ORDER OF THE GENERAL COURT (Tenth Chamber)

4 February 2021 (*)

(Action for annulment and for damages – Public service contracts – Tendering procedure – Follow-up study on trade union practices on non-discrimination and diversity – Rejection of a tenderer’s bid – Award criteria – Action in part manifestly lacking any foundation in law and in part manifestly inadmissible)

In Case T‑352/18,

Germann Avocats LLC,

established in Geneva (Switzerland), represented by C. Giannakopoulos and N. Skandamis, lawyers,

applicant,

European Commission,

represented by J. Estrada de Solà and A. Katsimerou, acting as Agents, and by R. van Melsen, lawyer,

defendant,

First, APPLICATION based on Article 263 TFEU for the annulment of the Commission’s decision to reject the applicant’s bid submitted in response to the call for tenders JUST/2017/RDIS/FW/EQUA/0042 (‘Follow-up study on trade union practices on non-discrimination and diversity’ (2017/S 215-446067)) and, secondly, APPLICATION based on Article 268 TFEU for compensation for the damage allegedly suffered by the applicant following the adoption of that decision,

THE GENERAL COURT (Tenth Chamber),

composed of A. Kornezov (Rapporteur), President, E. Buttigieg and G. Hesse, Judges,

Registrar: E. Coulon,

makes the following

Background to the dispute

On 9 November 2017, the European Commission published in the Supplement to the Official Journal of the European Union (OJ 2017/S 215-446067) a public procurement notice concerning the award, through an open procedure, of a service contract entitled ‘Follow-up study on trade union practices on non-discrimination and diversity’.

Point 4 of the tender specifications for the call for tenders which was the subject of that contract notice provided as follows:

‘The evaluation is based solely on the information provided in the submitted tender. It involves the following: verification of non-exclusion of tenderers on the basis of the exclusion criteria; selection of tenderers on the basis of selection criteria; verification of compliance with the minimum requirements set out in these tender specifications; evaluation of tenders on the basis of the award criteria …

The tenders will be assessed in the order indicated above. Only tenders meeting the requirements of one step will pass on to the next step.’

Point 4.3 of the specifications set out the award criteria as follows:

‘The tenders will be evaluated following the award criteria outlined below producing a total score out of 100%.

Weighting

Quality of the proposed methodology

Quality of the technical approach.

Clarity, credibility and quality of the technical content of the tender, including the comprehensiveness of the research and analysis performed.

Methodology for collecting and analysing data/Soundness and appropriateness of the proposed analysis tools and data gathering techniques/Completeness of the methodology to cover the full scope of the tasks.

Quality of proposed recommendations, interventions, conclusions.

Added value of the tender in an EU context.

Degree to which all relevant issues are covered.

(All the above sub-criteria are of equal relative importance).

Organisation of the work and resources

Quality of work plan and organisation of the work.

Realistic time scale.

Appropriate allocation of human and budgetary resources.

(All the above sub-criteria are of equal relative importance).

Quality control

This criterion will assess the quality control system applied to the service foreseen in this tender specification concerning the quality of the deliverables, the language quality check, and continuity of the service in case of absence of a member of the team. The quality system should be detailed in the tender and specific to the tasks at hand; a generic quality system will result in a low score.

Total number of points

Tenders must score minimum 60% for each criterion and minimum 70% in total. Tenders that do not reach the minimum quality levels will be rejected and will not be ranked.’

Eight tenders were submitted, including a tender submitted jointly by the applicant, Germann Avocats LLC, and another entity.

On 28 March 2018, following the evaluation of the tenders, the Commission decided to award the contract to A (‘the successful tenderer’). By letter of the same day, the Commission informed the applicant that its tender had not been selected as it did not present the minimum required quality level (‘the contested decision’). The letter further stated that the applicant’s tender had obtained a total of 46 points in the evaluation of the three award criteria mentioned above, as follows:

–35 points out of 70 for criterion 1 (Quality of the proposed methodology). The reasons given for that score were as follows:

‘The tenderer identifies all the tasks and describes the methodology for these, however, it does not describe the theoretical and conceptual framework to be used in more detail. The suggested research limits the scope of the project, which raises questions on the added value in an EU context. As regards the soundness of the bid, more reflection is needed regarding the description [of] the potential sources of information and literature’;

–10 points out of 20 for criterion 2 (Organisation of the work and resources). The reasons given for that score were as follows:

‘The time scale of the project seems realistic. The organisation of work is not clearly defined and allocation of human resources seems excessive with respect to the required tasks’;

–1 point out of 10 for criterion 3 (Quality control). The reasons given for that score were as follows:

‘The bid does not identify any specific quality control system or risk-assessment’.

On 3 April 2018, the applicant sent a first letter to the Commission, asking it to review the contested decision. The applicant argued that the evaluation of its tender manifestly infringed the principles of good faith, transparency, procedural fairness and equal treatment and requested, in particular, that the Commission organise a second round of evaluation of the tenders after having gathered additional information.

On 17 April 2018, the Commission replied to the applicant’s letter of 3 April 2018, specifying, with regard to award criterion 1, that the applicant’s tender focused specifically on migration and the education, media, culture and entertainment sectors, whereas the main objective of the contract, as set out in point 2.2 of the tender specifications (Technical specifications), was different. With regard to criterion 2, the Commission argued that, although the applicant’s tender listed the tasks to be performed and allocated the project staff to the individual tasks, it failed to provide any detailed overview of the planning and organisation of the work with regard to the respective sub-tasks and therefore did not provide a thorough justification for the working hours presented. Finally, so far as concerns award criterion 3, the Commission explained that the evaluators had acknowledged the fact that in its tender the applicant had indicated that the work would be done according to the ISO 9001 standard, whereas point 4.3 of the tender specifications clearly required a more detailed and tailored quality system. The Commission also pointed out that the procurement rules on the evaluation of the award criteria prohibited taking into account or referring at that stage to curricula vitae, profiles, qualifications, skills, experience, expertise, knowledge of the subject, technical capacity and previous contracts, as these parameters clearly referred to selection criteria, which were a different part of the evaluation process. It concluded that the rules on public procurement had been respected with regard to the call for tenders at issue and, consequently, that there was no need to organise a second round of evaluation.

