European Union law.

19.19 In that respect, the appellant claims that it was in a less favourable position than the tenderers which satisfied, from the date of publication of the contract notice, the criteria of economic and financial standing and which, therefore, had a longer period in which to prepare the tender.

20.20 That ground of appeal must be rejected as being ineffective.

21.21 In this respect, it is sufficient to point out that, according to settled case‑law, a procedural defect can lead to the annulment of the decision in question only if it is shown that, but for that defect, the administrative procedure could have had a different outcome (see Case C‑194/99 P Thyssen Stahl v Commission [2003] ECR I‑10821, paragraph 31).

22.22 However, as regards the proceedings before the Commission, which led to the contested decision, the General Court, following a detailed analysis of the case in point, concluded, at paragraph 48 of the judgment under appeal, that the period of 35 days at issue was a reasonable and appropriate period to enable Evropaïki Dynamiki to prepare and submit a tender and that Evropaïki Dynamiki was unable to give valid reasons as to why an extension of only 35 days could have resulted in an infringement of its rights.

23.23 However, in its appeal, the appellant does not attempt to demonstrate that this finding of the General Court is vitiated by any distortion.

24.24 The appellant’s assertion, at paragraph 14 of the appeal, that the General Court did not take into account its difficulties in finding, within the given period, partners to form a consortium, is not, by itself, such as to establish a distortion by the General Court.

25.25 Consequently, the ground of appeal alleging infringement of the principle of equal treatment is ineffective by reason of the fact that the appellant has been unable to demonstrate, either before the General Court or at the appeal stage, that a new period of 52 days could have had an impact on the procedure before the Commission.

The second ground of appeal

26.26 By its second ground of appeal, the appellant alleges a ‘misinterpretation’ and ‘distortion of evidence’ by the General Court at paragraph 46 of the judgment under appeal.

27.27 This ground of appeal must be rejected as being ineffective in that it results from a manifest misreading of that paragraph.

28.28 Contrary to what the appellant claims, paragraph 46 of the judgment under appeal cannot be understood as meaning that the phrase ‘Evropaïki Dynamiki knew for certain … that it could not submit a tender that would meet the conditions laid down in the contract notice’ signified that the General Court took the view that Evropaïki Dynamiki was not capable of submitting such a tender. Read in context, that phrase refers simply to the fact that Evropaïki Dynamiki could not, due to the criteria of economic and financial standing, take part in the procedure before the rectification concerning that criterion.

The third ground of appeal

29.29 According to the title of this ground of appeal, the appellant alleges errors in law and an erroneous interpretation of the amendment of the selection criteria. In reality, however, the ground of appeal comprises, in essence, three distinct limbs.

30.30 By the first limb, set out at paragraphs 23 to 26 of the appeal, the appellant criticises the General Court for not having addressed its argument ‘submitted in [paragraphs] 10-18 of the Application and 15-21 of the Reply that the Commission should have re-launched the tendering procedure when a substantial clause of the [tender specifications] as the selection criteria is modified’.

31.31 However, a reading of those paragraphs does not show that the appellant actually invoked such a plea before the General Court.

32.32 The only allusions to a possible obligation to relaunch the procedure were thus expressed at paragraph 12 of the application and at paragraph 16 of the reply, in the following terms: ‘the contracting authority should have either re‑launched the procedure or –at least – proceeded to extend the time‑limit for the submission of tenders by 52 days instead of 37’ and ‘[t]herefore, the [Commission] should have launched the [call for tenders] from the beginning or at least should have allowed the same number of days as it offered before with its first and wrong [call for tenders] (i.e. 52 days)’.

33.33 It is evident that the references, in the appellant’s written submissions, to an alleged obligation to relaunch the procedure form part of a line of argument concerning a separate question of law, namely the time allowed for the submission of tenders. In that context, the allusions to an alleged obligation to relaunch the procedure appear only by way of affirmation. In those circumstances, such references, which, furthermore, consist of only a few words, cannot give rise to an obligation, on the part of the General Court, to deal with and examine those references as a plea in law.

34.34 The first limb must consequently be rejected as being inadmissible.

35.35 The second limb of the third ground of appeal, set out at paragraphs 27 to 29 of the appeal, is directed against paragraph 49 of the judgment under appeal.

