European Commission v Sopra Steria Benelux.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2023:396
• Docket Number: C-101/22
• Date: 11 May 2023
• Celex Number: 62022CJ0101
• Court: Court of Justice (European Union)
• Procedure Type: Pourvoi

Provisional text

JUDGMENT OF THE COURT (Eighth Chamber)

11 May 2023 (*)

(Appeal – Rules of Procedure of the Court of Justice – Article 169 – Appeal against the operative part of the decision of the General Court – Public service contracts – Tendering procedure – Regulation (EU, Euratom) 2018/1046 – Article 170(3) – Paragraph 23 of Annex I – Unsuccessful tenderer bringing to the European Commission’s attention evidence of the abnormally low nature of the successful tender – Scope of the contracting authority’s obligation to state reasons)

In Case C‑101/22 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 10 February 2022,

European Commission, represented by L. André, M. Ilkova and O. Verheecke, acting as Agents,

appellant,

the other parties to the proceedings being:

Sopra Steria Benelux, established in Brussels (Belgium),

Unisys Belgium, established in Brussels,

represented by L. Masson and G. Tilman, avocats,

applicants at first instance,

THE COURT (Eighth Chamber),

composed of M. Safjan, President of the Chamber, N. Piçarra and M. Gavalec (Rapporteur), Judges,

Advocate General: M. Campos Sánchez-Bordona,

Registrar: A. Calot Escobar,

having regard to the written procedure,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1 By its appeal, the European Commission seeks to have set aside the judgment of the General Court of the European Union of 1 December 2021, Sopra Steria Benelux and Unisys Belgium v Commission (T‑546/20, EU:T:2021:846; ‘the judgment under appeal’), by which the General Court annulled its decision of 2 July 2020 which, first, rejected the joint tender submitted by Sopra Steria Benelux and Unisys Belgium (together, ‘the S2U companies’) for Lot A in the tendering procedure bearing reference TAXUD/2019/OP/0006 for services for the specification, development, maintenance and third level support of the IT platforms of the Directorate-General for ‘Taxation and Customs Union’ and, second, awarded the contract to the other consortium that submitted a tender (‘the decision at issue’).

Legal context

The Rules of Procedure of the Court of Justice

2 Article 169 of the Rules of Procedure of the Court of Justice, entitled ‘Form of order sought, pleas in law and arguments of the appeal’, provides:

‘1. An appeal shall seek to have set aside, in whole or in part, the decision of the General Court as set out in the operative part of that decision.

2. The pleas in law and legal arguments relied on shall identify precisely those points in the grounds of the decision of the General Court which are contested.’

3 Article 170 of those Rules of Procedure, entitled ‘Form of order sought in the event that the appeal is allowed’, provides, in paragraph 1 thereof:

‘An appeal shall seek, in the event that it is declared well founded, the same form of order, in whole or in part, as that sought at first instance and shall not seek a different form of order. The subject matter of the proceedings before the General Court may not be changed in the appeal.’

The Financial Regulation

4 Article 161 of Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council of 18 July 2018 on the financial rules applicable to the general budget of the Union, amending Regulations (EU) No 1296/2013, (EU) No 1301/2013, (EU) No 1303/2013, (EU) No 1304/2013, (EU) No 1309/2013, (EU) No 1316/2013, (EU) No 223/2014, (EU) No 283/2014, and Decision No 541/2014/EU and repealing Regulation (EU, Euratom) No 966/2012 (OJ 2018 L 193, p. 1; ‘the Financial Regulation’), entitled ‘Annex on procurement and delegation of powers’, provides:

‘Detailed rules on procurement are laid down in Annex I to this Regulation. To ensure that Union institutions, when awarding contracts on their own account, apply the same standards as those imposed on contracting authorities covered by Directives 2014/23/EU [of the European Parliament and of the Council of 26 February 2014 on the award of concession contracts (OJ 2014 L 94, p. 1)] and 2014/24/EU [of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC (OJ 2014 L 94, p. 65)], the Commission is empowered to adopt delegated acts in accordance with Article 269 of this Regulation to amend Annex I to this Regulation, in order to align that Annex to amendments to those Directives and to introduce related technical adjustments.’

