Court of Justice of the European Communities (including Court of First Instance Decisions)

JUDGMENT OF THE GENERAL COURT (Third Chamber)

22 May 2012(*)

(Public services contracts - Tender procedure - Provision of informatics services for an electronic exchange of social security information project (EESSI project) in the field of the coordination of social security for persons mobile in Europe - Rejection of bid submitted by a tenderer - Award of the contract - Obligation to state the reasons on which the decision is based - Transparency - Equal treatment - Manifest error of assessment - No interest in bringing proceedings - Non-contractual liability)

In Case T-17/09,

Evropaïki Dynamiki - Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE, established in Athens (Greece), represented by N. Korogiannakis and P. Katsimani, lawyers,

applicant,

v

European Commission, represented by N. Bambara and E. Manhaeve, acting as Agents, and initially by W. Sparks, Solicitor, subsequently by E. Petritsi, lawyer, and latterly by O. Graber-Soudry, Solicitor,

defendant,

APPLICATION for annulment of the Commission decision rejecting the tender submitted by the applicant in response to the call for tenders VT/2008/019 EMPL EESSI relating to the provision of informatics services and products in the context of the EESSI project (OJ 2008/ S 111-148 231) and of the decision to award the contract to another tenderer and, further, for damages,

THE GENERAL COURT (Third Chamber),

composed of O. Czúcz, President, I. Labucka (Rapporteur) and D. Gratsias, Judges,

Registrar: S. Spyropoulos, Administrator,

having regard to the written procedure and further to the hearing on 17 May 2011,

gives the following

Judgment

Background to the dispute

1 By a contract notice dated 10 June 2008, published in the Supplement to the Official Journal of the European Union (OJ 2008 S 111-148213), the Directorate-General for Employment, Social Affairs and Equal Opportunities ('DG EMPL') of the Commission of the European Communities issued a call for tenders VT/2008/019 EMPL EESSI for 'informatics services and products in the context of the EESSI (Electronic Exchange of Social Security Information) project'. The closing date for the submission of tenders was 28 July 2008.

2 On 28 July 2008 the applicant, Evropaïki Dynamiki - Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE, a company governed by Greek law, operating in the field of information technology and communications, submitted a tender in response to the call for tenders.

3 The opening of the tenders took place on 7 August 2008.

4 On 21 August 2008 DG EMPL sent an email to three of the tenderers, including the applicant, requesting clarification from their insurers that the insurance documents submitted included the type of insurance cover required by section 18.1 of the selection criteria.

5 By letter of the same date, the applicant replied to that email. In that letter the applicant disputed the legality of such a request and expressed its concerns about a possible lack of objectivity in the assessment of its tender. The applicant also asked DG EMPL for more information on the certificate to be provided.

6 On 22 August 2008 the applicant sent DG EMPL an insurance certificate and a declaration signed by its legal representative dated 28 July 2008 stating that the insurance presented met the requirements of the call for tenders.

7 On 27 August 2008 DG EMPL received an email from the applicant with an additional insurance certificate dated 22 August 2008.

8 On 28 August 2008 DG EMPL sent an email to each of the three tenderers who had been asked for clarification regarding their insurance certificates informing them that they would be notified in writing if any further clarification was necessary and that they would be notified of the outcome of the tender procedure in due course.

9 On 26 September 2008 the evaluation committee signed and dated its evaluation report, after examining the bids submitted.

10 On 22 October 2008 the decision was taken by the Commission to award the contract to Siemens IT Solutions & Services SA Brussels.

11 By letter of 30 October 2008 the applicant was informed of the outcome of the tender procedure. That letter stated that the applicant's tender had been rejected on the ground that 'it did not receive the minimum requirement of 70% under the award criteria'. It was noted in particular that there were weaknesses in the fundamental areas of the tender in relation to the EESSI technical requirements, development and implementation.

12 By facsimile of the same day, the applicant asked DG EMPL for further information, in particular, the name of the successful tenderer and its financial offer, the scores obtained by the successful tenderer and the applicant against each evaluation criterion together with a detailed analysis of the advantages offered by the successful tender by comparison with its own, a detailed copy of the evaluation report and the names of the members of the evaluation committee, in order to ensure there was no conflict of interest.

13 By letter of 7 November 2008 DG EMPL provided the applicant with the name of the successful tenderer, the price of the successful tender, the scores awarded under each of the award criteria and the comments of the evaluation committee for both the successful tender and the applicant's tender.

14 By facsimile of 11 November 2008 the applicant took issue with the findings of the evaluation committee.

15 An officer who was not a member of the evaluation committee examined in detail the applicant's claims and recorded his findings in a 'Note for File' dated 26 November 2008.

16 By letter dated 27 November 2008 DG EMPL informed the applicant that the comments in its letter of 11 November had been examined, that no error of assessment had been found and further, that the procedure had been managed objectively and impartially.

17 By letter of 28 November 2008 the applicant complained to DG EMPL about its refusal to make any specific remarks on the results of the evaluation of the EESSI project tenders, which it needed in order to decide whether or not to institute legal proceedings. The applicant also indicated to DG EMPL that the successful tenderer was the subsidiary of a company that was implicated in a case of corruption and invited DG EMPL to check the validity of the work permits of the successful tenderer's experts dating back to 2006.

18 On the same day DG EMPL signed the public contract with the successful tenderer, Siemens IT Solutions & Services SA Brussels.

19 In response to a letter from the applicant dated 28 November 2008, on 15 December 2008 DG EMPL provided the applicant with a copy of the 'Note for file' of 26 November 2008 and a copy of the 'extension of the fiche' prepared by the evaluation committee as part of its evaluation report.

