ORDER OF THE COURT (Seventh Chamber)
13 January 2012(*)
(Appeals – Public service contracts – Invitation to tender – Supply of computing advice services – Rejection of the tender – Decision to award the contract to another tenderer – Selection and award criteria – Confusion of the criteria – Weighting of the criteria – Full copy of the evaluation report – Inadequate statement of reasons )
In Case C‑462/10P,
APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 24 September 2010,
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 Environment Agency (EEA), established in København (Denmark), represented by J. Stuyck and A.-M. Vandromme, advocaten,
defendant at first instance,
THE COURT (Seventh Chamber),
composed of J. Malenovský, President of the Chamber, E. Juhász (Rapporteur) and G. Arestis, Judges,
Advocate General: N. Jääskinen,
Registrar: A. Calot Escobar,
after hearing the Advocate General,
makes the following
Order
1By its appeal, Evropaïki Dynamiki – Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE (‘Evropaïki Dynamiki’) seeks the annulment of the judgment of the General Court of the European Union of 8 July 2010 in Case T‑331/06 Evropaïki Dynamiki v EEA (‘the judgment under appeal’), by which the General Court dismissed its action for annulment of the decision of the European Environment Agency (EEA) of 14 September 2006 not to accept its tender submitted in the public procurement procedure EEA/IDS/06/002 and to award the contract to other tenderers (‘the contested decision’).
2So far as concerns the legal framework of the case, the facts giving rise to the dispute and the procedure before the General Court, reference is made to paragraphs 1 to 28 of the judgment under appeal.
The pleas in law of the action brought before the General Court
3In support of its action brought before the General Court, Evropaïki Dynamiki raised three pleas in law. The first plea alleges infringement 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 L248, p.1, ‘the Financial Regulation’), of Commission Regulation (EC, Euratom) No2342/2002 of 23 December 2002 laying down detailed rules for the implementation of Regulation No 1605/2002 (OJ 2002 L357, p.1), as amended by Commission Regulation (EC, Euratom) No 1261/2005 of 20 July 2005 (OJ2005 L 201, p. 3; ‘the Implementing Rules’), and of Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (OJ 2004 L134, p.114). The second and third pleas allege, respectively, manifest errors of assessment as regards the evaluation of the file and infringement of the obligation to state the reasons on which a decision is based.
4By the judgment under appeal, the General Court rejected the first plea as in part inadmissible and in part unfounded. It also rejected the second and third pleas as unfounded.
Forms of order sought by the parties
5By its appeal, Evropaïki Dynamiki requests the Court to set aside the judgment under appeal, annul the contested decision and order the EEA to pay the costs, including those incurred at first instance.
6The EEA requests the Court to dismiss the appeal and to order Evropaïki Dynamiki to pay the costs.
The appeal
7Under Article 119 of the Rules of Procedure of the Court of Justice, where the 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.
8In support of its appeal, Evropaïki Dynamiki puts forward two grounds alleging, first, incorrect interpretation of Article 97 of the Financial Regulation and Article138(3) of the Implementing Rules and, second, a failure to state reasons.
The first ground of appeal: incorrect interpretation of Article 97 of the Financial Regulation and Article 138(3) of the Implementing Rules
The first limb of the first ground of appeal, concerning an alleged confusion of the selection criteria and the award criteria
–Arguments of the parties
9In essence, Evropaïki Dynamiki submits that the General Court erred in law by rejecting, in paragraphs 47 to 50 of the judgment under appeal, the complaint relating to the confusion of selection criteria and contract award criteria, on the ground that that complaint had been introduced during the procedure at first instance by the reply and that it was, accordingly, inadmissible. Evropaïki Dynamiki argues that that complaint was already made in paragraph 28 of its application.
10The EEA submits that the first limb of this ground of appeal is unfounded.
–Findings of the Court
11Although Evropaïki Dynamiki criticises the General Court for having rejected as inadmissible its complaint in paragraph 28 of its application, concerning the confusion of the selection criteria and the award criteria, clearly, as is apparent from paragraph 49 of the judgment under appeal, the appellant did not, in paragraph 28 of its application, refer to a confusion between the factors to be taken into account in the selection and contract award stages, but submitted that it was the undertaking’s experience which should have determined the result when assessing the ‘tasks’ carried out previously and not the curriculum vitae of the consultants.
12In those circumstances, Evropaïki Dynamiki cannot claim that the General Court was wrong to hold that the complaint relating to confusion of selection criteria and contract award criteria had to be regarded as new, within the meaning of the first subparagraph of Article 48(2) of its Rules of Procedure and, accordingly, had to be rejected as inadmissible.
