JUDGMENT OF THE COURT (Fifth Chamber)
19 October 2017 (*)
(Appeal — Non-contractual liability of the European Union — Public service contract — Operational technical assistance to set up and manage a network facility for the implementation of the European Innovation Partnership ‘Agricultural Productivity and Sustainability’ — Rejection of a tenderer’s bid — Abnormally low bid — Adversarial procedure)
In Case C‑198/16 P,
APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 8 April 2016,
Agriconsulting Europe SA, established in Brussels (Belgium), represented by R. Sciaudone, avvocato,
appellant,
the other party to the proceedings being:
European Commission, represented by L. Di Paolo and F. Moro, acting as Agents, with an address for service in Luxembourg,
defendant at first instance,
THE COURT (Fifth Chamber),
composed of J.L. da Cruz Vilaça (Rapporteur), President of the Chamber, E. Levits, A. Borg Barthet, M. Berger and F. Biltgen, Judges,
Advocate General: M. Szpunar,
Registrar: A. Calot Escobar,
having regard to the written procedure,
having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,
gives the following
Judgment
1 By its appeal, Agriconsulting Europe SA (‘Agriconsulting’) is seeking to have set aside the judgment of the General Court of the European Union of 28 January 2016, Agriconsulting Europe v Commission (T‑570/13, ‘the judgment under appeal’, EU:T:2016:40), in which the General Court dismissed its action seeking an order that the European Union pay damages in respect of losses suffered as a result of alleged irregularities on the part of the European Commission in the tendering procedure ‘Establishing a network facility for the implementation of the European Innovation Partnership (EIP) “Agricultural Productivity and Sustainability”’ (AGRI‑2012-EIP-01).
Legal context
2 Under the heading ‘Abnormally low tenders’, Article 139 of Commission Regulation (EC, Euratom) No 2342/2002 of 23 December 2002 laying down detailed rules for the implementation of Council Regulation (EC, Euratom) No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 357, p. 1), as amended by Commission Regulation (EC, Euratom) No 478/2007 of 23 April 2007 (OJ 2007 L 111, p. 13) (‘Regulation No 2342/2002’), provides in paragraph 1:
‘If, for a given contract, tenders appear to be abnormally low, the contracting authority shall, before rejecting such tenders on that ground alone, request in writing details of the constituent elements of the tender which it considers relevant and shall verify those constituent elements, after due hearing of the parties, taking account of the explanations received. These details may relate in particular to compliance with the provisions relating to employment protection and working conditions in force at the place where the work, service or supply is to be performed.
…’
3 Article 146 of Regulation No 2342/2002, entitled ‘Committee for the evaluation of tenders and requests to participate’, provides in paragraph 4:
‘In the case of abnormally low tenders as referred to in Article 139 of this Regulation, the evaluation committee shall request any relevant information concerning the composition of the tender.’
Background to the dispute
4 The facts behind the dispute are set out in paragraphs 1 to 22 of the judgment under appeal as follows:
‘1. By contract notice published in the Supplement to the Official Journal of the European Union on 7 August 2012 (OJ 2012/S 61-150-249926), the European Commission launched a tendering procedure under reference AGRI‑2012-PEI‑01 seeking to establish a network facility for the implementation of the European Innovation Partnership “Agricultural Productivity and Sustainability” (“the tendering procedure”).
2. Under Section 1 of the tender specifications for the contract (“the tender specifications”), the contractor was to assist in the establishment and management of the partnership network, consisting of and open to actors dealing with innovation and innovative actions related to the agricultural sector, such as farmers, researchers, advisors, businesses, NGOs, consumers and public bodies. The contractor was responsible for the setting up and functioning of the network facility, consisting of the team established by it to perform the tasks listed in the contract notice and the physical location where the team would work and provide services (“the InfoPoint”).
3. The tasks to be performed by the contractor were described in Section 2 of the tender specifications. There were nine main tasks: (1) managing the team allocated to the tasks and the InfoPoint; (2) animation of the partnership network; (3) networking and the development of communication tools; (4) updating and maintaining an exhaustive database; (5) maintaining a list of external experts; (6) coordination and information exchange activities; (7) compiling research needs from actors working in the field; (8) development of the annual work programme; and (9) archiving, stock management and backup of documents and information. The tender specifications set out the minimum staffing levels required to perform the main tasks and, to that end, stated that the team allocated to the tasks had to be composed of at least 10 “Full Time Equivalents”, of whom at least 6 had to be fixed staff.
4. The tender specifications also provided for 27 additional tasks to be performed at the request of the Commission in any given year, at the rate of between 3 and 10 tasks per year. Additional tasks 24, 26 and 27 as a minimum would be requested in the first year. The additional tasks covered the organisation of focus groups, namely groups of experts who would examine and discuss questions specifically concerning the European Innovation Plan (additional tasks 1 to 6); the organisation of additional workshops (additional tasks 7 to 9); the organisation of field days (additional tasks 10 to 13); the organisation of additional seminars (additional tasks 14 to 17); assessment of the work of the operational groups (additional tasks 18 to 20); the organisation of conferences (additional task 21); the organisation of travel and accommodation arrangements for participants of the focus groups, workshops and seminars (additional task 22); missions to Member States (additional task 23); drawing up a list of experts (additional task 24); winding up InfoPoint (additional task 25); setting up InfoPoint (additional task 26); and the mapping of all relevant projects for the purpose of establishing a database (additional task 27).
