JUDGMENT OF THE GENERAL COURT (Fourth Chamber)
5 March 2019 (*)
(Public service contracts — Tender procedure — Provision of a service for the implementation of a study on female genital mutilation — Rejection of a tenderer’s bid — Obligation to state reasons — Coherence between comments and the numerical score — Non-contractual liability)
In Case T‑450/17,
Eurosupport — Fineurop support Srl, established in Milan (Italy), represented by M. Velardo, lawyer,
applicant,
v
European Institute for Gender Equality (EIGE), represented by V. Ost and M. Vanderstraeten, lawyers,
defendant,
APPLICATION (i) under Article 263 TFEU for annulment of the decision of the EIGE of 8 May 2017 rejecting the tender submitted by the applicant in procurement procedure EIGE/2017/OPER/04 and the decisions selecting as successful the tender submitted by Company Y and awarding that contract to it, (ii) under Article 268 TFEU for an award of damages in respect of those decisions and (iii) in the alternative, for compensation for irregularities in the award of that contract,
THE GENERAL COURT (Fourth Chamber),
composed of H. Kanninen, President, L. Calvo-Sotelo Ibáñez-Martín (Rapporteur) and I. Reine, Judges,
Registrar: N. Schall, Administrator,
having regard to the written part of the procedure and further to the hearing on 13 July 2018,
gives the following
Judgment
I. Background to the dispute
1 The European Institute for Gender Equality (EIGE) was established by Regulation (EC) No 1922/2006 of the European Parliament and of the Council of 20 December 2006 (OJ 2006 L 403, p. 9). Its mission is to support the European Union and its Member States in their efforts to promote gender equality, to fight discrimination based on sex and to raise EU citizens’ awareness of gender equality. Its tasks include collecting and analysing data on gender equality issues, developing methodological tools, in particular for the integration of the gender dimension in all policy areas, facilitating the exchange of best practices, developing dialogue and cooperation on equality at national and European level with organisations, universities, experts, research centres and social partners and, lastly, making documentation available to the public.
2 Against this background, the EIGE published two studies, one in 2012 and the other in 2014, on female genital mutilation and on a methodological approach for estimating that risk.
A. The first call for tenders
3 On 16 November 2016, the EIGE published in the Supplement to the Official Journal of the European Union a call for tenders with reference EIGE/2017/OPER/01 (‘the first call for tenders’). The subject matter of that public contract was to produce a new study on female genital mutilation in six Member States, namely Belgium, Greece, France, Italy, Cyprus and Malta (‘the FGM study’). More precisely, it was intended to test and strengthen the EIGE’s methodology in order to further support Member States and help the European Union to achieve the goal of eliminating female genital mutilation. The study was also intended to help the EU institutions and the Member States to estimate the number of women and girls exposed to that risk. It was also intended to contribute to improving the effectiveness of the prevention and the collection of information. Finally, it was intended to raise awareness and facilitate the fight against female genital mutilation in policies by developing recommendations or proposals.
4 The applicant, Eurosupport — Fineurop support Srl, submitted a bid (‘the first tender’) in response to the first call for tenders. Yellow Window and Company X also submitted a tender in response to that call for tenders.
5 The opening of tenders in the context of the contract award procedure relating to the first call for tenders took place on 23 and 24 January 2017. The opening committee found the three tenders to be in conformity with the opening requirements, that is to say, they had been received within the prescribed time limit in a closed envelope ensuring their integrity and confidentiality. The tenders were then opened. The minutes relating to that opening stipulate that ‘[t]he integrity of the original tenders [is] guaranteed in the following way. All the three tenders are locked properly in the Procurement Office till the Evaluation Phase with no access to anyone of the Staff’ and that ‘[o]nly after the official assignment of the Evaluation Committee and on the date of commencement of its deliberations, the Procurement Officer will deliver the tenders to the abovementioned Committee’.
6 On 1 February 2017, the EIGE decided to cancel the procurement procedure relating to the first call for tenders. Tenderers who participated in that call for tenders were informed on the following day. That decision was based on the following reasons:
– first, ‘[t]he study [was] substantial for the strategic planning and implementation of the annual work programme goals ...’;
– secondly, ‘[d]espite all the precautions set out for the launch of the procedure, the deadline for disseminating information might have been too short to allow possible tenderers to submit a credible tender; Christmas period might have reduced publicity, since the Contract Notice was published on [16 November 2016] and the deadline for submission of tenders was on [9 January 2017]’;
– thirdly, ‘[o]nly three candidates submitted tenders’ and ‘[t]he specific nature and tasks of the procedure requires genuine and strong competition, therefore, the number is not sufficient for ensuring the best value for money outcome and not reflecting the needs of the [EIGE]’.