20 On 16 December 2008 the applicant addressed a further letter to DG EMPL reiterating its position in relation to the call for tenders at issue. The applicant also referred to the novelty of certain observations contained in the 'Note for file' of 26 November 2008 made by the officer who was not a member of the evaluation committee as compared with those contained in the evaluation report.

21 The relevant contract award notice was published on 20 December 2008 in the Supplement to the Official Journal (OJ 2008 S 248).

Procedure and forms of order sought

22 By application lodged at the Registry of the General Court on 9 January 2009, the applicant brought this action.

23 Upon hearing the report of the Judge-Rapporteur, the General Court (Third Chamber) decided to open the oral procedure and, by way of measures of organisation of the procedure, to request the Commission to produce certain documents. The Commission complied with that request within the prescribed period.

24 At the hearing on 17 May 2011 the parties presented oral argument and answered questions put to them by the Court.

25 The applicant claims that the Court should:

- annul the Commission's decision rejecting its tender and all the Commission's subsequent decisions relating to the call for tenders at issue, including the decision awarding the contract to the successful tenderer;

- order the Commission to pay compensation, for the damage suffered on account of the tendering procedure in question, amounting to EUR 883 703.50;

- order the Commission to pay the costs, even if the present action is dismissed.

26 The Commission contends that the Court should:

- dismiss the action as unfounded;

- order the applicant to pay the costs.

Law

1. Inadmissibility of the action

27 The Commission contests the admissibility of the action, but does not submit a plea of inadmissibility under Article 114 of the Rules of Procedure of the General Court, on the ground that the application does not meet the minimal conditions laid down in the first paragraph of Article 21 of the Statute of the Court of justice, and in Article 44(1)(c) of the Rules of Procedure.

28 Under Article 44(1)(c) of the Rules of Procedure, the application must state the subject-matter of the proceedings and a summary of the pleas in law on which it is based. In accordance with settled case law, that statement must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the action, if necessary, without any further information. In order to ensure legal certainty and the sound administration of justice, if an action is to be admissible the essential facts and law on which it is based must be apparent from the text of the application itself, at the very least summarily, provided that the statement is coherent and intelligible (see, to that effect, Case T-387/94 Asia Motor France and Others v Commission [1996] ECR II-961, paragraph 106; Case T-210/00 Biret et Cie v Council [2002] ECR II-47, paragraph 34, and Case T-209/01 Honeywell v Commission [2005] ECR II-5527, paragraphs 55 and 56, and case-law cited).

29 In the present case, as regards the heads of claim for the annulment of the decision to reject the tender, the annulment of the decision to award the contract and payment of damages, it is clear that the application satisfies the requirements laid down by the Rules of Procedure, since it enables both the defendant and the Court to identify the conduct of the Commission which is complained of and the facts and circumstances which have given rise to the dispute. Furthermore, it is apparent from the documents before the Court that the Commission was able to organise its defence as necessary and to set out detailed arguments in response to each complaint raised by the applicant.

30 The plea that the application is inadmissible on the ground of a formal irregularity must, therefore, be rejected.

31 On the other hand, as regards the second part of the first head of claim, whereby the applicant requests that the Court annul all subsequent decisions of the Commission relating to the call for tenders at issue, the Court finds that the applicant does not specify against which measures, other than the decision to award the contract to the successful tenderer, the second part of the first head of claim is directed and does not set out any argument in support of its request.

32 Accordingly, the second part of the first head of claim must be dismissed as being inadmissible.

33 As regards the applicant's argument that the Commission should have raised the plea of inadmissibility by separate document, in accordance with Article 114 of the Rules of Procedure, it must be observed that that article does not impose a requirement that every plea of inadmissibility must be submitted by separate document. On the contrary, the lodging of a separate document is necessary, as is clear from that provision, only where the party submitting it intends to ask the Court for a decision on admissibility 'not going to the substance of the case'.

2. The application for annulment of the decision rejecting the tender and the decision awarding the contract

34 In support of its claim for annulment of the decision rejecting the tender and the decision awarding the contract, the applicant relies in essence on four pleas in law. The first plea alleges infringement of the obligation to state reasons and of the principle of transparency. The second plea alleges a breach of the principles of equal treatment and non-discrimination. The third plea alleges infringement of the rules relating to exclusion criteria. The fourth plea alleges that manifest errors of assessment were committed in the evaluation of its tender.

35 It should however be observed that the pleas in law can be placed into two categories. First, there are the pleas relating to the decision rejecting the tender, namely the first, second and fourth pleas, the decision to reject being the result of the failure by the applicant's tender to reach the minimum score of 70% required under the award criteria. Secondly, there is the plea relating to the decision awarding the contract, namely the third plea, the award of the contract to Siemens IT Solutions & Services SA Brussels being the result of the comparison of tenders which reached the minimum score of 70% in terms of the quality/price ratio.

The decision to reject

The first plea in law: infringement of the obligation to state reasons and of the principle of transparency

36 The applicant considers in essence that the Commission failed to comply with its obligations under Article 100(2) of Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 248, p. 1) ('the Financial Regulation') and Article 149 of Commission Regulation (EC, Euratom) No 2342/2002 of 23 December 2002 laying down detailed rules for the implementation of the Financial Regulation (OJ 2002 L 357, p. l, 'the Implementing Rules'). The applicant claims that the comments made by the evaluation committee in relation to its tender were unfounded and were too generic and arbitrary to enable it to understand in what respect the successful tenderer's bid was better than its own.

37 It must be noted at the outset that the Commission has a broad discretion with regard to the factors to be taken into account for the purpose of deciding to award a contract following an invitation to tender. The Court's review of the exercise of that discretion is therefore limited to checking that the rules governing the procedure and statement of reasons are complied with, that the facts are correct and that there is no manifest error of assessment or misuse of powers (see Case T-211/02 Tideland Signal v Commission [2002] ECR II-3781, paragraph 33, and judgment of 10 September 2008 in Case T-465/04 Evropaïki Dynamiki v Commission, not published in the ECR, paragraph 45).