5. According to the provisions of the tender specifications, the contractor also had to have sufficient staff so that, in addition to the main tasks, the team allocated to the tasks would be able to perform the activities under additional tasks 24 and 27, which were scheduled for performance in the first year of the contract.
6. Under Section 6 of the tender specifications, the contract was to be concluded for a term of 10 months, with the possibility of renewal for a maximum of 12 months. The total maximum budget was stated to be EUR 2 500 000 per year for the combined performance of the main tasks and the additional tasks, the maximum annual budget being EUR 1 400 000 for the main tasks and EUR 1 500 000 for the additional tasks.
7. Pursuant to Section 7.5 of the tender specifications, the contract procedure involved three stages: (1) the examination of tenders based on the exclusion criteria, followed by their examination based on the selection criteria; (2) the evaluation of tenders based on the award criteria (quality evaluation and price evaluation); and (3) the award of the contract to the tender offering best value for money. The exclusion, selection and award criteria applied by the Commission were set out in Section 9 of the tender specifications.
8. The Commission received five tenders, including that submitted by the [appellant]. All tenderers passed the first stage of the contract procedure, involving the examination of their tender based on the exclusion and selection criteria, and were admitted to the second stage, involving the evaluation of the tenders based on the following four award criteria:
– award criterion 1: approach towards the link between science and practice;
– award criterion 2: approach towards the performance of the main and additional tasks;
– award criterion 3: practical organisation of the tasks;
– award criterion 4: proposed set-up of the InfoPoint based in Brussels (Belgium).
9. At the second stage of the procedure, only two tenderers, in this case the [appellant] and Vlaamse Landmaatschappij (“VLM”), obtained the minimum score required by the tender specifications for the award criteria. Those two tenderers were therefore admitted to the price evaluation stage. The price offered by the [appellant] was EUR 1 320 112.63, whilst that offered by VLM was EUR 2 316 124.83.
10. The record of the meeting of the evaluation committee held on 20 November 2012 shows that the [appellant] was ranked in first place and that, since the committee had concerns about the abnormally low nature of the tender, it decided to request information from the [appellant] concerning the prices for the additional tasks.
11. By letter of 22 November 2012, the Commission informed the [appellant] that the evaluation committee had found the prices stated for the additional tasks to be abnormally low. It asked the [appellant] for detailed explanations on the calculation of the prices offered for additional tasks 1 to 21 and 25, stating that the tender could be rejected if the explanations proved unconvincing.
12. The [appellant] replied to the Commission’s request for information by letter of 29 November 2012, in which it provided general explanations and a list of the costs used to draw up its proposed prices for the additional tasks.
13. It is apparent from the final record of evaluation of the [appellant’s] tender of 19 December 2012 that the evaluation committee considered the [appellant’s] explanations and found, in particular, that there was an overlap of staff between the main tasks and the additional tasks, which did not comply with the requirements of the tender specifications. It therefore lowered the score given to the [appellant’s] tender for award criterion 3 from 11.8 points to 7 points, the minimum required score being 7.5 out of 15. The evaluation committee therefore completed its evaluation by confirming its opinion that the [appellant’s] tender was abnormally low and by finding that, based on the additional information provided by the [appellant], its tender no longer reached the minimum score required by the tender specifications under award criterion 3. The committee therefore recommended that the contract be awarded to VLM.
14. By letter of 25 March 2013, the Commission notified the [appellant] that its tender had not been successful because it had failed to reach the minimum score required for award criterion 3 and had been found to be abnormally low as regards the prices offered for the performance of some additional tasks. On the same day, the Commission decided to award the tender to VLM.
15. By letter of 26 March 2013, the [appellant] requested the name of the successful tenderer as well as the characteristics and advantages of its tender. The Commission forwarded that information to the [appellant] by letter of 27 March 2013.
16. By letter of 29 March 2013, the [appellant] asked the Commission for further information concerning the evaluation of its own tender. The Commission replied by letter of 10 April 2013.
17. By letter of 12 April 2013, the [appellant] criticised the contracting authority for failing to provide the necessary clarifications concerning the evaluation of the first and second criteria, for altering its technical assessment after the financial tender had been opened, for incorrectly assessing the involvement of the team leader and his assistant in the additional tasks, and for reaching the wrong conclusions regarding VLM’s tender.
18. By email sent on the same day, the [appellant] applied to the Commission for access to the records of the evaluation committee and to the contractor’s tender, on the basis of Article 6 of Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43).
19. By an initial letter of 29 April 2013, the Commission informed the [appellant] that the record of the evaluation committee would be forwarded to it promptly. By a second letter of the same date, the Commission replied to the [appellant’s] application for access by sending it partial copies of the record of evaluation of 20 November 2012, the record of final evaluation of its tender of 19 December 2012 and the overall record of evaluation of 6 February 2013. By contrast, the Commission refused to send it the contractor’s tender and to that end invoked the protection of the commercial interests of the undertaking concerned, based on the first indent of Article 4(2) of Regulation No 1049/2001.