7 On 27 February 2017, the EIGE returned its first tender to the applicant.
B. The second call for tenders
8 By a notice published in the Supplement to the Official Journal of 21 February 2017, the EIGE relaunched a procurement procedure by a call for tenders with reference EIGE/2017/OPER/04 (‘the second call for tenders’).
9 The specifications for the second call for tenders (‘the second specifications’) provided for a maximum number of points and a minimum number of points for each criterion and sub-criterion included in the technical evaluation. They also stated that tenders scoring either below the minimum required per criterion or below 60 out of a total 100 points would be rejected and thus not considered for the next step of the evaluation.
10 The applicant submitted a tender in response to the second call for tenders. The EIGE also received three further tenders in response to that call for tenders from Yellow Window, Company X and Company Y.
11 In the evaluation of the tenders submitted in response to the second call for tenders, the applicant’s tender scored only 10 points out of 20 for sub-criterion 1.2, when the minimum required was 12 points out of 20. As a result, the tender evaluation committee (hereinafter referred to as the ‘evaluation committee’) did not further examine that tender. Likewise, the evaluation committee did not examine the entire tender of Company X, because the latter tender had not obtained the minimum score required for sub-criterion 1.1.
12 The overall evaluation of the tenders in the context of the tendering procedure for the second call for tenders led to the following classification:
Tenderer | Total score for quality | Prices | Final score | Classification |
Company Y | 77.7 | EUR 327 190 | 23.7 | 1 |
Yellow Window | 81.4 | EUR 389 990 | 20.9 | 2 |
13 On 8 May 2017, the EIGE approved the evaluation mentioned in paragraph 14 above and awarded the contract to Company Y.
14 On 8 May 2017 also, the applicant was informed that its tender in response to the second call for tenders had not been successful. On this occasion the applicant was sent the grounds for the rejection of its tender.
15 By letter of the same date, the applicant requested the characteristics and relative merits of the successful tender and the name of the successful tenderer. The EIGE replied to that request by letter dated 11 May 2017.
II. Procedure and forms of order sought
16 By application lodged at the Court Registry on 18 July 2017, the applicant brought the present action.
17 On 23 October 2017 the EIGE lodged its defence.
18 On 31 January 2018 the applicant lodged the reply.
19 On 8 March 2018 the EIGE lodged the rejoinder.
20 On hearing the report of the Judge-Rapporteur, the General Court (Fourth Chamber) decided to open the oral part of the procedure.
21 By letter of 29 May 2018, the Court informed the EIGE of a measure of organisation of procedure to which the EIGE replied on 13 June 2018.
22 The applicant and the EIGE presented oral argument and replied to questions put by the Court at the hearing on 13 July 2018. At that hearing, the applicant submitted, as new evidence, an exchange of correspondence with the European Ombudsman. The EIGE took a position on it and it has been added to the file of the case pending a decision on its admissibility.
23 The applicant claims that the Court should:
– annul, on the one hand, the decision of 8 May 2017 which did not accept its tender within the context of the second call for tenders, and, on the other hand, the subsequent decisions which accepted the tender submitted by Company Y and which awarded it the contract;
– order the EIGE to pay damages to the applicant;
– in the alternative, order the EIGE to pay compensation to the applicant;
– order the EIGE to pay the costs.
24 The EIGE contends that the Court should:
– dismiss the action as unfounded;
– order the applicant to pay the costs.
III. Law
A. On the admissibility of the new evidence
25 The exchange of correspondence lodged at the hearing consists (i) of a letter of 16 April 2018 from the applicant’s counsel asking the Ombudsman to reopen the examination of a complaint previously lodged and which had been rejected on the grounds of an appeal pending before the Court on the same subject, and (ii) of the Ombudsman’s reply of 18 June 2018 requesting further information. The submission of that correspondence is admissible. They post-date the last exchange of pleadings and Article 85(3) of the Rules of Procedure of the Court exceptionally allows the parties to produce further evidence before the close of the oral part of the procedure.
