European Dynamics Luxembourg v ECB (Public procurement - Tendering procedure - Abnormally low offer - Judgment (extracts) [2022] EUECJ T-761/20 (05 October 2022)

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(Public procurement – Tendering procedure – Exclusion from the procurement procedure – Abnormally low offer – Attempts to unduly influence the decision-making process – Failure to observe the rules on communication – Proportionality – Obligation to state reasons – Misuse of powers – Non-contractual liability)

European Dynamics Luxembourg SA, established in Luxembourg, (Luxembourg), represented by M. Sfyri and M. Koutrouli, lawyers,

European Central Bank (ECB), represented by I. Koepfer and J. Krumrey, acting as Agents, and by A. Rosenkötter, lawyer,

composed, at the time of deliberations, of A. Kornezov, President, E. Buttigieg (Rapporteur) and G. Hesse, Judges,

having regard to the fact that no request for a hearing was submitted by the parties within three weeks after service of notification of the close of the written part of the procedure, and having decided to rule on the action without an oral part of the procedure, pursuant to Article 106(3) of the Rules of Procedure of the General Court,

1 By its action, the applicant, European Dynamics Luxembourg SA seeks, first, on the basis of Article 263 TFEU, annulment of (i) the decision of the Procurement Committee of the European Central Bank (ECB) of 1 October 2020 to exclude its tenders for the three lots in the procurement procedure Provision of services and works for IT application delivery (‘the decision of 1 October 2020’), (ii) the decision of the ECB Procurement Review Body of 9 December 2020 (‘the decision of 9 December 2020’) and (iii) all the related subsequent decisions of the ECB; second, on the basis of Article 268 TFEU, it seeks compensation for the damage it allegedly suffered as a result of that exclusion.

(b) The third part of the first plea, alleging that the ECB committed a manifest error of assessment by excluding the applicant’s tenders under Article 30(5)(g) of Decision ECB/2016/2, in conjunction with Article 26(1) of that decision

‘The ECB may exclude candidates or tenderers from participation at any time if: … (g) they contact other candidates or tenderers with the purpose of restraining competition, or try to unduly influence the decision-making process in the procurement procedure.’

52 According to the applicant, that provision applies only to communication between candidates or tenderers with other candidates or tenderers and not with the ECB. By contrast, according to the ECB, that provision is applicable to all types of contact, including contacts between candidates or tenderers and the contracting authority which relate to the decision-making process of the procurement procedure and are intended to influence it unduly and disrupt its proper course.

53 It is settled case-law that in interpreting a provision of EU law, it is necessary to consider not only its wording but also the context in which it occurs and the objects of the rules of which it is part (see judgment of 7 June 2005, VEMW and Others, C‑17/03, EU:C:2005:362, paragraph 41 and the case-law cited).

54 In the first place, as regards the terms in which Article 30(5)(g) of Decision ECB/2016/2 is worded, it must be borne in mind that EU legislation is drafted in various languages and that the different language versions are all equally authentic, such that an interpretation of a provision of EU law involves a comparison of the different language versions (judgments of 6 October 1982, Cilfit and Others, 283/81, EU:C:1982:335, paragraph 18, and of 6 October 2005, Sumitomo Chemical and Sumika Fine Chemicals v Commission, T‑22/02 and T‑23/02, EU:T:2005:349, paragraph 42).

55 In that regard, the Court notes that in some language versions, such as the Spanish, Czech, German, Greek, English, Portuguese, Slovak and Slovenian versions, the syntax of the phrase ‘ … contact other candidates or tenderers with the purpose of restraining competition, or try to unduly influence the decision-making process in the procurement procedure’ has a two-part structure, separated by the conjunction ‘or’, as follows: ‘ … contact other candidates or tenderers with the purpose of restraining competition’ (first type of situation) or ‘try to unduly influence the decision-making process in the procurement procedure’ (second type of situation). The conjugation of the verb ‘try’ in the present indicative and in the third person plural means that it cannot be linked to the prepositional phrase ‘with the purpose of’ and therefore suggests that the second part of the phrase is not subordinate to the first. It shows that two distinct situations are involved, the first, placed before the ‘or’, relating to contacting other candidates or tenderers in order to restrain competition, and the second, placed after the ‘or’, relating to attempts to unduly influence the decision-making process in the procurement procedure.

56 Those examples show that Article 30(5)(g) of Decision ECB/2016/2 may be understood as meaning that the second type of situation foreseen is not restricted to contacts between candidates or tenderers and their competitors, but more generally concerns any method of unduly influencing the decision-making process. Accordingly, in those language versions, the provision at issue covers two situations in which a candidate or tenderer may be excluded from participating in a tender. The first of those situations is that of a candidate or tenderer who contacts other candidates or tenderers with the purpose of restraining competition. The second is that of a candidate or tenderer who attempts in any way whatsoever to unduly influence the decision‑making process in the procurement procedure.

