24 November 2016 (*1)

[Text rectified by order of 12 January 2017]

(Appeal — Article 181 of the Rules of Procedure of the Court of Justice — Public service contracts — Software development and maintenance services — Misinterpretation of the arguments and distortion of the evidence submitted by the other party to the proceedings before the General Court)

In Case C‑379/16 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 7 July 2016,

European Dynamics Luxembourg SA, established in Ettelbrück (Luxembourg),

European Dynamics Belgium SA, established in Brussels (Belgium),

Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE, established in Athens (Greece),

represented by C.-N. Dede and D. Papadopoulou, dikigoroi,

appellants,

the other party to the proceedings being:

European Union Intellectual Property Office (EUIPO), represented by N. Bambara, acting as Agent,

defendant at first instance,

THE COURT (Ninth Chamber),

composed of E. Juhász (Rapporteur), President of the Chamber, K. Jürimäe and C. Lycourgos, Judges,

Advocate General: P. Mengozzi,

Registrar: A. Calot Escobar,

having decided, after hearing the Advocate General, to give a decision by reasoned order, in accordance with Article 181 of the Rules of Procedure of the Court,

makes the following

1By their appeal, European Dynamics Luxembourg SA, European Dynamics Belgium SA and Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE seek to have set aside the judgment of the General Court of the European Union of 27 April 2016, European Dynamics Luxembourg and Others v EUIPO (T‑556/11, not published, ‘the judgment under appeal’, EU:T:2016:248), by which the General Court annulled the decision of the European Union Intellectual Property Office (EUIPO), notified by letter of 11 August 2011 and adopted in tendering procedure AO/029/10, entitled ‘Software development and maintenance services’, rejecting the tender submitted by European Dynamics Luxembourg and the other related decisions of EUIPO adopted in the context of that procedure, including those awarding the contract to three other tenderers ranked first to third in the ‘cascade’ procedure.

2The appellants put forward a single ground of appeal in support of their appeal. They claim that the General Court wrongly rejected their plea in law alleging that EUIPO had infringed the tender specifications by accepting the tender of the first successful tenderer even though that tender contained price ‘variants’ which were, however, prohibited by the contract notice.

The appeal

3Under Article 181 of its Rules of Procedure, where the appeal is, in whole or in part, manifestly inadmissible or manifestly unfounded, the Court may at any time, acting on a proposal from the Judge-Rapporteur and after hearing the Advocate General, decide by reasoned order to dismiss that appeal in whole or in part.

4That provision should be applied in the present case.

5On 14 October 2016, the Advocate General took the following position:

‘1. In their appeal, the appellants claim that the Court should, first, set aside the judgment under appeal in so far as the General Court rejected as unfounded a new plea in law which they had submitted following the measures of organisation of procedure and of inquiry ordered by the General Court; second, annul the decision of EUIPO awarding the contract at issue, in respect of which contract they had participated in the procurement procedure as tenderers; and, third, order EUIPO to pay the costs incurred in the proceedings before the General Court and in the present appeal.

5. In this connection, it should be recalled that, according to the case-law, the General Court has exclusive jurisdiction to find and assess the facts and, in principle, to examine the evidence it accepts in support of those facts. Provided that the evidence has been properly obtained and the general principles of law and the rules of procedure in relation to the burden of proof and the taking of evidence have been observed, it is for the General Court alone to assess the value which should be attached to the evidence produced to it. That assessment does not, therefore, constitute, save where the clear sense of that evidence has been distorted, a point of law which is subject, as such, to review by the Court of Justice (see, inter alia, judgment of 16 June 2016, Evonik Degussa and AlzChem v Commission, C‑155/14 P, EU:C:2016:446, paragraph 23 and the case-law cited).

10. In the light of all those considerations, I would propose that the Court declare the appellants’ appeal to be, in part, manifestly inadmissible and, in part, manifestly unfounded.’

6For the same reasons as those given by the Advocate General, the appeal must be dismissed.

Costs

7Under Article 137 of the Rules of Procedure, applicable to the procedure on appeal pursuant to Article 184(1) of those rules, a decision as to costs is to be given in the order which closes the proceedings. In the present case, since the present order was adopted before the appeal was served on the respondent and, therefore, before it could have incurred costs, European Dynamics Luxembourg, European Dynamics Belgium and Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis must be ordered to bear their own costs.

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

[Rectified by order of 12 January 2017] Luxembourg, 24 November 2016.

Registrar

President of the Ninth Chamber

* Language of the case: English.