13The first limb of the first ground of appeal must therefore be rejected as clearly unfounded.
The second limb of the first ground of appeal: incorrect weighting of the criteria
–Arguments of the parties
14Evropaïki Dynamiki submits that the General Court erred in law by taking the view, in paragraph 66 and 67 of the judgment under appeal, that, firstly, ‘it is not apparent from the documents in the case, and in particular the comments contained in the evaluation report, that the contracting authority applied sub‑criteria in respect of the award criteria contained in the tender specifications, nor does it appear that any special weighting was applied to them’ and, secondly, that, rather than sub-criteria, these were clarifications as to the type of skill and experience which the EEA required.
15Evropaïki Dynamiki believes that it cannot be held responsible for the fact that the evaluation report was drafted in such a way as not to show how the evaluation committee arrived at its conclusions and that the General Court erred in failing to request the EEA to submit full copies of the evaluation report and of the tender accepted. It adds that, having regard to the fact that, as is held in paragraph 66 of the judgment under appeal, the criteria applied are not apparent from the file, the EEA infringed the duty to state reasons, which should have resulted in the annulment of the contested decision.
16The EEA argues that the second limb of this ground of appeal is unfounded.
–Findings of the Court
17Firstly, as regards the alleged approval by the General Court of an incorrect application of sub-criteria in the place of the contract award criteria referred to in the tender specifications and of a certain special weighting given to those sub-criteria, it must be stated that none of the arguments put forward by Evropaïki Dynamiki calls into question the General Court’s findings, in paragraphs 66 to 69 of the judgment under appeal, that, firstly, the factors mentioned as being skills and tasks required in respect of the eight areas (points 2.1 to 2.8 of the tender specifications) constitute clarifications as to the type of skill and experience which the EEA required and not sub-criteria and, secondly, that the EEA did not apply sub-criteria in the place of the award criteria disclosed to the tenderers or give them special weighting.
18It must also be held that Evropaïki Dynamiki, while alleging such an error, does not challenge those findings by the General Court and merely objects that the General Court accepted, contrary to the arguments put to it by Evropaïki Dynamiki, that the EEA had not applied a weighting which was not disclosed to the tenderers.
19Such an argument is inadmissible. According to settled case-law, it follows from Article 256 TFEU, from the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union and from Article 112(1)(c) of the Court’s Rules of Procedure that an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of that appeal (see, inter alia, Case C‑352/98P Bergaderm and Goupil v Commission [2000] ECR I‑5291, paragraph34; Case C‑41/00 P Interporc v Commission [2003] ECR I‑2125, paragraph 15; and Case C‑131/03 P Reynolds Tobacco and Others v Commission [2006] ECR I‑7795, paragraph 49).
20Secondly, it is appropriate to reject Evropaïki Dynamiki’s complaint that the General Court should have requested the EEA to send it full copies of the evaluation report and of the successful tender in order to be in a position to carry out its judicial review, a review which ought to have led, on the basis of those documents, to a conclusion different from that reached by the General Court as regards the application of sub-criteria and special weighting by the EEA.
21In that regard, it must be borne in mind that, in the light of Article 66(1) of the Rules of Procedure of the General Court, that Court is, in principle, the sole judge of whether it is necessary to order measures of inquiry for the purposes of the resolution of the dispute (see, inter alia, Case C‑315/99P Ismeri Europa v Court of Auditors [2001] ECR I‑5281, paragraph 19; Joined Cases C‑24/01P and C‑25/01P Glencore and Compagnie Continentale v Commission [2002] ECR I‑10119, paragraph 77; and the order of 4 October 2007 in Case C‑320/05P Olsen v Commission, paragraph 63).
22The Court of Justice must indeed examine the question whether the General Court committed an error of law in refusing to order those measures at the request of the appellant (see, to that effect, Case C‑200/92P ICI v Commission [1999] ECR I‑4399, paragraph 59, and Olson v Commission, paragraph 64).
23Nevertheless, Evropaïki Dynamiki did not request, in its action brought before the General Court, production of the evaluation report and the successful tender.
24Thirdly, as regards the alleged error of the General Court which led to there being no finding of failure to state reasons for the contested decision, it is sufficient to state that the General Court, in paragraph 66 of the judgment under appeal, did not consider, contrary to the submission of Evropaïki Dynamiki, that the contract award criteria which were used were not apparent from the file. In fact, in that paragraph, the General Court simply found that it was not apparent from the file that the Awarding Authority applied sub-criteria and a certain special weighting thereof instead of the award criteria referred to in the tender specifications.
25Accordingly, the second limb of the first plea is in part manifestly inadmissible and in part manifestly unfounded.
