Safran Aircraft Engines v Commission (Award of grants in the field of defence - EDF - Funding of development actions - Judgment) [2024] EUECJ T-617/22 (18 September 2024)

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( Award of grants in the field of defence – EDF – Funding of development actions – Call for proposals ‘EDF‑2021-ENERENV-D-PES: Alternative propulsion and energy systems for next generation air combat systems’ – Rejection of the applicant’s proposal – Obligation to state reasons – Principle of sound administration – Equal treatment – Legal certainty – Transparency – Manifest error of assessment )

Safran Aircraft Engines, established in Paris (France), represented by B. Hoorelbeke, F. Donnat and M. Perche, lawyers,

European Commission, represented by R. Tricot, T. Isacu de Groot and E. Stamate, acting as Agents,

composed of F. Schalin, President, I. Nõmm and G. Steinfatt (Rapporteur), Judges,

1 By its action based on Article 263 TFEU, the applicant, Safran Aircraft Engines, the coordinator of the ALPES consortium, seeks the annulment of the decision of the European Commission of 20 July 2022 (‘the contested decision’) rejecting the grant proposal for Project No 101074962 – ALPES, which it submitted in the context of the call for proposals ‘EDF‑2021-ENERENV-D-PES: Alternative propulsion and energy systems for next generation air combat systems’ (‘the PES call’) of the European Defence Fund (EDF).

Background to the dispute and events subsequent to the bringing of the action

2 The project proposal at issue in the present case was submitted in the context of the EDF, which is one of the new funding programmes of the European Union falling under the 2021-2027 Multiannual Financial Framework.

3 Grants under that programme are governed by the rules and procedures established in Regulation (EU) 2021/697 of the European Parliament and of the Council of 29 April 2021 establishing the [EDF] and repealing Regulation (EU) 2018/1092 (OJ 2021 L 170, p. 149) (‘the EDF Regulation’) and 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’).

4 Under Article 24 of the EDF Regulation, the EDF is to be implemented by means of annual work programmes, adopted by the Commission by means of implementing acts, which are published once a year and structured according to a certain number of categories of thematic and horizontal actions. The work programmes are to set out in detail the research topics and the categories of actions to be supported by the EDF.

5 On 30 June 2021, the Commission adopted the Implementing Decision on the financing of the EDF established by Regulation 2021/697 and the adoption of the work programme for 2021 (C(2021) 4910 final).

6 The topics and actions set out in the work programme were subsequently implemented through calls for proposals published on the EU ‘Funding & Tenders Portal’, which contain the legal framework and conditions of the calls for proposals.

7 On 2 July 2021, the Directorate-General for Defence Industry and Space, acting as the Commission’s competent authorising department (granting authority) for the management of the EDF, pre-published the EDF for 2021 calls for proposals, including the PES call, on the ‘Funding & Tenders Portal’ and on the EDF website. The closing date for the submission of proposals was scheduled for 9 December 2021.

8 The ALPES consortium, of which the applicant is the coordinator, brings together, in addition to that applicant, eight industry partners. It was created in order to submit a proposal within the framework of the PES call.

9 On 9 September 2021, the text of the PES call was corrected because, in two places in the initial version, its alphanumeric designation contained the capital letter ‘R’, rather than the capital letter ‘D’. On 10 September 2021, the EDF for 2021 calls for proposals were opened for submission on the ‘Funding & Tenders Portal’.

11 On 24 January 2022, the granting authority contacted the applicant to inform it of the absence of supporting documents and information concerning operational capacity.

12 By 3 February 2022, the applicant had supplied all the missing documents and information.

13 On 20 July 2022, the applicant was notified of the contested decision. This decision rejected the proposal in question on the ground that it had not reached the necessary minimum qualitative threshold. That decision was accompanied by an evaluation summary report (‘ESR’) setting out the comments made and the scores given by the evaluators.

14 On 4 August 2022, the applicant lodged a request for reassessment of its proposal, taking the view that there had been a procedural factual anomaly as regards award criteria 6, 7 and 8.

16 On 22 December 2022, the granting authority informed the applicant of the outcome of its request for reassessment and confirmed the initial evaluation result.

19 In support of its action, the applicant puts forward three pleas in law. The first plea alleges infringement of Articles 188 and 199 of the Financial Regulation and of Article 2(11), Article 3(2) and Article 10(1) of the EDF Regulation and a breach of the principles of transparency, equal treatment, legal certainty, sound administration and the duty of diligence. The second plea alleges infringement of Article 296 TFEU. By its third plea, the applicant argues that the Commission made various manifest errors of assessment in the evaluation of its proposal.

20 By its first plea, the applicant claims that the Commission infringed Articles 188 and 199 of the Financial Regulation and Article 2(11), Article 3(2) and Article 10(1) of the EDF Regulation and infringed the principles of transparency, equal treatment, legal certainty and sound administration and the duty of diligence. That plea is divided into two parts.

21 The applicant claims that the Commission infringed Article 2(11), Article 3(2) and Article 10(1) of the EDF Regulation and Articles 188 and 199 of the Financial Regulation and acted in breach of the principles of transparency, equal treatment, legal certainty and sound administration and the duty of diligence by taking the view that the PES call concerned a ‘development action’.

22 According to the applicant, the subject matter of the call for proposals was clearly a research action. The entire purpose of the PES call, as set out in Section 2.10.3 of the conditions governing the EDF for 2021 calls for proposals, was targeted primarily at research activities. The activities targeted by the PES call relate exclusively to studies of technology building blocks and therefore correspond to a very early stage of technical readiness. There are no technologies or solutions relating to the subject matter of the PES call, with the result that the latter cannot be characterised as a development action. A development action can only be carried out on the basis of clear specifications for the product or technology to be developed. In this case, however, no such specifications exist for the technologies targeted by the PES call.

23 Furthermore, the very wording of the PES call, which states that the evaluations ‘could lead to the development’, demonstrates that a development action was envisaged for the future. In addition, the Commission itself initially characterised the PES call as a research action. The fact that its characterisation was later changed, without the scope, targeted activities, functional requirements or expected impact being changed, demonstrates that the PES call still related to a research action and that all the requirements of that call for proposals corresponded to a research action. Accordingly, given the scope, subject matter and nature of the PES call, award criteria 7 and 8, which apply solely to development actions, were not applicable.

24 It follows that the PES call was totally misleading and ambiguous, since its content and scope were in direct contradiction with the characterisation given to it by the Commission. Because of the Commission’s incorrect characterisation of the PES call, the applicant had not been in a position to submit a proposal that responded to all the award criteria. At the very least, the alleged clerical error resulted in the applicant’s losing two months of preparation time for the submission of its proposal. The PES call therefore infringes Article 2(11), Article 3(2) and Article 10(1) of the EDF Regulation, as well as Article 188 of the Financial Regulation, and is in breach of the principles of transparency, equal treatment and legal certainty.

