JUDGMENT OF THE GENERAL COURT (Third Chamber)
4 July 2017 (*)(i)
(Public service contracts — Tendering procedure — External Service Provision for development, studies and support for information systems for the European Union Agency for Railways — Ranking of a tenderer’s bid — Rejection of the tenderer’s bid — Duty to state reasons — Abnormally low tender)
In Case T‑392/15,
European Dynamics Luxembourg SA, established in Luxembourg (Luxembourg),
Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE, established in Athens (Greece),
European Dynamics Belgium SA, established in Brussels (Belgium),
represented initially by I. Ampazis, M. Sfyri, C.-N. Dede and D. Papadopoulou and, subsequently, by M. Sfyri, C.-N. Dede and D. Papadopoulou lawyers,
applicants,
v
European Union Agency for Railways, represented initially by J. Doppelbauer, and subsequently by G. Stärkle and Z. Pyloridou, acting as Agents and V. Christianos, lawyer,
defendant,
ACTION based on Article 263 TFEU seeking annulment of the decision of the European Union Agency for Railways ranking the tenders submitted by the applicants for Lots 1 and 2 of contract ERA/2015/01/OP ‘ESP EISD 5 — External Service Provision for ERA Information System’,
THE GENERAL COURT (Third Chamber),
composed of S. Frimodt Nielsen, President, V. Kreuschitz (Rapporteur) and N. Półtorak, Judges,
Registrar: E. Coulon,
gives the following
Judgment
Background to the dispute
1 On 28 May 2013, Contract Notice ERA/2013/16/RSU/OP ‘ESP EISD 4’ (‘Contract ESP EISD 4’) was published in the Supplement to the Official Journal of the European Union (OJ 2013/S 101-172115). That contract concerned a procedure opened for the supply of external services for development, studies and support for information systems for the European Agency for Railways (ERA) now the European Union Agency for Railways (‘the Agency’). It consisted of three lots and the award criterion was the best quality/price ratio. For each of the lots of the contract the Agency was to conclude a framework contract with the three candidates whose tenders had the highest rankings and would conclude contracts with each of them during the performance of the framework contract.
2 On 16 September 2013, the applicants, European Dyamics Luxembourg SA, Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE and European Dynamics Belgium SA, submitted tenders for each of the three lots of Contract ESP EISD 4.
3 On 12 September 2014, the Agency notified the applicant that, for each of the three lots of Contract ESP EISD 4 their tender had been ranked in first position and that it offered them a framework contract for each of those lots.
4 On 14 October 2014, the Agency notified the applicants of its decision to annul Contract ESP EISD 4 on the ground that it did not have a mathematical formula enabling a financial assessment of the tenders. On 29 October 2014, that decision was published in the Supplement to the Official Journal.
5 On 14 October 2014, the applicants challenged the grounds of the Agency’s decision to annul the award of Contract ESP EISD 4. On 13 November 2014, the Agency responded to that challenge stating that that decision had been taken because the tender specifications of the contract concerned did not indicate the weighting, expressed as a percentage, of the level of expertise. It also indicated that a new contract notice would be published and that it would explain the formula adopted to financially evaluate the tenders.
6 On 13 November 2014, the applicants again challenged the grounds for the annulment of Contract ESP EISD 4. On 10 December 2014 the Agency responded to that challenge and, on 15 December 2014, it sent the applicants a public version of the evaluation report relating to that contract.
7 On 28 January 2015, the contract notice ERA/2015/01/OP ‘ESP EISD 5’ — Contract for external services — External Service Provision for [the Agency] Information System’, (‘Contract ESP EISD 5’) was published in the Supplement to the Official Journal (OJ 2015/S 019-029728). That contract related to a procedure opened for the supply of external services in order to develop information systems for the Agency. It consisted of three lots and the award criterion was the best quality/price ratio. For each of the lots of that contract, the Agency would conclude a framework contract with the three candidates whose bids were ranked in first place. The time limit for submitting tenders for the call for tenders was 6 March 2015 and the applicants submitted their tenders as a consortium within that time limit.
8 On 8 May 2015, the Agency informed the applicants of its decision to rank their tender for Lot 1 of Contract ESP EISD 5, entitled ‘Development of on-site information systems on the basis of the time and means allocated (including studies and assistance)’ (‘Lot 1’), in second place (‘the first contested decision’).
9 On 11 May 2015, the applicants submitted a request to the Agency for further information concerning the award of Lot 1 to the tenderers whose bids were ranked in first and third places.
10 On 20 May 2015, the Agency responded to that request. In its reply, it gave the information concerning the tender which was ranked in first place and the applicants’ tender. It indicated that the evaluation committee had ranked the tender of the Nextera consortium in first place with 56 points out of 60 upon completion of the technical evaluation and 38.78 points out of 40 on completion of the financial evaluation. The applicants’ tender was ranked in second position with 57 points out of 60 upon completion of the technical evaluation and 35.46 out of 40 upon completion of the financial evaluation.
11 On 8 July 2015, the applicants requested and received a copy of the evaluation report for Lot 1.
12 On 1 July 2015, the Agency communicated to the applicants its decision to rank their tender for Lot 2 of Contract ESP EISD 5 entitled ‘Development of offsite information systems (including studies and assistance)’ (‘Lot 2’) in seventh position and therefore to reject it (‘the second contested decision’).
13 On 2 July 2015, the applicants requested further information on the award of Lot 2 to the three tenderers whose bids were accepted.
14 On 7 July 2015, the Agency responded to that request by transmitting an extract of the evaluation committee’s report containing, in particular, the information relating to the tenders which were accepted for Lot 2. In particular, Intrasoft’s tender was ranked in first place with 51 points out of 60 upon completion of the technical evaluation and 39.04 points out of 40 on completion of the financial evaluation. Atos Belgium’s tender was ranked in second place with 48.5 points out of 60 upon completion of the technical evaluation and 40 out 40 on completion of the financial evaluation. Nextera2’s tender was ranked in third place with 52.5 out of 60 upon completion of the technical evaluation and 32.53 points out of 40 upon completion of the financial evaluation. As to the applicants’ tender, it obtained 52 points out of 60 upon completion of the technical evaluation and 26.23 out of 40 on completion of the financial evaluation.
15 On 8 July 2015, the applicants sent the Agency a letter in which they claimed that it had committed a number of irregularities affecting the contested decisions. In particular, they took the view that the tenderers whose bids had been accepted for Lots 1 and 2 had improperly reduced their prices in order to win a competitive advantage. They also indicated that they did not understand how the Agency could accept such prices that were artificially low and regretted that the Agency had decided to accept those prices without any investigation or explanation.