38 It must also be noted that, where the Commission has a broad discretion, respect for the rights guaranteed by the European Union legal order in administrative procedures is of even more fundamental importance. Those guarantees include, in particular, the duty of the competent institution to provide adequate reasons for its decisions. Only then can the courts of the European Union verify whether the points of law and of fact upon which the exercise of the discretion depends were present (see, to that effect, Case C-269/90 Technische Universität München [1991] ECR I-5469, paragraph 14; Case T-465/04 Evropaïki Dynamiki v Commission, paragraph 54; and Case T-89/07 VIP Car Solutions v Parliament [2009] ECR II-1403, paragraph 61).

39 It should also be borne in mind that the requirements to be satisfied by the statement of reasons depend on 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 (see Case C-367/95 P Commission v Sytraval and Brink's France [1998] ECR I-1719, paragraph 63 and case-law cited).

40 Furthermore, the obligation to state reasons is an essential procedural requirement, as distinct from the question whether the reasons given are well-founded, which goes to the substantive legality of the contested measure (Case C-17/99 France v Commission [2001] ECR I-2481, paragraph 35; judgment of 12 November 2008 in Case T-406/06 Evropaïki Dynamiki v Commission, not published in the ECR, paragraph 47, and VIP Car Solutions v Parliament, paragraph 63).

41 Lastly, as regards a decision rejecting the bid submitted by a tenderer within a tendering procedure, the specific rules which determine the scope of the statement of reasons that it must contain are laid down by Article 100(2) of the Financial Regulation and Article 149(3) of the Implementing Rules.

42 It is clear from those provisions, and from this Court's case-law, that the Commission fulfils its obligation to state reasons if it confines itself first to informing all unsuccessful tenderers immediately of the reasons for the rejection of their respective tenders and then, subsequently, if expressly requested to do so, to providing to all tenderers who have submitted an admissible tender the characteristics and relative advantages of the tender selected as well as the name of the successful tenderer, within a period of 15 calendar days from the date on which a written request is received (see, to that effect, Case T-465/04 Evropaïki Dynamiki v Commission, paragraph 47).

43 It must also be pointed out that, if the institution concerned sends a letter in response to a request from an applicant seeking additional explanations concerning a decision, before proceedings are brought but after the date laid down in Article 149(3) of the Implementing Rules, that letter may also be taken into account when examining whether the statement of reasons in the case in question was adequate. Observance of the duty to state reasons must be assessed in the light of the information available to the applicant at the time the when the action was brought (VIP Car Solutions v Parliament, paragraph 73).

44 Likewise, in accordance with settled case-law, an institution is not permitted to substitute an entirely new statement of reasons for the original statement of reasons (see, to that effect and by analogy, Case T-183/00 Strabag Benelux v Council [2003] ECR II-135, paragraph 58; Case T-465/04 Evropaïki Dynamiki v Commission, paragraph 59, and VIP Car Solutions v Parliament, paragraph 73). Thus, the possible sending of a third letter can be taken into account only when such a letter confirms the initial statement of reasons and is restricted to providing more detail on the grounds justifying rejection of the bid of the unsuccessful tenderer and award of the contract to the successful tenderer, and not when the Commission sets out other considerations which go so far as to undermine the statement of reasons provided in the first two letters (see, to that effect, Case T-465/04 Evropaïki Dynamiki v Commission, paragraph 75). It must be pointed out in that regard that an institution's responses to an unsuccessful tenderer's requests can be taken into consideration as constituents of the grounds for the contested decision only in so far as they are based on points of fact and of law which existed at the date of that decision.

45 Such a manner of proceeding satisfies the purpose of the obligation to state reasons laid down in Article 253 EC, according to which the reasoning followed by the authority which adopted the measure in question 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 review (Case T-465/04 Evropaïki Dynamiki v Commission, paragraph 48).

46 The applicant's arguments must be examined in the light of the foregoing considerations.

47 In order to determine whether, in this case, the obligation to state reasons laid down in the Financial Regulation and the Implementing Rules is satisfied, it is necessary to examine not only the decision of 30 October 2008 but also the letter of 7 November 2008, which was sent to the applicant in reply to its express request of 30 October 2008 for additional information concerning the rejection of its tender.

48 First, in the letter of 30 October 2008, DG EMPL stated that the tender had not been accepted because, under the award criteria, it had not obtained the minimum required score of 70%. The letter stated in particular that the bid contained weaknesses in the fundamental areas of the tender in relation to the EESSI technical requirements and their development and implementation. That letter added that the applicant could obtain further information on the grounds for the rejection of its tender and that, if it made a request in writing, it could be informed of the characteristics and relative advantages of the successful tender and the name of the successful tenderer. Lastly, the letter stated that some details of the successful tender would not be disclosed if that disclosure would hinder application of the law, would be contrary to the public interest, would harm the legitimate business interests of public or private undertakings or could distort fair competition between them.

49 Secondly, the letter of 7 November 2008 contains certain clarifications requested by the applicant, namely the name of the successful tenderer, the price of the successful tender, the scores awarded under each of the award criteria and the comments of the evaluation committee for both the successful tender and the applicant's tender.

50 Thirdly, by letter of 15 December 2008, DG EMPL provided the applicant with a copy of the 'Note for file' of 26 November 2008 and a copy of the 'extension of the fiche' prepared by the evaluation committee as part of its evaluation report, in response to a letter from the applicant dated 28 November 2008.