5 Article 170 of that regulation, entitled ‘Award decision and information to candidates or tenderers’, provides, in paragraphs 2 and 3 thereof:

‘2. The contracting authority shall notify all candidates or tenderers, whose requests to participate or tenders are rejected, of the grounds on which the decision was taken, as well as the duration of the standstill periods referred to in Articles 175(2) and 178(1).

…

3. The contracting authority shall inform each tenderer who is not in an exclusion situation referred to in Article 136(1), who is not rejected under Article 141, whose tender is compliant with the procurement documents and who makes a request in writing, of any of the following:

(a) the name of the tenderer, or tenderers in the case of a framework contract, to whom the contract is awarded and, except in the case of a specific contract under a framework contract with reopening of competition, the characteristics and relative advantages of the successful tender, the price paid or contract value, whichever is appropriate;

…

However, the contracting authority may decide to withhold certain information where its release would impede law enforcement, would be contrary to the public interest or would prejudice the legitimate commercial interests of economic operators or might distort fair competition between them.’

6 Paragraph 23 of Annex I to that regulation, entitled ‘Abnormally low tenders’, is worded as follows:

‘23.1. If, for a given contract, the price or costs proposed in a tender appears to be abnormally low, the contracting authority shall request in writing details of the constituent elements of the price or costs which it considers relevant and shall give the tenderer the opportunity to present its observations.

The contracting authority may, in particular, take into consideration observations 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;

(d) compliance of the tenderer with applicable obligations in the fields of environmental, social and labour law;

(e) compliance of subcontractors with applicable obligations in the fields of environmental, social and labour law;

(f) the possibility of the tenderer obtaining State aid in compliance with applicable rules.

23.2. The contracting authority shall only reject the tender where the evidence supplied does not satisfactorily account for the low price or costs proposed.

The contracting authority shall reject the tender where it has established that the tender is abnormally low because it does not comply with applicable obligations in the fields of environmental, social and labour law.

…’

Background to the dispute

7 The background to the dispute is set out as follows in paragraphs 1 to 8 of the judgment under appeal:

‘1 On 6 December 2019, the European Commission published in the supplement to the Official Journal of the European Union (OJ 2019/S 236-577462) a contract notice concerning a tendering procedure bearing the reference TAXUD/2019/OP/0006 for the procurement of services for the specification, development, maintenance and third level support of the IT platforms of the Directorate-General for ‘Taxation and Customs Union’. The contract was divided into two lots, namely Lot A, entitled “Evolution Services for the CCN/CSI Platform”, and Lot B, entitled “Evolution Services for the CCN2(ng), SPEED2(ng), CDCO/TSOAP and SSV Platforms”, in respect of which the award criterion was the best quality/price ratio, with technical quality weighted against price on a 70/30 basis in the evaluation of the tenders submitted. For each of the two lots, the Commission had to conclude a 36-month framework contract, renewable three times for 12-month periods, with the tenderer offering the best quality/price ratio, on the condition that the tenderer satisfies certain minimum criteria relating to eligibility, non-exclusion, capacity and conformity of the tender.

2 On 27 February 2020, [the S2U companies] submitted a joint tender as a consortium led by Sopra. The only other bid submitted for Lot A within the time limit was that of the ARHS-IBM consortium, formed by ARHS Developments SA and International Business Machines of Belgium SA.

3 By letter of 2 July 2020, the Commission informed [the S2U companies] of the rejection of their tender submitted for Lot A, on the ground that it was not the most economically advantageous tender, and of the award of the contract to another tenderer …. It attached an extract from the evaluation report of their tender indicating the scores awarded to it, accompanied by explanations, and informed them that the characteristics and relative advantages of the selected tender, the value of the contract and that the name of the successful tenderer could be sent to them upon written request. The [S2U companies] submitted such a request on the same day.

4 It is apparent from the extract from the evaluation report that the … tender [submitted by the S2U companies] received a total score of 90.81 points …

…

5 By letter of 3 July 2020, the Commission informed the [S2U companies] that the contract had been awarded to the ARHS-IBM consortium and sent them an extract from the evaluation report of the successful tender indicating the scores awarded to it, accompanied by explanations.

6 It is apparent from that...