B. The claim for annulment
1. The subject matter of the claim for annulment
26 By judgment of today’s date, Yellow Window v EIGE (T‑439/17, not published), the Court inter alia annulled the decisions of the EIGE of 8 May 2017 accepting the bid by Company Y in the context of procurement procedure EIGE/2017/OPER/04 and awarding that contract to it. That annulment took effect ex tunc and erga omnes with regard to all individuals and thus has the absolute authority of res judicata (see, to that effect, judgment of 1 June 2006, P&O European Ferries (Vizcaya) and Diputación Foral de Vizcaya v Commission, C‑442/03 P and C‑471/03 P, EU:C:2006:356, paragraph 43 and the case-law cited). Consequently, the very purpose of the claim for annulment referred to in paragraph 23 above is deemed never to have existed, in so far as that claim concerns the abovementioned decisions. There is therefore no longer any need to rule on that claim or, therefore, on the pleas in law and arguments put forward by the parties in relation to that claim.
27 By contrast, the applicant’s action retains a purpose in so far as it is directed against the decision of the EIGE of 8 May 2017 to reject its tender (‘the contested decision’).
2. The pleas in law
28 In support of its claim for annulment, the applicant raises three pleas in law:
– the first plea in law alleges infringement of the principle of equal treatment and the principle of transparency, the duty to respect the confidentiality of tenders, the duty of care and a manifest error of appraisal;
– the second plea in law alleges inconsistency in the grounds and infringement of the principle of proportionality;
– the third plea in law alleges infringement of the principle of sound administration.
(a) The first plea in law, alleging infringement of the principle of equal treatment, the principle of transparency, the duty to respect the confidentiality of tenders, the duty to act with care and a manifest error of appraisal
29 In its application, the applicant asserts that, under Article 85(1) of the Financial Rules adopted by the EIGE on 16 January 2014 and Article 102(1) 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, ‘the Financial Regulation’), all of the EIGE’s contracts must respect the principles of transparency and equal treatment. In addition, under Article 111(1) of the Financial Regulation, the arrangements for submitting tenders should ensure that there is genuine competition and that the contents of tenders remain confidential until they are opened simultaneously. The contested decision misconstrues those principles and that provision. Moreover, in the applicant’s view, their infringement led the EIGE to make a manifest error of assessment in the evaluation of its tender.
30 The EIGE replies that the plea is obscure and inadmissible because the principles set out in its title do not correspond to the claims which follow and because the applicant does not explain how those principles were allegedly infringed.
31 In its reply, the applicant maintains, on the other hand, that in its application it offered a detailed description of the facts from which stems the infringement of the principles invoked in the plea in law and it expounds that plea.
32 It must be borne in mind that, under Article 21 of the Statute of the Court of Justice of the European Union and Article 76(d) of the Rules of Procedure, the application initiating proceedings must contain a brief statement of the pleas in law on which the application is based. That summary must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the action, if necessary without any other supporting information. The application must, accordingly, specify the nature of the grounds on which the action is based, which means that a mere abstract statement of the grounds does not satisfy the requirements of the Rules of Procedure (see, by analogy, judgment of 11 September 2014, Gold East Paper and Gold Huasheng Paper v Council, T‑444/11, EU:T:2014:773, paragraph 93 and the case-law cited).
33 In the present case, the applicant did not explain in its application the complaints which it derives from the infringement of the principles of equal treatment and transparency, the duty to respect the confidentiality of tenders, the duty to act with care and a manifest error of appraisal.
34 The fact that the applicant set out the facts in a separate part of its application does not suffice to render its plea admissible. The applicant does not specify which fact should be taken into consideration in the light of such and such principle, obligation, duty or alleged manifest error. Nor does it explain how these have been infringed.
35 Lastly, in reviewing the compliance of the application with the requirements of Article 76(d) of the Rules of Procedure, the contents of the reply are not relevant. In particular, the admissibility, permitted by the case-law, of pleas and arguments put forward in the reply as amplifications of pleas in the application cannot be raised with the aim of compensating for a failure, arising during the initiation of the action, to comply with the requirements of that provision, without rendering the latter provision devoid of purpose (see, by analogy, judgment of 25 October 2012, Arbos v Commission, T‑161/06, not published, EU:T:2012:573, paragraph 59).
36 The first plea in law is therefore inadmissible.
(b) The second plea in law, alleging inconsistency in the grounds and infringement of the principle of proportionality
37 The applicant submits that the obligation to state reasons under the second paragraph of Article 296 TFEU requires the institutions and agencies to demonstrate consistency in the evaluation of tenders and, in particular, the score awarded to a tender to correspond to the comments provided by the evaluators.
38 Furthermore, if a deficiency or a shortcoming is affecting the tender under one evaluation criterion, the principle of proportionality precludes the same deficiency or shortcoming from justifying the tender being also penalised under a different criterion.