25 Due to the unclear scope of the PES call, a reasonable, well-informed applicant could not have understood the precise scope of the PES call. That situation results in a breach of the principle of transparency. Nor could the Commission have evaluated all proposals received on an equal basis, with the result that it infringed the principle of equal treatment.

27 Article 10(1) of the EDF Regulation provides that only actions implementing the objectives set out in Article 3 of the EDF Regulation are to be eligible for funding. Article 3 of the EDF Regulation defines the objectives of the EDF, the specific objectives, which are, under paragraph 2 thereof, to support, first, collaborative research that could significantly boost the performance of future capabilities throughout the European Union, aiming to maximise innovation and introduce new defence products and technologies, including disruptive technologies for defence, and aiming to make the most efficient use of defence research spending in the European Union (Article 3(2)(a) of the EDF Regulation) and, secondly, the collaborative development of defence products and technologies, thus contributing to the greater efficiency of defence spending within the European Union, achieving greater economies of scale, reducing the risk of unnecessary duplication and thereby fostering the market uptake of European defence products and technologies and reducing the fragmentation of defence products and technologies throughout the European Union, ultimately leading to an increase in the standardisation of defence systems and a greater interoperability between Member States’ capabilities (Article 3(2)(b) of the EDF Regulation).

28 In the first place, according to the applicant, the entire purpose of the PES call, set out in Section 2.10.3 of the conditions governing the EDF for 2021 calls for proposals, was targeted primarily at research activities. However, even assuming that that was the case, the action covered by the call for proposals at issue would be eligible under the EDF Regulation, under Article 10(1) and Article 3(2)(a) thereof. It follows that the applicant’s argument based on an infringement of those provisions is ineffective.

29 In the second place, the applicant claims that the Commission infringed Article 2(11) of the EDF Regulation by classifying the PES call as a call for a development action.

30 That provision states that research action means an action consisting primarily of research activities, in particular applied research and, where necessary, fundamental research, with the aim of acquiring new knowledge and with an exclusive focus on defence applications. Under Article 2(12) of the EDF Regulation, development action means an action consisting of defence-oriented activities primarily in the development phase, covering new defence products or technologies or the upgrading of existing ones, excluding the production or use of weapons.

31 According to the PES call, the proposals had to cover the activities referred to in Article 10(3)(c) of the EDF Regulation, without excluding possible upstream and downstream activities eligible for development actions. The studies covered by that call included the study and evaluation of a ground test platform, compatible with the evaluation and/or development of at least some listed technological building blocks, among which were included, in particular:

– improved energy storage technologies (to meet, for example, the specific needs of airborne directed-energy weapons);

32 The call for proposals stated that those evaluations could lead to the development of one or several propulsion and energy ground demonstrators.

33 Thus, the activities described in the call for proposals corresponded to the description of development actions set out in Article 2(12) of the EDF Regulation, under which a development action consists of defence-oriented activities primarily in the development phase, covering new defence products or technologies or the upgrading of existing ones, excluding the production or use of weapons. The call for proposals provided, in particular, that the study activities had to focus on the improvement of already existing technologies concerning, for example, energy production, energy storage and energy distribution, or on the improvement of existing products, such as, for example, propulsion components. The call for proposals even specified for some of those points the specific need which those improvements were to meet. It follows that the call for proposals did indeed cover development activities within the meaning of Article 2(12) of the EDF Regulation, with the result that the Commission did not infringe either Article 2(11) or Article 2(12) of that regulation by classifying the PES call as a development action.

34 In the third place, according to the applicant, the Commission infringed Article 188 of the Financial Regulation and acted in breach of the principles of equal treatment, transparency, legal certainty and sound administration, as well as the duty of diligence. The principles of equal treatment and transparency require the conditions of calls for proposals to be clear and unambiguous so that each bidder is on an equal footing and the proposals are evaluated on an equal basis. In that regard, the case-law on public procurement is transposable to the award of grants. Thus, the PES call should have clearly stated whether it concerned a research action or a development action. However, in the present case, the EDF work programme and the conditions governing calls for proposals relating to the EDF for 2021 classified the PES call as a development action, whereas the subject matter of the PES call clearly consisted of a research action. The PES call was therefore totally misleading and ambiguous since the content and scope of the PES call were in direct contradiction with the classification given by the Commission to the PES call. Due to the unclear scope of the PES call, a reasonable, well-informed applicant could not have understood the precise scope of the PES call and would therefore not have been able to respond correctly to the call for proposals. Nor could the Commission have evaluated all proposals received on an equal basis.

35 Article 8(1) of the EDF Regulation provides that the EDF is to be implemented under direct management in accordance with the Financial Regulation.

36 As is apparent from Article 188 of the Financial Regulation, the award of grants is to be subject inter alia to the principles of transparency and equal treatment, which presupposes that, having regard to the limited budget available to finance such grants, potential applicants for financial assistance will be treated equally as regards, first, the communication, in the call for proposals, of relevant information concerning the selection criteria for the projects to be submitted and, secondly, the comparative assessment of those projects culminating in their selection and the award of the grant. That provision is therefore an enunciation of the general principle of equality, the particular importance of which has been underlined in the neighbouring sector of public works contracts, in particular with regard to the duty of the contracting authority to ensure equality of opportunity for all the tenderers (see judgment of 15 April 2011, IPK International v Commission, T‑297/05, EU:T:2011:185, paragraph 122 and the case-law cited).

37 In the light of the fundamental nature of the principles of transparency and equal treatment, they apply mutatis mutandis to the procedure for awarding grants from the EU budget (see, to that effect, judgment of 15 April 2011, IPK International v Commission, T‑297/05, EU:T:2011:185, paragraph 123).

38 With regard to budgetary matters, the obligation of transparency, which is the corollary of the principle of equal treatment, is essentially intended to preclude any risk of favouritism or arbitrariness on the part of the budgetary authority. It implies that all the conditions and detailed rules of the award procedure must be drawn up in a clear, precise and unequivocal manner, inter alia, in the call for proposals. Accordingly, all the information relevant for the purpose of a sound understanding of the call for proposals must be made available as soon as possible to all the operators who may be interested in a procedure for awarding grants in order, first, to enable all reasonably well-informed and normally diligent applicants to understand their precise scope and to interpret them in the same manner and, secondly, to enable the budgetary authority actually to verify whether the proposed projects meet the selection and award criteria previously announced (see judgment of 15 April 2011, IPK International v Commission, T‑297/05, EU:T:2011:185, paragraph 124 and the case-law cited).

39 Therefore, any undermining of equality of opportunity and of the principle of transparency constitutes an irregularity invalidating the award procedure (see judgment of 15 April 2011, IPK International v Commission, T‑297/05, EU:T:2011:185, paragraph 125 and the case-law cited).

40 In the present case, it is true that, in the initial version of the PES call dated 2 July 2021, the designation of that call was vitiated by an error in so far as, on page 76 of the document setting out the calls for proposals, under Section 2.10, entitled ‘Call EDF‑2021-ENERENV-D: Energy efficiency and energy management’, the three calls listed included the letter ‘R’ rather than the letter ‘D’, including the call for proposals at issue, which had the alphanumeric designation EDF‑2021-ENERENV-R-PES. The same designation error appeared in the table shown on page 188 of that document, in which both the EDF‑2021-ENERENV call and its three topics included the letter ‘R’.