51 If the statement of reasons in the letters of 30 October and 7 November 2008 is insufficient, it is necessary to determine whether the letter of 15 December 2008 can also be taken into account in order to assess whether the reasons for the decision to reject the applicant's tender were adequately stated. It is legitimate to take account of the comments made in the letter of 15 December 2008 to the extent that they do not take the place of the initial statement of reasons, contained in the decision rejecting the applicant's tender and in the letter of 7 November 2008 (judgment of 9 September 2010 in Case T-387/08 Evropaïki Dynamiki v Commission, not published in the ECR, paragraph 45).

52 First, it is necessary to examine the complaint of an infringement of Article 100(2) of the Financial Regulation in that the Commission did not make known to the applicant the advantages of the bid submitted by the successful tenderer.

53 In the present case, the Court observes that the decision to reject the applicant's tender is not based on a comparison of the services of the various tenderers. In fact, the reason why the applicant's tender was not accepted is because the applicant 'did not receive the minimum requirement of 70% under the award criteria'.

54 It is clear that, in accordance with the call for tenders, only those tenders which received the minimum weighted score of 70% under the award criteria were subsequently to be examined in order to determine the tender representing the best value for money.

55 It follows that the applicant was eliminated on the ground that the minimum threshold had not been reached and not as a result of comparison with other tenders and, in particular, with the tender of the successful tenderer.

56 As a result, the information relating to the successful tenderer, sent by DG EMPL in the letter of 7 November 2008, was sufficient to meet the relevant requirements in that regard (see, to that effect, Case T-406/06 Evropaïki Dynamiki v Commission, paragraphs 106 to 108).

57 Consequently, the complaint alleging an infringement of Article 100(2) of the Financial Regulation must be rejected.

58 Secondly, it is necessary to examine the complaint that the statement of reasons for the decision rejecting the applicant's tender was insufficient having regard to the various award criteria.

59 As regards the statement of reasons relating to the award criteria (0) and (1), it is clear that the decision rejecting the applicant's tender and the letter of 7 November 2008 contain sufficient information, first, to enable the applicant to identify the precise reasons for the rejection of its tender, namely that the applicant failed to meet both the required minimum quality level in respect of some award criteria and the required level for the overall quality of its tender, and to compare, in respect of each of the award criteria, its results with those of the successful tenderer, and, secondly, to permit the exercise of judicial review. Further, the general comments clarify which elements of the tender were considered by DG EMPL not to be satisfactory.

60 It must be observed that the statement of reasons for the rejection of the tender with regard to both the abovementioned award criteria contains specific information which was such as to enable the applicant to understand the scores which DG EMPL had given to its tender by reference to those criteria.

61 As regards the statement of reasons relating to award criterion (0), the following is in particular stated:

'Poor readability, too much generic material obscuring the tenderer's specific EESSI proposals. On readability, for instance, additional calculations were necessary to establish the number of resources allocated by way of person days to distinct work packages. The technical analysis in particular lacks coherence.'

62 As regards the statement of reasons relating to award criterion (1), the following is in particular stated:

'On Functional Specifications [FS], presents a table with summary of understanding of level 1 and level 2 FS. The completion of the FS is focused on the implementation of the FS as identified in the call for tender. No real enhancement noted, e.g., no valid conflict of the FS is noted in the response. Rather than demonstrating an understanding of the specific security requirements in EESSI. the tenderer responds with generic security recommendations applicable to any project.'

63 In addition, the statement of reasons relating to those award criteria is helpfully complemented by the information contained in the letter of 15 December 2008, though that information does not take the place of the existing statement of reasons. The statement of reasons contained in the letter of 7 November 2008 was already such as to enable the applicant to understand the reasons for its failure to obtain a better score by reference to those criteria. As correctly stated by the Commission, the explanations provided in the letter of 15 December 2008 support and complement the statement of reasons set out in the letter of 7 November 2008.

64 It is clear that the decision rejecting the tender is not vitiated by an inadequate statement of reasons in relation to the award criteria (0) and (1). The first plea in law must therefore be rejected.

The second plea in law: infringement of the principle of equal treatment and non-discrimination

65 The principle of equal treatment is of particular importance in the field of public procurement procedure. In the context of such a procedure, the Commission is required to ensure, at each stage of the procedure, equal treatment and, thereby, equality of opportunity for all the tenderers (see Case T-160/03 AFCon Management Consultants and Others v Commission [2005] ECR II-981, paragraph 75 and case-law cited).

66 Under the principle of equal treatment as between tenderers, the aim of which is to promote the development of healthy and effective competition between undertakings taking part in a public procurement procedure, all tenderers must be afforded equality of opportunity when formulating their tenders, which therefore implies that the bids of all tenderers must be subject to the same conditions (see, to that effect, Case C-19/00 SIAC Construction [2001] ECR I-7725, paragraph 34, and Case C-470/99 Universale-Bau and Others [2002] ECR I-11617, paragraph 93).

67 As regards the applicant's assertion that it had encountered problems with the Commission in other procurement procedures, such an argument is of no relevance to this case, since each tendering procedure must be assessed on the basis of its own characteristics. That applies also to the argument that the successful tenderer was, in other cases, in breach of its contractual obligations under framework-contracts.

68 As regards the applicant's complaint that the Commission was wrong to rely on an error in the content of the certificate of professional risk indemnity insurance which it had submitted, it is clear that:

- three tenderers, including the successful tenderer, received a clarification request relating to the insurance certificates provided;

- the Commission could properly request additional clarification from tenderers, pursuant to Article 146(3) of the Implementing Rules;

- the principle of equal treatment did not prevent DG EMPL from requesting from certain tenderers clarification in order to remove ambiguities in their tenders, given that section 18.1 of the tender specifications, which is part of the selection criteria, expressly provided for the possibility of requesting tenderers to supply an additional document relating to their economic and financial capacity if the documents mentioned in section 18.1 of the tender specifications could not be produced and given that the evaluation committed was obliged to treat all tenderers in the same way when exercising its powers (see, by analogy, Tideland Signal v Commission, paragraph 46);

- the applicant successfully passed the selection stage.

