Kleani v Court of Justice of the European Union (Public service contracts - Tender procedure - ECJ freelance translators - Judgment) [2019] EUECJ T-51/18 (10 September 2019)

Judgment Background to the dispute By contract notice of 4 January 2017, published in the Supplement to the Official Journal of the European Union (OJ 2017 S 002) under reference 2017/S 002-001564, the Court of Justice of the European Union launched a call for tenders for the conclusion of framework contracts for the translation of legal texts from certain official languages of the European Union into Greek (‘the call for tenders’). The call for tenders included seven lots, each corresponding to a different language combination. By letter of 8 February 2017, the applicant, BP, submitted a request to participate in lot no 2 of the call for tenders corresponding to the translation of legal texts from German into Greek. By letter of 20 April 2017, the Court of Justice of the European Union informed the applicant that, following the examination of her request to participate, she had been selected to participate in the call for tenders and that she was thus invited to submit a tender, in accordance with the conditions laid down in the tendering specifications annexed to that same letter. The letter of 20 April 2017 stated, in particular, that the tender, inter alia, had to include a test translation — the text to be translated being annexed to that letter — and a tender price. Point 4.3.1 of the tendering specifications added that ‘test translations which are given a quality mark of less than 50 out of 100 will be deemed to be of an unacceptably low quality and those tenders will be rejected’. On 19 May 2017, the applicant submitted a tender, together with the abovementioned test translation, inter alia. By letter of 23 November 2017, the Court of Justice of the European Union informed the applicant that her tender had been rejected on the ground that the test translation submitted in her tender did not reach the minimum level of quality required in Point 4.3.1. of the tendering specifications (‘the contested decision’). Procedure and forms of order sought By application lodged at the Registry of the General Court on 30 January 2018, the applicant brought the present action. The written part of the procedure was closed on 18 September 2018. Having regard to the fact that no request for a hearing was submitted by the parties within the deadline, the General Court, considering that it was sufficiently informed by the documents in the file, 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. The applicant claims that the Court should: – annul the contested decision; – order the Court of Justice of the European Union to comply with the decision of the General Court; – grant her access to documents relating to the administrative procedure concerning the contested decision. The Court of Justice of the European Union contends that the General Court should: – dismiss the action as inadmissible inasmuch as that action seeks to have the General Court order it to comply with its decision and to produce certain documents; – dismiss the rest of the action as unfounded; – in any event, dismiss the action in its entirety as unfounded; – order the applicant to pay the costs. Law The claim that the Court should issue directions The applicant claims that the Court of Justice of the European Union should be ordered to ‘comply with the judgment annulling the contested act’, whereas the latter, for its part, regards that claim as inadmissible. In that regard, first, it must be recalled that, according to settled case-law, when exercising judicial review of legality under Article 263 TFEU, the Courts of the European Union have no jurisdiction to issue directions to EU institutions (see order of 13 July 2004, Comunidad Autónoma de Andalucía v Commission , T‑29/03, EU:T:2004:235, paragraph 26 and the case-law cited). Second, in the event of the annulment of the contested act, it is for the institution concerned, in accordance with Article 266 TFEU, ‘to adopt the necessary measures to implement a judgment’ delivered by the General Court. In those circumstances, the applicant’s claim that the General Court should issue directions must be dismissed as inadmissible. The application for annulment The applicant argues, in essence, that the Court of Justice of the European Union did not state to the requisite legal standard the grounds for the contested decision and that that decision is not, in any case, adequately substantiated. First plea, alleging infringement of the obligation to state reasons According to the applicant, the contested decision fails to satisfy the requirements of the obligation to state reasons. The Court of Justice of the European Union, for its part, submits that it was in compliance with the requirements of Article 113(2) of 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), in the version applicable at the time of the facts at issue (‘the Financial Regulation’), and that it was therefore for the applicant, after having been informed of the rejection of her tender because her test translation was given an eliminatory score, to request more detailed information in order thereby to obtain access