41 However, as the applicant also recognises, in essence, first, both on page 3 of that same document, on which the table of contents appeared, and on page 85 thereof, on which the detailed description of the PES call was found, the designation was correct in so far as it included the letter ‘D’, indicating that it was a development action. Secondly, the annex to Implementing Decision C(2021) 4910, which contains the work programme, clearly presents the PES call as a development action. That call is not only listed in the table of contents with the letter ‘D’, indicating that it is a development action, but it is also expressly described as a development action on page 14 of that annex. Under Section 3.7.1, entitled ‘EDF‑2021-ENERENV-D: Energy efficiency and energy management’, the clarification ‘Type of actions targeted: Development activities’ appears. Likewise, in the summary list of planned actions, the call for PES appears in the development actions column.

42 Thus, the fact that the letter ‘R’ appeared in the designation of the PES call constitutes a manifest clerical error which any reasonably well-informed and normally diligent applicant should have perceived, especially since there was a manifest contradiction on the same page 76 of the call where the group of calls, of which the PES call was part, bore the letter ‘D’, whereas the three individual calls, appearing four lines below, all bore the letter ‘R’. A normally diligent applicant would have asked the Commission to resolve that manifest contradiction, as the Commission pointed out at the hearing.

43 Furthermore, the Commission corrected the incorrect designation of the PES call, first, by means of a response to frequently asked questions, published on 24 August 2021 on the ‘Funding & Tenders Portal’, secondly, by correcting, on 9 September 2021, the text of the PES call and, thirdly, in the context of a presentation during the information day on calls for proposals relating to the EDF for 2021 of 15 September 2021, at which four members of the applicant were present. The presentation specifically drew attention to the fact that the latest version of the calls had been published on 9 September 2021 and that the incorrect designation of the call EDF‑2021-ENERENV had been corrected in that version. Moreover, it emerged from the presentation that both research and development actions could include the phases of knowledge integration, studies and design.

44 It follows that all reasonably well-informed and normally diligent applicants could become aware of the correction made before the opening of the call for proposals, understand the precise scope of the call and interpret it in the same way.

45 Thus, the Commission did not infringe the principles of equal treatment and transparency.

46 Since the Commission pointed out the error made in the initial designation of the call by publishing a corrected version of the call before the opening of that call for proposals, in the document answering frequently asked questions and in the context of the information day on calls for proposals for the EDF for 2021, the Commission did not infringe the principles of legal certainty, sound administration or the duty of diligence either.

47 In that regard, it is irrelevant at what precise moment the Commission became aware of the obvious error in the designation of the call at issue, given that it rectified it well before the opening of the call for proposals. It follows that there is no need to adopt any measure of inquiry seeking to have the Commission produce its communication with the tenderers who had drawn its attention to the error made.

48 Furthermore, as the Commission correctly maintains, the applicant provided a letter of intent stating that five Member States intended to purchase the final product or use the technology, in a coordinated manner, in accordance with recital 30 and Article 21(3)(a) of the EDF Regulation, which provide for additional selection criteria for development actions. In addition, that letter refers on several occasions to the development, including that of defence products and technologies, and the correct designation of the PES call, which normally should not have escaped the applicant’s attention. It follows that the applicant was fully aware that the PES call concerned a development action. That conclusion is supported by its request for reassessment of its proposal, in which it stated that the failure to respond to award criteria 7 and 8 was an omission and that it was grateful to the Commission for having nevertheless decided to assess those criteria.

49 In the fourth place, the applicant claims that the Commission infringed Article 199 of the Financial Regulation and acted in breach of the principles of transparency and equal treatment by considering that award criteria 7 and 8, provided for in Article 22 of the EDF Regulation, were applicable to the PES call for proposals.

50 According to the applicant, since the activities covered by the PES call were exclusively research activities, award criteria 7 and 8, which apply only to development actions, were not relevant and should not have been applied by the Commission. This results in the infringement of Article 199 of the Financial Regulation.

51 Article 199 of the Financial Regulation requires, in particular, award criteria to be such as to make it possible to assess the quality of the proposals submitted in the light of the set objectives and priorities and the expected results. Pursuant to Article 22 of the EDF Regulation, two additional criteria, which correspond to award criteria 7 and 8 set out in the call for proposals, apply to development actions. It follows that award criteria 7 and 8 may only be applied to development actions.

52 Since the Commission did not make any error in classifying the PES call as a development action (see paragraph 33 above), it did not infringe Article 199 of the Financial Regulation nor did it act in breach of the principles of transparency and equal treatment by including award criteria 7 and 8 in the PES call.

53 In the light of the foregoing considerations, the first part of the first plea in law must be rejected.

54 By the second part of its first plea, the applicant complains that the Commission acted in breach of the principles of transparency, equal treatment and sound administration by failing to inform it individually of the changes made to the conditions governing calls for proposals relating to the EDF for 2021.

55 According to the applicant, it follows from the principles of transparency, equal treatment and sound administration that the Commission should have informed every participant who had expressed an interest in a call for proposals individually of any fundamental change made to the call for proposals; that is all the more so in the present case, in which the change was made more than two months after the initial publication of the call documentation. Since the change that was made was a fundamental change and had consequences for the preparation and content of the proposal to be submitted, the Commission breached those principles by failing to inform the applicant even though the latter had registered itself on the ‘Funding & Tenders Portal’.

57 As was found in paragraph 38 above, the principles of transparency and equal treatment imply that all the conditions and detailed rules of the award procedure must be drawn up in a clear, precise and unequivocal manner, inter alia, in the call for proposals. Accordingly, all the information relevant for the purpose of a sound understanding of the call for proposals must be made available as soon as possible to all the operators who may be interested in a procedure for awarding grants in order, first, to enable all reasonably well-informed and normally diligent applicants to understand their precise scope and to interpret them in the same manner and, secondly, to enable the budgetary authority actually to verify whether the proposed projects meet the selection and award criteria previously announced (see judgment of 15 April 2011, IPK International v Commission, T‑297/05, EU:T:2011:185, paragraph 124 and the case-law cited).

58 As for the right to sound administration, that right is one of the guarantees conferred by the legal order of the European Union in administrative procedures and is enshrined in Article 41 of the Charter of Fundamental Rights of the European Union (‘the Charter’) (see judgment of 14 November 2017, Alfamicro v Commission, T‑831/14, not published, EU:T:2017:804, paragraph 165 and the case-law cited). Under Article 41 of the Charter, every person has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions, bodies, offices and agencies of the European Union. The case-law has made clear that it is for the administration, in accordance with that principle, to examine all the relevant aspects of a case with care and impartiality and gather all the factual and legal information necessary to exercise its discretion and ensure the proper conduct and effectiveness of proceedings which it sets in motion (see judgment of 9 February 2022, Elevolution – Engenharia v Commission, T‑652/19, not published, EU:T:2022:63, paragraph 59 and the case-law cited).