On 18 April 2018, the applicant sent a second letter to the Commission in which it criticised the consistency and reliability of the information presented by the Commission in its letter of 17 April 2018. In addition, the applicant requested information aimed at providing assurance that there had been no discrimination in the evaluation of the submitted tenders on the basis of the nationality of the tenderers. It also asked for the identity of the successful tenderer for the public contract in question.

On 2 May 2018, the Commission informed the applicant of the identity of the successful tenderer for the contract in question and stated that no discrimination on the basis of nationality had taken place during the award procedure at issue.

The applicant subsequently sent further letters, dated 3, 11 and 18 May 2018, claiming various pieces of information concerning the successful tenderer.

Procedure and forms of order sought

By application lodged at the General Court Registry on 5 June 2018, the applicant brought the present action. That action was also brought on behalf of XJ. Since the latter had not authorised a lawyer to represent him before the General Court, by order of 30 January 2019, Germann Avocats v Commission (T‑352/18, not published, EU:T:2019:78), the action was declared inadmissible in so far as it was brought on his behalf.

On 5 April 2019, by separate document lodged at the Court Registry under Article 130(1) of the Rules of Procedure of the General Court, the Commission raised an objection of inadmissibility.

On 20 May 2019, the applicant lodged observations on the objection of inadmissibility at the Court Registry.

By order of 24 September 2019, the General Court (Seventh Chamber) decided to reserve its decision on the objection of inadmissibility raised by the Commission until the Court ruled on the substance of the case.

Since the composition of the Chambers of the General Court had changed, pursuant to Article 27(5) of the Rules of Procedure the Judge Rapporteur was assigned to the Tenth Chamber, to which the present case was accordingly reallocated.

On 6 November 2019, the Commission lodged the statement in defence.

On a reasoned request by the applicant under Article 83(2) of the Rules of Procedure, the General Court authorised the lodging of a reply and a rejoinder. Those documents were lodged at the Court Registry on 4 March 2020 and 21 April 2020 respectively.

On 15 May 2020, pursuant to Article 106(2) of the Rules of Procedure, the applicant submitted a reasoned request for a hearing.

By documents lodged at the Court Registry on 29 September 2020 and 3 December 2020 respectively, the applicant submitted two offers of further evidence, pursuant to Article 85(3) of the Rules of Procedure. The Commission lodged its observations on that evidence at the Court Registry on 20 November 2020 and 7 January 2021 respectively.

The applicant claims that the Court should:

–dismiss the objection of inadmissibility in its entirety;

–annul the contested decision in its entirety;

–‘order the Commission to provide pursuant to Article 41 [of the] Charter [of Fundamental Rights of the European Union], to Articles 1 and 10 TEU and to Articles 167(4) and 298 TFEU legally satisfactory transparency in [the] form of pertinent information and [a] quantitative and qualitative analysis [of] the competition related situation, including as regards the existence of dominant positions and their abuse as per Article 102 TFEU, with a particular focus on the market position and influence of the successful tenderer in the call for tenders JUST/2017/RDIS/FW/EQUA/0042 and its related companies and main shareholders, as well as [on] diversity concerns in the relevant markets for the tender procedure at stake’;

–‘order the Commission to pay damages, pursuant to Article 41(3) of the Charter and Article 268 TFEU to the [applicant], in the amount of EUR 35 000, plus interest’;

–order the Commission to pay the costs.

The Commission contends that the Court should:

–dismiss the action as inadmissible;

–dismiss the action as unfounded;

–order the applicant to pay the costs.

Under Article 126 of the Rules of Procedure, where it is clear that the Court has no jurisdiction to hear and determine an action or where an action is manifestly inadmissible or manifestly lacking any foundation in law, the Court may, on a proposal from the Judge-Rapporteur, at any time decide to give a decision by reasoned order without taking further steps in the proceedings.

In the present case, the Court, considering that it has sufficient information from the documents in the file, has decided to give a decision without taking further steps in the proceedings.

The objection of inadmissibility

In support of its objection of inadmissibility, the Commission raises three pleas of inadmissibility.

First, the Commission submits that Mr Germann could not be regarded as an independent lawyer of the applicant company within the meaning of Article 19 of the Statute of the Court of Justice of the European Union and the case-law, since he was its managing partner.

Secondly, according to the Commission, Mr Germann’s letter of 29 June 2018 informing the General Court that Mr Skandamis exclusively would take over the representation of the applicant from that date could not have as a consequence his retroactive withdrawal as lawyer and, even if such a consequence were possible, it would have had the effect of invalidating the application, since that had been signed electronically and lodged exclusively by Mr Germann via his e-Curia account. The Commission further submits that the file before the General Court does not contain any authority to act given by the applicant to Mr Skandamis and that, until the appointment of Mr Giannakopoulos on 25 July 2018, the applicant was without a formally appointed representative. Furthermore, the Commission submits that Mr Germann does not meet the requirement laid down in Article 19 of the Statute of the Court of Justice of the European Union on the ground that he is a member of the Geneva Bar, whereas Switzerland is not a member of the Agreement on the European Economic Area (EEA).

Thirdly, the Commission has doubts as to the reliability of the authority to act issued by the applicant to Mr Giannakopoulos, dated 4 June 2018, on the grounds that that document was not submitted to the Court until 25 July 2018, that the application was not signed by that lawyer and that the applicant chose to be represented exclusively by Mr Skandamis, Mr Germann having withdrawn from the case on 29 June 2018.

The applicant contests all those arguments.

It should be noted at the outset that the application was lodged at the Registry of the General Court on 5 June 2018 by Mr Skandamis and Mr Germann via the latter’s e-Curia account.

By letter of 29 June 2018, Mr Germann informed the Court that Mr Skandamis exclusively would from that point onwards represent the applicant.