39 Lastly, the applicant disputes the accuracy of certain objections raised against its tender in response to the second call for tenders.
40 It should be noted that the applicant contests, all at once, the reasoning of the contested decision, which lacks consistency, the accuracy of its grounds and the disproportionate nature of the penalties applied to its tender in response to the second call for tenders.
41 The duty to state reasons is an essential procedural requirement, which is distinct from the question whether the grounds given are correct, which goes to the substantive legality of the contested measure (see judgment of 15 October 2013, Evropaïki Dynamiki v Commission, T‑474/10, not published, EU:T:2013:528, paragraph 75 and the case-law cited).
42 It is therefore appropriate to distinguish three parts in the second plea, alleging, the first, an inconsistent statement of reasons, the second, errors in the grounds and, the third, breach of the principle of proportionality.
(1) The first part, alleging an inconsistent statement of reasons
43 The applicant claims that the grounds of the contested decision are inconsistent.
44 Concerning the evaluation of its tender in the light of sub-criterion 1.2, entitled ‘Methodological approach to the collection, analysis and assessment of quantitative and qualitative data’, the applicant submits that the evaluation committee has repeated, under that sub-criterion, a criticism already made under sub-criterion 1.1, entitled ‘Understanding of the general approach of the study’, namely that its tender does not state how the proposed methodology would provide the deliverables. The applicant considers that it has thus been penalised twice for the same complaint.
45 The EIGE admits having mentioned a similar complaint in its literal comments relating to sub-criteria 1.1 and 1.2.
46 The EIGE notes, however, that sub-criterion 1.1, entitled ‘Understanding of the general approach of the study’, assessed whether the tenderer had understood the general approach of the study, the methodology of which is only a part, while sub-criterion 1.2, entitled ‘Methodological approach to the collection, analysis and assessment of quantitative and qualitative data’, served to assess the specific methodological approach to collecting, analysing and evaluating data. Thus, the inadequacy of the methodological approach led to the award of a low score for sub-criterion 1.2 and it is normal for such inadequacy also to have a negative impact on the assessment of the general approach of the FGM study and therefore on the score awarded under sub-criterion 1.1.
47 In response to the measure of organisation of procedure referred to in paragraph 21 above and in reply to a question put by the Court at the hearing, the EIGE nevertheless stated that, although the evaluation committee had noted the existence of a same shortcoming having regard to sub-criteria 1.1 and 1.2, in order to enhance the understanding of its evaluation, that repetition did not imply that points had been deducted twice, even if that would have been admissible in the present case.
48 The applicant takes the view, however, that those explanations provided by the EIGE during the procedure were not reflected in the assessment made by the evaluation committee and that the latter lacks transparency in any event.
49 In this context, it should be borne in mind that the obligation to state reasons laid down in Article 296 TFEU presupposes that the reference to the strengths and weaknesses of a tender enables the tenderer concerned to understand the marks awarded in the light of the criteria and sub-criteria of the specifications (see, to that effect, judgment of 10 April 2014, Evropaïki Dynamiki v Commission, T‑340/09, not published, EU:T:2014:208, paragraph 135; see also, by analogy, judgment of 13 December 2005, Cwik v Commission, T‑155/03, T‑157/03 and T‑331/03, EU:T:2005:447, paragraph 80). A correlation must therefore exist between comments identifying strengths and weaknesses, on the one hand, and the marks awarded in relation to those criteria and sub-criteria, on the other hand. Moreover, the statement of reasons must show clearly and unequivocally the reasoning of the author of the act, in such a way as to allow (i) interested parties to know the justifications for the measure taken in order to assert their rights and (ii) to enable the Court to exercise its power of review (judgment of 26 January 2017, TV1 v Commission, T‑700/14, not published, EU:T:2017:35, paragraph 79). More specifically, Article 113(2) of the Financial Regulation requires the contracting authority to provide the tenderer with the real reasons for the rejection of its tender. A statement of reasons which does not identify the true basis of the decision rejecting a tender and which does not faithfully reflect the manner in which the rejected tender was assessed is not transparent and does not satisfy the obligation to state reasons laid down by the latter provision (see, to that effect, judgment of 17 September 2015, Ricoh Belgium v Council, T‑691/13, not published, EU:T:2015:641, paragraph 39).
50 It follows from the foregoing that, failing a justification which is neither consistent nor unequivocal nor transparent, the mark awarded to a tender on the basis of which it will be classified must, as a matter of principle, be a reflection of the strengths and weaknesses identified by the evaluators in their comments.