69 In addition, as regards more specifically the alleged difference between section 18.1 of the tender specification in the original version and in the version quoted in the Commission's e-mail of 21 August 2008, it must be observed that the terminology employed in the two e-mails is identical. The only difference of note is the fact that the e-mail of 21 August 2008 gives a definition of professional risk indemnity insurance. Accordingly, there was no substantial and late alteration to the tender specifications, as claimed by the applicant.

70 Further, the applicant's assertion that the Commission has always accepted, in tendering procedures which it has initiated, the insurance certificate initially submitted by the applicant, is of no relevance. The requirements of the tender specifications at issue cannot be compared with those imposed in any other tendering procedure, past or future.

71 It follows from the foregoing that the plea in law claiming an infringement of the principle of equal treatment and non-discrimination must be rejected as unfounded.

The fourth plea in law: the existence of a number of errors of assessment

72 The applicant submits that DG EMPL made many manifest errors of assessment during the course of the tender selection procedure. In that respect, it takes issue with the evaluation of its tender by reference to most of the award criteria.

73 First, it must be borne in mind that, as stated in paragraph 37 above, the Commission enjoys a broad discretion with regard to the factors to be taken into account for the purpose of deciding to award a contract following an invitation to tender and that review by the General Court is limited to checking compliance with the procedural rules and the duty to give reasons, the correctness of the facts found and that there is no manifest error of assessment or misuse of powers.

74 In the present case, it is clear from the contract notice and from the tender specifications that the award of the contract was made to the tender which offered the best value for money, assessed on the basis of the criteria stated in the tender specifications.

75 The tender specifications state that the assessment is to include three stages: the first stage, during which the exclusion criteria (defined in section 17 of the tender specifications) are applied; the second stage, during which the selection criteria (defined in section 18 of the specifications) are applied; and the third stage during which the application of the award criteria (defined in section 19 of the specifications) is assessed. As regards the award criteria, they represent an overall total of 100 points. The scores given are weighted according to the importance of each of the eight award criteria. The minimum weighted score is set at 70%. Each tender is evaluated to determine the degree to which it fulfils the specified requirements. The total points of those tenders that attain 70% or above are then divided by the price and the bid chosen is the one offering the best price/quality ratio.

76 Thus, within the limits imposed by the case-law cited in paragraph 37 of this judgment, the Court must examine whether DG EMPL committed a number of manifest errors of assessment in its evaluation of the tender in the light of the various award criteria.

- The award criterion (0) titled 'Presentation of the tenderer's proposal'

77 In this regard, first, it is clear that the parameters used in the evaluation of this criterion are described in section 19.1 of the tender specifications. The call for tenders states the following:

'The evaluation will examine the structure and overall presentation of the tender, the coherence of the bid as a whole, ensuring that all information requested has been included (in the correct format if applicable) in a clear and unambiguous way and that the structure of the tender has followed the format described.'

78 First, the applicant contests the Commission's assertion that the total resources required for each work-package were not provided and that additional calculations were necessary to establish the precise resources needed. The applicant submits that its tender presented the effort allocation for each one of the sub-work packages with detailed presentation of the resources allocation in its section 4.2.2.

79 However, it must be observed that DG EMPL did not commit a manifest error of assessment by taking the view that the total resources required for each work-package were not provided and that additional calculations were necessary to establish the precise resources needed. It is clear that the table in section 4.2.2 in the applicant's tender headed 'Allocation of work per Profile', in relation to award criteria (2), does not specify the total resources allocated to each of the work packages, but only the contribution of each of the proposed profiles in respect of each work package.

80 Secondly, the applicant argues that the Commission claims that the fact that 'the total resources for each work package' were not stated had a negative impact on the completeness and clarity of its tender. The applicant emphasises that the Commission's position on this point is different from that appearing in the evaluation report, where the evaluation committee detected a problem with the 'readability' of that section of the tender.

81 In that regard, it is clear that, as stated by the Commission, that analysis corresponds well to the evaluation committee's position on the 'readability' of the tender. The need to resort to additional calculations had a negative impact on the completeness and clarity of the applicant's tender.

82 Thirdly, the applicant claims that there is nothing missing from the tender which could justify the low score awarded by the evaluation committee. The Court must come to the same conclusion as did the Commission, that the score reflects all the inadequacies of the tender as described by the evaluation committee in the following terms:

'Poor readability, too much generic material obscuring the tenderer's specific EESSI proposals. On readability, for instance, additional calculations were necessary to establish the number of resources allocated by way of person days to distinct work packages. The technical analysis in particular lacks coherence'.

83 In the light of the foregoing, the Court must conclude that DG EMPL did not commit a manifest error of assessment when evaluating the tender by reference to the award criterion (0).

- The award criterion (2), headed 'Draft EESSI Project Management & Quality Plan'

84 It is clear, first, that Section 19.1(2) of the tender specifications allocates the highest weighting, 35/100, to the 'break down of the work in phases taking account of the phased approach as noted in section 7.1 of this document' as a distinct and specific element of the draft project management and quality plan.

85 Next, in its report, the evaluation committee stated the following:

'Using PRINCE 2 methodology integrated into RUP provides an acceptable draft PMQP [Project Management & Quality Plan] broken into work packages. Reasonable analysis of technical risks identified. Other than what is provided in the GANTT chart, PMQP and break down into work packages no specific details on how to assure and ensure performance during the phased approach. In light of the complexity of the EESSI project and the tight time frame. the tender lacks clarity on the independence testing team and categoric resource allocation for quality specialists.'