59 In the present case and as noted in paragraph 43 above, the Commission corrected the error made by means of a response to frequently asked questions, published on 24 August 2021 on the ‘Funding & Tenders Portal’ by correcting, on 9 September 2021, the text of the PES call and, in the context of a presentation during the information day on calls for proposals relating to the EDF for 2021 of 15 September 2021. That presentation specifically drew attention to the fact that the latest version of the calls had been published on 9 September 2021 and that the incorrect designation of the call EDF‑2021-ENERENV had been corrected in that version.

60 Thus, all the information relevant for the purpose of a sound understanding of the call for proposals at issue was made available as soon as possible to all the operators who may have had an interest in responding to it, in such a way as to enable all reasonably well-informed and normally diligent applicants to understand their precise scope and to interpret them in the same manner within the meaning of the case-law cited in paragraph 57 above. A reasonably well-informed and normally diligent applicant should be expected to consult the specific information channels relating to the calls of interest to it, in particular, but not exclusively, around the date of the opening of the call for proposals.

61 The applicant claims that the Commission was required to inform it individually as well as all the potential candidates. However, it does not claim that it was unable to be made aware of the clarifications that the Commission provided to the call and which were published in good time and by various means.

62 Furthermore, the applicant’s mere registration on the Commission’s ‘Funding & Tenders Portal’ alone did not allow the Commission to be aware of calls that might be of interest to it. Since, as the Commission explained at the hearing, only the submission of the proposal through that portal enables it to determine which applicants are concerned by a specific call, it cannot be required that each applicant, even a potential one, be informed individually.

63 It follows from the foregoing that, by not informing the applicant individually, the Commission did not act in breach of the principles of equal treatment, transparency and sound administration.

64 The second part must therefore also be rejected, with the result that the first plea must be rejected in its entirety.

The second plea in law, alleging infringement of the obligation to state reasons

65 By its second plea, the applicant argues that the Commission failed to state sufficiently clear reasons for the score awarded for its proposal, with the result that it failed to fulfil its obligation to state reasons under Article 296 TFEU.

66 The applicant maintains that the conditions governing the calls for proposals relating to the EDF for 2021 do not refer only to the award criteria assessed in the ESR, but also to the specific aspects to be taken into account for each of those criteria. Neither the contested decision nor the ESR nor the PES call enabled the applicant to understand how the Commission had evaluated its proposal in relation to each sub-criterion, that is to say, the relative importance of those aspects in the evaluation of the proposal and the way in which the negative comments relating to those aspects led to the overall score given for the award criterion in question. Since it is impossible to determine which negative comment led to which deduction of points, if any, the ESR does not enable it to understand the score obtained or the General Court to review the correctness of the Commission’s evaluation and the score of the applicant’s proposal. Consequently, the insufficiently clear statement of reasons infringes Article 47 of the Charter, in that it deprives the applicant of effective judicial review.

67 Furthermore, according to the applicant, the letter of reply explaining the outcome of the evaluation review, which the Commission provided on 22 December 2022, cannot be used to supplement the statement of reasons set out in the contested decision and in the ESR.

68 Lastly, if it is the case that the ESR is based on a consolidation of the different evaluations made by each evaluator separately, the applicant requests that the Commission produce the documentation relating to those individual evaluations, so that it may assess whether those evaluations support the conclusions in the ESR. Should the Commission fail to produce that documentation, the applicant requests that the Court order the Commission to produce that documentation pursuant to a measure of inquiry under Article 91(b) of the Rules of Procedure of the General Court.

70 The second paragraph of Article 296 TFEU provides that legal acts are to state the reasons on which they are based.

71 The statement of reasons required by the second paragraph of Article 296 TFEU must be appropriate to the measure at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in such a way as to enable the persons concerned to ascertain the reasons for it and to enable the competent court to exercise its power of review. The requirements to be satisfied by the statement of reasons depend on 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. 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 meets the requirements of Article 296 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 (see judgment of 1 July 2008, Chronopost and La Poste v UFEX and Others, C‑341/06 P and C‑342/06 P, EU:C:2008:375, paragraph 88 and the case-law cited; judgment of 9 February 2022, Elevolution – Engenharia v Commission, T‑652/19, not published, EU:T:2022:63, paragraph 46).

72 For public procurement, it follows from the case-law that the contracting authority must indicate, in the contract notice or the specifications, the applicable award criteria, any sub-criteria as well as their relative weighting (see judgment of 6 October 2021, Global Translation Solutions v Commission, T‑404/20, not published, EU:T:2021:654, paragraphs 80 and 82 and the case-law cited). There is no requirement that a specific weight be attached to every negative or positive comment in the evaluation. That being said, in a situation where the procurement documents contain specific quantified weightings attached to criteria or sub-criteria, the principle of transparency requires a quantified evaluation to be given in respect of those criteria or sub-criteria (judgment of 3 May 2018, EUIPO v European Dynamics Luxembourg and Others, C‑376/16 P, EU:C:2018:299, paragraph 63). Those principles are applicable mutatis mutandis also to the related area of the award of grants.

73 In the present case, the reasoning for the contested decision must be assessed in the light of the criteria specified in the conditions governing calls for proposals relating to the EDF for 2021 of 26 November 2021.

74 First, by the contested decision, the Commission indicated to the applicant that its proposal had not been accepted because it had not reached the minimum threshold required.

75 Secondly, the contested decision was accompanied by the ESR, from which it is apparent that the eight applicable criteria had been weighted in accordance with the table set out on page 202 of the conditions governing calls for proposals relating to the EDF for 2021 of 26 November 2021.

76 The ESR also indicated the evaluators’ comments and the scores awarded for each of the criteria.

77 The applicant states that it is not able to determine the respective weighing of the different aspects of each criterion. The evaluation cannot be understood by it since, in the ESR, the comments are not classified by sub-criterion, but only by award criterion. It is also impossible for it to understand which negative comment, if any, may have led to a deduction of points and how the negative comments relating to certain aspects led to the overall score for the award criterion in question. The statement of reasons should correlate specific negative comments with point deductions, which had an impact on the total score.

78 In that regard, it must be stated that the comments contained in the ESR specify what, according to the evaluators, were the main shortcomings of the applicant’s proposal.

79 According to the conditions governing calls for proposals relating to the EDF for 2021, the aspects to be taken into account for the evaluation of proposals with regard to award criterion 1, entitled ‘Contribution to excellence or potential of disruption in the defence domain, in particular by showing that the expected results of the proposed action present significant advantages over existing defence products or technologies’, were in particular the soundness of the proposed approach for the solution, including the methodology, the compliance of the proposal with the expected impact of the topic, as set out in the call for proposals, and the extent to which the objective and expected outcome of the action differed from and represented an advantage at strategic, technological or defence operational level over existing defence products or technologies, or had a potential for disruption in the defence domain.