51 In this case, the comments of the evaluation committee preclude verification as to whether, as contended by the EIGE, the complaint that the applicant’s tender does not specify how the proposed methodology provides the deliverables did in fact lead to the subtraction of points only in respect of one of sub-criteria 1.1 and 1.2 and not both. A fortiori, those comments do not make it possible to determine, by definition, the sub-criteria under which that subtraction would have been performed.
52 Taking into account the explanations provided by the EIGE during the procedure, the statement of reasons for the contested decision thus seems incoherent, ambiguous and not transparent.
53 In that regard, the EIGE cannot entrench itself behind its broad discretion with regard to the factors to be taken into account for the purpose of deciding to award a contract on the basis of a call for tenders in order to justify the discrepancy between the comments relating to the applicant’s tender and the points which were awarded to it. It should be observed that, where the contracting authority has a broad discretion, respect for the guarantees conferred by the EU legal order in administrative procedures is of even more fundamental importance. Those guarantees include, in particular, the duty of the competent institution to give reasons for its decisions in a clear and unequivocal manner. Only in this way can the Courts of the Union verify whether the factual and legal elements upon which the exercise of the discretion depends were present (see, to that effect, judgment of 15 October 2013, Evropaïki Dynamiki v Commission, T‑474/10, not published, EU:T:2013:528, paragraph 73 and the case-law cited). As the applicant has argued during the hearing, the exercise of judicial review depends specifically on the consistency of the statement of reasons.
54 Similarly, the EIGE cannot validly claim that the applicant has no interest in raising the inconsistency or equivocal nature of the statement of reasons for the contested decision. The obligation to state reasons is an essential procedural requirement, as a matter of public policy. In view of its importance, that obligation is therefore not available to the parties and may be raised by the Court of its own motion. Consequently, the applicant has failed to prove its interest in relying on the infringement.
55 It follows that the first part of the second plea is well founded.
56 To the extent that the application contains claims for damages, it is appropriate, in the present case, to continue the examination of the claim for annulment provided that the shortcomings in the reasoning of the contested decision do not prevent the Court from exercising its power of review in relation to the other parts and the plea raised by the applicant.
(2) The second part, alleging errors in the grounds
57 The applicant claims, in the first place, that the assessment of its tender in the light of sub-criterion 1.1, entitled ‘Understanding of the general approach of the study’, is based on incorrect grounds.
58 When asked about the relevance of those objections at the hearing, the applicant confined itself to claiming that the evaluation committee’s assessment of its tender in response to the second call for tenders would in any event be vitiated by an inconsistency and a lack of transparency.
59 The lack of consistency and transparency of the contested decision was examined in the context of the first part of the second plea. As regards the complaints raised in this part of the plea, it should be recalled that the applicant’s tender in response to the second call for tenders was rejected on the ground that it had obtained only 10 points out of 20 for sub-criterion 1.2, entitled ‘Methodological approach to the collection, analysis and assessment of quantitative and qualitative data’, whereas the minimum required was 12 points.
60 Consequently, the applicant’s complaints alleging errors in the assessments of the evaluation committee with regard to sub-criterion 1.1 are ineffective.
61 As regards, in the second place, the assessment of the applicant’s tender in response to the second call for tenders under sub-criterion 1.2, entitled ‘Methodological approach to the collection, analysis and assessment of quantitative and qualitative data’, the applicant contests the evaluation committee’s assertion that data on women in detention are not relevant because they could not be directly linked to data on irregular migrants. In its application, the applicant claims that that complaint did not concern its tender and that it was therefore irrelevant. In its reply, it admits having indicated that detainees could be a source of information, but considers that the EIGE disregarded the fact that it had provided a clear explanation on the relevance of the data collected by prisons.
62 In paragraph 2.2 of its tender, entitled ‘Tasks to achieve the contract objectives: project activities, inputs and outputs’, the applicant had indeed indicated that ‘socio-demographic events generated by [the] presence [of migrants] such as for example presence in jail [could] be known’ and that ‘[a]ll these institutions [might] have administrative data generated by the delivery of their services that [could] be analysed’.
63 However, contrary to what the applicant claims, it does not appear that it has thus explained how prisons whose population includes irregular female migrants could be a source of data on female genital mutilation. Consequently, the evaluation committee was entitled to take the view that the data which those establishments held on the female migrants they were detaining were not directly related to the issue of mutilation and were therefore not relevant.
