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

ORDER OF THE COURT (Ninth Chamber)

24 November 2016 (*)

(Appeal — Article 181 of the Rules of Procedure of the Court of Justice — Public service contracts — Software development and maintenance services — Misinterpretation of the arguments and distortion of the evidence submitted by the other party to the proceedings before the General Court)

In Case C‑379/16 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 7 July 2016,

European Dynamics Luxembourg SA, established in Ettelbrück (Luxembourg),

European Dynamics Belgium SA, established in Brussels (Belgium),

Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE, established in Athens (Greece),

represented by C.-N. Dede and D. Papadopoulou, dikigoroi,

appellants,

the other party to the proceedings being:

European Union Intellectual Property Office(EUIPO), represented by N. Bambara, acting as Agent,

defendant at first instance,

THE COURT (Ninth Chamber),

composed of E. Juhász (Rapporteur), President of the Chamber, K. Jürimäe and C. Lycourgos, Judges,

Advocate General: P. Mengozzi,

Registrar: A. Calot Escobar,

having decided, after hearing the Advocate General, to give a decision by reasoned order, in accordance with Article 181 of the Rules of Procedure of the Court,

makes the following

Order

1        By their appeal, European Dynamics Luxembourg SA, European Dynamics Belgium SA and Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE seek to have set aside the judgment of the General Court of the European Union of 27 April 2016, European Dynamics Luxembourg and Others v EUIPO (T‑556/11, not published, ‘the judgment under appeal’, EU:T:2016:248), by which the General Court annulled the decision of the European Union Intellectual Property Office (EUIPO), notified by letter of 11 August 2011 and adopted in tendering procedure AO/029/10, entitled ‘Software development and maintenance services’, rejecting the tender submitted by European Dynamics Luxembourg and the other related decisions of EUIPO adopted in the context of that procedure, including those awarding the contract to three other tenderers ranked first to third in the ‘cascade’ procedure.

2        The appellants put forward a single ground of appeal in support of their appeal. They claim that the General Court wrongly rejected their plea in law alleging that EUIPO had infringed the tender specifications by accepting the tender of the first successful tenderer even though that tender contained price ‘variants’ which were, however, prohibited by the contract notice.

 The appeal

3        Under Article 181 of its Rules of Procedure, where the appeal is, in whole or in part, manifestly inadmissible or manifestly unfounded, the Court may at any time, acting on a proposal from the Judge-Rapporteur and after hearing the Advocate General, decide by reasoned order to dismiss that appeal in whole or in part.

4        That provision should be applied in the present case.

5        On 14 October 2016, the Advocate General took the following position:

‘1.      In their appeal, the appellants claim that the Court should, first, set aside the judgment under appeal in so far as the General Court rejected as unfounded a new plea in law which they had submitted following the measures of organisation of procedure and of inquiry ordered by the General Court; second, annul the decision of EUIPO awarding the contract at issue, in respect of which contract they had participated in the procurement procedure as tenderers; and, third, order EUIPO to pay the costs incurred in the proceedings before the General Court and in the present appeal.

2.      Regardless of any question concerning the admissibility of the appeal or the various heads of claim, it should, in any event, be observed that a substantive analysis shows that the appeal must be regarded as, in part, manifestly inadmissible and, in part, manifestly unfounded.

3.      In support of their appeal, the appellants put forward a single ground of appeal relating to paragraphs 230 to 237 of the judgment under appeal. In those paragraphs, the General Court rejected their new plea in law alleging that EUIPO had infringed the tender specifications by accepting the tender of the first successful tenderer even though that tender contained price ‘variants’ which were prohibited by the contract notice.

4.      The single ground of appeal alleges misinterpretation and distortion of the clear sense of the evidence produced by EUIPO following the measures of organisation of procedure and of inquiry ordered by the General Court. The appellants refer, in particular, to the document relating to the comparative assessment of the financial tenders of the successful tenderers and of European Dynamics Luxembourg, mentioned in paragraph 233 of the judgment under appeal. They claim, in essence, that, contrary to the findings made by the General Court, it is apparent from that document that, in its financial tender, the first successful tenderer had submitted prices with a discount and had added a clause in order to provide a reminder of both its discount policy and the two different prices which it was in fact offering in breach of the contract notice (one price with and one price without the discount). Furthermore, they claim that the General Court disregarded the fact that, at the hearing, EUIPO stated that the assessment of the tender of the successful tenderer in question was based on the prices which included the discount. According to the appellants, that statement confirms, ‘in other terms’, that the first successful tenderer had, in fact, included two different prices in its tender, in breach of the contract notice.