Procedure and forms of order sought
16 By application lodged at the Registry of the General Court on 17 July 2015, the applicants brought the present action against the contested decisions.
17 On 23 July 2015, the applicants indicated to the Agency that they had not received any response to their letter of 8 July 2015, repeated that they considered the tenders accepted to be abnormally low and stated that they had brought an action against the contested decision.
18 On 24 July 2015, the Agency responded to the applicants’ letter of 8 July 2015 challenging the complaints they had put forward.
19 On 27 July 2015, the applicants challenged the Agency’s arguments set out in its letter of 24 July 2015.
20 On 29 July 2015, the applicants’ application was served on the Agency by the Registry of the Court.
21 By separate document, lodged at the Registry of the Court on 15 October 2015, the Agency raised a plea of inadmissibility under Article 130 of the Rules of Procedure of the General Court in respect of the applicants’ action against the second contested decision.
22 On the same day, the Agency lodged its defence at the Court Registry.
23 By separate act lodged at the Court Registry on 26 November 2015, the Agency put forward new arguments and submitted new evidence.
24 On 22 February 2016, the applicants lodged their reply at the Court Registry, in which they set out their observations on the defence, the objection of inadmissibility, and the new arguments and evidence put forward by the Agency.
25 On 21 April 2016 the Agency lodged a rejoinder at the Court Registry.
26 The applicants claim that the Court should:
– dismiss the objections of inadmissibility;
– annul the contested decisions;
– reject the new pleas and new evidence submitted by the Agency in its pleadings of 26 November 2015;
– order the Agency to pay the costs.
27 The Agency contends that the Court should:
– declare the action inadmissible in so far as it concerns the second contested decision;
– if the action were to be regarded as being admissible in its entirety, reject the action as unfounded in its entirety;
– withdraw Annex C 4 from the documents before the Court and disregard the applicants’ arguments based on that annex;
– order the applicants to pay the costs.
28 By order of the Court (Fourth Chamber) of 21 July 2016, consideration of the objection of inadmissibility was reserved for the final judgment and the costs were reserved.
29 As a result of the changes to the composition of the chambers of the Court, in accordance with Article 27(5) of the Rules of Procedure, the Judge-Rapporteur was attached to the Third Chamber, to which this case has, in consequence, been assigned.
30 Acting on a report from the Judge-Rapporteur, the Court (Third Chamber) decided, in the absence of a request for a hearing to be arranged as provided in Article 106(1) of its Rules of Procedure, to rule on the action without an oral part of the procedure. The Court considered that it was sufficiently informed by the documents to give a ruling without taking further steps in the proceedings.
Law
Admissibility
The admissibility of the action against the second contested decision
31 The Agency takes the view that the present action is inadmissible in that it is directed against the second contested decision on the ground that the applicants no longer have standing to seek the annulment of that decision in so far as it is vitiated by a failure to state reasons. It submits that, in its letter of 24 July 2015, it provided the applicants with clarifications as to the reasons for which it considered that the tenders accepted did not appear abnormally low. Those clarifications were provided after 17 July 2015, the date on which the applicants lodged the action, but before 11 September 2015, the date on which the time limit for lodging an action against the second contested decision expired. Therefore, according to the Agency, between 24 July and 11 September 2015, the applicants could have brought an action before the Court in the knowledge of that reasoning and could have exercised their rights of defence. By choosing to not make use of that possibility, it takes the view that the applicants have deprived the action of its practical effect and lost their interest in bringing proceedings.
32 Furthermore, the Agency claims that the applicants have failed to prove that, when the action was lodged, the annulment of the second contested decision could have benefited them by its purpose and its result. In support of that argument, it observes, first, that the applicants were not compelled to bring an action against the second contested decision on 17 July 2015, as the time limit for bringing an action against that decision did not expire just after that date and, second, there was not a ‘total’ failure to state reasons for that decision which prevented them from exercising their rights.
33 The applicants dispute that they no longer have an interest in challenging the second contested decision. They take the view that, on the date on which their action was lodged, the grounds for the contested decisions did not address the issue of the abnormally low tenders accepted, and that they were entitled to bring an action against those decisions without waiting for the last moment before the expiry of the time limit for bringing an action. In any event, they take the view that the Agency’s letter of 24 July 2015 did not provide any information about the checking of the tenders accepted in order to establish that they were not abnormally low.
34 The Court points out that the interest in bringing proceedings is an essential and fundamental prerequisite for any legal proceedings (judgments of 17 September 2015, Mory and Others v Commission, C‑33/14 P, EU:C:2015:609, paragraph 58, and of 10 April 2013, GRP Security v Court of Auditors, T‑87/11, not published, EU:T:2013:161, paragraph 44). It must, in the light of the purpose of the action, exist at the stage of lodging the action, failing which it will be inadmissible (judgment of 7 June 2007, Wunenburger v Commission, C‑362/05 P, EU:C:2007:322, paragraph 42).
35 An action for annulment brought by a natural or legal person is admissible only in so far as that person has an interest in the annulment of the contested measure. Such an interest requires that the annulment of that act must be capable, in itself, of having legal consequences and that the action may therefore, through its outcome, procure an advantage to the party which brought it (order of 5 March 2009, Commission v Provincia di Imperia, C‑183/08 P, not published, EU:C:2009:136, paragraph 19; judgment of 17 September 2015, Mory and Others v Commission, C‑33/14 P, EU:C:2015:609, paragraph 55; order of 30 April 2007, EnBW Energie Baden-Würtemberg v Commission, T‑387/04, EU:T:2007:117, paragraph 96, and judgment of 22 May 2012, Evropaïki Dynamiki v Commission, T‑17/09, not published, EU:T:2012:243, paragraph 117).
36 Such an interest must continue until the final decision, failing which there will be no need to adjudicate (see judgments of 7 June 2007, Wunenburger v Commission, C‑362/05 P, EU:C:2007:322, paragraph 42 and the case-law cited, and of 17 September 2015, Mory and Others v Commission, C‑33/14 P, EU:C:2015:09, paragraph 57 and the case-law cited). That requirement guarantees in effect, at the procedural level, that, in the interest of the sound administration of justice, the Court is not required to deal with requests for opinions or purely theoretical questions (see, to that effect, judgment of 19 June 2009, Socratec v Commission, T‑269/03, not published, EU:T:2009:211, paragraph 36).
