Corte di giustizia UE/2016

[OSCURATO:PERSONA] ([OSCURATO:PERSONA]) 7 July 2016 ( * ) (Appeal — [OSCURATO:PERSONA] 181 of the Rules of Procedure of the [OSCURATO:PERSONA] of Justice — Public service contracts — Tendering procedure — Supply of IT, consulting, software development, Internet and support services — Rejection of the tender of one tenderer and award of the contracts to other tenderers — Obligation to state reasons) [OSCURATO:PERSONA] C‑88/16 P, APPEAL under [OSCURATO:PERSONA] 56 of the Statute of the [OSCURATO:PERSONA] of Justice of the [OSCURATO:PERSONA], brought on 12 February 2016, [OSCURATO:PERSONA] SA, established in [OSCURATO:PERSONA] ([OSCURATO:PERSONA]), [OSCURATO:PERSONA] — [OSCURATO:PERSONA] kai Tilematikis AE, established in Athens (Greece), represented by M. Sfyri, C.-N. Dede and D. Papadopoulou, dikigoroi, appellants, the other party to the proceedings being: [OSCURATO:PERSONA] for ITER and the Development of [OSCURATO:PERSONA] ([OSCURATO:PERSONA] for [OSCURATO:PERSONA]), defendant at first instance, [OSCURATO:PERSONA] ([OSCURATO:PERSONA]), composed of C. Lycourgos, President of the [OSCURATO:PERSONA], E. Juhász (Rapporteur) and C. Vajda, Judges, [OSCURATO:PERSONA]: P. Mengozzi, Registrar: A. [OSCURATO:PERSONA], having decided, after hearing the [OSCURATO:PERSONA], to give a decision by reasoned order, in accordance with [OSCURATO:PERSONA] 181 of the Rules of Procedure of the [OSCURATO:PERSONA], makes the following [OSCURATO:PERSONA] 1 By their appeal, [OSCURATO:PERSONA] SA and [OSCURATO:PERSONA] — [OSCURATO:PERSONA] kai Tilematikis AE seek to have set aside the judgment of the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] of 2 December 2015 in [OSCURATO:PERSONA] and [OSCURATO:PERSONA] v [OSCURATO:PERSONA] for [OSCURATO:PERSONA] (T‑553/13, not published, ‘the judgment under appeal’, EU:T:2015:918), by which the [OSCURATO:PERSONA] dismissed their action seeking, first, annulment of the decision of the [OSCURATO:PERSONA] for ITER and the Development of [OSCURATO:PERSONA] ([OSCURATO:PERSONA] for [OSCURATO:PERSONA]) of 7 August 2013 taken in the context of the tendering procedure F4E-ADM-0464 concerning IT, consulting, software development, Internet and support services (OJ 2012/S 213-352451), rejecting the tender submitted by [OSCURATO:PERSONA] and awarding the contracts to other tenderers, and, second, an award of damages. 2 In support of their appeal, the appellants put forward a single ground alleging misinterpretation and distortion of the relevant evidence by the [OSCURATO:PERSONA] in its assessment of whether the contracting authority had complied with its obligation to state reasons. The appeal 3 [OSCURATO:PERSONA] 181 of the Rules of Procedure of the [OSCURATO:PERSONA] of Justice, where an appeal is, in whole or in part, manifestly inadmissible or manifestly unfounded, the [OSCURATO:PERSONA] may at any time, acting on a report from the Judge-Rapporteur and after hearing the [OSCURATO:PERSONA], decide by reasoned order to dismiss the appeal in whole or in part. 4 It is appropriate to apply that provision in the present case. 5 On 30 May 2016, the [OSCURATO:PERSONA] took the following position: ‘I propose that the [OSCURATO:PERSONA] should dismiss the appeal in the present case as being in part manifestly inadmissible and in part manifestly unfounded and order [the appellants] to pay the costs, in accordance with [OSCURATO:PERSONA] 137 of the Rules of Procedure, for the following reasons: 1.      In support of their appeal, the appellants raise a single ground in which they challenge the analysis made in paragraphs 31 to 54 of the judgment under appeal, in which the [OSCURATO:PERSONA] rejected their plea alleging a failure on the part of the contracting authority to give reasons. The single ground of appeal is divided into two branches. 2.      In their first branch, the appellants argue that, by misinterpreting and distorting the evidence, the [OSCURATO:PERSONA] erred in law in so far as it held that they had been able to understand the reasons for the rejection of their tender. 3.      In that regard, I note, first, that the appellants’ arguments claiming that there was an erroneous assessment of the evidence, and not a distortion of that evidence, must be declared manifestly inadmissible. According to established case-law, the [OSCURATO:PERSONA] has exclusive jurisdiction to assess the evidence and the assessment of that evidence therefore does not, save where the facts and evidence are distorted, constitute a question of law which is, as such, amenable to review by the [OSCURATO:PERSONA] of Justice. 4.      With respect, second, to the argument that the vague and generic term ‘better quality and merit’ used for the evaluation of the tenders included in the documents sent to the appellants does not indicate clearly and unequivocally the reasoning of the contracting authority, it is evident that this corresponds to arguments already put forward before the [OSCURATO:PERSONA]. It must therefore be declared manifestly inadmissible (see, to that effect, judgment of 9 June 2011 in [OSCURATO:PERSONA] v ECB , C‑401/09 P, EU:C:2011:370, paragraph 55, and order of 12 September 2011 in [OSCURATO:PERSONA] v Commission , C‑289/10 P, not published, EU:C:2011:572, paragraph 63). 5.      