20. By email of 13 May 2013, the [appellant] submitted a confirmatory application for access under Article 7 of Regulation No 1049/2001. By email of 14 May 2013, the Commission acknowledged receipt of that confirmatory application and stated that it would reply within 15 working days.
21. By a further letter of 13 May 2013, the [appellant] objected to the Commission’s position set out in the second letter of 29 April 2013, which it considered to be insufficient. By letter of 31 May 2013, the Commission replied that the [appellant] was in possession of all the documents concerning the contract procedure on which the award decision was based and also referred to its letter of 29 April 2013.
22. As regards the confirmatory application for access, by letter of 4 June 2013, the Commission told the [appellant] that the deadline for replying had been extended to 26 June 2013. On 26 June 2013, the Commission informed the [appellant] that it was unable to reply to the confirmatory application for access by the abovementioned deadline. By email of 4 July 2013, the [appellant] asked for a reply to its confirmatory application for access. The Commission answered that email on 9 July 2013, informing the undertaking that the reply would be sent to it within a few days. The Commission replied to the [appellant’s] confirmatory application by letter of 17 July 2013, in which it confirmed its earlier decision not to disclose some of the information contained in the evaluation records and not to grant access to the contractor’s tender, pursuant to Article 4(1)(b) and the first indent of Article 4(2) of Regulation No 1049/2001.’
The procedure before the General Court and the judgment under appeal
5 By application lodged at the Registry of the General Court on 25 October 2013, Agriconsulting brought an action, first, for an order requiring the Commission to disclose to it the bid of the successful tenderer, VLM, and secondly, for an order that it pay damages, under Articles 268 and 340 TFEU, in respect of harm allegedly caused as a result of irregularities on the part of the Commission in the tendering procedure. In the judgment under appeal, the General Court dismissed the action in its entirety.
Forms of order sought by the parties before the Court
6 Agriconsulting contends that the Court should:
– set aside the judgment under appeal and refer the case back to the General Court to be reheard in accordance with the indications given by the Court of Justice;
– order the Commission to pay the costs of the present proceedings and of the proceedings at first instance.
7 The Commission contends that the Court should:
– dismiss the appeal in its entirety;
– order the appellant to pay the costs.
The appeal
8 Agriconsulting relies on four grounds in support of its appeal.
The first ground of appeal
Arguments of the parties
9 By its first ground of appeal, which is divided into two parts, Agriconsulting criticises the General Court for holding, in paragraph 46 of the judgment under appeal, that there was no causal link between the unlawful acts allegedly committed in connection with the evaluation of its tender, concerning award criteria 1 and 2, and the heads of loss which it relied on in its action.
10 In the first part of that ground, Agriconsulting claims that the General Court distorted and misrepresented its arguments relating to the causal link. Contrary to what the General Court stated in paragraphs 42 and 43 of the judgment under appeal, Agriconsulting, in its application, intended to separate the heads of loss comprising loss of opportunity and the costs of its participation in the tendering procedure from the issue of the rejection of its tender. In that regard, it is apparent from paragraph 105 of the application and from paragraph 3 of the reply at first instance that the loss of opportunity and the costs of participation constituted, for the appellant, heads of damage for which compensation is available, irrespective of the question of the certainty of being awarded the contract.
11 In the second part of its first ground, Agriconsulting claims that the General Court erred in law by concluding, in paragraphs 43 to 45 of the judgment under appeal, that the unlawful acts alleged concerning award criteria 1 and 2 could not give rise to compensation, since the rejection of the appellant’s tender resulted from assessments made by the evaluation committee concerning award criterion 3 and the abnormally low nature of that tender. In doing so, the General Court restricted the action for damages solely to instances of unlawful acts which had a certain influence over the award of the contract, whereas, in accordance with the General Court’s case-law, any unlawful act in the tender procedure capable of affecting the chances of a tenderer being awarded the contract in question gives rise to an entitlement to compensation.
12 The Commission contends that the first ground of appeal is unfounded.
Findings of the Court
13 It should be recalled that the General Court first of all found in paragraph 41 of the judgment under appeal that, for the irregularities relating to award criteria 1 and 2, Agriconsulting relied on two heads of loss, that is to say, loss of opportunity and the costs of participation in the tender procedure. Next, in paragraph 42 of that judgment, it summarised Agriconsulting’s arguments as follows: ‘The [appellant] contends that the condition relating to the causal link is satisfied because its tender was ranked in first place and it would have been awarded the contract had it not been for the alleged infringements.’ Finally in paragraphs 43 to 46 of that judgment, the General Court responded to the arguments summarised above by finding, in essence, that the alleged unlawful acts did not exhibit a direct causal link with the heads of loss relied upon by the appellant.