37 In the present case, the second contested decision adversely affected the applicants at the time the action was brought because, in that decision, the Agency rejected their bid for Lot 2 and awarded it to three other tenderers. The annulment of that decision would, in principle, result in the Agency having to re-evaluate the applicants’ tender, which is likely to procure them an advantage, since it is conceivable that upon completion of a re-evaluation, Lot 2 might be awarded to the applicants. Furthermore, the annulment of that decision might lead the Agency to make appropriate amendments to the appeal procedures for tenders in the future (see, to that effect, judgment of 23 May 2014, European Dynamics Luxembourg v ECB, T‑553/11, not published, EU:T:2014:275, paragraph 95 and the case-law cited). Therefore, the applicants had an interest in bringing proceedings against the second contested decision at the time the action was brought and, therefore, it is admissible.
38 Thus, it is clear from the case-law cited in paragraph 36 above, the interest in bringing proceedings must continue until the final decision, and the loss of that interest during the proceedings does not involve the inadmissibility of the action, but that action will be discontinued on the ground that there is no need to adjudicate. Pursuant to Article 130(2) of the Rules of Procedure, a party may seek a declaration from the Court that there is no longer any need to adjudicate on the case. In addition, Article 131(2) of the Rules of Procedure allows the Court to declare of its own motion that there is no longer any need to adjudicate if the applicant ceases to reply to the Court’s requests.
39 In so far as the objection of admissibility raised by the Agency may be regarded as a request for a declaration that there is no need to adjudicate, it must be held that the Agency incorrectly claims that the applicants lost their interest in bringing proceedings on the ground that on 24 July 2015, that is after 17 July 2015, the date of lodging of the application solely concerned with a failure to state reasons, but before 11 September 2015, the date on which the time limit for bringing proceedings expired, the applicants had received a full statement of reasons from the Agency that the tenders accepted were not abnormally low, but that they did not challenge its merits before the expiry of the time limit for bringing proceedings.
40 Irrespective of whether the Agency could validly give reasons for the second contested decision after the applicants brought the proceedings against that decision, the reasoning provided by the Agency on 24 July 2015 must still comply with Article 296, second paragraph, TFEU. In dealing with an action for annulment against a decision of the Agency, it is for the Court and not the Agency to decide the sufficiency of the reasoning contained in that decision.
41 Moreover, in so far as the Agency makes the applicants’ interest in bringing proceedings depend on whether their complaints are well founded, it must be recalled that, for a party to have an interest in bringing proceedings it is, necessary, but sufficient, that, by its outcome, the action for annulment brought before the EU Courts would be capable of benefiting the party which brought it (judgment of 17 September 2015, Mory and Others v Commission, C‑33/14 P, EU:C:2015:609, paragraph 76). Therefore, applicants’ interest in bringing proceedings does not depend on the merits of their complaints. In the present case, even assuming that the second contested decision is vitiated by a failure to state reasons, that failure is liable to lead to the annulment of that decision, which, for the reasons set out in paragraph 37 above, is likely to confer an advantage on the applicants.
42 Finally, the Agency wrongly argues that the applicants have not challenged the reasons contained in its letter of 24 July 2015. In the reply, the applicants expressly challenge the inadequacy of the reasoning contained in that letter. The fact that that challenge was not made within the time limit for bringing proceedings has no relevance to the assessment of the applicants’ interest in bringing proceedings, since that interest is not assessed in relation to the expiry of that time limit or whether the complaints relied on are well founded.
43 For all of the foregoing reasons, the Agency’s arguments based on the applicants’ alleged lack of interest in bringing proceedings must be dismissed.
The admissibility of the Agency’s supplementary pleadings of 26 November 2015
44 On 26 November 2015, the Agency lodged a document stating that on 30 October 2015 it had adopted the decision to award Lot 3 of Contract ESP EISD 5. It takes the view that this new evidence establishes that the applicants’ assertion that the undertakings participating in the call for tender for Contract ESP EISD 4 knew exactly the amount of their price bids in that procedure is incorrect. According to the Agency, that document is admissible, because it contains ‘new pleas’ and new evidence. The applicants do not challenge the admissibility of that document but the merits of the arguments contained in it.
45 Article 84(1) and Article 85(2) and (3) of the Rules of Procedure, first, allow the production of new pleas in the course of proceedings provided that they are based on matters of law or of fact which come to light in the course of the procedure and, second, the submission of belated evidence provided that the delay in the submission of such evidence is justified. In the present case, the decision to award Lot 3 of Contract ESP EISD 5 was adopted on 30 October 2015. It is evidence which came to light during the proceedings. The document of 26 November 2015 and the production of the evidence at issue must therefore be declared admissible (see, by analogy, judgment of 29 October 2015, Vanbreda Risk & Benefits v Commission, T‑199/14, EU:T:2015:820, paragraphs 58 to 62).
Admissibility of Annex C 4
46 The Agency takes the view that Annex C 4 of the reply, which contains a copy of the report of the evaluation committee of the European Medicines Agency (EMA) relating to the public contract at issue in the judgment of 15 October 2013, European Dynamics Belgium and Others v EMA (T‑638/11, not published, EU:T:2013:530), is inadmissible in accordance with the order of 15 October 2009, Hanzhou Duralmap Electronics v Council (T‑459/07, EU:T:2009:403), and paragraph 25 of the Practice rules for the implementation of the Rules of Procedure of the Court (OJ 2015 L 152, p. 1). According to the Agency, the applicants have that document because they were parties to the case which gave rise to that judgment. However, they have not produced evidence that they requested and obtained the EMA’s permission to produce that procedural document in the present case. The Agency requests that, in accordance with Article 130(1) of the Rules of Procedure, Annex C 4 is removed from the file in the present case and that the argument put forward by the applicants in paragraph 36 of the reply in relation to that annex are not taken into account.
47 The applicants have not expressed any view on the admissibility of Annex C 4, therefore the Agency raised its inadmissibility in the rejoinder.
48 In that connection, it must be recalled that paragraph 25 of the Practice rules for the implementation of the Rules of Procedure provide that a procedural document and annexes thereto which are produced in a case and placed on the file of that case may not be taken into account for the purpose of preparing another case for hearing. Therefore, that provision governs the preparation of a case before and by the Court in the exercise of its powers of organisation of the proceedings. Annex C 4 was submitted by the applicants as a piece of evidence and not as a document to complete their file following a request to that effect by the Court. Therefore, the reference to point 25 of the Practice rules for the implementation of the Rules of Procedure is irrelevant for assessing the admissibility of Annex C 4.
49 Furthermore, as regards the Agency’s reliance on the order of 15 October 2009, Hangzhou Duralamp Electronic v Council (T‑459/07, EU:T:2009:403), in support of its argument that Annex C 4 is inadmissible, it must be recalled that the prevailing principle of EU law on evidence is the principle of the unfettered evaluation of evidence (judgments of 25 January 2007, Dalmine v Commission, C‑407/04 P, EU:C:2007:53, paragraph 63, and of 12 June 2015, Health Food Manufacturers’ Association and Others v Commission, T‑296/12, EU:T:2015:375, paragraph 42).