57 However, in other language versions, the syntactical structure of the phrase in question suggests that the exclusion situation applies only to candidates or tenderers who contact other candidates or tenderers with the purpose either of restraining competition or of trying to unduly influence the decision-making process in the procurement procedure. For example, the French version uses the verb ‘try’ in the infinitive, with the result that it is linked to the prepositional phrase ‘with the purpose of’, as is the verb ‘restrain’, which is also in the infinitive (‘… aux fins de restreindre la concurrence ou de tenter d’influencer la prise de décision dans la procédure de passation de marché’). Otherwise, the verb ‘try’, like the verb ‘contact’, would have been conjugated in the third person plural of the present indicative, as follows: ‘… ou tentent d’influencer indûment …’ The Bulgarian, Italian, Dutch and Polish versions are also to the same effect.

58 Since the literal interpretation of Article 30(5)(g) of Decision ECB/2016/2 does not seem to provide definite guidance owing to various differences in the language versions, it should be recalled that where there is divergence between the various language versions of an EU legal text, the provision in question must be interpreted by reference to the context and objectives of the rules of which it forms part (see, to that effect, judgments of 24 October 1996, C‑72/95, Kraaijeveld and Others, EU:C:1996:404, paragraph 28; of 24 February 2000, Commission v France, C‑434/97, EU:C:2000:98, paragraph 22; and of 7 December 2000, Italy v Commission, C‑482/98, EU:C:2000:672, paragraph 49).

59 In the second place, as regards the teleological interpretation of Article 30(5)(g) of Decision ECB/2016/2, it should be observed that the objective of the ground for exclusion set out in that paragraph is to ensure equal opportunities for candidates, in accordance with the general principles of equal access and treatment, non-discrimination and fair competition, which, first, constitute general principles of law applicable to the ECB during public procurement procedures pursuant to Article 3(1) of Decision ECB/2016/2 and, second, must be complied with throughout the tender procedure. Those general principles may be undermined not only by means of contacts between candidates or tenderers for the purpose of restraining competition, but also when a candidate or tenderer attempts, by other means, to unduly influence the decision-making process in the procurement procedure. An interpretation of Article 30(5)(g) of Decision ECB/2016/2 such that it does not refer to that latter situation would run counter to the underlying objective of that provision.

60 In the third place, as regards the contextual interpretation, it should be noted that the wording of the second part of Article 30(5)(g) of Decision ECB/2016/2 is similar to that of Article 57(4)(i) of Directive 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), as amended, which provides that, ‘contracting authorities may exclude or may be required by Member States to exclude from participation in a procurement procedure any economic operator in any of the following situations: … (i) where the economic operator has undertaken to unduly influence the decision‑making process of the contracting authority, to obtain confidential information that may confer upon it undue advantages in the procurement procedure or to negligently provide misleading information that may have a material influence on decisions concerning exclusion, selection or award. …’. By referring to the fact that the economic operator has undertaken to unduly influence the decision‑making process of the contracting authority, the EU legislature did not limit that ground of exclusion solely to contacts between the candidates or tenderers and other candidates or tenderers.

61 In that regard, it should first of all be borne in mind that, according to the case-law, even though the directives concerning the award of public works contracts, public supply contracts and public service contracts govern only contracts concluded by the bodies or contracting authorities of the Member States and are not directly applicable to public contracts concluded by the EU administration, the rules or principles laid down in or derived from those directives can be relied on against that administration when they themselves simply appear to be the specific expression of fundamental rules of the Treaty and of general principles of law which are directly applicable to the EU administration. In a community based on the rule of law, the uniform application of the law is a fundamental requirement and any person is required to comply with the principle of respect for legality. Thus, the institutions are required to comply with the rules of the Treaty and the general principles of law that are applicable to them, in the same way as any other person (see judgment of 10 November 2017, Jema Energy v Joint undertaking Fusion for Energy, T‑668/15, not published, EU:T:2017:796, paragraph 93 and the case-law cited).

62 Moreover, the rules or principles laid down in or derived from those directives may be relied on against the EU administration if, in the exercise of its operational and institutional autonomy and within the limits of the powers conferred on it by the FEU Treaty, it adopts a measure which expressly refers, for the purpose of governing the public contracts which it concludes for its own account, to certain rules or principles laid down in the directives, the effect of which is that those rules and principles are applicable in accordance with the principle patere legem quam ipse fecisti. Where it is necessary to interpret the measure in question, it must be interpreted, in so far as possible, with a view to uniform application of EU law and compliance with the provisions of the FEU Treaty and the general principles of law (see judgment of 10 November 2017, Jema Energy v Joint undertaking Fusion for Energy, T‑668/15, not published, EU:T:2017:796, paragraph 94 and the case-law cited).