14 With regard to the first part of the first ground of appeal relating to the General Court’s alleged distortion of Agriconsulting’s arguments, it should be pointed out, in the first place, that in paragraph 102 of the application Agriconsulting had indicated, by way of an explanation concerning the causal link between the unlawful acts allegedly committed in the tendering procedure, on the one hand, and the loss of opportunity which it suffered, on the other, that that loss of opportunity was ‘the direct result of the evaluation committee’s decision to lower the score for award criterion 3 and to find that the tender was abnormally low’.
15 In addition, the appellant had claimed in paragraphs 76 and 79 of its application that the alleged loss of opportunity was illustrated by the fact that its tender had been ranked in first place and that it had been unlawfully deprived of the award of the contract.
16 Therefore, in paragraph 42 of the judgment under appeal, the General Court did not distort the appellant’s arguments concerning the causal link between the unlawful acts relied upon and the alleged loss of opportunity. On the contrary, it transcribed them as they appeared in the application.
17 That conclusion cannot be called into question by paragraph 105 of the application, which may not reasonably be relied upon by Agriconsulting in order to establish the content of its arguments relating to the alleged loss of opportunity. The explanations in that paragraph are not manifestly connected with that subject, since the appellant relies, in that paragraph, on the conditions laid down by the case-law of the General Court in order to be reimbursed for the costs of participation in the tendering procedure. Indeed, that paragraph is in the section of the application entitled ‘The causal link in respect of the loss consisting of the costs of participation in the tendering procedure at issue’.
18 Nor can the appellant rely on the explanations in paragraph 3 of the reply at first instance. The appellant merely repeated what it had submitted in paragraph 105 of its application as being the case-law of the General Court concerning reimbursement of the costs of participation, together with a parenthetical observation that the alleged unlawful acts concerning award criteria 1 and 2 ‘supported’, not only that head of loss, but also the loss of opportunity, without any further explanation in that regard. Therefore, paragraph 3, at most, provides clarification with regard to the heads of loss relied upon in relation to those unlawful acts.
19 In the second place, with regard to Agriconsulting’s arguments relating to the causal link between, on the one hand, the alleged unlawful acts, and on the other, the head of loss consisting of the costs of participation in the tender procedure, it must be observed that the General Court ruled on the reimbursement of those costs essentially in paragraphs 112 to 117 of the judgment under appeal. In its appeal, the appellant does not maintain that the alleged misrepresentation or distortion of its arguments by the General Court in paragraph 42 of the judgment under appeal vitiated the analysis in those paragraphs. It therefore relies on misrepresentation without explaining the inferences which it draws from that. To that extent, the first part of the first ground of appeal is ineffective.
20 It follows that the first part is, in part, manifestly unfounded and, in part, ineffective.
21 With regard to the second part of the first ground of appeal, as summarised in paragraph 11 above, suffice it to state that, in paragraphs 43 to 45 of the judgment under appeal, the General Court did not hold in a general and abstract manner that the unlawful acts affecting a tender procedure, such as those alleged in the present case by Agriconsulting in relation to award criteria 1 and 2, can never entitle a tenderer to compensation. In the present case, the General Court merely assessed in concreto whether such a right to compensation existed, in the light of the arguments submitted by the appellant concerning the causal link and by carrying out an assessment of the facts of the case.
22 In short, that part calls into question the General Court’s factual assessment of the causal link, which falls outside the jurisdiction of the Court of Justice in hearing an appeal, except where the evidence has been distorted. Since the appellant is not justified in maintaining that there has been any distortion of its arguments for the reasons set out in paragraphs 14 to 19 above, that part is inadmissible.
23 On the basis of the foregoing considerations, the first ground of appeal must be rejected in its entirety.
The second ground of appeal
Arguments of the parties
24 In the first part of its second ground of appeal, Agriconsulting claims that, in paragraphs 56 to 62 of the judgment under appeal, the General Court misrepresented the evaluation of the evaluation committee and failed to fulfil its duty to state reasons.
25 As is apparent from the final evaluation report, the evaluation committee assessed the reliability of the appellant’s tender having regard solely to the price offered for the additional tasks. The General Court acknowledged that situation in paragraphs 56 and 57 of the judgment under appeal by then concluding that the committee had taken that bid into account in its entirety. The General Court’s reasoning in that regard is inadequate, inconsistent and unsubstantiated, since it does not rely on any particular evidence, in breach of the rule onus probandi incumbit ei qui dicit.
26 In the second part of the second ground of appeal, Agriconsulting claims, for similar reasons as those set out in the preceding paragraph, that the General Court substituted its own reasoning with that of the evaluation committee and misrepresented the procedural documents.
27 The Commission contends, as its principal argument, that the second ground of appeal is inadmissible and, in the alternative, that it is unfounded.
Findings of the Court
28 By both parts of its second ground of appeal, which it is appropriate to deal with together, Agriconsulting criticises the General Court for misrepresenting ‘the assessment of the evaluation committee’ and the ‘procedural documents’, substituting the assessment of the evaluation committee with its own and employing inadequate, contradictory and unsubstantiated reasoning. This line of argument should be understood as the appellant essentially claiming, first, that the General Court misrepresented the Commission’s letter of 25 March 2013 and the final evaluation report, and secondly, that it failed to fulfil its duty to state reasons.