80 The ESR states, in respect of award criterion 1, that the methodology is not credible, that the proposal does not significantly address the requirement for integration of the various technologies and components in one system and that it does not sufficiently describe how that integration action would impact the performance of the larger system. Furthermore, the presentation of the scalable concept is not adequately supported by evidence or indicators to allow an understanding of the expected impact of the proposed solution and its contribution to the European aerial superiority. That last finding is followed by a specific example where the evaluators considered that the steps necessary to achieve the desired objective were not clearly described. Lastly, reviewers criticised the fact that the proposal’s disruptive approach was not strongly justified.

81 It is clear from those comments that the evaluators considered that the proposal contained shortcomings relating to the relevant aspects for the evaluation of award criterion 1 referred to in paragraph 79 above. By specifying that those were major shortcomings, the evaluation also understandably justifies awarding the applicant’s proposal only 3 points out of the maximum 5 points that could be awarded with regard to that criterion.

82 Since it was not intended to assign scores individually to the different aspects of each award criterion in order to then calculate an average score, the Commission cannot be criticised for not having provided clarification in that regard. On the contrary, the documentation relating to the call for proposals expressly stated, on page 201 of the conditions governing calls for proposals relating to the EDF for 2021 of 26 November 2021, that the evaluation scores would be awarded for the criteria, and not for the different aspects listed after each criterion. By virtue of the principle of equal treatment of tenderers, the Commission was required to respect the evaluation principles defined in advance and could therefore not have awarded individual scores to each aspect making up the award criteria.

83 As regards award criterion 2, entitled ‘Contribution to the innovation and technological development of the European defence industry’, the call for proposals specified that the relevant aspects were, in particular, the extent to which the proposal demonstrated innovation potential and contained groundbreaking or novel concepts and approaches, the integration of existing knowledge and previous or ongoing research and development activities and the extent to which the innovations or technologies developed under that proposal could spin off to other defence applications and products.

84 The ESR stated that there was insufficient information related to the state-of-the-art and current practices of engaged technological bricks. The evaluation alleges, whilst mentioning specific examples, that the proposal did not provide extensive information on possible groundbreaking concepts for new products, that the baseline maturity of the engaged technological bricks was not adequately identified and that the progression of the development until they reached the envisioned maturity level, throughout the project, was not sufficiently supported by project activities. The evaluators specified, however, that that represented a small number of shortcomings not severely threatening the innovation potential of the proposal, with the result that the applicant’s proposal obtained 4 of the 5 points provided for in respect of that criterion.

85 As regards award criterion 3, entitled ‘Contribution to the competitiveness of the European defence industry’, the call for proposals specified that the relevant aspects included, inter alia, the envisaged competitive advantage of the product/technology/solution vis-à-vis existing or planned products/technologies/solutions across the European Union and beyond, the potential to accelerate the growth of companies throughout the European Union, based on an analysis of the Union’s internal market and the global market place, and the strength of the IP strategy associated with the solution to support the competitiveness and growth of the company.

86 In that regard, it is clear from the comments contained in the ESR that the applicant’s proposal did not sufficiently justify the competitiveness and growth potential and that the market analysis for the different technologies and for the proposed solution was insufficient. The evaluation provides examples in that regard. It further alleges that the proposal, first, contained limited indication of the expected volumes of sales within and outside the EU market and, secondly, provided insufficient information on the advantages of the proposed developments with respect to other planned products in Europe and beyond. The evaluation specifies that those were deemed major shortcomings.

87 Furthermore, the evaluation clearly states that the proposal provides an inadequate description of the IP strategy and fails significantly to present how it intends to manage the IP produced and how that would impact on the competitiveness of the consortium partners. It specifies that that was a weakness of the proposal.

88 Those criticisms, made in the ESR, accompanied by details as to the importance of the shortcomings identified, were such as to enable the applicant to understand the reasons why it had only been awarded 2.5 out of the maximum 5 points provided for that criterion.

89 Under award criterion 4, entitled ‘Contribution to the autonomy of the EDTIB’, the call for proposals specifies that the aspects that would be taken into account included the extent to which the proposed action would contribute to the autonomy of the European defence technological and industrial base (EDTIB) by increasing the European Union’s industrial and technological non-dependency on third countries, the beneficial impact that the proposed activities would have on the strength of the European security of supply and the extent to which the project outcome would contribute to the defence capability priorities agreed by Member States within the framework of the Common Foreign and Security Policy (CFSP), and, where appropriate, the extent to which the proposal addressed regional or international priorities when they serve the security and defence interests of the European Union as determined under the CFSP.

90 The ESR identifies a major shortcoming in the applicant’s proposal in that regard, namely the lack of details on how it would contribute to the defence capability priorities within the CFSP and how it would address regional or international priorities when they served the security and defence interests of the European Union as set under the CFSP.

91 As for award criteria 1, 2 and 3, the shortcomings described in the comments contained in the ESR can be linked to the aspects to be taken into account for the evaluation of proposals in respect of that criterion and sufficiently explain the reasons why the proposal did not obtain more than 3.5 out of the maximum 5 points provided for that criterion.

92 As regards award criterion 5, entitled ‘Contribution to the creation of new cross-border cooperation between legal entities established in Member States or associated countries’, the call for proposals states that the following aspects will be taken into account: first, the extent to which the proposed action will create new cross-border cooperation between legal entities established in Member States or associated countries, in particular small and medium-sized enterprises (SMEs) and mid-caps, especially compared to former activities in the technological area of the call and taking into account the specificity of the market; secondly, the planned future cross-border cooperation between legal entities established in Member States or associated countries and cooperation opportunities created by the proposed activities; and, thirdly, the extent to which SMEs and mid-caps which cooperate cross-border participate substantially.

93 The ESR states that the action plan to manage the future cooperation of the consortium members, as well as the future opportunities created within the framework of the proposal, was not sufficiently presented. The proposal was ambiguous concerning the extent of new cross-border cooperation, in particular regarding SMEs and mid-caps engagement, as envisaged on the basis of their former activities. Those shortcomings were, however, not considered to be major, with the result that the applicant’s proposal was awarded 4.5 out of the maximum 5 points provided for that criterion. Those criticisms explained in the ESR make it possible to understand the reasons why the proposal did not obtain the maximum number of points.

94 As regards award criterion 6, entitled ‘Quality and efficiency of the carrying out [of] the action’, the call for proposals outlines, in particular, the following aspects as relevant: first, the effectiveness and practicality of the structure of the work plan, including the timing and interrelationship of the different work packages and their components; secondly, the usefulness and comprehensiveness of the milestones and deliverables of the project, as well as the coherence and clarity of the criteria for reaching the milestones, which should be measurable, realistic and achievable within the proposed length of time; and, thirdly, the appropriateness of the management structures and procedures, including the decision-making mechanisms, to the complexity and scale of the project, as well as the quality of the risk management, including identification and assessment of the project-specific critical risks which could compromise the achievement of the stated project’s objectives and details of proposed risk treatments.