to documents containing a detailed overview of the main errors she had made (see paragraph 26 below). That said, as a preliminary point, it must, first, be recalled that, regarding the rights of persons who have submitted a tender or an application in the context of a procedure for the award of a public services contract initiated by an EU institution, Article 113(2) of the Financial Regulation, to which the tendering specifications also expressly refer (Point 2.4 of the tendering specifications), states that ‘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’. In addition, Article 113(3) of the Financial Regulation provides that ‘the contracting authority shall inform each tenderer who is not in an exclusion situation, whose tender is compliant with the procurement documents and who makes a request in writing,’ of the name of the tenderer, or tenderers in the case of a framework contract, to whom the contract is awarded, the characteristics and relative advantages of the successful tender, the price paid or contract value, and the progress of negotiation and dialogue with tenderers. It thus clearly follows from that latter provision that only tenderers who meet the three conditions referred to in paragraph 18 above may obtain the information in question. Second, Article 161(1), second subparagraph, of Commission Delegated Regulation (EU) No 1268/2012 of 29 October 2012 on the rules of application of the Financial Regulation (OJ 2012 L 362, p. 1), as amended by Commission Delegated Regulation (EU) 2015/2462 of 30 October 2015 (OJ 2015 L 342, p. 7) (‘the Implementing Rules’), which is also referred to in the tendering specifications, states that ‘in each case the contracting authority shall indicate the reasons why the request to participate or tender has not been accepted and the available legal remedies’. In that regard, it must also be noted that, in that version of Article 161(3), third subparagraph, of the Implementing Rules, the following sentence was deleted and is not therefore applicable to the present case: ‘Unsuccessful tenderers or candidates may request additional information about the reasons for the rejection [of their tender]’. Third, regarding the obligation to state reasons for a decision rejecting a tender adopted by the contracting authority concerned, it must be recalled, on a general level, that such reasoning must be assessed on the basis of 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. Therefore, it is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons for a measure meets the requirements of Article 296, second paragraph, TFEU must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (judgment of 4 July 2017, European Dynamics Luxembourg and Others v European Union Agency for Railways , T‑392/15, EU:T:2017:462 , paragraph 75). In that regard, it must be recalled that Point 4.3.1 of the tendering specifications states that ‘test translations which are given a quality mark of less than 50 out of 100 will be deemed to be of an unacceptably low quality and those tenders will be rejected’ (see paragraph 4 above). In the first place, it must be noted that the Court of Justice of the European Union, in accordance with Article 113(2) of the Financial Regulation (see paragraph 18 above), clearly stated in the contested decision the reason why the applicant’s tender was unsuccessful, namely that, in the case at hand, the applicant’s test translation was given a score that was less than the minimum level of quality required in order for the applicant’s tender to proceed to the comparative review stage, which was a ground for elimination that was clearly referred to in Point 4.3.1 of the tendering specifications (see, to that effect, judgment of 9 September 2010, Carpent Languages v Commission , T‑582/08, not published, EU:T:2010:379, paragraph 42). In the second place, contrary to the allegations of the applicant, who, before bringing the present action, did not, in any event, make any request for additional information regarding the eliminatory score given to her test translation, the contracting authority cannot be criticised for not having mentioned, in the contested decision, the possibility of requesting such additional information. In that regard, the Court of Justice of the European Union rightly argues that it met its obligations under the Financial Regulation and the Implementing Rules by informing her of the reason why her tender had not been accepted (see paragraph 25 above) and, in accordance with Article 161(1), second subparagraph, of the Implementing Rules, of the available legal remedies. In the third place, the fact that the applicant, in her pleadings lodged before the General Court, made a request for additional information and that the Court of Justice of the European Union, by an annex to the defence, complied in part with that request has, in any event, no bearing on the assessment as to the adequacy or inadequacy of the statement of reasons in the contested decision as such. Consequently, it follows from all the foregoing that the first plea must be rejected as unfounded. The second plea in law, alleging that the contested decision has no basis In her reply, the applicant takes issue with the contested