29 In that regard, it should be recalled that, in paragraph 55 of the judgment under appeal, the General Court set out the case-law of the Court of Justice which indicates that the abnormally low nature of a tender must be assessed by reference to the composition of the tender and the services at issue (see, by analogy, judgment of 18 December 2014, Data Medical Service, C‑568/13, EU:C:2014:2466, paragraph 50). Next, in paragraph 56 of the judgment under appeal, the General Court summarised the content of the Commission’s letter of 25 March 2013, in which the Commission informed the appellant that its tender had been rejected, and the content of the final evaluation report. In paragraph 57 of that judgment, it noted that the anomalies which led the evaluation committee to find that the appellant’s tender was abnormally low referred more specifically to certain additional tasks. However, in paragraphs 58 to 61 of that judgment, the General Court found inter alia that, in view of the economic and financial significance of the additional tasks in the price of the contract in question, the anomalies identified were liable to undermine the consistency of Agriconsulting’s overall bid. It thus concluded, in paragraph 62 of that judgment, that the evaluation committee had conducted its assessment of the abnormally low nature of Agriconsulting’s tender by reference to the composition of the tender and the services at issue, taking account of the factors that were relevant in the light of those services.
30 That being so, as regards, in the first place, a possible distortion of the evidence by the General Court, it must be recalled that such distortion must be obvious from the documents before the Court of Justice, without there being any need to carry out a new assessment of the facts and the evidence (judgments of 20 November 2014, Intra-Presse v Golden Balls, C‑581/13 P and C‑582/13 P, not published, EU:C:2014:2387, paragraph 39 and the case-law cited, and of 26 October 2016, Westermann Lernspielverlage v EUIPO, C‑482/15 P, EU:C:2016:805, paragraph 36 and the case-law cited).
31 Nevertheless, in the present case, by alleging a distortion of the evidence, Agriconsulting is, in reality, seeking to obtain a fresh assessment of the facts, which falls outside the jurisdiction of the Court of Justice at the stage of an appeal (see, by analogy, judgments of 2 September 2010, Calvin Klein Trademark Trust v OHIM, C‑254/09 P, EU:C:2010:488, paragraph 49, and of 19 March 2015, MEGA Brands International v OHIM, C‑182/14 P, EU:C:2015:187, paragraph 47 and the case-law cited).
32 Agriconsulting does not claim that the General Court’s reading of the Commission’s letter of 25 March 2013 and of the final evaluation report is vitiated by any material error. On the contrary, the appellant acknowledges that the General Court correctly summarised their content in paragraph 56 of the judgment under appeal. It does, however, challenge the General Court’s assessment, in paragraphs 57 to 61 of that judgment, of the content of those documents having regard to their context, including the economic and financial significance of the additional tasks in the contract in question, and the conclusion which it drew from that assessment that the anomalies identified could undermine the reliability of Agriconsulting’s overall bid.
33 Accordingly, the second ground of appeal should be ruled inadmissible in that respect.
34 In the second place, with regard to Agriconsulting’s claims that the General Court failed to fulfil its duty to state reasons, it must be pointed out that the question whether the grounds of a judgment of the General Court are contradictory or inadequate is, admittedly, a question of law which is amenable to review on appeal (judgment of 16 July 2009, Der Grüne Punkt — Duales System Deutschland v Commission, C‑385/07 P, EU:C:2009:456, paragraph 71 and the case-law cited).
35 However, in claiming that the grounds of the judgment under appeal are contradictory, Agriconsulting once again seeks to obtain a fresh assessment of the facts of the case. The finding in paragraph 57 of the judgment under appeal that ‘the identified anomalies … refer more specifically to some additional tasks’ is not in itself incompatible with the conclusion in paragraph 62 of that judgment that ‘the evaluation committee conducted its assessment by reference to the composition of the tender and the services at issue’. In fact, the appellant challenges the factual assessments in paragraphs 58 to 61 of that judgment, which led the General Court to make that conclusion from that finding.
36 As to the failure to state reasons relied on by the appellant, it is apparent from the considerations in paragraphs 57 to 61 of the judgment under appeal, set out in paragraph 29 above, that the General Court stated to the requisite legal standard the reasons for its finding, in paragraph 62 of the judgment under appeal, that the evaluation committee had acted in accordance with the case-law resulting from the judgment of 18 December 2014, Data Medical Service (C‑568/13, EU:C:2014:2466).
37 It follows that the appellant’s second ground of appeal must be rejected in its entirety as partly inadmissible and partly unfounded.
The third ground of appeal
Arguments of the parties
38 By its third ground of appeal, Agriconsulting claims, in the first part, that the General Court, in paragraphs 64 to 69 of the judgment under appeal, distorted and misrepresented its application. While it invoked the arbitrary, irrational, subjective and undefined nature of the reference costs and prices used by the evaluation committee in order to assess the abnormally low nature of the tender (‘the reference economic parameters’), the General Court did not rule on their substance. It merely held, in paragraph 66 of the judgment under appeal, that the appellant had not established the seriousness of its tender.