By letter of 25 July 2018, another lawyer, Mr Giannakopoulos, informed the Registry of the Court that he would represent the applicant together with Mr Skandamis, attaching to that letter an authority to act issued by the applicant authorising him to represent it in the present proceedings.

Having made these clarifications, it is necessary to examine below the three pleas of inadmissibility raised by the Commission.

33First, according to case-law, it is apparent from the use of the term ‘represented’ in the third paragraph of Article 19 of the Statute of the Court of Justice of the European Union that, for the purposes of bringing an action before the General Court, a ‘party’ within the meaning of that article must use the services of a third person who must be authorised to practise before a court of a Member State or of a State which is a party to the Agreement on the EEA (see order of 21 November 2007, Correia de Matos v Parliament, C‑502/06 P, not published, EU:C:2007:696, paragraph 11 and the case-law cited; see also, to that effect, order of 29 September 2010, EREF v Commission, C‑74/10 P and C‑75/10 P, not published, EU:C:2010:557, paragraph 54).

34In that regard, the Court of Justice has previously held that a lawyer who has been granted extensive administrative and financial powers which place his or her function at a high executive level within the legal person he or she is representing, such that his or her status as an independent third party is compromised, is not sufficiently independent from that legal person; nor is a lawyer who holds a high-level management position within the legal person he or she is representing or a lawyer who holds shares in, and is the president of the board of administration of the company he or she is representing (see judgment of 4 February 2020, Uniwersytet Wrocławski and Poland v REA, C‑515/17 P and C‑561/17 P, EU:C:2020:73, paragraph 65 and the case-law cited).

35In the present case, it should be noted that Mr Germann is the managing partner of the applicant company. The latter does not dispute this.

36In view of the case-law set out in paragraphs 33 and 34 above, and as the Commission rightly points out, Mr Germann does not have the status of an independent third person vis-à-vis the applicant company and therefore does not meet the conditions laid down in the third paragraph of Article 19 of the Statute of the Court of Justice of the European Union, as interpreted by the case-law.

37However, as noted in paragraph 29 above, the application initiating proceedings was lodged not only by Mr Germann but also by Mr Skandamis. Furthermore, the introductory part of the application makes it clear that the latter is acting as the applicant’s representative. The Commission does not claim that Mr Skandamis does not have the status of an independent third person vis-à-vis the applicant company.

38Consequently, since the application was lodged by Mr Skandamis, a lawyer who meets the requirements of the third paragraph of Article 19 of the Statute of the Court of Justice of the European Union, the fact that Mr Germann does not meet those requirements has no bearing on the admissibility of the action (see, to that effect, judgment of 12 April 2013, SIAE v Commission, T‑433/08, not published, EU:T:2013:186, paragraph 60).

39Furthermore, the argument that the Commission draws from two cases which it describes as ‘similar’ must be rejected, as it proceeds from a partial reading of the orders that closed those cases. First, in the order of 9 November 2011, Glaxo Group v OHIM – Farmodiética (ADVANCE) (T‑243/11, not published, EU:T:2011:649), the General Court declared the action inadmissible on the ground, in substance, that the application was submitted by a single lawyer who could not be characterised as a ‘third person’ in relation to the applicant company. Secondly, in the same circumstances, because the application had been signed by a single lawyer who was not ‘independent’ of the applicant, the General Court declared the application inadmissible in its order of 6 September 2011, ClientEarth v Council (T‑452/10, not published, EU:T:2011:420). For the sake of completeness only, it should be pointed out that, in the order made on appeal in the latter case, of 5 September 2013, ClientEarth v Council (C‑573/11 P, not published, EU:C:2013:564), the Court held that the appointment of a new lawyer subsequent to the lodging of the application could not cure the defect found (order of 5 September 2013, ClientEarth v Council, C‑573/11 P, not published, EU:C:2013:564, paragraphs 21 to 24). That is not the case in the present proceedings, since the application was, as of its lodgement on 5 June 2018, lodged by Mr Skandamis, whose status as a third person independent of the applicant company is not disputed.

40Secondly, the Commission’s plea of inadmissibility, based on the fact that Mr Germann’s letter of 29 June 2018 announcing his ‘withdrawal’ to the General Court would have the effect of ‘invalidating’ the application, cannot succeed either.

41As noted in paragraph 37 above, the application was lodged by Mr Skandamis, who is a lawyer authorised to carry out procedural acts before the General Court. Therefore, contrary to what the Commission claims, the action was not brought exclusively by Mr Germann, but also by Mr Skandamis. Consequently, the ‘withdrawal’ of the former could not have had the effect of leaving the applicant without a representative.

42Furthermore, no other element in the objection of inadmissibility, nor in the file, allows the authenticity of the application or of its lodgement by Mr Skandamis to be called into question.

43In the present case, the application was lodged through the e-Curia computer application, which aims, in particular, to meet the requirements of authenticity, integrity and confidentiality of the documents exchanged. That being so, the mere fact that the application was lodged via Mr Germann’s account does not in any way detract from the authenticity of Mr Skandamis’ lodgement of the application, in the absence of other factors giving rise to doubts in that regard. In those circumstances, the application is deemed to have been lodged by Mr Skandamis.

44With regard to the Commission’s argument that the file does not contain an authority to act issued by the applicant to Mr Skandamis, it should be noted that this objection stems from an excessively formalistic interpretation of the documents in the file. The letter of 29 June 2018 from Mr Germann, by which he informed the Court that Mr Skandamis exclusively would from that point onwards represent the applicant, clearly shows, in view of Mr Germann’s capacity as managing partner, the intention to invest Mr Skandamis with the necessary authority to represent the applicant company.

45In any event, the fact that an authority to act was not lodged together with the application is not such as to lead to the inadmissibility of the application, inasmuch as such an omission at the time of lodging an application can be put in order (order of 22 June 2016, 1&1 Telecom v Commission, T‑43/16, EU:T:2016:402, paragraph 28). The Court considers that the letter of 29 June 2018 from Mr Germann, referred to in paragraph 45 above, must be treated as having put such an omission in order.