86 The applicant does not accept, first of all, that the evaluation committee's conclusion that 'other than what is provided in the GANTT chart, the PMQP and break down into work packages, no specific details on how to assure and ensure the performance during the phased approach were provided' is well founded. The applicant considers that its tender described a detailed implementation plan based on an analysis of the proposed activities, the deliverables to be provided and the milestones, ensuring the accurate implementation of the contract, in strict compliance with the tender specifications. In section 5 of its tender, titled 'Interfaces and communication', a specific plan of communication was proposed. In section 6.2 of its tender, titled 'Project Control', the applicant claims that it set out in detail the measures and factors ensuring the proper development of the project. In section 7 of its tender entitled 'Acceptance Procedures and Response Times', the applicant claims that it submitted acceptance procedures and response times for each proposed deliverable.

87 However, it must be recalled that the 'Note for file' of 26 November 2008 states that the bidder's comment that that requirement was met in its reply to the preceding separate elements of the project management quality plan (PMQP), indicates that it overlooked the formal and heavily weighted award criteria, referred to in section 19.1(2) of the call for tenders. Even though the applicant's tender proposed a breakdown of the work to be done in phases, that related only to the standard requirements of a plan of that kind and was one of the preceding separate elements of the management quality plan, while no categoric, specific details on how to assure and ensure performance of the project during the phased approach had been proposed.

88 Secondly, the applicant challenges the assessment made by the evaluation committee that 'in light of the complexity of the EESSI project and the tight time frame, the tender lacks clarity on the independence of the testing team and categoric resource allocation for quality specialists.' The applicant refers, in that regard, to section 2.1.2 of its tender, where it stated that it was ensuring that a quality assurance team, different from the development team, [was testing] the application', and to section 6.2 of its tender, where it planned to allocate specific resources to activities linked to quality. It maintains, essentially, that it allocated approximately 30% of the total effort to testing and support activities and that it appropriately allocated a specific and highly qualified team to testing activities, in compliance with the tender specifications.

89 However, it must be declared that the 'Note for file' states the following in that regard:

'It is found that the categoric resource allocation of the internal quality manager for the review of the draft PMQP that is mentioned in [section] 6.2 of the bid is not corroborated elsewhere by allocation of resources. Moreover there are no details or corroboration of the Quality Assurance Team mentioned in 6.2. Under 8.1.5.1 of the bid, mention is made that [the applicant's] Quality Assurance department team and particularly that Quality Auditors will conduct internal audits - but again no corroboration by categoric resource allocation. Considering the emphasis the tender specifications place on quality within the specifications, explicitly requiring a Quality Assurance & Management Plan, there is a legitimate expectation from the Commission's perspective that any statements made in a bid about the use of quality specialists would be corroborated by categoric resource allocation for these quality specialists.'

90 It must be declared that the applicant's tender does not make it clear whether those responsible for testing within the EESSI project are also responsible for development. The tender does not expressly say that the approach proposed by the applicant is that adopted for the EESSI project at issue, since the tender mentions only that, ['o]n larger projects, [the applicant] ensures that a Quality Assurance group separate from the development group tests the application ...'. Further the Court must come to the same conclusion as the Commission that, while the bid contained a breakdown of the work to be done in phases, the tender did not provide, apart from the standard requirements of a PMQP, any specific details on how to assure and ensure performance of the project during the phased approach.

91 In the light of the foregoing, the Commission did not commit a manifest error of assessment when assessing the application of award criterion (2).

- The award criterion (3) headed 'Proposal to address EESSI Technical Requirements'

92 The applicant contests the evaluation committee's comments in relation to this part of the tender. In particular, the applicant does not agree with the argument that its tender was 'unconvincing' and disputes the two examples provided by the evaluation committee of instances where the technical specification proposed by the applicant was judged to be unsatisfactory. Further, the applicant alleges that the evaluation committee is not fully up to date with the latest advances in software engineering and the state of the art in this field and adds that 'multiple added-value services which are offered by a solution based on a Services Orientated Architecture (SOA) using an Enterprise Service Bus (ESB), have been classified as a drawback of the solution'.

93 The applicant asserts that, in sections 3.1 and 3.2 of its tender it offers a detailed explanation of how the ESB is compatible with the EESSI project.

94 The Commission contends that the remarks made by the evaluation committee with regard to the EESSI technical requirements do not relate to the proposed use of ESB per se, but are made in relation to its observation that 'the solution of the tenderer fails to provide clarity on what are the responsibilities of various architecture components'. The evaluation committee observed that although the applicant identified the EESSI as being related to ESB, it failed properly to map the ESB functionality into the CN-AP architecture as specified in the tender specifications.

95 The functionalities proposed in the applicant's tender clearly concern 'IPAP', which does not comply with section 3.1.3 of the tender specifications, headed 'The Reference Implementation'. Section 3.1.3 of the tender specifications states the following:

'Lest this is overlooked, we want to stress that the use of JMS, EJB, Database and other communication protocols are for the interfaces with the national part of the Access Point. On the international side, the exchange is solely based on the SOAP flavour of Web Services. Please note that the International Part is essentially a messaging service, it does not specify a global, trans-national, JMS or EJB deployment.'

96 As regards the applicant's argument that the evaluation committee did not take into account, when examining its tender, section 3.1.3.3 headed 'Transformation engine', section 3.1.2, headed 'SED and Business flows', section 3.1.2.5, headed 'Flow editor', and section 3.2.9, headed 'SED Form Engine and Workflow Selection' it must be observed that the evaluation committee refers explicitly to these in the 'Note for file/extension of the fiche'. Consequently, the evaluation committee examined the applicant's tender by taking into account the content of those sections.