39 In that context, the appellant also complains that the General Court overlooked the evidence which it provided in order to demonstrate that those economic parameters were not reliable. More specifically, the General Court did not take into account a simulation which demonstrates that, by applying the same economic parameters to the main tasks, the budget provided for in the tender specifications for those tasks was insufficient.
40 Moreover, Agriconsulting is of the opinion that the General Court could not raise against it, as it did in paragraph 66 of the judgment under appeal, the fact that it did not communicate in its initial tender information necessary to demonstrate the reductions which it had secured, since no rule of the tender procedure required it to do so. Nor could the General Court criticise it for not having provided that information in its letter of 29 November 2012 in response to the Commission’s request for information. That information was not part of the information requested by that institution in its letter of 22 November 2012. Finally, the General Court could not criticise the appellant for not then forwarding the collaboration agreements with the experts, given that the Commission had not authorised it to do so.
41 By the second part of its third ground of appeal, the appellant argues that the General Court, in paragraphs 73 to 76 of the judgment under appeal, erred in law in finding that the Commission did not infringe the principle of an adversarial procedure by denying the appellant the right to produce additional information.
42 In that regard, the appellant submits that is settled case-law that the contracting authority is required to ask the tenderer for details that would justify the seriousness of its tender as part of an adversarial procedure. In the present case, since the evaluation committee’s request was formulated to the effect that it concerned, not the validity of the prices offered in Agriconsulting’s tender, but the method of calculating those prices, the appellant was prompted to provide information concerning only the figures for that calculation. It should therefore have had the opportunity to provide additional information in order to remove any doubt over the substance of the figures in question. In that regard, the case-law does not limit to one single communication a tenderer’s right to make observations. On the contrary, the principle of an adversarial procedure in that context means that, after initial observations have been made, it may provide additional details within reason.
43 Finally, in the third part, Agriconsulting submits that the General Court committed a number of errors of law by holding, in paragraphs 81 to 85 of the judgment under appeal, that there was no infringement of the principle of equal treatment. First of all, the General Court wrongly held that the price of Agriconsulting’s tender alone was sufficient to establish that the tender was abnormally low. It failed to take into consideration the fact that, having regard to the reference economic parameters, VLM’s tender also appeared to be abnormally low. Most importantly, the General Court should have found that Agriconsulting and VLM, as regards their respective tenders, were in fact in the same situation. First, those tenders concerned the same contract and, secondly, their reliability was challenged — as regards the former, by the contracting authority and, as regards the latter, by Agriconsulting.
44 In addition, the General Court did not properly examine and evaluate the evidence proposed by the appellant in support of its complaints. More specifically, in finding, in paragraph 84 of the judgment under appeal, that the simulation produced by the appellant, referred to in paragraph 39 above, was irrelevant, the General Court overlooked a piece of evidence that specifically shows that VLM’s tender was also abnormally low and therefore that VLM was, in that respect, in a comparable situation to that of the appellant.
45 The Commission contends that the third ground of appeal is unfounded.
Findings of the Court
46 In order to examine the third ground of appeal, it is appropriate to reverse the order of its different parts.
47 First of all, as regards the third part of that ground of appeal, relating to an alleged infringement of the principle of equal treatment, it must be recalled that that principle requires tenderers to be afforded equality of opportunity when formulating their bids, which therefore implies that the bids of all tenderers must be subject to the same conditions (order of 10 November 2016, Spinosa Costruzioni Generali and Melfi, C‑162/16, not published, EU:C:2016:870, paragraph 23 and the case-law cited).
48 In the present case, the General Court, in paragraphs 82 and 83 of the judgment under appeal, stated that VLM’s tender, calculated on the basis of the formula set out in the tender specifications, was slightly lower than the budget ceiling provided for in those specifications for the performance of the contract and higher, by almost EUR 1 million, than Agriconsulting’s tender. It thus concluded that VLM was not in the same situation as Agriconsulting and that therefore the Commission was entitled, without infringing the principle of equal treatment, to verify the abnormally low nature of the appellant’s tender, without applying the same treatment to VLM’s tender.
49 It must be stated that the differential treatment of the tenders of Agriconsulting and of VLM is intrinsically linked to the issue of identifying abnormally low tenders and the procedure reserved for them. Assessing the merits of the reasons given by the General Court in paragraphs 82 and 83 of the judgment under appeal will require revisiting the relevant obligations imposed on the contracting authority.
50 In that regard, Article 139(1) of Regulation No 2342/2002 provides that, if, for a given contract, tenders appear to be abnormally low, the contracting authority shall, before rejecting such tenders on that ground alone, request in writing details of the constituent elements of the tender which it considers relevant and shall verify those constituent elements, after due hearing of the parties, taking account of the explanations received.
51 Thus, that provision means that the contracting authority is under a duty, first, to identify suspect tenders, secondly to allow the tenderers concerned to demonstrate their genuineness by asking them to provide the details which it considers appropriate, thirdly to assess the merits of the explanations provided by the persons concerned and, fourthly to take a decision as to whether to admit or reject those tenders (see, by analogy, judgment of 27 November 2001, Lombardini and Mantovani, C‑285/99 and C‑286/99, EU:C:2001:640, paragraph 55).