46Thirdly, the Commission’s third plea of inadmissibility, based on the late submission of the authority to act in favour of Mr Giannakopoulos, must be dismissed as ineffective on the ground that, as noted in paragraph 37 above, the applicant was validly represented from the outset of the proceedings by Mr Skandamis.

47In short, nothing in the Rules of Procedure prevents a party to proceedings from authorising a lawyer during the proceedings to represent it, together with another lawyer who has already been validly authorised, or even to replace such a lawyer, provided that the conditions laid down in the third paragraph of Article 19 of the Statute of the Court of Justice of the European Union are fulfilled.

48In the light of the foregoing, the Commission’s objection of inadmissibility must be dismissed.

Admissibility of the third head of claim of the action

49By its third head of claim, the applicant asks the Court to ‘order’ the Commission to ‘provide … legally satisfactory transparency in [the] form of pertinent information and [a] quantitative and qualitative analysis of the competition related situation … in … the tender procedure at stake’. That head of claim must be understood, as it follows from its very wording, as asking the Court to issue an injunction to the Commission.

50That head of claim is manifestly inadmissible. According to settled case-law, the Court is not entitled, in the context of a review of legality on the basis of Article 263 TFEU, to issue directions to the institutions or to assume the role assigned to them. That limitation of the scope of judicial review applies to all types of contentious matters that might be brought before the Court (see judgment of 15 June 2017, Bay v Parliament, T‑302/16, not published, EU:T:2017:390, paragraph 45 and the case-law cited). The only possibility open to the Court under Article 264 TFEU is to annul the measure concerned. It is then for the institution concerned, pursuant to Article 266 TFEU, to adopt the necessary measures to implement the Court’s judgment (see, to that effect, judgment of 12 March 2008, Evropaïki Dynamiki v Commission, T‑345/03, EU:T:2008:67, paragraph 46).

On the applicant’s requests for, inter alia, the adoption of measures of organisation of procedure or measures of inquiry

51The applicant requests, in point 114 of the application, ‘an independent qualitative and quantitative assessment of the competitive environment at stake, at the Commission’s costs’ and, in point 115 of the application, ‘also … from the … EU institutions [concerned] an impartial qualitative and [quantitative] evaluation … of the influence [exercised] by [the successful tenderer] on the European Union’s public policy making and “marketing”’. In points 22 and 23 of the reply, it also requests the adoption of measures of inquiry with regard to the procedure and for the hearing of witnesses.

52In that regard, the General Court, which alone has jurisdiction, in principle, to assess the usefulness of such measures for the purposes of resolving the dispute, considers that, in the present case, there is nothing in the case file to demonstrate the usefulness of adopting measures of organisation of procedure or measures of inquiry, or of hearing witnesses for the purposes of resolving the present dispute (see, to that effect, judgment of 14 March 2013, Viega v Commission, C‑276/11 P, not published, EU:C:2013:163, paragraph 39 and the case-law cited).

53Furthermore, with regard to the applicant’s request, set out in paragraph 112 of the application, that an Advocate General be designated in the present case ‘in order to enhance the quality of the present procedure and provide the applicants [with] fair procedural conditions vis-à-vis the Commission’, in addition to the fact that Article 31 of the Rules of Procedure does not empower the parties to make such requests, it should be stated that the General Court does not consider the legal difficulty or the factual complexity of the present case to require the designation of an Advocate General in accordance with Article 30 of the Rules of Procedure.

The claim for annulment

54In support of its claim for annulment, the applicant raises three pleas in law alleging, first, breach of the obligation to state reasons and the existence of several manifest errors of assessment, second, breach of the principles of equal treatment, legal certainty, sound administration and good faith and, third, breach of the principle of transparency and of the protection of legitimate expectations as to fair competition.

The first plea, alleging infringement of the obligation to state reasons and the existence of several manifest errors of assessment

55The applicant argues that the statement of reasons for the contested decision is either manifestly inaccurate and contradicted by the facts or very vague and equivocal. He claims that these shortcomings are accentuated by the fact that the award criteria provided for in the tender specifications are drafted in the form of short, generic and ambiguous bullet points and do not contain any information on how to present and structure the information requested from the tenderers and on the level of detail required. Thus, based on an interpretation of the ‘award criteria’ which is neutral and in good faith, that takes into account the introductory paragraph of section 4 of the tender specifications, the applicant was led to understand that the ‘award criteria’ made, to a large extent, reference to the content required under the ‘selection criteria’.

56In addition, the Commission’s responses to the applicant’s letter of 3 April 2018, as well as subsequent correspondence between the parties, was not adequate and did not provide any additional precision and clarity with regard to the applicant’s arguments and concerns. Furthermore, the applicant complains of a lack of response to its letters of 3, 11 and 18 May 2018.

57The Commission, first, challenges the admissibility of the applicant’s arguments on the ground that the applicant merely refers in support of that plea in law, without providing further details, to the ‘section on the facts’ and to a series of annexes attached to its application, in breach of the requirement of clarity and precision laid down in the Rules of Procedure and the case-law. Secondly, the Commission contends that all of the arguments put forward by the applicant are unfounded.

58It must be recalled that the EU institutions, bodies, offices and agencies have a broad discretion in assessing the factors to be taken into account for the purpose of deciding to award a contract following a call for tenders, and the review by the Court must be limited to checking that the rules governing the procedure and statement of reasons are complied with, the facts are correct and there is no serious and manifest error of assessment or misuse of powers (see, to that effect, judgment of 9 September 2010, Evropaïki Dynamiki v EMCDDA, T‑63/06, not published, EU:T:2010:368, paragraph 73 and the case-law cited).