50 The principle of the unfettered evaluation of evidence means for the Court that the sole relevant criterion for the purpose of assessing the evidence adduced is its credibility (judgments of 25 January 2007, Dalmine v Commission, C‑407/04 P, EU:C:2007:53, paragraph 63, and of 19 December 2013, Siemens and Others v Commission, C‑239/11 P, C‑489/11 P and C‑498/11 P, not published, EU:C:2013:866, paragraph 128).
51 The principle of freedom to adduce evidence is the corollary to the principle of the unfettered evaluation of evidence (see, to that effect, judgment of 14 December 2005, General Electric v Commission, T‑210/01, EU:T:2005:456, paragraph 297), which confers on the parties the possibility to produce before the Courts of the European Union any evidence lawfully obtained that they consider relevant to support their arguments. That freedom to adduce evidence contributes to guaranteeing the parties’ right to an effective remedy enshrined in Article 47 of the Charter of Fundamental Rights of the European Union.
52 The principles of unfettered evaluation and freedom to adduce evidence must, however, be reconciled with the fundamental principles of EU law, such as the right to a fair trial and equality of arms.
53 Thus, the unfettered evaluation of evidence must be reconciled with the right of each party to defend its interests irrespective of any outside influences, in particular the public, and to be protected from the inappropriate use of its evidence (see, to that effect, judgment of 17 June 1998, Svenska Journalistförbundet v Council, T‑174/95, EU:T:1998:127, paragraphs 135 and 136).
54 Therefore, it is for the Court to ascertain the appropriateness of the use which is made by a party of a procedural document from another case.
55 It follows from the principle of freedom to adduce evidence that a party before the Court is, in principle, entitled to rely on, as evidence, documents adduced in other legal proceedings in which it was itself a party. If that party had lawful access to that evidence and it is not confidential, the proper administration of justice does not, in principle, preclude its production before the General Court. Thus, the Court of Justice has held that a party to proceedings before it could not request the withdrawal of a procedural document if that document had already been produced by that party in other proceedings between the same parties (see, to that effect, order of 15 May 1991, Weddel v Commission, C‑54/90, not published, paragraphs 1 to 5).
56 Furthermore, the agreement of the party from which the evidence emanates cannot be a precondition for the admissibility of evidence from another case before the Court. Although the agreement of the party from which the evidence emanates may be a relevant factor in order to determine whether it is appropriate to use it, to require that that agreement is obtained as a precondition to its production before the Court on pain of inadmissibility gives the party from which it emanates the power to exclude it, depriving the Court of the opportunity to rule on whether it is appropriate to use it and, therefore, to fulfil its obligation to offer each party a reasonable opportunity to present his case, including his evidence, under conditions that do not place him at a substantial disadvantage vis-à-vis his opponent, which is the basis of the principle of equality of arms (see, to that effect, judgment of 6 November 2012, Otis and Others, C‑199/11, EU:C:2012:684, paragraph 71). Therefore, it is for the Court, in each case, to weigh the freedom to adduce evidence, on one hand, and, on the other, the protection against the inappropriate use of evidence of the parties to legal proceedings.
57 In the present case, Annex C 4 produced by the applicants contains a copy of the report of the EMA’s evaluation committee, adopted in the course of the procurement procedure under reference EMA-2011-05-DV, from which the names of certain subcontractors and the names of the members of the evaluation committee have been redacted.
58 The applicants had access to the evaluation committee report concerned because they submitted a tender for the award of the public contract reference EMA-2011-05-DV. Following the EMA’s decision to award that contract to another tenderer and to reject their bid, the applicants brought an action before the Court which gave rise to the judgment of 15 October 2013, European Dynamics Belgium and Others v EMA (T‑638/11, not published, EU:T:2013:530).
59 It is clear from the judgment of 15 October 2013, European Dynamics Belgium and Others v EMA (T‑638/11, not published, EU:T:2013:530), that the report of the evaluation committee at issue was a piece of evidence attached to the file in that case. The Court makes reference to it, in particular, in paragraphs 31, 34 and 37 of that judgment.
60 Furthermore, in the judgment of 15 October 2013, European Dynamics Belgium and Others v EMA (T‑638/11, not published, EU:T:2013:530), the Court states that the report of the evaluation committee at issue was communicated to the applicants by the EMA before they brought an action against the EMA’s decision to award that contract to another tenderer and to reject their bid. As is clear from paragraph 11 of that judgment, by letter of 20 October 2011, the EMA sent the applicants a copy of that report with the names of the members of the evaluation committee and the names of the subcontractors whose tenders had been accepted redacted from it. That report was part of the reasoning of the decision adopted by the EMA to award the contract to a tenderer other than the applicant. On the basis of that report the applicants were able to decide whether to bring legal proceedings challenging the award decision taken by the EMA, which they did on 12 December 2011 by bringing an action before the Court.
61 Thus, the applicants have the report of the evaluation committee at issue because they submitted a tender following a call for tenders for a public contract organised by the EMA and that, as an unsuccessful tender, they requested the reasons for the rejection of their tender. Therefore, the applicants obtained that report by lawful means.
62 The fact that the report of the evaluation committee at issue was then evidence in the case which gave rise to the judgment of 15 October 2013, European Dynamics Belgium and Others v EMA (T‑638/11, not published, EU:T:2013:530), and that the applicants did not obtain the EMA’s consent to use it in the present case does not allow its use to be classified as inappropriate. In addition to the fact that the applicants obtained that report in a lawful manner, it must be held that the information and the EMA’s assessment contained in that report cannot be regarded as confidential with regard to the Agency. Furthermore, in the light of the contents of that document and the applicants’ freedom to adduce evidence, the EMA could not validly refuse its disclosure to the Agency in the present proceedings. It follows that the EMA’s consent for the use of that document in the present proceedings was not required. Accordingly, rejecting the production of Annex C 4 as inadmissible would be contrary to the proper administration of justice in that it would unjustifiably limit the applicants’ freedom to adduce evidence.
63 On the foregoing grounds, Annex C 4 must be declared admissible.
The admissibility of the applicants’ argument contained in the answers as to whether there should be a hearing
64 By letter of 7 June 2016, the applicants stated that they did not request a hearing, but indicated that they would be available to participate in a hearing if the Court decided to hold one. They justified their choice not to request a hearing by drawing the Court’s attention to certain paragraphs in the rejoinder.