36.36 It is clear that this limb must be rejected as being inoperative. It is directed against grounds of the judgment under appeal which were included for the sake of completeness. As appears from the very wording of paragraph 49, ‘[f]or the sake of demonstrating the argument, it should also be noted that’, that paragraph is included in the judgment under appeal by way of illustration, and is not one of the reasons, set out in paragraphs 40 to 48 of the judgment under appeal, why the first limb of Evropaïki Dynamiki’s first plea in law was rejected by the General Court.

37.37 By the third limb of the third ground of appeal, set out at paragraphs 31 to 44 of the appeal, the appellant criticises the General Court for having wrongly concluded that the appellant had not demonstrated that the procedural irregularity, namely the fixing by the Commission of too short a period for the submission of requests for information, had had a specific impact on the tender submitted by its CustomSystems Consortium.

38.38 This third limb of the third ground of appeal must be rejected as being clearly unfounded.

39.39 The conclusion reached by the General Court in paragraph 68 of the judgment under appeal, constitutes an assessment of the facts, in respect of which the Court of Justice’s review is limited to instances of distortion.

40.40 In its appeal, however, the appellant has not identified any such distortions when the General Court held that the period, which the appellant considered to be too short, could not have had any specific impact on the tender submitted by its CustomSystems Consortium.

41.41 While the appellant complains, firstly, that the General Court erred in finding that no request for information emanating from it had gone unanswered, it must be pointed out that a possible error by the General Court in that regard is irrelevant for the purpose of determining whether, due to the brevity of the period allowed for the receipt of tenders, the appellant had been prevented from obtaining relevant additional information allowing it to submit an improved tender.

42.42 Secondly, as regards the appellant’s assertion that the last days of the preparation of a tender are essential for ensuring the quality of that tender, suffice it to note that the appellant has not demonstrated that it had invoked any such argument before the General Court which the latter had distorted.

43.43 Finally, as regards the General Court’s approach, which the appellant considers to be ‘absurd’ in that the General Court called on the appellant to indicate the questions that it was unable to put to the contracting authority due to the overly short period imposed by the Commission, suffice it to note that such a requirement on the appellant to render plausible the premise that the procedural irregularity could have had a specific impact on the tender submitted is fully in line with the case-law of the Court cited in paragraph 61 of the judgment under appeal.

44.44 Consequently, the third ground of appeal must be rejected in its entirety.

The fourth ground of appeal

45.45 By the fourth ground of appeal, the appellant criticises the General Court for not having examined the third plea of its application alleging a manifest error of assessment by the contracting authority in its evaluation of the tender submitted by the appellant’s CustomSystems Consortium and for having failed to set out sufficient reasons for the judgment under appeal.

46.46 This ground of appeal must be dismissed as being clearly unfounded.

47.47 The General Court was able validly to hold, without individual examination of the complaints set out by Evropaïki Dynamiki against the contested decision, that the third plea raised before it had to be rejected.

48.48 In this respect, the General Court correctly took the view, at paragraph 194 of the judgment under appeal, that ‘the approach taken by Evropaïki Dynamiki, which is to take issue with certain specific comments made by the Evaluation Committee, is ineffective since Evropaïki Dynamiki fails completely to show how those allegedly erroneous comments could result in a manifest error of assessment of the tender submitted by the CustomSystems Consortium’. In the same paragraph, the General Court held that Evropaïki Dynamiki had to ‘explain, above all, how the allegedly incorrect comment affects the score given to the CustomSystems Consortium’s tender’.

49.49 That finding alone was sufficient to entitle the General Court to reject the third plea raised before it.

50.50 However, Evropaïki Dynamiki does not even attempt to demonstrate that that finding of the General Court results from a distortion of its arguments raised before that Court.

51.51 Evropaïki Dynamiki merely sets out, at paragraphs 51 to 73 of its appeal, complaints which are ineffective because they relate to other elements of the General Court’s reasoning, namely the finding, at paragraph 193 of the judgment under appeal, that ‘almost all of the Evaluation Committee’s assessments regarding the quality of the tender submitted by the CustomSystems Consortium are of a technical nature’.

In the light of all of the foregoing, the appeal must be dismissed.

Costs

53.53 Under Article 69(2) of the Rules of Procedure, 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 the appellant has been unsuccessful, the appellant must be ordered to pay the costs.

On those grounds, the Court (Seventh Chamber) hereby orders:

2.Evropaïki Dynamiki – Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE shall pay the costs.

[Signatures]

*

Language of the case: English.