64 It follows that the second part of the second plea is in part ineffective and in part unfounded.
(3) The third part, alleging breach of the principle of proportionality
65 The applicant submits that the principle of proportionality means that, where a tender is penalised for a weakness or defect under an evaluation criterion, the same deficiency or shortcoming cannot lead to the tender being penalised under another criterion. That is, moreover, the practice followed by the European Commission.
66 In the present case, the applicant claims that, in criticising its tender in response to the second call for tenders by a single complaint, with regard to sub-criteria 1.1 and 1.2, the EIGE penalised its tender disproportionately.
67 In addition to the fact that the EIGE claims that it did not deduce, on two occasions, points for the same deficiency (see paragraph 47 above) and that it therefore did not excessively penalise the applicant’s tender in response to the second call for tenders, it argues that the principle of proportionality does not preclude a deficiency or a shortcoming concerning a tender in view of a criterion from being invoked under another criterion or sub-criterion.
68 However, it follows from the equivocal nature of the reasoning of the contested decision (see paragraphs 49 to 55 above) and from the resultant impossibility for the Court to determine whether the same deficiency led to a withdrawal of points in respect of sub-criteria 1.1 and 1.2 that, in the circumstances of the case, it cannot be ascertained whether the EIGE infringed the principle of proportionality, since that control, by nature, can be exercised only in the presence of a statement of reasons making it possible to assess whether or not the administration has exceeded the limits of its discretion (see, to that effect, judgments of 11 July 2007, Sison v Council, T‑47/03, not published, EU:T:2007:207, paragraph 226, and of 8 September 2009, ETF v Landgren, T‑404/06 P, EU:T:2009:313, paragraph 181).
(4) Conclusion on the second plea
69 It follows from the assessment above that the first part of the second plea is well founded in so far as the reasoning of the contested decision lacks consistency and transparency (see paragraphs 49 to 55 above).
(c) The third plea in law, alleging infringement of the principle of sound administration
70 In its application, the applicant argues that the contested decision is the result of a biased procedure. It submits, in this respect, that its tender in response to the second call for tenders was similar to the one which it had submitted in response to the first call for tenders and that the envelopes in which it had inserted the first tender containing its technical offer and its financial offer were opened by the EIGE, although the information contained in a tender is confidential under Article 111 of the Financial Regulation and has a high commercial value. The applicant states, in that regard, that neither the review as to whether the tenders had been submitted before the deadline date and time and whether they had been received closed, nor the annulment of the procurement procedure relating to the first call for tenders because an insufficient number of tenders had been submitted did not justify the opening of its first tender.
71 In the first place, it must be recalled that, according to the case-law, following the annulment of a tendering procedure, the contracting authority is entirely at liberty to decide on what subsequent action to take in respect of the contract (judgments of 8 October 2008, Sogelma v EAR, T‑411/06, EU:T:2008:419, paragraph 136, and of 29 October 2015, Direct Way and Direct Way Worldwide v Parliament, T‑126/13, EU:T:2015:819, paragraph 68). It may thus reopen a new procedure by making, if necessary, any amendment to the specifications which it considers appropriate.
72 In the second place, it is apparent from the minutes relating to the opening of the tenders submitted in the context of the first call for tenders and from the explanations of the EIGE that, at the time of that opening, the commission for the opening of tenders first examined the validity of the tenders, i.e. whether the tenders had been submitted before the deadline date and time and whether they had been received correctly closed. Next, the tenders were authenticated on every page by the initials of at least one member of the committee. Finally, after the opening of the tenders, the three tenders received were locked away until the evaluation phase, which did not take place, the EIGE in the meantime having cancelled the tendering procedure.
73 That approach is compatible with Article 157(4) of Commission Delegated Regulation (EU) No 1268/2012 of 29 October 2012 on the rules of application of the Financial Regulation (OJ 2012 L 362, p. 1) under which, during the opening of tenders, the contracting authority is to check the proof of the date and time of receipt of initial tenders and guarantee their integrity.
74 In that context, the applicant does not explain the extent to which the fact that its tender in response to the second call for tenders was very similar to the first tender, which had been opened, rendered the procedure biased and, in particular, how the commercial value of its proposals would have been affected. That explanation is all the more lacking because, within the framework of the procurement procedure relating to the first call for tenders, only the commission for the opening of tenders opened the tenders and because, in the context of the procurement procedure relating to the second call for tenders, the evaluation committee, which is composed of six members, consisted of only two persons who were part of the aforementioned commission for the opening of tenders, one of them, moreover, not having participated in the evaluation.