The third limb of the first ground of appeal: wrongful choice of environmental policy as an award criterion and incorrect application of that criterion
–Arguments of the parties
26By the third limb of its first ground of appeal, Evropaïki Dynamiki argues that the General Court erred in law by holding that, having regard to the wide discretion of the Awarding Authority, the contract award criterion relating to the environmental policy followed by the tenderers, worded in such general terms, enabled the tenderers to submit their policy in that area in any way they wished and to supply whatever evidence they deemed appropriate.
27Firstly, Evropaïki Dynamiki submits that the environmental policy pursued by a tenderer can be examined only during the selection stage and not during the contract award stage and that no similar criterion has ever been used by a European Union institution during the contract award stage. Secondly, it points out that that criterion, being too vague and not specific, was amended during the evaluation stage, when the Evaluation Committee introduced a new evaluation criterion according to which tenderers which provided an ISO 14000 certificate would obtain maximum points. Thirdly, Evropaïki Dynamiki observes that it filed a general ISO 9001:2000 certificate, which shows that it pursues a more global strategy in environmental matters than tenderers which hold only an ISO 14000 certificate, and believes that the General Court was incorrect in considering that that did not enable assurances to be given as to an effective environmental policy. Fourthly, in the appellant’s submission, the EEA did not explain why it gave four points to Evropaïki Dynamiki and three points to the successful tenderers, despite the fact that their environmental policy was ‘manifestly poorer’ than that of the appellant.
28The EEA submits that the third limb of the first ground of appeal is unfounded.
–Findings of the Court
29By the allegations put forward in the third limb of the first ground of appeal, Evropaïki Dynamiki criticises, in essence, the choice of an award criterion by the EEA and the incorrect application thereof, and complains that the General Court did not adopt its criticisms.
30However, an appeal must indicate precisely the contested elements of the judgment of the General Court which the appellant seeks to have set aside, and also the legal arguments specifically advanced in support of the appeal. That requirement is not satisfied by a ground of appeal which, without even including an argument specifically identifying the error allegedly vitiating the judgment under appeal, merely reproduces arguments previously submitted before the General Court. Such a ground of appeal amounts in reality to no more than a request for a re‑examination of a plea submitted to the General Court, which the Court of Justice does not have jurisdiction to undertake (Case C‑401/09P Evropaïki Dynamiki v ECB [2011] ECR I‑0000, paragraph 55 and the case-law cited).
31Accordingly, given that the arguments put forward in support of the first limb of the third ground of appeal do not seek to establish errors of law vitiating the judgment under appeal but seek, in essence, a re‑examination of the application brought before the General Court, which is not within the jurisdiction of the Court of Justice, that limb must be rejected as manifestly inadmissible (see, to that effect, Case C‑76/01P Eurocoton and Others v Council [2003] ECR I‑10091, paragraphs 46 and 47; Case C‑280/08P Deutsche Telekom v Commission [2010] ECR I‑0000, paragraphs 23 and 24; and order of 12September 2011 in Case C‑289/10P Evropaïki Dynamiki v Commission, paragraphs 63 and 64).
32In those circumstances, the first ground of appeal must be rejected as being in part manifestly inadmissible and in part manifestly unfounded.
The second ground of appeal: failure to state reasons
The first limb of the second ground of appeal: insufficient reasons for the contested decision
–Arguments of the parties
33Evropaïki Dynamiki submits, firstly, that the EEA failed to state sufficient reasons for the contested decision and, secondly, that it ought to have sent the appellant a full copy of the evaluation report.
34In the submission of the EEA, the first limb of the second ground of appeal is unfounded.
–Findings of the Court
35As regards the first part of the first limb of the second ground of appeal, that is to say the allegation of insufficient reasons for the contested decision, it must be noted that, as stated in paragraphs 19 and 30 of this order, an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside, and also the legal arguments specifically advanced in support of the appeal.
36Accordingly, arguments in an appeal which criticise the decision whose annulment was applied for before the General Court, rather than the judgment delivered by the General Court following that application for annulment, are inadmissible.
37By that first part of the first limb of the second ground of appeal, Evropaïki Dynamiki criticises the contested decision and in essence is asking the Court of Justice to make a fresh ruling on certain aspects of the dispute as presented before the General Court.
38By the second part of the first limb of the second ground of appeal, Evropaïki Dynamiki submits that the EEA should have sent it a full copy of the evaluation report and that the General Court, having regard to its case-law, should have required it to do so.
39Nevertheless, it does not follow either from the first subparagraph of Article100(2) of the Financial Regulation, the third subparagraph of Article149(3) of the Implementing Rules or the judgment of 10 September 2008 in Case T‑59/05 Evropaïki Dynamiki v Commission, relied on by Evropaïki Dynamiki, that, on written request by an unsuccessful tenderer, the Awarding Authority is bound to supply it with full copies of the evaluation report and the successful tender (see, to that effect, orders of 20 September 2011 in Case C‑561/10P Evropaïki Dynamiki v Commission, paragraph 25, and of 13 October 2011 in Case C‑560/10P Evropaïki Dynamiki v Commission, paragraph 15).
40Since the second part of the first limb of the second ground of appeal is thus manifestly unfounded, it must be rejected as being in part manifestly inadmissible and in part manifestly unfounded.
The second limb of the second ground of appeal: contradiction in the reasoning of the judgment under appeal and infringement of the fundamental rights to sound administration and a fair hearing
–Arguments of the parties
41By the second limb of the second ground for appeal, Evropaïki Dynamiki submits, firstly, that the General Court erred in law by stating, in paragraph 128 of the judgment under appeal, that on the basis of all the information supplied by the EEA, the appellant was able immediately to identify the characteristics and relative advantages of the tenders selected, despite the fact that it acknowledges, in paragraph 127 of that judgment, that Evropaïki Dynamiki was granted only partial access to the evaluation report. The General Court thus suggested that Evropaïki Dynamiki was in a position to deduce the relative advantages of the successful tender even on the basis of partial access to the reasons for the contested decision.
42Secondly, Evropaïki Dynamiki submits that the reasoning for the judgment under appeal is particularly inadequate since it does not uphold the fundamental rights to sound administration and to a fair hearing, guaranteed by the Charter of Fundamental Rights of the European Union (‘the Charter’).
43In the view of the EEA, the second limb of the second ground of appeal is unfounded.
–Findings of the Court
44Firstly, as is apparent from paragraph 39 of this order, the EEA was not required to supply a full copy of the evaluation report to Evropaïki Dynamiki, an unsuccessful tenderer.
45Furthermore, paragraph 128 of the judgment under appeal, contrary to the submissions of Evropaïki Dynamiki, does not refer to the partial nature of the access to the evaluation report but to all the information referred to in paragraph127 of that judgment. In the latter paragraph, the General Court found that the information supplied by the EEA, on the one hand, clearly stated the procedure followed in evaluating the tenders of the thirteen tenderers and the fact that the tenders of the three tenderers selected obtained the highest final scores and, on the other, contained details of the scores awarded to Evropaïki Dynamiki and to the successful tenderers together with their comments by area of expertise and by criterion.
46Secondly, with regard to Articles 41 and 47 of the Charter, it must be noted that Evropaïki Dynamiki merely asserts that the reasoning of the judgment under appeal infringes the fundamental rights protected by those articles but without demonstrating the application to the present case of those provisions of the Charter and without establishing how that judgment infringes those provisions.
47According to the Court’s case-law, a mere abstract statement of a plea in an appeal, unsupported by more specific information, does not fulfil the duty to state the reasons for the appeal (see, to that effect, the order of 29November 2007 in Case C‑107/07P Weber v Commission, paragraphs 24 and 25, and the order of 10February 2009 in Case C‑290/08P Correia de Matos v Commission, paragraphs 18 and 19).
48In those circumstances, the second limb of the second ground of appeal must be dismissed as being in part manifestly inadmissible and in part manifestly unfounded.
The third limb of the second ground of appeal: insufficient reasoning of the judgment under appeal, brought about by a failure to examine the arguments submitted to the General Court
–Arguments of the parties
49Evropaïki Dynamiki alleges that the General Court did not examine one by one its arguments concerning the error of assessment made by the EEA individually and that it rejected them without stating reasons.
50Firstly, Evropaïki Dynamiki recalls that the CIRCA software, which constitutes the main information technology application used by the EEA and which was in particular the subject-matter of the public procurement procedure in question, was conceived and developed by Evropaïki Dynamiki itself. Evropaïki Dynamiki adds that it is the ‘successful tenderer for development and support to the European Commission and the EEA’ for that software and that, consequently, it is the best‑informed undertaking in the area of CIRCA. Evropaïki Dynamiki submits that the General Court ought to have penalised the fact that the EEA, while finding that the three tenderers selected did not have the experience of Evropaïki Dynamiki in that area, awarded a score contradicting that finding.
51Evropaïki Dynamiki claims that, despite the 47 projects which it submitted showing its experience in the area of security measures, the General Court did not note the blatant discrepancy between its experience and the number of points awarded to it. Evropaïki Dynamiki further argues that the General Court failed to find that some passages in the pleadings of the EEA filed during the procedure at first instance show that its tender was evaluated on the basis of unquantifiable criteria which were not included in the tender specifications.
52Secondly, Evropaïki Dynamiki submits that, as regards the area relating to the development of the Linux system, the General Court ignored a number of its arguments showing that the EEA expected the tenderers to submit curricula vitae of experts with sound experience in all technologies in that area, whereas that was not mentioned in the tender specifications.
53In the submission of the EEA, the third limb of the second ground of appeal is unfounded.
–Findings of the Court
54It must be held that the arguments submitted by Evropaïki Dynamiki in the first part of the third limb of the second ground of appeal do not contain anything liable to call into question the considerations in paragraphs 108 and 109 of the judgment under appeal
55In paragraph 108 of that judgment, the General Court stated, first, that, although Evropaïki Dynamiki asserts that its bid should have obtained a higher assessment in view of its extensive experience in CIRCA and Eionet, it is apparent from the evaluation report that the Evaluation Committee agreed that the appellant had a good knowledge of CIRCA, but that it also found that the appellant had little experience as regards Eionet and in the area of security measures. The General Court went on to explain that, where extensive experience is required throughout an area, any above-average knowledge in one category or part of that area cannot compensate for a lack of experience in a particular category. Finally, the General Court pointed out that the Awarding Authority carried out a comparative, overall analysis of the tenderers’ bids and that the points concerned did indeed form part of the criteria mentioned in the tender specifications.
56In paragraph 109 of that judgment, the General Court noted first of all that Evropaïki Dynamiki maintains that it had extensive experience in the area of security measures, which should not therefore have been assessed as being poor. The General Court then pointed out that, in the context of a comparative assessment, the Evaluation Committee is not only required to assess the number of elements contained in a tenderer’s bid but also their relevance to the area concerned. Finally, the General Court found that Evropaïki Dynamiki’s bid was ranked in second position as regards both criteria in the area in question, which gives reason to believe that its experience had indeed been taken into account by the Evaluation Committee.
57With regard to the allegation that the General Court failed to find that it is apparent from the pleadings filed by the EEA during the proceedings at first instance that Evropaïki Dynamiki’s tender was evaluated on the basis of unquantifiable criteria not included in the tender specifications, it is sufficient to state that, in accordance with settled case-law, 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 appraisal does not therefore constitute, save where the clear sense of that evidence has been distorted,which must be obvious from the documents in the file without any need to carry out a new assessment of the facts and the evidence, a point of law which is subject, as such, to review by the Court of Justice (see, to that effect, Case C‑47/10P Austria v Scheucher-Fleisch and Others [2011] ECR I‑0000, paragraphs 58 and 59 and the case-law cited).
58No such distortion has been shown in the present case.
59In those circumstances, the first part of the third limb of the second ground of appeal must be dismissed as being in part manifestly unfounded and in part manifestly inadmissible.
60As regards the second part of the third limb of the second ground of appeal, it must be noted that it does not call into question the considerations in paragraph110 of the judgment under appeal.
61In that paragraph, the General Court explained why it did not accept the arguments of Evropaïki Dynamiki. That explanation is not called into question by elements either in the appeal or in the file.
62Accordingly, the General Court, in holding that, even if the tender specifications did not require that the experts should be competent in all technologies in that field, since the tenders are compared with each other, a tender showing multi‑discipline experts will probably receive a better score than one with experts meeting only certain skill-requirements, did not err either in law or in its assessment. Nor did the General Court err in holding that Evropaïki Dynamiki did not supply anything to show that the Evaluation Committee made a manifest error of assessment when it found that one of the tenderers had proposed experts who better met the requirements of the tender specifications and when it awarded that tenderer a higher score than it gave to Evropaïki Dynamiki.
63Since the second part of the third limb of the second ground of appeal is thus manifestly unfounded, that limb of the second ground of appeal must be rejected as being in part manifestly inadmissible and in part manifestly unfounded.
64Consequently, the appeal must be dismissed in its entirety as being in part manifestly inadmissible and in part manifestly unfounded.
Costs
65Under Article 69(2) of the Rules of Procedure, which applies to the appeal procedure by virtue of Article 118 of those rules, 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 EEA has applied for costs to be awarded against Evropaïki Dynamiki and the latter has been unsuccessful, Evropaïki Dynamiki must be ordered to pay the costs.
On those grounds, the Court (Seventh Chamber) hereby orders:
1.The appeal is dismissed.
2.Evropaïki Dynamiki – Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE is ordered to pay the costs.
[Signatures]
* Language of the case: English.