97 In conclusion, the Commission did not commit any manifest error of assessment as regards the award criterion (3).

- The award criterion (4) titled 'Proposal to address EESSI Development and Implementation'

98 First, the applicant maintains that the evaluation committee's criticism that an initial draft iteration plan was not provided with the applicant's offer is misconceived. The applicant claims that, in section 4.1, headed 'Work breakdown structure', and in section 4.2, headed 'Work Package Deliverables and Major Milestones', its tender contains a draft 'iteration plan'.

99 According to the 'Note for file', section 4 of the applicant's tender, titled 'Time plan for work package 2: Development', is not equivalent to an 'iteration plan' suggested by the applicant as deliverable in section 3.2.2.1.1.

100 It is clear that the tender did not propose any draft 'iteration plan' and that the evaluation committee's comment on the benefits such a plan would have brought is justified.

101 Secondly, the applicant rejects the evaluation committee's assessment that the tender contained inconsistencies regarding the use of 'plug-in' and 'open source' software.

102 The tender specifications define 'plug-ins' in section 3.1.3.18. Likewise, section 3.3.1. explicitly invites tenderers to choose between solutions using either 'plug-in' or 'open source' software, or to propose their own solution.

103 It is clear from a reading of the tender that the applicant is in favour of a 'plug-in' solution. In section 3.1.1 of the part of the tender dealing with the technical analysis, titled 'Overview of the solution in the frame of integration versus in-house development', a solution favouring 'open source' software for the EESSI project is rejected. 'Plug-ins' are also envisaged in section 3.1.4.16. Conversely, in section 3.1.1. of the part of the tender dealing with development and implementation, headed 'Deployment in a very heterogeneous environment', an approach based on 'open source' software seems to be envisaged. The evaluation committee therefore concluded that the tender was not coherent on that point.

104 In that regard, the Commission is correct to state that if the applicant had proposed a solution based on 'open source' software capable of supporting 'plug-ins', the applicant should have said so clearly and distinctly in its tender. Further, it is not apparent from the applicant's tender that it chose to propose its own solution.

105 Consequently, it must be concluded that the evaluation of the tender with regard to award criterion (4) did not involve any manifest error of assessment.

- The award criterion (5) titled 'Proposal to address EESSI testing requirements'

106 The applicant claims that by awarding the applicant 70 out of 100 points, the Commission committed a manifest error of assessment because the evaluation report does not include any negative remark. The Commission failed to identify what testing requirements were not covered by the applicant's tender or what additional or better proposals the successful tenderer made in order to deserve higher marks.

107 The evaluation committee's assessment in relation to this criterion should be recalled:

'The testing and testing support plan and procedures are adequately described, with the testing proposal including the time plan.'

108 It is clear that, although the evaluation committee was of the opinion that the applicant's tender satisfied the minimal required threshold in respect of that criterion, the tender was not excellent, but merely 'adequate'. Further, the absence of a negative remark does not mean that the applicant should have automatically received the maximum score.

109 For that reason, the Commission did not commit a manifest error of assessment when it assessed the award criterion (5).

110 It follows that there is no need to consider the arguments relating to award criterion (6) titled 'Proposal to address EESSI training requirements' and award criterion (7) titled 'Proposal to address EESSI handover, assistance and support requirements, including all documentation to be delivered in this context', because, taking account of the maximum number of points which might be allocated in respect of the sixth and seventh criteria, it is theoretically impossible for the applicant to attain the minimum score of 70%. The number of points allocated in respect of the first five criteria, namely 43.24, with the addition of the maximum points which could be allocated in respect of award criterion (6), namely 4, and award criterion 7, namely 22, comes to a total of 69.24.

111 Further, as regards the argument that the Commission failed to explain what additional or better proposals the successful tenderer made in order to deserve a higher score, it must be recalled that the applicant is in possession of the comments of the evaluation committee. By letter of 7 November 2008 DG EMPL provided the applicant with the name of the successful tenderer, the price of the successful tender, the scores awarded under each of the award criteria and the comments of the evaluation committee for both the successful tender and the applicant's tender.

112 It follows from all the foregoing that the fourth plea must be rejected as unfounded.

113 Since all the pleas in law and arguments directed against the rejection decision have been rejected, the application for annulment of that decision must be dismissed.

The decision awarding the contract

114 First, it is necessary to consider whether the applicant has a legal interest in bringing proceedings for the annulment of the decision awarding the contract, since the lack of a right of action constitutes an absolute bar to proceedings which the courts of the European Union may raise of their own motion (see Case T-310/00 MCI v Commission [2004] ECR II-3253, paragraph 45 and case-law cited).

115 The applicant claims, within its third plea in law, that there was an infringement of the rules relating to the exclusion criteria, in essence, that the successful tenderer should have been excluded from the procurement procedure on the basis of the exclusion criteria. The applicant claims that the successful tenderer is a wholly owned subsidiary of the Siemens AG group, which has been involved in a large-scale corruption case and has been found guilty by the German courts. The applicant maintains that the conduct of the successful tenderer corresponds exactly to the substance and rationale of Articles 93 and 94 of the Financial Regulation, Articles 133 and 134 of the Implementing Rules and Article 45 of Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (OJ 2004 L 134, p. 114). The applicant submits that limiting the scope of the provisions of the Financial Regulation only to parent companies deprives those provisions of any 'effet utile' and paves the way for impunity in the largest public procurement corruption case in Europe.

116 First, it must be noted that, pursuant to Article 105 of the Financial Regulation, from 1 January 2003 onwards - the date of entry into force of the regulation - the directives relating to the coordination of procedures for the award of public supply, service and works contracts do not apply to public contracts awarded by the European Union institutions on their own behalf except as regards questions concerning the thresholds which determine publication arrangements, the choice of procedures and corresponding time-limits. It follows that the applicant's complaint in relation to the exclusion criteria for the contract at issue must be examined solely in the light of the provisions of the Financial Regulation and the Implementing Rules.