75 The applicant submits, admittedly, that the verifications of the commission for the opening of tenders did not require the opening of the envelopes containing the technical and financial offers.
76 However, the opening of tenders for authentication purposes may be based on the need to ensure the equality of tenderers and the fairness of the procedure, in so far as it prevents any manipulation of tenders after they have been opened.
77 In its reply, the applicant claims that the second call for tenders infringed the principles of transparency and equal treatment, as well as the duty to respect the confidentiality of the tenders, principles and obligations which are not only independent but also form part of the principle of sound administration. The applicant alleges, in this regard, that the second specifications set out proposals made in response to the first call for tenders which should have remained confidential. It adds that the first specifications did not mention that a wide participation by tenderers was a condition for the procedure and that the second specifications did not state that a restricted participation was now sufficient.
78 In so far as the arguments mentioned in paragraph 77 above should be regarded as being raised in support of the first plea, derived directly from the principles of transparency and equal treatment and the duty to respect the confidentiality of the tenders, it must be borne in mind that, submitted for the first time in the reply, they cannot contribute to establishing the admissibility of the first plea (paragraph 35 above).
79 In so far as the applicant relies on the arguments mentioned in paragraph 77 above in support of the present plea alleging infringement of the principle of sound administration, it should be noted that that principle has a multifaceted character which needs to be clarified, as reflected in Article 41(2) of the Charter of Fundamental Rights of the European Union. Accordingly, Article 84 of the Rules of Procedure precludes rights arguments included in the principle of sound administration but not relied on in the application from being raised for the first time in the course of the proceedings under the guise of the plea alleging infringement of the principle of sound administration, since the new arguments thus raised are not based on elements of law and of fact which came to light in the course of the procedure.
80 Consequently, the arguments mentioned in paragraph 77 above are inadmissible in so far as the applicant relies on them, not in order to establish bias in the procedure, but raises them for the first time in the reply in support of an alleged infringement of the principles of transparency and equal treatment as well as the duty to respect the confidentiality of the tenders and in so far as those arguments are not based on elements of law and of fact which came to light in the course of the procedure.
81 Moreover, it must be stated that the applicant has not provided any details regarding the proposals made in response to the first call for tenders which were included in the second specifications. The Court is thus unable to examine to what extent that alleged inclusion vitiated the procurement procedure. Accordingly, that complaint must, in any event, be rejected as being inadmissible.
82 In any event, the complaint alleging infringement of the principle of transparency cannot succeed, in that the first specifications did not mention that a wide participation of tenderers was necessary and in that the second specifications did not state that a restricted participation was now sufficient.
83 The principle of transparency is essentially intended to prevent any risk of favouritism and arbitrariness on the part of the contracting authority, firstly, by allowing all reasonably informed and normally diligent tenderers to understand the exact scope of the specifications and to interpret them in the same way and, secondly, by enabling the contracting authority to effectively check whether the tenderers’ tenders meet the criteria governing the relevant market (see, to that effect, judgment of 14 September 2015, Brouillard v Court of Justice, T‑420/13, not published, EU:T:2015:633, paragraph 110 and the case-law cited). In the absence of an explanation from the applicant, the procedural requirements which it claims to charge to the contracting authorities do not appear to be necessary to meet that objective.
84 Furthermore, Article 114 of the Financial Regulation provides that the contracting authority may, before the contract is signed, cancel the procurement procedure without the candidates or tenderers being entitled to claim any compensation and that the decision is to be justified and brought to the attention of the candidates or tenderers as soon as possible. Article 114 of the Financial Regulation therefore does not make the contracting authorities’ right to cancel a procurement procedure conditional on the indication, in the calls for tenders themselves, of the possible reasons to justify such cancellation. Similarly, there is no requirement to state, in the call for tender documents, the minimum number of tenders required to complete a procurement procedure.
85 The third plea is therefore partially inadmissible and, in any event, unfounded.
86 Consequently, the applicant’s claim for annulment must be rejected.
87 In the light of all the foregoing, the contested decision must be annulled on the basis of the second plea in law, inasmuch as the statement of reasons for that decision is lacking consistency and transparency.
C. The claim for damages
88 By its second head of claim, the applicant submits that, even if the Court were to annul the contested decision, the contract in question would not be awarded to it since its duration was only nine months. It therefore considers that it is entitled to reparation for the damage it suffered. It refers to its claim for annulment in order to demonstrate the unlawful conduct of the EIGE. It adds that, in the absence of such conduct on the part of the EIGE, it would have had a genuine chance of being awarded the contract and assesses its chances of obtaining that contract in the absence of illegality at 50%. It therefore assesses its damage at 50% of EUR 384 000, corresponding to the amount of its tender, that is EUR 192 000.