Third, the appellants claim that the [OSCURATO:PERSONA] erred in law inasmuch as it did not find that, in the absence of specific comments on the scores awarded to the successful tenders and in the absence of a detailed evaluation report which explains and justifies, at least briefly, the purported advantages and benefits of the bids of the successful tenderers, they were not in a position to understand the reasons why their tender had been rejected. I conclude that that complaint is manifestly unfounded. 6.      In this regard, I note, first, that in paragraphs 38 to 42 of the judgment under appeal the [OSCURATO:PERSONA] did indeed set out the principles of the settled case-law in this area and in particular the principles that a contracting authority cannot be required to communicate to an unsuccessful tenderer either full copies of the evaluation report and of the successful tender or, in the context of notification of the characteristics and relative advantages of the successful tender, a detailed comparative analysis of the successful tender and of the unsuccessful tender. Subsequently, in paragraphs 43 to 47 of the judgment under appeal, the [OSCURATO:PERSONA] indicated, and then, in paragraphs 48 to 50 of that judgment, reviewed, the information which had been provided to the appellants. In that review, it took into account the fact that the comments regarding the evaluation of the bids of the successful tenderers were less detailed than those provided in respect of the appellants’ tender. 7.      On the basis of this analysis the [OSCURATO:PERSONA] was able, without erring, to find that, depending on the circumstances in the present case, and in line with the settled case-law in this area, the information relating to the successful tenderer provided by the contracting authority was, in the present case, sufficient to enable the appellants to understand why their tender had been rejected (see, by analogy, order of 13 October 2011 in [OSCURATO:PERSONA] v Commission , C‑560/10 P, not published, EU:C:2011:657, paragraphs 16 to 18, and judgment of 4 October 2012 in [OSCURATO:PERSONA] v Commission , C‑629/11 P, not published, EU:C:2012:617, paragraphs 16 to 32). 8.      Finally, as regards, fourth, the alleged distortion of the evidence, it is far from obvious that the [OSCURATO:PERSONA] distorted the evidence when it took the view that, even though the comments concerning the evaluation of the successful tenders were less detailed than those provided in respect of the appellants’ tender, they allowed the appellants, reading them in conjunction with the other documents provided, to understand the reasons why their tender had been rejected. By that assessment, the [OSCURATO:PERSONA] has, on the contrary, explained why the lack of precision of the comments did not prevent the appellants from understanding the reasons for that rejection. 9.      In the second branch of their single ground of appeal, the appellants submit that the [OSCURATO:PERSONA] erred in law in stating, in paragraph 51 of the judgment under appeal, that they “have failed to identify and to challenge, in a detailed manner, the specific points of the reasons … which they could consider to be inadequate”. 10.      In that regard, first, it should be noted that, in paragraph 51 of the judgment under appeal, the [OSCURATO:PERSONA] indicated that the general and unsubstantiated challenges of the appellants were not sufficient to call into question the adequacy of the reasons for the award decision, as analysed in paragraphs 48 to 50 of the judgment under appeal. Thus, since the rejection of the appellants’ plea was based, to the requisite legal standard, on the analysis of the statement of reasons carried out in paragraphs 48 to 50 of the judgment under appeal, the second branch of the single ground of appeal, inasmuch as it relates to paragraph 51 of that judgment, is directed against a ground of the judgment under appeal adopted for the sake of completeness and is therefore ineffective. 11.      Second, it is clear that, by that branch, the appellants do no more, essentially, than to repeat the argument concerning the use of the vague and generic term “better quality and merit” already mentioned in point 4 above and continue to fail to identify in detail the specific points and elements of the statement of reasons the inadequacy of which allegedly prevented them from understanding why their tender had been rejected. In those circumstances, that second branch is, in my opinion, in any event, manifestly unfounded.’ 6 For the same reasons as those given by the [OSCURATO:PERSONA], the appeal must be dismissed. Costs 7 [OSCURATO:PERSONA] 137 of the Rules of Procedure of the [OSCURATO:PERSONA] of Justice, applicable to the procedure on appeal pursuant to [OSCURATO:PERSONA] 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 is adopted before the appeal has been served on the respondent, and therefore before the latter could have incurred costs, [OSCURATO:PERSONA] and [OSCURATO:PERSONA] — [OSCURATO:PERSONA] kai Tilematikis must be ordered to bear their own costs. On those grounds, the [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) hereby orders: 1. The appeal is dismissed. 2. [OSCURATO:PERSONA] SA and [OSCURATO:PERSONA] — [OSCURATO:PERSONA] kai Tilematikis AE shall bear their own costs. [Signatures] * Language of the case: English.