52 It is only on condition that the reliability of a tender is, a priori, doubtful that the obligations arising out of that provision are imposed on the contracting authority, including, in the present case, that of verifying in detail the seriousness of the prices offered using the reference economic parameters.
53 In the present case, since the evaluation committee had identified the appellant’s tender as being, prima facie, abnormally low, and had considered that VLM’s tender did not, a priori, present any abnormality, it could, without infringing the principle of equal treatment between tenderers, initiate the adversarial procedure provided for in Article 139(1) of Regulation No 2342/2002 against the appellant and verify in detail its prices using the reference economic parameters without applying the same treatment to VLM. The General Court was therefore correct in finding, in paragraphs 82 and 83 of the judgment under appeal, that both undertakings, as regards their respective tenders, were not in the same situation.
54 That conclusion is not called into question by Agriconsulting’s argument that the price of a tender does not, in itself, lead to the conclusion that that tender is abnormally low.
55 In that regard, in the absence of a definition of the notion of an ‘abnormally low tender’ or of rules making it possible to identify such a tender under Article 139(1) or Article 146(4) of Regulation No 2342/2002, it falls to the contracting authority to determine the method used to identify abnormally low tenders (see, by analogy, judgment of 18 December 2014, Data Medical Service, C‑568/13, EU:C:2014:2466, paragraph 49 and the case-law cited), provided that that method is objective and non-discriminatory (see, by analogy, judgment of 27 November 2001, Lombardini and Mantovani, C‑285/99 and C‑286/99, EU:C:2001:640, paragraphs 68 and 69).
56 In the present case, as the General Court stated in paragraphs 81 and 82 of the judgment under appeal, the evaluation committee identified the abnormally low nature of Agriconsulting’s tender by comparing the amount of that tender to the total maximum budget, set out in the specifications, in the sum of EUR 2 500 000. While VLM’s tender was slightly lower than that budget, Agriconsulting’s tender was itself lower by nearly EUR 1 million.
57 Contrary to what the appellant maintains, in accordance with the case-law cited in paragraph 55 above, nothing prevents the contracting authority from comparing tenders with the estimated budget in the tender specifications and from identifying one of them as being, prima facie, abnormally low where the amount of that tender is considerably lower than the estimated budget. In particular, the appellant has failed to demonstrate how such a practice is not objective or non-discriminatory.
58 Finally, with regard to Agriconsulting’s argument that the General Court should have found that VLM was in fact in the same situation as Agriconsulting, it must be observed, first, that the mere fact that the appellant challenges the reliability of VLM’s tender does not lead to the conclusion that their situations are comparable. In view of the considerations set out in paragraphs 52 and 53 above, Agriconsulting would still have had to establish the reasons why the contracting authority should, prima facie, have doubted the reliability of VLM’s tender.
59 Secondly, it should be pointed out that the General Court was justified in considering, in paragraph 84 of the judgment under appeal, that the appellant’s simulation was irrelevant in that respect. That simulation, which verified in detail the prices offered in VLM’s tender using the reference economic parameters, does not demonstrate why the contracting authority should have doubted the seriousness of that tender in advance, despite the amount of that tender being very close to the estimated budget in the tender specifications.
60 It follows that the third part of the third ground of appeal is unfounded.
61 Next, with regard to the second part of that ground of appeal relating to an alleged infringement of the principle of an adversarial procedure, it must be recalled that the General Court, after listing in paragraph 71 of the judgment under appeal the obligations arising under Article 139(1) of Regulation No 2342/2002, the wording of which has been set out in paragraph 50 above, held, in paragraphs 72 to 76 of the judgment under appeal, that the adversarial procedure provided for in that provision had been complied with in the present case and that the appellant had had the opportunity to justify its costs and its rates which had been considered to be excessively low.
62 However, Agriconsulting argues, in essence, that a contracting authority satisfies the obligations arising from Article 139(1) only when, in addition to formal compliance with the stages of the adversarial procedure laid down in that provision, the tenderer in question was actually in a position to justify its costs and its rates. In the present case, that means that the appellant was authorised to provide information in addition to the information contained in its letter of reply of 29 November 2012, given that the formulation of the Commission’s letter of 22 November 2012 did not make it possible to assess correctly the information requested by that institution.
63 In that regard, suffice it to state that that argument is based on a factual premiss that was rejected by the General Court. That court assessed the content of the Commission’s letter of 22 November 2012 in paragraph 77 of the judgment under appeal as meaning that the Commission had questioned the appellant, not only about the method of calculating the prices set out in its tender, but about all of the factors contributing to the formation of those prices.
64 Since the Court of Justice, in an appeal, cannot revisit an assessment of facts carried out by the General Court, in the absence of distortion, the second part of the third ground of appeal is inadmissible.
65 Finally, with regard to the first part of that ground of appeal, relating to an alleged misrepresentation and distortion of Agriconsulting’s application by the General Court, it appears that the appellant had claimed, in paragraph 68 of its application, that the reference cost unit used to calculate the costs of the experts was subjective and did not take account of the appellant’s organisational and commercial abilities or of the fact that it could negotiate lower rates with the experts.