63 In the present case, it must be noted that recital 3 of Decision ECB/2016/2 specifically excludes the applicability of Directive 2014/24 to the ECB. However, recital 4 of that decision states that the ECB respects the general principles of procurement law as reflected in Directive 2014/24 and 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 and repealing Council Regulation (EC, Euratom) No 1605/2002 (OJ 2012 L 298, p. 1), some of which have been set out in paragraph 59 above. Furthermore, Decision ECB/2016/2 makes numerous references to the provisions of Directive 2014/24.

64 Although it is true that Article 30(5)(g) of Decision ECB/2016/2 does not expressly refer to Article 57(4)(i) of Directive 2014/24, the latter provision nevertheless constitutes an expression of the general principles of public procurement law, including, in particular, the principle of equal opportunities and the equal treatment of tenderers, inasmuch as the ground for exclusion laid down in that provision is intended to prevent any attempt to unduly influence the decision-making process in a tendering procedure by any means whatsoever, in order to ensure equal treatment of candidates or tenderers and thereby to guarantee equality of opportunity between them (see, to that effect, judgment of 10 November 2017, Jema Energy v Joint undertaking Fusion for Energy, T‑668/15, not published, EU:T:2017:796, paragraph 101 and the case-law cited).

65 It is thus apparent from a teleological and contextual interpretation of Article 30(5)(g) of Decision ECB/2016/2 that that article covers two different exclusion situations, the second, contrary to what the applicant claims, being intended to apply also to communications addressed by the candidates or tenderers to the contracting authority when they are aimed at trying to exercise undue influence on the decision-making process during the procurement procedure.

66 In the light of the foregoing, it must be concluded that Article 30(5)(g) of Decision ECB/2016/2 must be read as meaning that the ECB may at any time exclude from participation those candidates or tenderers who try to unduly influence the decision-making process in the procurement procedure.

67 It is at this point necessary to examine in greater detail the concept of an attempt to exert undue influence, which the parties also interpret differently.

68 In that regard, it should first be observed that Decision ECB/2016/2 does not define that concept.

69 Nevertheless, the use of the verb ‘try’ suggests that that concept has a scope that is analogous to that used in Article 57(4)(i) of Directive 2014/24 which, as noted in paragraph 60 above, refers to any economic operator who has ‘undertaken’ to influence the decision-making process of the contracting authority. The verb ‘try’, in the same way as ‘undertake’, implies a condition of the means used and not the result. It follows that the mere fact of a candidate or tenderer trying to influence the decision-making process by various means without, however, achieving the result expected, is sufficient to fall within the scope of the second part of Article 30(5)(g) of Decision ECB/2016/2.

70 It must, nevertheless, be stated that the provision at issue specifies that the attempt to influence the decision-making process in a procurement procedure must have been made ‘unduly’, that is to say, in a manner contrary to the rules in force.

71 Lastly, it should be noted that the attempt to exercise undue influence must concern, pursuant to Article 30(5)(g) of Decision ECB/2016/2, the decision-making process in the procurement procedure. The decision‑making process is to be understood as the entire phase in which the contracting authority examines the tenders submitted by the different candidates or tenderers in connection with a call for tenders for the purpose of preparing its decisions on exclusion, selection or award. That process therefore starts from the submission of the offers and includes all the successive stages up to the adoption of those decisions. In particular, that process includes the enquiries carried out by the contracting authority on price tenders appearing to be abnormally low and pursuant to which that authority may, under Article 33(2) of Decision ECB/2016/2, after review of the additional information provided by the tenderer, reject the tenderer’s offers, in particular where the information provided does not sufficiently account for the low level of the price or costs, or where the tender and that information do not provide sufficient assurance of proper contract performance. Those enquiries are not separate procedures but constitute a stage in the evaluation of the tenders.

1 Only the paragraphs of the present judgment which the Court considers it appropriate to publish are reproduced here.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> European Dynamics Luxembourg v ECB (Public procurement - Tendering procedure - Abnormally low offer - Judgment (extracts) [2022] EUECJ T-761/20 (05 October 2022) URL: http://www.bailii.org/eu/cases/EUECJ/2022/T76120.html Cite as: EU:T:2022:606, ECLI:EU:T:2022:606, [2022] EUECJ T-761/20

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