89 According to settled case-law, for the Union to incur non-contractual liability, the applicant must prove the unlawfulness of the alleged conduct of the institution concerned, actual damage and the existence of a causal link between that conduct and the damage complained of. If one of those conditions is not satisfied, the action must be dismissed in its entirety without it being necessary to examine the other conditions of that liability (see judgments of 15 March 2012, Evropaïki Dynamiki v Commission, T‑236/09, not published, EU:T:2012:127, paragraph 125 and the case-law cited, and of 24 April 2013, Evropaïki Dynamiki v Commission, T‑32/08, not published, EU:T:2013:213, paragraph 93 and the case-law cited).
90 In the present case, the claim for damages is based on the same unlawfulness as that put forward in support of the claim for annulment of the contested decision. However, that claim is vitiated by a failure to state reasons (see paragraph 69 above).
91 However, with respect to the existence of a causal link between instances of unlawful conduct in form and substance and the damage purportedly suffered, it is settled case-law that inadequate reasoning is not capable as such of rendering the European Union liable, in particular because it is not capable of showing that, had the reasoning not been inadequate, the market in question could, or should, have been awarded to the applicant (see, to that effect, judgments of 20 October 2011, Alfastar Benelux v Council, T‑57/09, not published, EU:T:2011:609, paragraph 49; of 17 October 2012, Evropaïki Dynamiki v Court of Justice, T‑447/10, not published, EU:T:2012:553, paragraph 123; and of 14 January 2015, Veloss International and Attimedia v Parliament, T‑667/11, not published, EU:T:2015:5, paragraph 72).
92 In the present case, therefore, it is not possible to recognise the existence of a causal link between the lack of consistency and transparency of the reasoning of the contested decision which was found and the damage alleged by the applicant.
93 It follows that, since one of the conditions necessary for the Union’s non-contractual liability is not satisfied, the applicant’s claim for damages cannot be upheld.
D. The claim in the alternative for compensation
94 By its third head of claim, the applicant asserts that, should the Court consider that the various irregularities raised by it justify neither the annulment of the contested decision nor the award of damages, it should nevertheless obtain compensation which it assesses at EUR 20 000.
95 In so far as it follows from paragraph 87 above that the contested decision must be annulled, there is no need to examine the present head of claim which was formulated in the alternative. In any event, in so far as it follows from the examination of the second head of claim that the conditions for the Union’s non-contractual liability are not met and the applicant itself provides no indication as to the legal basis of its claim for compensation, that claim must be rejected.
IV. Costs
96 Under Article 134(3) of the Rules of Procedure, the parties are to bear their own costs where each party succeeds on some heads and fails on others. However, if it appears justified in the circumstances of the case, the Court may order that one party, in addition to bearing his own costs, pay a proportion of the costs of the other party. In addition, under Article 137 of those rules, where a case does not proceed to judgment, the costs are to be in the Court’s discretion.
97 In the present case, it must be noted that the disappearance of the subject matter of the dispute in so far as it concerns the decisions of the EIGE accepting the tender submitted by Company Y in the context of procurement procedure EIGE/2017/OPER/04 and awarding that contract to it results from the annulment of those decisions by the judgment delivered today, Yellow Window v EIGE (T‑439/17, not published).
98 Furthermore, since the action is dismissed in so far as it seeks the award of damages or compensation, the Court will make an equitable assessment of the circumstances of the case in holding that the applicant is to bear 25% of its own costs and orders the EIGE to bear its own costs and to pay 75% of the costs incurred by the applicant.
On those grounds,
THE GENERAL COURT (Fourth Chamber)
hereby:
1. Declares that there is no longer any need to rule on the decisions of the European Institute for Gender Equality (EIGE) of 8 May 2017 adopting the tender submitted by Company Y in the context of the EIGE/2017/OPER/04 tender procedure and awarding it that contract;
2. Annuls the decision of the EIGE of 8 May 2017 rejecting the tender which Eurosupport — Fineurop support Srl had submitted in the context of that procedure;
3. Dismisses the action as to the remainder;
4. Orders Eurosupport — Fineurop support to bear 25% of its own costs and the EIGE to bear its own costs and to pay 75% of the costs incurred by Eurosupport — Fineurop support.
Kanninen | Calvo-Sotelo Ibáñez-Martín | Reine |
Delivered in open court in Luxembourg on 5 March 2019.