5.      In this connection, it should be recalled that, according to the case-law, the General Court has exclusive jurisdiction to find and assess the facts and, in principle, to examine the evidence it accepts in support of those facts. Provided that the evidence has been properly obtained and the general principles of law and the rules of procedure in relation to the burden of proof and the taking of evidence have been observed, it is for the General Court alone to assess the value which should be attached to the evidence produced to it. That assessment does not, therefore, constitute, save where the clear sense of that evidence has been distorted, a point of law which is subject, as such, to review by the Court of Justice (see, inter alia, judgment of 16 June 2016, Evonik Degussa and AlzChem v Commission, C‑155/14 P, EU:C:2016:446, paragraph 23 and the case-law cited).

6.      In accordance with that case-law, the appellants’ arguments alleging that the General Court assessed and interpreted the evidence incorrectly, and not alleging a distortion of the clear sense of that evidence, must be declared manifestly inadmissible.

7.      As regards the complaint alleging distortion of the clear sense of the evidence produced by EUIPO before the General Court, I would point out that, according to the case-law, there is such distortion where, without recourse to new evidence, the assessment of the existing evidence is clearly incorrect. Furthermore, such distortion must be obvious from the documents on the Court’s file, without there being any need to carry out a new assessment of the facts and the evidence (see, inter alia, judgment of 7 April 2016, Akhras v Council, C‑193/15 P, EU:C:2016:219, paragraph 68 and the case-law cited).

8.      In the present case, it is not obvious that the General Court distorted the clear sense of the abovementioned document relating to the comparative assessment of the financial tenders. More specifically, it is in no way apparent from that document, the content of which was accurately set out by the General Court in paragraph 233 of the judgment under appeal, that, as the appellants claim, the first successful tenderer submitted a tender offering two different prices, in breach of point II.1.9 of the contract notice. It follows that the complaint alleging distortion of the clear sense of the evidence is manifestly unfounded.

9.      As regards the reference to EUIPO’s statements at the hearing before the General Court, it is apparent from the very wording of the appeal, in which the expression ‘in other terms’ is used, that the appellants are seeking, in essence, to call into question the General Court’s interpretation of EUIPO’s statements. In accordance with the case-law referred to in paragraph 5 above, such an argument is manifestly inadmissible in the appeal proceedings. Furthermore, I would point out that the General Court based its conclusion on the new plea in law put forward by the appellants on the documentary evidence exclusively, without referring to the parties’ statements at the hearing. Even if it is conceded that, at the hearing, EUIPO did in fact make the statements relied on by the appellants, it is not for the Court of Justice to call into question in the appeal proceedings, in the absence of distortion, the General Court’s assessment of the evidential value of those statements, which assessment is for the General Court alone (see the case-law cited in paragraph 5 above, and judgment of 12 June 2014, Deltafina v Commission, C‑578/11 P, EU:C:2014:1742, paragraph 67).

10.      In the light of all those considerations, I would propose that the Court declare the appellants’ appeal to be, in part, manifestly inadmissible and, in part, manifestly unfounded.’

6        For the same reasons as those given by the Advocate General, the appeal must be dismissed.

 Costs

7        Under Article 137 of the Rules of Procedure, applicable to the procedure on appeal pursuant to Article 184(1) of those rules, a decision as to costs is to be given in the order which closes the proceedings. In the present case, since the present order was adopted before the appeal was served on the respondent and, therefore, before it could have incurred costs, European Dynamics Luxembourg, European Dynamics Belgium and Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis must be ordered to bear their own costs.

On those grounds, the Court (Ninth Chamber) hereby orders:

1.      The appeal is dismissed.

2.      European Dynamics Luxembourg SA, European Dynamics Belgium SA and Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE shall bear their own costs.

Luxembourg, 27 October 2016.

** Language of the case: English.

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