65 By letter of 7 June 2016, the Agency indicated that it deferred to the decision of the Court as to whether there should be a hearing. Furthermore, by letter of 28 June 2016, it held that the applicants had submitted a new plea in their observations of 7 June 2016 on whether to hold a hearing. Principally, it requested that that letter be sent back to the applicants indicating that it was unacceptable and that the Court would not take account of the pleas contained in it. In the alternative, the Agency asked for the opportunity to respond to those pleas in writing or at the hearing if the Court decided to hold one.
66 The Court observes that the arguments put forward by the applicants in their letter of 7 June 2016 are the grounds for which they did not request a hearing. Those grounds do not contain any new arguments with respect to those which they have already set out in the originating application and the reply. The Agency does not set out to the requisite standard the basis for its claims that the applicants submitted independent reasons in response to its arguments in the rejoinder.
67 Accordingly, there is no need to uphold the Agency’s request to regard the applicants’ letter of 7 June 2016 inadmissible or to give it the opportunity to reply to that letter. Furthermore, since the arguments put forward by the applicants in their letter of 7 June 2016 are only the grounds for which they do not request a hearing, the Court will not take account of them in its assessment of the single plea put forward by the applicants alleging that the Agency has failed to fulfil its duty to state reasons for its decision.
Substance
Introduction
68 In support of the action, the applicants rely on a single plea alleging that the Agency has failed to fulfil its obligations to state reasons for its decision. Essentially they take the view that the contested decisions and the evaluation committee report are vitiated by a failure to give reasons as regards the issue as to whether the tenders accepted for each of the lots at issue were ‘excessively low’.
69 In support of its single plea, the applicants claim that Contracts ESP EISD 4 and ESP EISD 5 had the same subject matter and a similar description of the various lots and that the tenderers in the call for tenders for Contract ESP EISD 5 knew precisely the prices they had proposed in the call for tenders for Contract ESP EISD 4. The reverse application of the mathematical formula for the financial assessment of the tenders set out in the call for tenders for Contract ESP EISD 4, together with a series of reasonable hypotheses about the contract would enable tenderers to work out the prices used by their competitors. The tenderers whose bids were accepted for Lots 1 and 2 of Contract ESP EISD 5 abnormally lowered their prices as compared with those they proposed in the profiles corresponding to the call for tenders for Contract ESP EISD 4. Those tenderers did so in order to offset the lack of quality of their technical tenders and in order to have their tenders ranked in a better position for those lots. In that regard, the applicants rely on some of the bids by the tenderers concerned. According to the applicants, the Agency should therefore have given the reasons why the bids accepted were not abnormally low and such reasoning required that it set out the reasoning on the basis of which, on the one hand, it concluded that, because of its principally financial characteristics, such a tender complied with the national legislation of the country in which the services were to be carried out in respect of the remuneration of staff, contribution to the social security scheme and compliance with occupational safety and health standards and, on the other, it determined that the proposed price included all the costs arising from the technical aspects of the selected tender. No document submitted by the Agency refers to the question of abnormally low tenders. Therefore, the Agency has breached its duty to state reasons and the contested decisions should be annulled.
70 The Agency disputes that it breached its duty to state reasons. It takes the view that the information communicated to the applicants complied with the criteria laid down in the case-law on the obligation to state reasons. The applicants have not shown for what reason in the present case the examination of the abnormally low tenders constituted an obligatory element of the reasoning for the contested decisions, or why the financial tenders of the successful tenderers appeared to be abnormally low.
71 In the light of those arguments, first, it is appropriate to set out the scope of the Agency’s duty to give reasons as the contracting authority, second, to clarify the scope of the rules governing abnormally low tenders and, third, to ascertain whether, in the present case, the Agency has complied with the duty to state reasons.
The scope of the Agency’s duty to state reasons as the contracting authority
72 According to Article 41(2)(c) of the Charter of Fundamental Rights, the administration has an obligation to give reasons for its decision. That duty to state reasons requires, according to settled case-law, that, in accordance with Article 296, second paragraph, TFEU, the reasoning followed by the authority which adopted the measure must be disclosed in a clear and unequivocal fashion so as, on the one hand, to make the persons concerned aware of the reasons for the measure and thereby enable them to defend their rights and, on the other, to enable the Court to exercise its supervisory jurisdiction (judgments of 25 February 2003, Strabag Benelux v Council, T‑183/00, EU:T:2003:36, paragraph 55; of 24 April 2013, Evropaïki Dynamiki v Commission, T‑32/08, not published, EU:T:2013:213, paragraph 37; and of 28 June 2016, AF Steelcase v EUIPO, T‑652/14, not published, EU:T:2016:370, paragraph 43).
73 The duty to state reasons for a contested decision is thus defined by its function which is to enable the persons concerned to assert their rights and for the court to exercise its powers of review. It helps to ensure effective judicial protection (see judgment of 20 September 2011, Evropaïki Dynamiki v EIB, T‑461/08, EU:T:2011:494, paragraph 122 and the case-law cited).
74 It follows that compliance with the duty to state reasons must, in principle, be determined in accordance with the information available to the applicants, at the latest, when the action was brought (see, to that effect, judgments of 25 February 2003, Renco v Council, T‑4/01, EU:T:2003:37, paragraph 96; of 19 April 2012, Evropaïki Dynamiki v Commission, T‑49/09, not published, EU:T:2012:186, paragraph 36; of 21 February 2013, Evropaïki Dynamiki v Commission, T‑9/10, not published, EU:T:2013:88, paragraphs 27 and 28; and of 23 May 2014, European Dynamics Luxembourg v ECB, T‑553/11, not published, EU:T:2014:275, paragraph 167 and the case-law cited). The reasons for a decision cannot be explained for the first time ex post facto before the Court. Only exceptional circumstances may justify the Court taking into consideration evidence adduced in the course of the proceedings (see, to that effect, judgment of 20 May 2009, VIP Car Solutions v Parliament, T‑89/07, EU:T:2009:163, paragraph 76 and the case-law cited).
75 Furthermore, it must be recalled that the requirement to state reasons must be determined in accordance with the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons for a measure meets the requirements of Article 296, second paragraph, TFEU must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see judgment of 23 May 2014, European Dynamics Luxembourg v ECB, T‑553/11, not published, EU:T:2014:275, paragraph 153 and the case-law cited).