95 In that regard, the evaluators stated in the ESR that sufficient details were not provided on how the consortium intended to manage technical conflicts at the level of deliverables, as there was no clear design authority identified. Moreover, there was no adequate information on the risk management process itself. Additionally, the interrelationship between the different work packages and activities was not adequately defined. For example, it was not clearly set out how the outputs of some work packages were contributing to the development of an integrated product, which was a major shortcoming.

96 The ESR further states that the proposal provided limited information on certain activities, their expected outputs and the role of each consortium member involved. At the same time, the resources were underestimated given the significance of some activities. The means of verification described for reaching the milestones were in certain cases general and not measurable. In addition, the due dates of certain milestones were not adequately aligned with the delivery of relevant deliverables or completion of activities in the project.

98 That fairly detailed description of the characteristics of the proposal, perceived as deficient, makes it possible, first, to link the criticisms made to the aspects defined as relevant at the time of the opening of the call for proposals and, secondly, to understand why the applicant’s proposal did not obtain more than 3 of the maximum 5 points provided for that criterion.

99 As regards award criterion 7, entitled ‘Contribution to increasing efficiency across the life cycle of defence products and technologies’, the ESR notes that the proposal failed to provide information in the dedicated section and that the missing information prevented an assessment of that criterion. That explanation makes it possible to understand the reasons why the applicant’s proposal did not obtain points with regard to that criterion.

100 As regards award criterion 8, entitled ‘Contribution to the further integration of the European defence industry throughout the Union’, according to the call for proposals, the aspects to be taken into account were, first, the number of Member States that have committed jointly to use, own or maintain the final product or technology in a coordinated way, as demonstrated in the supporting documents, and, secondly, the contribution of the abovementioned commitments by Member States to the integration of the European defence market throughout the European Union and the contribution of the proposal to the increase in cooperation potential between Member States.

101 In the ESR, the evaluators noted, as a positive aspect, that five Member States had committed jointly to use, own or maintain the final product or technology in a coordinated way. However, they found that the proposal failed to respond to Section 7.8 and did not provide details on how it would contribute to the abovementioned commitments by Member States to the integration of the European defence market throughout the European Union nor on the contribution of the proposal to the increase in cooperation potential between Member States. According to the evaluators, that was a major shortcoming.

102 This explanation makes it possible to understand the reasons why the applicant’s proposal did not obtain more than 3 out of the maximum 5 points provided for award criterion 8, especially since it is common ground that the applicant did not expressly respond to that criterion in its proposal.

103 Since, for each award criterion, the comments highlighted the weaknesses and shortcomings of the proposal, which had led to a reduction of points, the ESR made it possible for the applicant to know in sufficient detail the reasons for the rejection of its proposal. Given that the Commission did not use a mathematical calculation system for the allocation of points within each award criterion, but that that allocation of points resulted from a qualitative assessment of the applicant’s proposal, the Commission cannot be criticised for not having communicated a more precise weighting of the different aspects to be taken into account.

104 It follows from the foregoing considerations that the ESR accompanying the contested decision contained a statement of reasons which complied with the obligation to state reasons laid down by Article 296 TFEU, without there being any need to decide whether the Commission’s letter responding to the applicant’s request for reassessment (see paragraph 16 above) could have supplemented that statement of reasons.

105 In any event, through that reassessment, the Commission did not put forward new grounds, but merely set out, in response to the applicant’s request, a more detailed explanation of the grounds already mentioned by the ESR.

106 As regards the request to order the Commission to produce the documentation relating to the individual assessments (paragraph 68 above), that request must be rejected as it is not relevant to the resolution of the present dispute. First, it is the ESR that formally clarifies the rejection of the proposal set out in the contested decision. Secondly, the Commission clarified that the ESR was a consensus report drawn up jointly by all the evaluators and not a consolidation of the various evaluations carried out separately by each evaluator, the latter therefore having a purely preparatory character.

108 By its third plea, the applicant relies on four manifest errors of assessment in the evaluation of its proposal.

109 It is apparent from settled case-law that, in the area of grant of financial assistance, the Commission enjoys a wide discretion as to whether the conditions for the grant of such aid are fulfilled (see judgments of 14 February 2008, Provincia di Imperia v Commission, T‑351/05, EU:T:2008:40, paragraph 86 and the case-law cited, and of 14 February 2019, Poland v Commission, T‑366/17, not published, EU:T:2019:90, paragraph 35 and the case-law cited).

110 It also follows from settled case-law that, as regards the comparative evaluation of various projects in complex scientific and technical fields, judicial review is limited to verifying whether there has been a breach of procedural rules and of the obligation to state reasons, material inaccuracy of the facts, a manifest error of assessment or misuse of powers (see judgment of 15 October 2009, Enviro Tech (Europe), C‑425/08, EU:C:2009:635, paragraph 47 and the case-law cited; judgments of 15 September 2016, AEDEC v Commission, T‑91/15, not published, EU:T:2016:477, paragraph 68, and of 29 March 2023, Universität Bremen v REA, T‑660/19 RENV, not published, EU:T:2023:170, paragraph 34).

111 According to the case-law, in order to establish that an institution has made a manifest error in assessing complex facts such as to justify the annulment of that act, the evidence adduced by the applicant must be sufficient to make the factual assessments used in the act implausible. Subject to that review of plausibility, it is not the Court’s role to substitute its assessment of complex facts for that made by the institution, which adopted the decision. Consequently, a plea alleging the existence of a manifest error of assessment must be rejected if, despite the evidence adduced by the applicant, the contested assessment may still be accepted as true or valid (see judgment of 25 November 2020, BMC v Clean Sky 2 Joint Undertaking, T‑71/19, not published, EU:T:2020:567, paragraph 76 and the case-law cited; judgment of 29 March 2023, Universität Bremen v REA, T‑660/19 RENV, not published, EU:T:2023:170, paragraph 36).

112 Thus, the only situation in which the assessments, which form a decision taken on the basis of complex facts, are capable of being examined by the Court is that in which the applicant alleges that the factual assessments at issue are implausible (judgments of 25 November 2020, BMC v Clean Sky 2 Joint Undertaking, T‑71/19, not published, EU:T:2020:567, paragraph 77, and of 29 March 2023, Universität Bremen v REA, T‑660/19 RENV, not published, EU:T:2023:170, paragraph 37).

113 To that end, it is up to the applicant to provide the factual or legal elements capable of establishing that the Commission’s assessment is vitiated by such a manifest error of assessment (see judgment of 14 February 2019, Poland v Commission, T‑366/17, not published, EU:T:2019:90, paragraph 38 and the case-law cited; judgment of 16 December 2020, Balti Gaas v Commission and INEA, T‑236/17 and T‑596/17, not published, EU:T:2020:612, paragraph 151; see also, to that effect, judgment of 19 May 1994, Consorzio gruppo di azione locale ‘Murgia Messapica’ v Commission, T‑465/93, EU:T:1994:56, paragraph 47). Furthermore, that review implies that the EU judicature determines whether the evidence provided by the applicant is sufficient to render the assessments of the complex facts contained in the contested decision implausible (see judgment of 16 December 2020, Balti Gaas v Commission and INEA, T‑236/17 and T‑596/17, not published, EU:T:2020:612, paragraph 151 and the case-law cited).

114 It is in that context that the Court is called upon, in the present case, to determine whether the reasons for rejecting the ALPES project set out in the contested decision and in the ESR contain, as the applicant claims, manifest errors of assessment.

115 The applicant disputes the evaluation of award criterion 6 relating to the quality and efficiency of the carrying out of the action by the Commission. In the ESR, the Commission had noted, in particular, that ‘there [were] not sufficient details provided on how the consortium intend[ed] to manage technical conflicts at the level of deliverables, as there [was] no clear design authority identified’. The applicant maintains that that comment is manifestly wrong. The proposal clearly stated that the applicant, as technical coordinator of the proposal, would designate a chief engineer who would organise and lead technical meetings between the various partners.

116 Furthermore, it argues that, because of the clear division of tasks among the various consortium partners, the likelihood of disputes arising with regard to project outputs and deliverables was minimised, and the chief engineer designated by the applicant was sufficient to deal adequately with any issues that might arise in that context. The clear division of tasks is evident from the work organisation chart submitted within the proposal, according to which only three work packages require the involvement of more than one consortium partner.

117 In addition, the applicant argues that the PES call was solely aimed at the performance of research tasks. While the need for a separate design authority is justified in the case of the development of a specific product or solution, it is not necessary in the case of the performance of research tasks.

119 Award criterion 6 refers to the quality and efficiency of the carrying out of the action and also concerns the appropriateness of the management structures and procedures, including the decision-making mechanisms, to the complexity and scale of the project.

120 First, it is apparent from the applicant’s own comments, as well as from Section 7.6 of its proposal, that it did not designate an authority specifically responsible for the design, but that it considered that, due to the structure of the consortium, it was enough to appoint a chief engineer responsible for coordination in addition to technical management for its entity. It follows that the evaluators’ finding is correct.

121 Secondly, it is not for the Court to decide whether, despite the structure of the consortium, the designation of an authority responsible for the design was important and, if so, to what extent. Those are complex assessments for which the Commission enjoys discretion.

122 Thirdly, the applicant’s argument that the need for an authority responsible for the design was limited (see paragraph 116 above), assuming it is correct, does not render implausible the evaluators’ assessment that the absence of such an authority constitutes a shortcoming of the project. Even if that necessity was limited, the fact remains that it constituted an aspect to be taken into account in the evaluation of award criterion 6.

123 Furthermore, as the Commission explained and as is apparent from the ESR, the evaluation of the applicant’s proposal as regards award criterion 6 identified several other shortcomings classified as major or important. According to the Commission, those shortcomings, on their own, would have resulted in the same score. In particular, the evaluators criticised the fact that the interrelationship between the various work packages and activities was not adequately defined and noted that it was not clearly set out how the outcomes of some work packages would contribute to the development of an integrated product, which was characterised as a major shortcoming. The applicant has not challenged that evaluation.

124 It follows that the applicant’s arguments do not render the assessment made in the ESR implausible.

125 The applicant considers that the Commission made a manifest error by penalising its proposal twice for the same reason, namely a failure to provide clear quantitative metrics for assessing the expected impact or output of the work packages, namely, in connection with award criteria 1 and 6. This results in a breach of both the principle of equal treatment and the principle of transparency, in so far as it is unclear whether other proposals were also penalised twice for the same point.

126 In the event that the Commission argues that it did not deduct points twice for the same shortcoming, there would be a clear case of failure to state reasons and a breach of the principle of transparency. If the same negative comments are made twice in connection with different award criteria, either there is a case of double penalisation or the evaluators’ comments do not correspond to the score awarded.

128 In the ESR, the evaluators found, as regards award criterion 1, that ‘the presentation of a scalable concept that [would] allow for optimum performance, low maintenance/costs/noise/environmental impact, a paradigm shift, etc., [was] not adequately supported with evidence or indicators to allow the understanding of the expected impact of the proposed solution and its contribution to the European aerial superiority’. That criticism is relevant in the context of that award criterion which aims to evaluate the contribution to excellence or potential for disruption in the defence domain.

129 In the context of award criterion 6, relating to the quality and efficiency of the carrying out of the action, the evaluators observed that the proposal provided limited information on some work packages, their expected outputs and the role of each consortium member involved. It cannot be considered that that criticism is not relevant for the evaluation of the proposal with regard to that award criterion.

130 It is apparent from the comparison of award criteria 1 and 6 that award criterion 1 covers the impact of the entire proposed solution and its contribution to defence capabilities whereas the objective of award criterion 6 is to evaluate the contribution of each work package to the development of the proposed solution. That difference is also reflected in the evaluations of those two criteria made in the ESR. The criticism in the context of the evaluation of the proposal with regard to award criterion 1 relates to the fact that that proposal does not clearly highlight and does not support with evidence the expected impact of the entire proposed solution and its contribution to defence development, whereas, under award criterion 6, the evaluators criticised the fact that the contribution of some work packages to the completion of the project was not clearly evident from the proposal.

131 It follows that the evaluators did not describe the same shortcoming in the context of both award criteria, but that their criticism is actually at two different levels, namely at the level of the evaluation of the entire solution and at the level of the contributions of the work packages to that solution. Thus, the Commission did not penalise the applicant’s proposal twice for the same aspect.

132 Therefore, the applicant’s argument that the Commission made a manifest error of assessment and acted in breach of the principles of equal treatment and transparency by penalising the applicant’s proposal twice on the same aspect cannot succeed.

The third manifest error of assessment as regards the evaluation of award criterion 7

133 As regards the third manifest error, the applicant argues, in the alternative, in the event that the General Court were to dismiss the second part of the first plea as unfounded, that the Commission clearly wrongly considered that the elements relating to criterion 7, which were contained in its proposal, were not sufficiently clear and precise to enable the Commission to evaluate its proposal by reference to that award criterion.

134 The applicant acknowledges that it did not provide a specific response for award criterion 7. It nevertheless submits that the Commission should have assessed, as it did for award criterion 8, the elements set out in its proposal, although they were found in different parts thereof. Alternatively, the Commission should, at least, have asked the applicant to clarify where it could have found in its proposal the elements enabling it to evaluate that award criterion. Such a course of action would not have been contrary to the principle of equal treatment, because it would merely have enabled the applicant to group the elements falling under the relevant award criterion in question, already present in its proposal, without changing its content or substance.

135 According to the applicant, its proposal did address the topics evaluated by reference to award criterion 7 and responded to that criterion, at least in part. In its response to award criterion 6, it provided relevant and sufficient information such that its proposal’s contribution to life cycle efficiency could be evaluated. In fact, the proposal clearly explained how it would contribute effectively throughout the life cycle of future products, by reducing their weight, cost, fuel consumption, observability and environmental footprint. The proposal also explained how it would improve the durability, efficiency, availability, quality, maintainability, strength and resilience of the products in conflict conditions. Since all that information may be found in the response to the same award criterion, it was not so dispersed as to preclude an assessment.