66 In that regard, the General Court stated, in paragraphs 66 and 67 of the judgment under appeal, that the appellant’s assertions that it was able to negotiate, with the experts, rates lower than those envisaged in the reference economic parameters, were not substantiated.
67 Furthermore, the General Court found, in paragraph 68 of its judgment, that Agriconsulting had not provided any figures to support its argument that the cost unit used to calculate the cost of the experts was a subjective parameter. Furthermore, it stated that the fact that Agriconsulting relies on negotiations on rates with experts of the same category as those to be used in the main tasks tends to confirm that those costs were lower than normal, without, however, any specific justification being provided.
68 Thus, it must be observed that the General Court did not fail to take account of the appellant’s argument, and responded to it to the requisite legal standard. In that respect, the General Court was entitled merely to find that Agriconsulting had not justified its claims with regard to the reference economic parameters being inappropriate and the rates being lower than it would have been able to negotiate. Indeed the appellant does not claim that the General Court erred in law by placing on it such a burden of proof. Therefore there is no merit to the appellant’s claim that the General Court distorted or misrepresented its application.
69 With regard to Agriconsulting’s claim that the General Court disregarded the simulation which it produced in order to demonstrate the arbitrary and unreliable nature of the reference economic parameters, suffice it to state that the appeal is limited to questions of law. The General Court thus has exclusive jurisdiction to establish and assess the relevant facts and to assess the value which should be attached to the items of evidence produced to it, unless there has been a distortion of the facts or evidence (order of 11 November 2003, Martinez v Parliament, C‑488/01 P, EU:C:2003:608, paragraph 53 and the case-law cited).
70 The appellant did not produce evidence capable of demonstrating such distortion. Moreover, it must be noted that the General Court did not ignore the simulation at issue, given that it was mentioned repeatedly in the judgment under appeal, specifically in paragraph 84 of that judgment. The fact that the General Court did not refer to it in paragraphs 63 to 69 of that judgment shows — no more, no less — that it did not consider it to be compelling in that context, such an assessment falling solely within its jurisdiction, barring any distortion.
71 Finally, with regard to Agriconsulting’s argument set out in paragraph 40 above, it must be pointed out that, in so far as the General Court found, in paragraphs 72 to 76 of the judgment under appeal, that the appellant had had the opportunity to justify its costs and its rates, it was entitled to criticise the appellant for not having substantiated its claims. In addition, if, by that argument, the appellant intends to call into question that finding of the General Court, the argument is inadmissible for the reasons set out in paragraph 64 above.
72 It follows that the first part of the third ground of appeal is, in part, inadmissible and, in part, unfounded.
73 Accordingly, the third ground of appeal raised by the appellant must be rejected in its entirety.
74 In accordance with Article 139(1) of Regulation No 2342/2002, the abnormally low nature of Agriconsulting’s tender is sufficient justification in law for rejecting that tender. It is clear from all of the foregoing considerations that the appellant is not in a position to demonstrate that the General Court erred in law in holding that, in the present case, there was not a sufficiently serious breach of EU law with regard to the Commission’s assessment that its tender was abnormally low.
75 Consequently, it is not necessary to assess whether or not the other ground for rejecting Agriconsulting’s tender, that is to say, the score it received in respect of award criterion 3, is well founded.
76 In addition, the General Court found in paragraph 105 of the judgment under appeal, for reasons similar to those relied on in the preceding paragraph, that it is not possible to establish the existence of a causal link between a potentially unlawful act, committed in the assessment of the tender in relation to award criterion 3, and the loss of profit as a result of losing the contract relied on by the appellant. Although the appellant refers, in paragraph 65 of its appeal, to the General Court’s reasoning relating to the causal link, it appears unwilling to challenge that reasoning and, in any event, does not raise any ground of appeal in that regard.
77 In the light of the cumulative nature of the conditions governing the non-contractual liability of the European Union, as contemplated in the second paragraph of Article 340 TFEU, the considerations set out in paragraphs 74 to 76 above suffice to dismiss Agriconsulting’s appeal without having to rule on the fourth ground of appeal relating to the examination by the General Court of the loss of profit which it suffered as a result of the rejection of its tender (see, by analogy, judgments of 19 April 2007, Holcim (Deutschland) v Commission, C‑282/05 P, EU:C:2007:226, paragraph 57, and of 14 October 2014, Giordano v Commission, C‑611/12 P, EU:C:2014:2282, paragraph 54).
Costs
78 Under Article 184(2) of the Rules of Procedure of the Court of Justice, where the appeal is unfounded, the Court is to make a decision as to the costs.
79 Under Article 138(1) of those rules, which apply to the procedure on appeal by virtue of Article 184(1) 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 Commission has requested that Agriconsulting be ordered to pay the costs and the latter has been unsuccessful in its appeal, it must be ordered to pay the costs.
On those grounds, the Court (Fifth Chamber) hereby:
1. Dismisses the appeal;
2. Orders Agriconsulting Europe SA to pay the costs.
[Signatures]