76 The rules governing public procurement in the European Union contained, in particular, in 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 (OJ 2012 L 298, p. 1), in the version applicable to the present case (‘the Financial Regulation’) and Commission Delegated Regulation (EU) No 1268/2012 on the rules of application of the Financial Regulation (OJ 2012 L 362, p. 1) in the version applicable in the present case (‘the Implementing Regulation’), and which applies to the Agency (see Articles 22 and 40 of Regulation (EC) No 881/2004 of the European Parliament and of the Council of 29 April 2004 establishing a European Railway Agency (OJ 2004 L 164, p. 1), read together with Article 85 of Commission Delegated Regulation (EU) No 1271/2013 of 30 September 2013 on the framework financial regulation for the bodies referred to in Article 208 of Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council (OJ 2013 L 328, p. 42), applicable in the present case) set out the duty of the contracting authority to state reasons.
77 Thus, Article 113(2) of the Financial Regulation provides that the contracting authority is to notify all candidates or tenderers whose applications or tenders are rejected of the grounds on which the decision was taken, and all tenderers who meet the exclusion and selection criteria, and who make a request in writing, of the characteristics and relative advantages of the successful tender and the name of the tenderer to whom the contract is awarded. Furthermore, under Article 161(2) of the Implementing Regulation the contracting authority must, within not more than 15 calendar days from the date on which a written request is received, communicate that information. Article 161(3) of the Implementing Regulation states inter alia that unsuccessful tenderers may request additional information about the reasons for their rejection, the characteristics and relative merits of the tender accepted and the name of the successful tenderer.
78 Therefore, with regard to unsuccessful tenderers, Article 113(2) of the Financial Regulation and Article 161(2) of the Implementing Regulation provide for reasoning in two stages. The contracting authority must first inform all unsuccessful tenderers that their tender has been rejected and the grounds for that rejection. Those reasons may be brief, given the opportunity provided for by that provision for the unsuccessful tenderer to request more detailed reasoning. Next, under the same provisions, if an unsuccessful tenderer which satisfies all the criteria for exclusion and selection makes a request in writing, the contracting authority is to communicate as soon as possible, and within 15 days at the latest from receiving the request, the characteristics and relative merits of the tender accepted and the name of the tenderer.
79 The Court has ruled that that disclosure of reasons in two stages is not inconsistent with the purpose of the duty to state reasons, which, on the one hand, consists in making the persons concerned aware of the reasons for the measure and, thereby, enabling them to defend their rights and, on the other, enabling the Court to exercise its power of review (see, to that effect, judgments of 25 February 2003, Renco v Council, T‑4/01, EU:T:2003:37, paragraph 93; of 15 October 2013, European DynamicsBelgium and Others v EMA, T‑638/11, not published, EU:T:2013:530, paragraph 24; and of 17 September 2015, Ricoh Belgium v Council, T‑691/13, not published, EU:T:2015:641, paragraph 38).
80 Finally, it must be recalled that the duty to state reasons provided for under Article 296 TFEU constitutes an essential procedural requirement, as distinct from the question whether the reasons given are correct, which goes to the substantive legality of the contested measure (judgments of 23 May 2014, European Dynamics Luxembourg v ECB, T‑553/11, not published, EU:T:2014:275, paragraph 154, and of 28 June 2016, AF Steelcase v EUIPO, T‑652/14, not published, EU:T:2016:370, paragraph 47).
81 Given that the obligation to state reasons for an act depends on the factual and legal context in which it was adopted, account must be taken of the following elements of the regulatory framework applicable in the present case governing abnormally low tenders.
The scope of the rules governing abnormally low tenders
82 Article 151(1) of the Implementing Regulation provides:
‘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.
The contracting authority may, in particular, take into consideration explanations relating to:
(a) the economics of the manufacturing process, of the provision of services or of the construction method;
(b) the technical solutions chosen or the exceptionally favourable conditions available to the tenderer;
(c) the originality of the tender.
2. Where the contracting authority establishes that a tender is abnormally low as a result of State aid provided, it may reject the tender on that ground alone only if the tenderer is unable to prove, within a reasonable time determined by the contracting authority, that the aid in question has been awarded definitively and in accordance with the procedures and decisions specified in the Union rules on State aid.’
83 The concept of ‘abnormally low tender’ is not defined either in the provisions of the Financial Regulation of those of the Implementing Regulation. However, it has been held that the abnormally low nature of a tender must be assessed by reference to the composition of the tender and the services at issue (judgment of 28 January 2016, Agriconsulting Europe v Commission, T‑570/13, EU:T:2016:40, paragraph 55).
84 Pursuant to Article 158(4) of the Implementing Regulation, in the case of abnormally low tenders, the evaluation committee must request any relevant information concerning the composition of the tender.
85 As regards the latter provision, the Court has held that the contracting authority’s obligation to check the seriousness of a tender arises where there are doubts beforehand as to its reliability, bearing in mind that the main purpose of that article is to enable a tenderer not to be excluded from the procedure without having had an opportunity to explain the terms of its tender which appears abnormally low. Thus, it is only where such doubts exist that the evaluation committee is required to request relevant information on the composition of the tender, before, if necessary, rejecting it. However, if a tender does not appear abnormally low under Article 158(4) of the Implementing Regulation, that article does not apply (see, to that effect, judgments of 6 July 2005, TQ3 Travel Solutions Belgium v Commission, T‑148/04, EU:T:2005:274, paragraphs 49 and 50; of 11 May 2010, PC-Ware Information Technologies v Commission, T‑121/08, EU:T:2010:183, paragraph 72; of 5 November 2014, Computer Resources International(Luxembourg) v Commission, T‑422/11, EU:T:2014:927, paragraph 57; and of 15 September 2016, European Dynamics Luxembourg and Evropaïki Dynamiki v Commission, T‑698/14, not published, EU:T:2016:476, paragraph 59).
86 In particular, such doubts may exist if it does not appear certain whether, first, a tender complies with the legislation of the country in which the services are to be supplied, regarding the remuneration of staff, contribution to the social security scheme and compliance with occupational safety and health standards, selling at a loss and, second, that the price proposed includes all the costs generated by technical aspect of the tender (judgment of 8 October 2015, Secolux v Commission, T‑90/14, not published, EU:T:2015:772, paragraph 62).
87 It is clear from the foregoing that the assessment by the contracting authority of the existence of abnormally low tenders is made in two stages.
88 In the first stage, the contracting authority must determine whether the tenders submitted ‘appear’ to be abnormally low (see Article 151(1) of the Implementing Regulation). The use of the verb ‘appear’ in the Implementing Regulation requires the contracting authority to carry out a prima facie assessment of the abnormally low character of the tender. Therefore, the Implementing Regulation does not require the contracting authority to carry out, on its own initiative, a detailed analysis of the composition of each tender in order to establish that it is not an abnormally low tender. Thus, in the first stage, the contracting authority need only determine whether the tenders submitted contain evidence likely to arouse suspicion that they might be abnormally low. That is the case in particular, where the price proposed in a tender submitted is considerably less than that of the other tenders submitted or the normal market price. If the tenders submitted do not contain such evidence and therefore, do not appear to be abnormally low, the contracting authority may continue the evaluation of that tender and the award procedure for the contract.
89 However, if there is evidence which arouses suspicion that a tender may be abnormally low, the contracting authority must, in the second stage, check the composition of the tender in order to ensure that it is not abnormally low. Where it carries out that check, the contracting authority must give the tenderer which submitted that bid the opportunity to set out the reasons why it considers its tender is not abnormally low. The contracting authority must then assess the explanations provided and determine whether the tender concerned is abnormally low, in which case it must be rejected.
90 As the requirement to state reasons must be determined, inter alia, in the light of the applicable legal rules (see paragraph 75 above), the existence of that examination in two stages influences the scope of the contracting authority’s duty to state reasons.
Examination of the compliance with the Agency’s duty to state reasons in the present case
91 The Court has already had the opportunity to rule on the contracting authority’s duty to state reasons where, in the evaluation of the tenders, it had doubts as to the abnormally low character of a tender and that it held, after hearing the tenderer concerned and carrying out a more detailed analysis, that that tender was not abnormally low (judgment of 15 October 2013, European Dynamics Belgium and Others v EMA, T‑638/11, not published, EU:T:2013:530, paragraphs 64 and 65) or that it was (judgment of 5 November 2014, Computer Resources International (Luxembourg) v Commission, T‑422/11, EU:T:2014:927, paragraphs 39 and 40). In particular, it held that, in order to provide sufficient reasons as to why the tender accepted was not abnormally low, the contracting authority had to set out the reasoning at the end of which, first, it concluded that, by its mainly financial characteristics, such a tender complied in particular with the legislation of the country in which the services were to be supplied, regarding the remuneration of staff, contribution to the social security scheme and compliance with occupational safety and health standards and, second, it had to check that the price proposed included all the costs generated by the technical aspects of the tender (judgment of 15 October 2013, European Dynamics Belgium and Others v EMA, T‑638/11, not published, EU:T:2013:530, paragraph 68).
92 As to the scope of the contracting authority’s duty to state reasons when it considers that the tender accepted does not appear to be abnormally low, it is clear from the rule governing abnormally low tenders set out in paragraph 82 above and, in particular, the fact that the contracting authority need, in the first stage, only carry out a prima facie assessment of the abnormally low character of a tender, that its duty to state reasons is limited in scope. To require the contracting authority to set out in detail why a tender does not appear to be abnormally low does not take into account the distinction between the two stages of the examination provided for by Article 151 of the Implementing Regulation.
93 In particular, where a contracting authority accepts a tender, it is not required to state explicitly in response to any request for a statement of reasons submitted to it in accordance with Article 113(2) of the Financial Regulation, the reasons for which the tender it accepted does not appear to it to be abnormally low. If that tender is accepted by the contracting authority, it follows implicitly, but necessarily, that the contracting authority considers that there was no evidence that that tender was abnormally low. However, such reasons must be brought to the attention of an unsuccessful tenderer which has expressly requested them.
94 In the present case, it must be observed that, in their requests of 11 May 2015 concerning the award of Lot 1 and 2 July 2015 concerning the award of Lot 2, in accordance with Article 113(2) of the Financial Regulation, the applicants did not expressly request the contracting authority to provide the reasons why the tender ranked in first place for Lot 1 and the tenders accepted for Lot 2 did not appear to be abnormally low.
95 However, as regards the first contested decision, it is clear from the supplementary statement of reasons of 20 May 2015 that the number of points awarded to the tender ranked in first place for Lot 1 (38.78 points) and the applicants’ tender for the same Lot (35.46 points) in the financial evaluation of their tenders was communicated by the Agency. They were also informed that the price proposed in the tender ranked in first place for Lot 1 was EUR 867 000, whereas that proposed by the applicants in their tender for the same lot was EUR 948 100.
96 Concerning the second contested decision, it appears from the supplementary statement of reasons of 7 July 2015 that, as regards the financial evaluation of the tenders, the applicants were informed of the points awarded to their tender for Lot 2 and the points awarded to the successful tenders, that is, for the tender ranked in first place, 39.04 points, for the tender ranked in second position, 40 points and for the tender ranked in third place, 32.53 points. Moreover, the tender specifications stated that, for that lot, the points in the financial evaluation of the tenders were calculated in accordance with the following formula ‘the lowest price/the price proposed in the candidate’s tender * 40’. On the basis of that information, the applicants could calculate the prices proposed in the other tenders accepted.
97 Thus, before bringing the action, the applicants knew that the Agency did not consider that the tenders accepted appeared to be abnormally low since they had been accepted. Furthermore, on the basis of the information provided in the supplementary statements of reasons of 20 May and 7 July 2015, the applicants were aware of the context in which the contested decision had been adopted, which enabled them to challenge the merits in that regard.
98 The latter assessment is confirmed by the contents of the applicants’ letter of 8 July 2015, in which they stated as follows:
‘The tenderers which submitted the tenders accepted for Lots 1 and 2 have simply lowered their prices in an improper manner in order to gain a competitive advantage. We still do not know how the [Agency] could accept such low prices, which are artificially low, and we regret that the [Agency] decided to do so without any investigation or explanation. The prices of Intrasoft International for Lot 1 of Contract ESP EISD 4 were 15.78% higher than our prices. However, the prices of Intrasoft International for Lot 2 of Contract ESP EISD 5 are now 32.81% lower than ours and, those for Lot 1 of Contract ESP EISD 5 5.88% lower than ours … Furthermore, the prices of Ingegneria Informatica SPA for Lot 1 of Contract ESP EISD 4 were 23.73% higher than ours. However, the prices for the Nextera1 consortium for Lot 1 of Contract ESP EISD 5 are now 8.56% lower than ours, further, the prices of Nextera2 consortium led by Ingegneria Informatica SPA … for Lot 2 of Contract ESP EISD 5 are 19.37% lower than ours.’
99 That is also confirmed by paragraphs 20 to 22 of the originating application. In those paragraphs the applicants stated as follows:
‘As regards Contract ESP EISD 5, when the applicants received the contested decisions and the supplementary documents they made the following observations:
(a) Regarding Lot 1, they observed that the Nextera1 consortium, of which Engineering Ingegneria Informatica SPA is a member, obtained 38.78 points in the evaluation of its financial tender whereas the [applicants’ tender] received 35.46 points … Therefore the Nextera1 consortium’s tender was 8.56% lower than the applicants’ tender (whereas the tender of the Encripta consortium of which Engineering Ingegneria Informatica SPA was also a member for Lot 1 of Contract ESP EISD 4 was 23.73% higher. Therefore, the tender of the consortium of which that company is a member was abnormally low for Contract ESP EISD 5.
(b) Regarding Lot 2, they observed that Intrasoft International SA received 39.04 points in the evaluation of its financial tender, whereas the applicants received 26.23 points … Therefore, Intrasoft International SA’s tender was then 32.81% lower than that of the applicants (while the tender submitted by the same company for Lot 2 of Contract ESP EISD 4 was scarcely 3.45% lower). In that case also Intrasoft International’s tender was abnormally low.
… Aware that their financial tender was already low (but at a normal level), the applicants only explanation for that great difference in the scoring of the financial tenders, which appeared for the first time in Contract ESP EISD 5 is that the successful consortia made abnormally low tenders. That conclusion is also confirmed by the fact that, for Contract ESP EISD 4 whose subject matter was the same services and a similar description of the various lots, the applicants’ financial tender (which were ranked in first place for each of the three lots) was either lower in price than all the others (Lot 1), slightly higher (Lots 2 and 3). Therefore, the prices of those tenders may be a clear and certain benchmark for the prices observed on the market and the normal level of prices which should have been proposed for Contract ESP EISD 5. However, for the contract at issue, four consortia (Nextera1, On Trace, Intrasoft/Charles Oakes, Atos Integration) proposed prices lower for Lot 1 (Atos Integration even proposed prices of 11.35% lower), whereas for Lot 2 the [successful tenders] were even more abnormally low than that of the applicants (Atos Belgium SA, 34.42% lower, Intrasoft International SA 32.81% and Nextera2 19.36%) …
The information set out above shows that the financial tenders of the successful consortia in the two lots of the contract at issue had the characteristics of an abnormally low tender as compared with the prices of the market.’
100 That information shows that, on the basis of information available to them when the action was lodged, the applicants were able to challenge the merits of the Agency’s assessment according to which the successful tenders did not contain any indication that they were abnormally low and, therefore, did not appear to be abnormally low.
101 Furthermore, it must be observed that exceptional circumstances, within the meaning of the case-law set out in paragraph 74 above, allows the Court to take account, in the present case, of the specific reasoning provided by the Agency in the course of the proceedings.
102 It must be observed that it was only on 8 July 2015 that the applicants sent a specific request for a statement of reasons to the Agency regarding the abnormally low character of the prices of the successful tenders with respect to the two lots (see paragraph 15 above). Without waiting for the Agency’s answer or allowing it a sufficient period of time to do so, even though the time limits for bringing proceedings did not preclude such a possibility, the applicants, on 17 July 2015, brought the present action relying exclusively on a failure to state reasons for the contested decision, in particular due to of the absence of a response to their request of 8 July 2015 (see paragraph 16 above). The Agency, for its part, provided explanations as to the reasons for which the successful tenders did not appear to it to be abnormally low by letter of 24 July 2015, at the end of a period which, taking account of the circumstance of the case, must be regarded as reasonable. Therefore, it must be held that all of those circumstances characterise an exceptional situation, within the meaning of the case-law mentioned in paragraph 74 above, justifying the consideration by the Court of the letter of 24 July 2015 in order to determine whether the Agency has complied with its duty to state reasons as regards the reasons why it did not consider the successful tenders were abnormally low.
103 In its letter of 24 July 2015, the Agency stated, inter alia, as follows:
‘As far as concerns the assertion that “the tenderers which submitted the tenders accepted for Lots 1 and 2 have simply lowered their prices in an improper manner in order to gain a competitive advantage” we wish to inform you that:
– For Lot 1, the prices of the successful tenderers are within the same range. When the cheapest daily price is compared to the highest daily price submitted in the financial offers of the successful tenderers, European Dynamics has the cheapest high-price profile and Nextera1 has the highest low-price profile;
– For Lot 2, 6 of the 12 tenderers accepted in the award phase submitted a financial tender lower than that of European Dynamics. Three of the six undertakings with the lowest financial tenders were awarded the contract and the financial tenders of the first two successful tenderers were very close.
On the basis of that information, we have conclusive evidence of the fact that the financial tenders were not abnormally low.’
104 Such information, namely the proximity, for each of the lots of the prices proposed by several different tenderers, thus explains the reasons why the contracting authority did not consider that, in the present case, the tenders accepted appeared prima facie to be abnormally low. It must also be held that the applicants were in a position to challenge the sufficiency of the reasoning in the reply and that they also made use of that possibility.
105 All of the information brought to the applicants’ attention therefore satisfies the relevant requirements to be fulfilled by the Agency, as set out in paragraphs 100 and 101 above. Therefore, in the present case, the applicants incorrectly allege a breach of the duty to state reasons.
106 In the present case, the fact that the applicants failed to submit a plea challenging the substance of the Agency’s assessment does not mean that they were unable to understand the reasoning underlying that assessment. Furthermore, it must be recalled that, in the context of a plea alleging failure to state reasons, any challenges to the substance of that reasoning cannot be examined by the Court since, in accordance with the case-law cited in paragraph 80 above, the issue of compliance with the duty to state reasons laid down in Article 296 TFEU must be distinguished from that of the substance of the reasoning.
107 For all of the foregoing reasons, the single plea alleging a breach of the duty to state reasons by the Agency must be dismissed and, therefore, the action must be dismissed in its entirety.
Costs
108 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
109 Since the applicants have been unsuccessful, they must be ordered to pay the costs, in accordance with the form of order sought by the Agency.
110 That assessment cannot be called into question by the applicants’ claim that the Agency should be ordered to pay all the costs even if the action were dismissed. In support of that claim, the applicants rely on the alleged failure to state the reasons for the contested decisions and the Agency’s attitude, without any further details. Those reasons do not justify an order that the Agency pay the costs in the present case.
On those grounds,
THE GENERAL COURT (Third Chamber)
hereby:
1. Dismisses the action;
2. Orders European Dynamics Luxembourg SA, Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE and European Dynamics Belgium to pay the costs.
Frimodt Nielsen | Kreuschitz | Półtorak |
Delivered in open court in Luxembourg on 4 July 2017.
[Signatures]
i The wording of paragraphs 1, 2, 7, 8, 10, 12, 20, 21, 27, 28, 29, 30, 31, 32, 36, 37, 38, 40, 41, 45, 46, 47, 48, 49, 50, 51, 52, 54, 55, 56, 58, 59, 60, 62, 64, 65, 66, 67, 69, 72, 74, 79, 83, 85, 88, 89, 90, 91, 93, 96, 99, 101, 102, 103 and 106 of this document has been modified after it was first put online.