137 In that regard, first, as stated by the Commission, the score 0 out of 5 provided for in the evaluation grid corresponds to a situation where the proposal does not meet the criterion or cannot be evaluated due to missing or incomplete information. It is common ground that, in the applicant’s proposal, the fields reserved for the assessment of award criteria 7 and 8 remained empty. Since the applicant’s proposal did not respond to award criterion 7 in the section provided for that purpose, the essential and relevant information for that criterion was also not clearly apparent from its proposal.

138 Furthermore, in its response to award criterion 6, the applicant does not address the topics it relies on (see paragraph 135 above). Those topics appear to be on pages 5 and 6 of its proposal. The Commission cannot be criticised for not having checked, on its own initiative, page by page, whether information which could support award criterion 7 was to be found elsewhere in the proposal.

139 Even though the applicant stated, on pages 5 and 6 of its proposal, as part of the general presentation of the project, that its proposal will contain ‘early considerations of robustness, reliability and maintainability of the power and energy systems’ and that it also committed to carrying out a ‘control of the overall acquisition costs throughout the programme’ and a ‘demonstration of all these advanced technologies on [a] ground test platform’, as the applicant claims, the fact remains that those elements do not provide a specific response to award criterion 7, which was more specifically to demonstrate the contribution to improving the effectiveness throughout the life cycle of defence products and technologies compared to existing solutions, including cost-effectiveness and the potential for synergies in the acquisition, maintenance and disposal processes. It follows that, even if those elements were linked to the requirements of award criterion 7, the assessment of the evaluation committee that the applicant’s proposal did not provide qualitative or quantitative information in the section provided for and that the missing information prevents the evaluation of the criterion is not thereby rendered implausible.

140 Furthermore, an average, normally informed and diligent applicant can be expected to respond exhaustively to all the award criteria. It follows that the fact that, in cases such as the present one, the Commission penalised the absence of certain information by corresponding specific deductions must be regarded as a consequence of the principle of equal treatment, with the result that proposals which meet all the criteria will not be disadvantaged in comparison with those which present their data in a disorderly and incomplete manner.

141 Secondly, under the first paragraph of Article 151 of the Financial Regulation, the authorising officer responsible may correct obvious clerical errors in application documents. Under the second paragraph of that article, where a participant fails to submit evidence or to make statements, the authorising officer responsible is to ask the participant to provide the missing information or to clarify supporting documents. The third paragraph of Article 151 of that regulation provides that such information, clarification or confirmation is not substantially to change application documents.

142 In the present case, the applicant had submitted a proposal which explicitly did not address award criteria 7 and 8. If, in such a situation, the Commission had asked the applicant to identify the elements of its proposal which were, in its view, relevant as regards award criterion 7, the applicant would have had the opportunity to supplement its proposal by means of a statement specifying where the relevant information was to be found. As the Commission maintains, that addition would have substantially amended the applicant’s proposal even if the applicant had merely indicated the passages relevant to that criterion. As a matter of fact, that indication would have transformed a proposal which did not address award criterion 7 into a proposal submitting certain clearly identified elements to the assessment of the evaluation committee with regard to that criterion (see, to that effect and by analogy, judgment of 6 October 2021, Global Translation Solutions v Parliament, T‑7/20, not published, EU:T:2021:649, paragraphs 61 to 63, and order of 28 February 2023, Telefónica de España v Commission, T‑170/22 R-RENV, not published, EU:T:2023:89, paragraphs 76 and 77).

143 In the interest of respecting the principles of transparency and of equal treatment, the possibility of requesting clarifications must be interpreted strictly. Furthermore, it is apparent from the very wording of the third paragraph of Article 151 of the Financial Regulation that requests for clarification must be limited to the cases set out in the first two paragraphs of that article. The third paragraph of Article 151 of the Financial Regulation states that ‘such’ clarification is not substantially to change the application documents. In the present case, it was neither a question of correcting obvious clerical errors, a situation referred to in the first paragraph, nor a question of providing missing evidence or statements, a situation referred to in the second paragraph of that article.

144 Consequently, the Commission did not make a manifest error of assessment in not awarding the applicant’s proposal any points of the maximum 5 points provided for under award criterion 7.

145 As regards the fourth manifest error, which is also raised in the alternative, in the event that the second part of the first plea is dismissed, the applicant argues, in essence, that the Commission failed to take account of relevant information relating to award criterion 8.

146 According to the applicant, it is apparent from the first comment in the ESR as regards the evaluation against award criterion 8 that the Commission took into account the letter of intent, along with the initial harmonised defence capability requirements (‘the ICRs’) in its evaluation against that criterion. It should, therefore, have also taken into account the information contained in those documents, which were clearly relevant to the assessment against the second sub-criterion of award criterion 8.

148 Award criterion 8 seeks to evaluate the contribution to the further integration of the European defence industry throughout the European Union through a demonstration by the recipients that Member States have undertaken jointly to use, own or maintain the final product or technology in a coordinated way.

149 In the ESR, the evaluators found that the supporting documents, including the letter of intent and the ICRs signed by the participating Member States, demonstrated that five Member States had committed jointly to use, own or maintain the final product or technology in a coordinated way, which was considered positive. However, the applicant’s proposal had a major shortcoming since it failed specifically to respond to Section 7.8 and did not provide details on how it would contribute to the abovementioned commitments by Member States to the integration of the European defence market throughout the European Union and on the contribution of the proposal to the increase in cooperation potential between Member States. The evaluation committee awarded the proposal only 3 out of the maximum 5 points for that criterion.

150 It follows that the evaluation committee took into account the content of the letter of intent and the ICRs. However, it concluded that the mere submission of those documents, without the applicant’s proposal expressly responding to award criterion 8 by providing more details, did not justify the award of more than 3 points out of 5. That latter assessment is not rendered implausible by the applicant’s arguments.

151 In any event, if the evaluation committee had, even in the absence of any indication in the proposal under award criterion 8, been able to identify the information necessary for part of that criterion, it cannot be criticised for not having investigated in addition on its own initiative what information could possibly support the other part of this criterion.

153 It follows from the foregoing that the third plea in law must be rejected and that the action must therefore be dismissed in its entirety.

154 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.

155 Since the applicant has been unsuccessful, it must be ordered to bear its own costs and to pay those incurred by the Commission, in accordance with the form of order sought by the Commission.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Safran Aircraft Engines v Commission (Award of grants in the field of defence - EDF - Funding of development actions - Judgment) [2024] EUECJ T-617/22 (18 September 2024) URL: http://www.bailii.org/eu/cases/EUECJ/2024/T61722.html Cite as: [2024] EUECJ T-617/22, ECLI:EU:T:2024:629, EU:T:2024:629

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