59In particular, in order to establish that, in the assessment of the facts, the contracting authority committed an error so obvious as to justify the annulment of the contested decision, the evidence adduced by the applicant must be sufficient to render implausible the assessments made in the decision at issue. In other words, the plea based on the manifest error must be rejected if, in spite of the evidence put forward by the applicant, the assessment challenged may be accepted as genuine or valid (see judgment of 7 June 2017, Blaž Jamnik and Blaž v Parliament, T‑726/15, EU:T:2017:376, paragraph 38 and the case-law cited; see also, to that effect, judgment of 14 June 2018, Lubrizol France v Council, C‑223/17 P, not published, EU:C:2018:442, paragraph 39).

60It is on the basis of these considerations that it is necessary to examine whether the Commission gave adequate reasons for the contested decision and whether it committed a manifest error of assessment in rejecting the applicant’s tender on the grounds set out in that decision.

In the first place, it should be noted that, according to the award criteria laid down in the tender specifications, tenders which did not obtain at least 60% in respect of each award criterion and at least 70% in total were to be rejected without being ranked (see paragraph 3 above). Thus, it follows from the contested decision that the score obtained by the applicant’s tender was in both ways below those thresholds: on one hand, his tender had obtained only 46% of the maximum possible score, whereas a minimum of 70% was required, and, on the other hand, the applicant’s tender had not reached the minimum level of 60% required for any of the three award criteria, so that the Commission could validly reject the applicant’s tender on the basis of each of the scores obtained taken separately.

In that regard, since the applicant does not contest the weighting of the three award criteria provided for in the tender specifications, nor the minimum thresholds required in respect of each of those award criteria, the applicant’s first plea in law can be upheld only if it is shown that each of the scores awarded to the applicant’s tender was vitiated by the defects relied on by the applicant.

Having regard to the minimum thresholds required under the tender specifications, the mere finding that, in respect of one of the three award criteria, the applicant’s tender did not in fact attain the minimum score required is sufficient in order to reject the first plea in law in its entirety, in so far as it alleges manifest errors of assessment. In that context, the Court considers it appropriate, in the light of the case file, to examine first of all the arguments seeking to call into question the score obtained by the applicant’s tender under award criterion 3.

In that context, it should be observed, in particular, that the applicant’s tender had obtained 1 point out of 10 for award criterion 3 on the ground that its tender had not identified any specific quality control system or risk assessment relating to the performance of the subject matter of the public contract in question, although that requirement was clear from the tender specifications.

Point 4.3 of the tender specifications stated, in particular, that the quality system had to be ‘detailed’ in the tender and ‘specific’ to the tasks to be performed in implementing the subject matter of the public contract in question and that ‘a generic quality system will result in a low score’.

First, in its tender, the applicant merely stated that the tender satisfied the ‘ISO 9001 standard’, without drawing up a quality control system specifically adapted to the tasks covered by the contract, as was nonetheless clearly required by point 4.3 of the tender specifications.

In the contested decision, the Commission gave a low score for criterion 3 on the ground that the tender did not identify any ‘specific quality control system’. Furthermore, in its letter of 17 April 2018, the Commission explained that the evaluators had acknowledged the fact that in its tender the applicant had indicated that the work would be carried out according to the ISO 9001 standard, whereas point 4.3 of the tender specifications required a more detailed and tailored quality system, and that the procurement rules on the evaluation of the award criteria prohibited taking into account or referring, at that stage, to curricula vitae, profiles, qualifications, skills, experience, expertise, knowledge of the subject, technical capacity and previous contracts, as these parameters were part of the selection criteria, which constituted a separate part of the evaluation process.

In this respect, it must be noted that the ISO 9001 standard is clearly not specifically designed to guarantee the quality control of the specific tasks to be carried out in the contract at issue. Inasmuch as, first, point 4.3 of the tender specifications stated that a generic control system would result in a low score and, secondly, it is common ground that the applicant had not submitted a quality control system specifically designed to meet the specific tasks covered by the contract in question, the Commission could, without committing a manifest error of assessment, award a low score, that is to say below the minimum threshold required, for the award criterion in question.

Moreover, assuming that that standard is, in general, relevant for the purpose of certifying the application of a quality control system, the mere reference to it in the present case, which appears only once in the applicant’s tender, namely in the introductory part of section D (Technical offer), without any further clarification, clearly does not satisfy the requirement set out in point 4.3 in the tender specifications to describe a ‘detailed’ and ‘specific’ quality control system adapted to the tasks to be performed in implementing the subject matter of the public contract in question.

The applicant has submitted, for the first time at the reply stage, that, in section 3.2 of its tender, it describes ‘additional specific measures pertaining to quality assurance …in particular through peer review, which is an essential means of quality control for academic research’. However, it must be stated that the fact thus relied on did not come to light during the proceedings, nor does it constitute a development of a plea set out in the application in so far as, in the application, the applicant confined itself to arguing, first, that its tender referred to the ISO 9001 standard and, secondly, that the reputation of the applicant, as well as that of the other entity submitting the tender in question and of some of its partners, attested to the quality control system which would be implemented. That argument is therefore inadmissible in accordance with Article 84(1) of the Rules of Procedure.

In any event, that argument in no way shows that the Commission committed a manifest error of assessment when it decided to award the applicant’s tender a low score for award criterion 3. The part of its tender to which the applicant refers nowhere describes a detailed quality control system specifically tailored to the tasks covered by the contract in question, as required by point 4.3. of the tender specifications, but refers, still in general terms, to the fact that the experts engaged to carry out the research necessary to implement the contract would maintain a constant dialogue and exchange of information among themselves, leading to an internal peer review to guarantee the quality of the outcomes.

Nor can the applicant rely on an alleged lack of a common standard for quality control in the field of the services covered by the public contract at issue, since that fact in no way prevents the development of a specific system adapted to the particular services of the contract at issue. On the contrary, such an absence is indicative of the importance of the presentation of a ‘detailed’ system which was ‘specific’ to the tasks to be performed. Only in the presence of detailed and specific tenders could the Commission have carried out an assessment of their comparative advantages.

Secondly, the applicant cannot claim either that its reputation, qualifications, skills, experience, expertise, knowledge of the subject, technical capacity or previous contracts, as well as those of the other tenderer and its partners, attested to its ability to ensure an effective quality control system. As the Commission rightly stated in its letter of 17 April 2018, the abovementioned parameters fall within the selection criteria, which are a separate part of the evaluation process, and not the award criteria. Accordingly, criteria that are not aimed at identifying the tender which is economically the most advantageous, but are instead essentially linked to the evaluation of the tenderers’ suitability to perform the contract in question, cannot be regarded as ‘award criteria’. Criteria relating mainly to the experience, qualifications and means to ensure the proper performance of the contract concerned were considered to relate to the suitability of tenderers to perform that contract and not as ‘award criteria’ (judgment of 13 December 2016, European Dynamics Luxembourg and Evropaïki Dynamiki v Commission, T‑764/14, not published, EU:T:2016:723, paragraphs 55 to 58; see also, by analogy, judgment of 1 March 2018, Tirkkonen, C‑9/17, EU:C:2018:142, paragraph 37 and the case-law cited).

In the second place, the applicant maintains that the award criteria are ‘drafted in short, generic and ambiguous bullet points’ and are presented ‘in a jumble (“pêle-mêle”) and telegraphic style lacking elementary clarity, structure and precision’ and that that is in contrast, in particular, to the award criteria in the tender specifications adopted in a call for tenders of the Court of Justice of the European Union in 2017. Furthermore, the applicant argues that there is a discrepancy between the degree of detail regarding, on the one hand, the exclusion and selection criteria and, on the other hand, the award criteria, as described in the tender specifications.

In this respect, first, as noted in paragraph 62 above, the applicant contests neither the weighting of the award criteria provided for in the tender specifications nor the minimum thresholds required for each award criterion, as set out in the tender specifications (see paragraph 3 above).

Having made this clarification, it must be stated, secondly, that the description of award criterion 3 in the tender specifications cannot be criticised for lack of clarity. Indeed, as noted in paragraphs 65 and 72 above, it is clear and unambiguous from it that the tenders had to be evaluated on the basis of the benefits of the ‘detailed’ and ‘specific’ quality system for the proposed tasks to be performed and that reference to a generic control system would result in a low score.

Thus, that description was in no way likely to mislead tenderers by causing them to believe, for example, that reference to an ‘ISO’ standard, or the possible reputation and experience of persons engaged in the performance of the proposed services, would be sufficient for the purposes of the evaluation of tenders under award criterion 3, in order for them to score above the minimum required.

Thirdly, as regards the argument based on the level of precision and detail of the award criteria laid down in the tender specifications drawn up by another contracting authority for the purposes of another public procurement procedure not having the same subject matter as that at issue in the present case, that argument is manifestly irrelevant to the resolution of the present dispute.

Fourthly, the applicant’s argument based on the difference between the level of detail as regards, on the one hand, the exclusion and selection criteria and, on the other hand, the award criteria, cannot succeed either. Indeed, as recalled in paragraph 73 above and as the Commission rightly points out, the exclusion criteria, selection criteria and award criteria have clearly different objectives in the context of a public procurement procedure and the verification and evaluation of tenders against those criteria correspond to clearly delimited and successive stages. Thus, the mere fact that certain exclusion or selection criteria were allegedly described in more detail does not in itself render the award criteria ambiguous and unclear.

Fifthly, contrary to what the applicant seems to suggest, the introduction of point 4 of the tender specifications does not give rise to confusion either. On the contrary, as observed in paragraph 2 above, it is clearly stated in that point that the evaluation of the tenders involves different stages, corresponding in particular to the verification of the exclusion and then the selection criteria and, finally, to the evaluation of the tenders on the basis of the award criteria.

Sixthly, the applicant’s argument that, if the Commission took the view that information relating to the evaluation of the applicant’s tender in respect of award criterion 3 was lacking, it was ‘well advised to request such additional information in a second round of assessment in order to eventually take a decision “en connaissance de cause” and award the contract to the best competitor’, must be rejected as manifestly unfounded. Such a ‘second round of assessment’ is not provided for in the tender specifications.

It follows from all the foregoing that, on one hand, award criterion 3 is not unclear and that, on the other hand, the Commission did not commit any manifest error of assessment in the evaluation of that award criterion in the applicant’s tender.

Consequently, in so far as the applicant’s tender did not obtain the minimum score required by the tender specifications for award criterion 3 and that reason alone was sufficient to reject it, there is no need to examine whether the applicant’s arguments are capable of demonstrating a manifest error of assessment with regard to award criteria 1 and 2 (see, to that effect, judgment of 4 October 2018, Proof IT v EIGE, T‑914/16, not published, EU:T:2018:650, paragraph 185).

In the third place, the applicant’s other arguments, which essentially seek to challenge the statement of reasons for the contested decision, cannot succeed either.

The duty to state reasons requires, according to settled case-law, that, in accordance with Article 296, second paragraph TFEU, the reasoning followed by the authority which adopted the measure must be disclosed in a clear and unequivocal fashion so as, on the one hand, to make the persons concerned aware of the reasons for the measure and thereby enable them to defend their rights and, on the other, to enable the Court to exercise its supervisory jurisdiction (judgments of 25 February 2003, Strabag Benelux v Council, T‑183/00, EU:T:2003:36, paragraph 55; of 24 April 2013, Evropaïki Dynamiki v Commission, T‑32/08, not published, EU:T:2013:213, paragraph 37; and of 16 May 2019, Transtec v Commission, T‑228/18, EU:T:2019:336, paragraph 91). Moreover, the requirement to state reasons must be assessed by reference to the circumstances of the case, in particular the content of the measures in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 296 TFEU must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (judgments of 29 September 2011, Elf Aquitaine v Commission, C‑521/09 P, EU:C:2011:620, paragraph 150, and of 11 July 2013, Ziegler v Commission, C‑439/11 P, EU:C:2013:513, paragraph 116). So far as concerns public contracts concluded by the EU institutions, Article 113(2) of Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council of 25 October 2012 on the financial rules applicable to the general budget of the Union and repealing Council Regulation (EC, Euratom) No 1605/2002 (OJ 2012 L 298, p. 1), as last amended by Regulation (EU, Euratom) 2015/1929 of the European Parliament and of the Council of 28 October 2015 (OJ 2015 L 286, p. 1), provides that the contracting authority shall notify all tenderers whose tenders are rejected of the grounds on which the decision was taken.

