Appeal brought on 18 August 2023 by Instituto Cervantes against the judgment of the General Court (Third Chamber) delivered on 14 June 2023 in Case T-376/21, Instituto Cervantes v Commission
(Case C-534/23 P)
Language of the case: French
Parties
Appellant: Instituto Cervantes (represented by: E. van Nuffel d’Heynsbroeck, avocat)
Other parties to the proceedings: European Commission, Kingdom of Spain
Form of order sought
The appellant claims that the Court should:
set aside the judgment of the General Court of the European Union of 14 June 2023, Instituto Cervantes v Commission (T-376/21, EU:T:2023:331), by which the General Court dismissed its application for annulment of the Commission’s decision to award Lot 3 (Spanish language) of the contract relating to framework contracts for language training for the institutions, bodies and agencies of the European Union (No HR/2020/OP/0014), in the first place to the CLL Centre de Langues-Allingua consortium and in the second place to the appellant;
rule on the substance of the action and annul the contested decision;
order the European Commission to pay the costs.
Grounds of appeal and main arguments
The appellant relies on two grounds of appeal.
The first ground of appeal concerns the legitimate error committed by the appellant as regards its understanding of the requirements relating to the electronic submission of tenders, which led, for the assessment of its tender, to the rejection of certain technical documents which were not physically submitted with the tender but which were accessible via a link included in the tender submitted.
The appellant submits that the General Court distorted the facts and erred in law in finding that the error was not legitimate when, first, the error is due to a precedent which is contrary to and concomitant with the contested procurement procedure and, second, a significant proportion of the tenderers made the same error.
By this ground of appeal, the appellant also submits that the reasoning which the General Court then followed in order to reject, for the sake of completeness, the criticism that the integrity of the document accessible via the hypertext link was not verified is wrong in law, since the Commission could no longer, in the context of the legitimate error, reject the technical document.
The second ground of appeal concerns the failure to effectively exercise the obligation on the contracting authority to compare the relative merits of the tenders in order to determine the most economically advantageous tender, in accordance with Article 167(4) of Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council of 18 July 2018 on the financial rules applicable to the general budget of the European Union, 1 since the tender of the successful tenderer for all the lots of the contract was assessed and awarded points in terms which were invariable from one lot to another despite the fact that the competing tenders were different.
The appellant submits that the General Court erred in law in holding that, for the purposes of comparing tenders, the contracting authority may carry out an independent evaluation of each tender and then establish a simple ranking of the tenders on the basis of those independent evaluations, even though identifying the relative merits of the competing tenders requires a concrete comparison of the technical proposals they make in the light of the award criteria.
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1 Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council of 18 July 2018 on the financial rules applicable to the general budget of the Union, amending Regulations (EU) No 1296/2013, (EU) No 1301/2013, (EU) No 1303/2013, (EU) No 1304/2013, (EU) No 1309/2013, (EU) No 1316/2013, (EU) No 223/2014, (EU) No 283/2014, and Decision No 541/2014/EU and repealing Regulation (EU, Euratom) No 966/2012 (OJ 2018 L 193, p. 1).