decision by arguing that the eliminatory score given to the test translation which she submitted with her tender was unfounded. The Court of Justice of the European Union deems this to be a ‘new plea’, which, as a result, must be dismissed as inadmissible pursuant to Article 84 of the Rules of Procedure. In that regard, it must be held that, at the stage of the application, the applicant not only expressly invoked the infringement of the obligation to state reasons, but also challenged the validity of the contested decision by submitting, in essence, that her qualifications and her professional experience should have been taken into consideration by the services concerned of the contracting authority and that the contested decision was not therefore adequately substantiated. However, and without it being necessary to rule on the plea of inadmissibility raised by the Court of Justice of the European Union, it must be noted that the second plea cannot succeed in any event. In that regard, it must be held that, at the stage of the application, the applicant not only expressly invoked the infringement of the obligation to state reasons, but also challenged the validity of the contested decision by submitting, in essence, that her qualifications and her professional experience should have been taken into consideration by the services concerned of the contracting authority and that the contested decision was not therefore adequately substantiated. 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, the facts are correct and there is no manifest error of assessment or misuse of powers (see judgment of 9 September 2010, Carpent Languages v Commission , T‑582/08, not published, EU:T:2010:379, paragraph 28 and the case-law cited). Next, it is apparent from the documents in the file that, in the case at hand, the contested decision is based solely on the score of less than 50 out of 100 given to the applicant’s test translation, which led, consequently, to the rejection of the applicant’s tender. Therefore, the arguments put forward in the application, relating to the applicant’s education and professional experience in Greece and Germany, are ineffective since they are not such as to cast any doubt on the grounds for the contested decision, namely the fact that the test translation was given a quality mark of less than 50 out of 100 and was therefore considered, pursuant to Point 4.3.1 of the tendering specifications (see paragraph 4 above), to be unacceptable by the contracting authority, resulting in the rejection of the applicant’s tender. Moreover, despite the detailed explanations provided by the Court of Justice of the European Union in the document that included a detailed overview of the main errors made by the applicant in her test translation and which the former annexed to the defence (see paragraph 26 above), the applicant merely states in her reply, in a general manner, that the errors thus identified were not sufficient to justify an eliminatory score. However, she does not provide any specific information in that regard to enable a finding that the evaluation of that test was vitiated by errors of fact or manifest errors of assessment. In addition, as regards the applicant’s request to obtain a mathematical method of calculation of the number of points awarded or deducted based on the errors made, suffice it to note that the Court of Justice of the European Union rightly submits that the services responsible for evaluating test translations submitted with tenders were not required to resort to such a mathematical method but could, instead, evaluate those tests on the basis of qualitative criteria, as referred to in Point 2.10 of the tendering specifications, that had to be met by the translations submitted by tenderers to whom contracts were to be awarded in the procedure in question. That provision refers in particular to the requirement of correct and precise use of the target language and of the appropriate legal terminology of that language and states that the quality of the translation must be such as to allow it to be used immediately for publication or for any other purpose. Consequently, in light of all the foregoing, the second plea must also be considered to be unfounded and the present action must be dismissed in its entirety without there being any need to order the Court of Justice of the European Union to communicate any such method. Costs Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, she must, in accordance with the forms of order sought by the Court of Justice of the European Union, be ordered to pay, in addition to her own costs, the costs incurred by the latter. On those grounds, THE GENERAL COURT (Third Chamber), hereby: 1. Dismisses the action; 2. Orders BP to pay the costs. Frimodt Nielsen Forrester Perillo Delivered in open court in Luxembourg on 10 September 2019. E. Coulon S. Papasavvas Registrar President * Language of the case: English. © European Union The source of this judgment is the Europa web site. The information on this site is subject to a information found here: Important legal notice . This electronic version is not authentic and is subject to amendment. BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII