17EUIPO escapes liability in public procurement case as ECJ partially sets aside
General Court judgment
The decision of the Court of Justice of the European Union (ECJ) in European Union Intellectual Property Office v European Dynamics Luxembourg SA (Case C-376/16 P, May 3 2018) confirms that the European Union Intellectual Property Office (EUIPO) may incur non-contractual liability in cases involving calls for tenders in public procurement.
In August 2011, EUIPO notified its decision in a tendering procedure entitled “Software development and maintenance services”, rejecting the tender submitted by the company European Dynamics Luxembourg.
In October 2011 European Dynamics Luxembourg, European Dynamics Belgium SA and jointly interested parties brought an action for annulment of the decisions at issue before the General Court.
In support of the action before the General Court, European Dynamics and others put forward three pleas in law, alleging:
1. infringement of the duty to state reasons;
2. several manifest errors of assessment; and
3. infringement of the principle of equal treatment.
The General Court examined the third plea in law and upheld only the third part of it. It considered that the EUIPO had clearly breached its duty of diligence when investigating the 2817existence of the ground for exclusion.
The General Court also upheld a part of the second plea in law. It found that the existence of manifest errors of assessment or inadequate reasoning that vitiated the lawfulness of the evaluation of the tender. Those illegalities, by themselves, justified the annulment of the decision rejecting the tender.
Finally, the General Court upheld the claim for damages brought by European Dynamics and others inasmuch as it concerned the compensation for loss of opportunity
The EUIPO appealed this decision to the ECJ.
About the ECJ’s decision
The ECJ upheld the EUIPO’s claim and set aside this part of the judgment. In the first part of the second ground of appeal, the EUIPO considered that the mere fact that it had allegedly made errors of assessment concerning several sub-criteria of technical award cannot in itself be considered as a sufficient reason to annul the decision rejecting the tender. As the General Court did not examine whether those other comments were sufficient to justify the score given by the contracting authority for the award criterion concerned, it was a sufficient reason to appeal its judgment.
The ECJ considered that the General Court had not established the existence of such a causal link to the requisite legal standard. In particular, the General Court had failed to ascertain whether and to what extent, in the light of the facts of the case and if the EUIPO had made no errors, European Dynamics and others would have been awarded a better ranking in the cascade procedure.