117 Secondly, in accordance with settled case-law, 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. In order for such an interest to be present, the annulment of the contested measure must of itself be capable of having legal consequences and the action must be likely, if successful, to procure an advantage for the party who has brought it (see Case T-195/08 Antwerpse Bouwwerken v Commission [2009] ECR II-4439, paragraph 33 and case-law cited).

118 However, where a tenderer's bid is rejected before the stage preceding the contract award decision and accordingly was not compared with the other tenders, the interest of the tenderer concerned in bringing proceedings is conditional upon the annulment of the decision rejecting his tender. Only if the latter decision has been annulled can, in some cases, the annulment of the decision awarding the contract have for the tenderer whose bid was rejected before the stage preceding the decision awarding the contract legal consequences and procure an advantage for him.

119 On the other hand, if the application for annulment of the decision rejecting the tender has been dismissed, annulment of the decision awarding the contract cannot have legal consequences for a tenderer whose bid was rejected because that bid had not obtained the minimum score of 70% required under the award criteria. In that situation, the rejection decision precludes the possibility of the tenderer concerned being affected by the later decision awarding the contract to another tenderer.

120 In the present case, the application for annulment of the rejection decision was dismissed in paragraph 113 above. In those circumstances, it is clear from paragraphs 117 to 119 above that the applicant has no interest in bringing proceedings against the decision awarding the contract, which means that its application for the annulment of that decision is inadmissible.

3. The claim for damages

121 The applicant claims damages amounting to EUR 883 703.50, which represents the gross profit (50%) that would have resulted from the public procurement procedure at issue if the applicant had been awarded the contract in question. The applicant's claim is based on Articles 235 EC and 288 EC.

122 In accordance with settled case-law, for the Community to incur non-contractual liability under the second paragraph of Article 288 EC for unlawful conduct on the part of its institutions, a set of conditions must be fulfilled, namely the unlawfulness of the acts alleged against the institutions, the fact of damage and the existence of a causal link between that conduct and the damage complained of (Case T-175/94 International Procurement Services v Commission [1996] ECR II-729, paragraph 44; Case T-336/94 Efisol v Commission [1996] ECR II-1343, paragraph 30, and Case T-267/94 Oleifici Italiani v Commission [1997] ECR II-1239, paragraph 20). Where one of those conditions is not satisfied the application must be dismissed in its entirety without its being necessary to examine the other preconditions (Case C-15/91 KYDEP v Council and Commission [1994] ECR I-4199, paragraphs 19 and 81)

123 It is also apparent from the case-law that an action founded on damage resulting from loss of profit must be dismissed, the damage at issue being not real and existing, but future and hypothetical (see, to that effect, Case T-13/96 TEAM v Commission [1998] ECR II-4073, paragraph 76).

124 It is necessary therefore to consider whether those conditions are satisfied.

125 In the present case, all the arguments the applicant put forward in order to demonstrate the unlawfulness of the contested decision have been examined and rejected.

126 It is clear from the examination of the application for annulment that the applicant failed to prove unlawful conduct on the part of the Commission.

127 It follows that the claim for damages must be dismissed.

128 In the light of all the foregoing, the action must therefore be dismissed in its entirety.

4. Costs

129 The applicant requests that, even if the Court were to dismiss the action, the Commission be ordered to pay the costs in accordance with the second subparagraph of Article 87(3) of the Rules of Procedure. It submits that the defective evaluation of its tender, the failure to state the reasons for that evaluation, the refusal of DG EMPL to address its administrative appeal and associated observations and its failure to inform it of the results of its internal evaluation have forced it to bring the present action.

130 It must be recalled that, under Article 87(2) 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. However, under the first subparagraph of Article 87(3) of those Rules, the Court may, where the circumstances are exceptional, order that the costs be shared.

131 The General Court may order an institution whose decision has not been annulled to pay the costs, if there has been some deficiency in the conduct of that institution which might have led the applicant to bring proceedings (see, to that effect and by analogy, Joined Cases T-160/89 and T-161/89 Kalavros v Court of Justice [1990] ECR II-871, paragraphs 79 to 81; Case T-1/90 Pérez-Mínguez Casariego v Commission [1991] ECR II-143, paragraphs 96 to 98, and Case T-25/92 Vela Palacios v CES [1993] ECR II-201, paragraphs 53 to 55).

132 In the present case, it has been held that all the pleas in law must be rejected as unfounded. Furthermore, there is no other reason for the Court to deviate from the abovementioned rule in Article 87(2) of the Rules of Procedure. Consequently, the applicant's request must be dismissed.

133 As the applicant has been entirely unsuccessful, it must be ordered to pay the costs, in accordance with the forms of order sought by the Commission.

On those grounds,

THE GENERAL COURT (Third Chamber)

hereby:

1. Dismisses the action;

2. Orders Evropaïki Dynamiki - Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE to pay the costs.

Delivered in open court in Luxembourg on 22 May 2012.

Table of contents

Background to the dispute

Procedure and forms of order sought

Law

1. Inadmissibility of the action

2. The application for annulment of the decision rejecting the tender and the decision awarding the contract

The decision to reject

The first plea in law: infringement of the obligation to state reasons and of the principle of transparency

The second plea in law: infringement of the principle of equal treatment and non-discrimination

The fourth plea in law: the existence of a number of errors of assessment

- The award criterion (0) titled 'Presentation of the tenderer's proposal'

- The award criterion (2), headed 'Draft EESSI Project Management & Quality Plan'

- The award criterion (3) headed 'Proposal to address EESSI Technical Requirements'

- The award criterion (4) titled 'Proposal to address EESSI Development and Implementation'

- The award criterion (5) titled 'Proposal to address EESSI testing requirements'

The decision awarding the contract

3. The claim for damages

4. Costs

* Language of the case: English.

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