In this connection, first, the applicant’s arguments that the statement of reasons for the contested decision is ‘manifestly inaccurate and obviously contradicted by the facts’, or incompatible with several provisions of public procurement law, or ‘contain[s] manifest factual errors’ are generic and unsupported by concrete evidence.

Under the first paragraph of Article 21 of the Statute of the Court of Justice of the European Union, applicable to proceedings before the General Court by virtue of the first paragraph of Article 53 of that Statute, and pursuant to Article 76(1)(d) of the Rules of Procedure of the General Court, the application must, inter alia, contain the subject matter of the dispute and a brief statement of the pleas in law on which the application is based.

In the present case, as the Commission rightly points out in the defence, the applicant confines itself to referring, in a general manner, to the ‘section on the facts’, as well as to certain annexes attached to the application. Those arguments must be rejected as inadmissible on the ground that the basic factual particulars relied on by the applicant are not indicated intelligibly in the application (see, to that effect, order of 11 January 2013, Charron Inox and Almet v Commission and Council, T‑445/11 and T‑88/12, not published, EU:T:2013:4, paragraph 57 and the case-law cited) and that it is not for the Court to seek and identify in the annexes the pleas and arguments on which it may consider the action to be based, since the annexes have a purely evidential and instrumental function (see judgment of 14 March 2013, Fresh Del Monte Produce v Commission, T‑587/08, EU:T:2013:129, paragraph 270 and the case-law cited).

Furthermore, those arguments, by which the applicant is actually seeking to establish that the contested decision is not well founded, are irrelevant in the context of a plea alleging an inadequate statement of reasons or a lack of such a statement (see judgment of 18 June 2015, Ipatau v Council, C‑535/14 P, EU:C:2015:407, paragraph 37 and the case-law cited).

Secondly, the applicant’s arguments that the Commission did not ‘adequately’ answer the applicant’s arguments and request for information of 3 April 2018 ‘relating to the “award criteria”’, as the subsequent correspondence did not ‘provide any additional precision’, or that the Commission had not, at the date at which the application was lodged, responded to the applicant’s letters of 3, 11 and 18 May 2018, should be rejected as inadmissible on the same grounds. It is not for the General Court to seek and identify, in those letters attached as an annex, the pleas and arguments which it could consider to constitute the basis of the action. In particular, the applicant does not explain what the impact on the legality of the contested decision would be of the Commission’s failure to reply to its letters of 3, 11 and 18 May 2018, given, moreover, that, first, the Commission duly replied to the applicant’s letters of 3 and 18 April 2018 and, secondly, it subsequently received a multitude of further letters from the applicant, the relevance of which, for the purposes of assessing the applicant’s tender, was at least doubtful.

In any event, the Court considers, on the basis of the examination carried out in paragraphs 58 to 90 above, that the grounds for the contested decision, as further clarified in the Commission’s letter of 17 April 2018, clearly and unequivocally set out the reasoning underlying that decision and, in particular, the reasons which led the Commission to award the applicant’s tender a score below the minimum required in respect of award criterion 3.

In the light of the foregoing, the applicant’s first plea in law must be rejected as in part manifestly inadmissible and in part manifestly lacking any foundation in law.

The second plea, alleging infringement of the principles of equal treatment, legal certainty, sound administration and good faith

93The applicant submits that the statement of reasons for the contested decision suggests the bias or professional incompetence of the evaluators and that the pre-litigation exchanges with the Commission did not enable that view to be called into question. Thus, it argues that the contested decision infringes the principle of good faith with respect to the assessment of its tender under award criteria 1 to 3 on the basis of the arguments set out in its letter of 3 April 2018 and taking into consideration the competitive context described in its letter of 8 May 2018. In addition, it alleges that the award criteria in the tender specifications, in combination with the statement of reasons contained in the contested decision, are likely to show favour and cause maladministration, bad faith in the procedure as well as unequal treatment of tenderers to the benefit of those competitors having closer links with, and privileged access to insider information from, the contracting authority. Finally, the applicant considers that the offers of further evidence submitted on 29 September 2020 and 3 December 2020, referred to in paragraph 19 above and consisting in two publications in a newspaper, demonstrate the Commission’s bias, lack of transparency and conflict of interest vis-à-vis a third company which, according to the applicant, is linked to the successful tenderer in question in the present case.

94The Commission disputes the applicant’s arguments.

95It must be observed, first, that the applicant confines itself to reiterating the arguments relied on in its first plea in law concerning the statement of reasons for the contested decision and the formulation of the award criteria in the tender specifications. It fails to further substantiate in any concrete way the alleged infringements of the principles of equal treatment, legal certainty, sound administration and good faith or alleged breaches of Article 41 of the Charter of Fundamental Rights of the European Union, Articles 1 and 10 TEU, Articles 167(4) and 298 TFEU and Articles 6 and 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950. Mere references to purported infringements of those principles and provisions are not sufficient to satisfy the requirements of clarity and precision of the pleas in law raised, as laid down in Article 76(d) of the Rules of Procedure and the case-law cited in paragraph 88 above, and therefore those arguments must be dismissed as manifestly inadmissible.

96Secondly, as regards arguments aimed at demonstrating, first, that the reasoning of the contested decision shows ‘the evaluators’ bias or … professional incompetence’ or a potentially privileged position of other tenderers in the public procurement procedure at issue and, secondly, the existence of a serious risk of unfair competition, it must be stated that the applicant’s serious allegations are based on mere hypotheses, referring in general terms, for example, to the ‘competitive context’, ‘closer links with, and [privileged] access to insider information from, the contracting authority’ or also to ‘unfair proximity [of local companies linked to the successful tenderer] that allows them to better decipher the “award criteria”’. These general and unsubstantiated assertions are clearly not capable of demonstrating that the formulation of the award criteria would have conditioned the award of the contract in question in such a way as to favour the bids of certain tenderers and to reject the applicant’s tender. In the absence of concrete, verifiable and sufficiently intelligible evidence to support them, they clearly cannot be accepted in the context of the review of legality which the Court is called upon to carry out in the present case with regard to the contested decision.

97Those arguments are, moreover, ineffective, inasmuch as it has been found that the Commission did not commit any error of assessment in rejecting the applicant’s tender on the sole ground that the score obtained for award criterion 3 was lower than the minimum required due to the failure to submit any quality control system (see paragraphs 61 to 83 above). That was a specific requirement whose scope could be understood by any reasonably observant tenderer exercising ordinary care on reading point 4.3 of the tender specifications. Consequently, the rejection of the applicant’s tender cannot be attributed to factors external to its tender.

98As to the applicant’s offers of further evidence, it is sufficient to note that those publications are of no relevance for the purposes of the outcome of the present case, since they concern a tendering procedure which is entirely different to that at issue in the present proceedings.

99Moreover, if the applicant’s arguments were to be understood as in fact invoking a misuse of powers, it should be noted that, according to settled case-law, the concept of misuse of powers refers to the use of powers by an administrative authority for a purpose other than that for which they were conferred on it and a measure is only vitiated by misuse of powers if it appears, on the basis of objective, relevant and consistent evidence, to have been taken for such a purpose (see judgment of 5 June 2003, O’Hannrachain v Parliament, C‑121/01 P, EU:C:2003:323, paragraph 46 and the case-law cited). However, the file before the Court does not contain any objective, relevant and consistent evidence capable of showing that, by rejecting the applicant’s tender, the Commission pursued an aim other than to evaluate that tender, in accordance with the powers conferred on it for that purpose.

100Accordingly, the applicant’s second plea in law must be dismissed as manifestly inadmissible and, in any event, as manifestly lacking any foundation in law.

The third plea, alleging infringement of the principle of transparency and of the protection of legitimate expectations

101The applicant claims that it has reasonable and serious grounds on which to ‘suspect’, based on the contents of the contested decision and on the contextual information available at the time the application was lodged, that the successful tenderer in the public procurement procedure in question, ‘its affiliates and its major shareholders’, had privileged access to information and staff from the Commission that could have contributed to distorting the decision-making process in the public procurement procedure at issue. The applicant furthermore claims a possible abuse of a dominant position on the part of the successful tenderer for the contract in question.

102The Commission disputes the applicant’s arguments.

103First, in so far as, in its third plea, the applicant reiterates its arguments already put forward in support of the second plea, consisting essentially in raising suspicions that the successful tenderer for the public contract at issue benefited from a privileged position in the procedure in question, those arguments, albeit presented this time from the point of view of infringement of the principle of transparency and protection of legitimate expectations, cannot succeed, since they are ineffective by reason of the grounds already relied on in paragraphs 97 to 99 above.

104On the same grounds, the applicant’s claim of an alleged abuse of a dominant position on the part of the successful tenderer is also ineffective. Besides the fact that that claim is based on mere hypotheses, the question of whether the successful tenderer acted in breach of Article 102 TFEU cannot be the subject of the present dispute.

105In addition, the applicant puts forward a series of general considerations about the Commission’s role as ‘guardian of the Treaties’, about its special role when acting as a contracting authority, as to the fact that tenderers, acting ‘on the supply side’ have a legitimate expectation that the procurement procedure takes place in a competitive environment, as to the fact that the rules on the evaluation of tenders and the award of contracts should guarantee equal opportunities, as to the importance of the absence of a conflict of interest in the evaluation teams, as to the need to avoid dependency on the same contractors, and as to the fact that the award criteria should ensure equal treatment. Such observations of a general nature do not satisfy the requirements of clarity and precision of the pleas in law raised, as laid down in Article 76(d) of the Rules of Procedure and the case-law cited in paragraph 88 above, and they are therefore inadmissible.

106Accordingly, the applicant’s third plea in law must be dismissed as manifestly inadmissible and, in any event, as manifestly lacking any foundation in law.

107It follows from the foregoing that the present action, in so far as it seeks the annulment of the contested decision, must be dismissed as, in part, manifestly lacking any foundation in law and, in part, manifestly inadmissible.

The claim for damages

108In the event that it is found that the successful tenderer abused its dominant position on the market or, in the alternative, if the Court were to find that the statement of reasons for the contested decision was inconsistent, the applicant seeks damages in the amount of EUR 35 000 for the costs incurred in participating in the public procurement procedure at issue.

109It is settled case-law that claims for compensation for damage must be dismissed in so far as they are closely linked to claims for annulment, which have themselves been dismissed either as inadmissible or as unfounded (judgments of 1 April 2009, Valero Jordana v Commission, T‑385/04, EU:T:2009:97, paragraph 90, and of 13 December 2005, Cwik v Commission, T‑155/03, T‑157/03 and T‑331/03, EU:T:2005:447, paragraph 207).

110In that regard, it should be noted that the applicant bases its claim for damages on the same unlawful conduct as that relied on in support of its application for annulment of the contested decision.

111However, since no unlawful conduct by the Commission has been found in the present case, as is apparent from the examination of the three pleas in law in the action (paragraphs 55 to 106 above), the claim for damages must also be dismissed as manifestly unfounded as must, consequently, the action in its entirety.

Costs

112Under Article 134(1) of the Rules of Procedure, 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 applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the Commission.

On those grounds,

THE GENERAL COURT (Tenth Chamber)

hereby orders:

1.The action is dismissed.

2.Germann Avocats LLC shall pay the costs.

Luxembourg, 4 February 2021.

Registrar

President

—

Language of the case: English.