In its Judgment of 24 April 2013 in case T‑32/08 Evropaïki Dynamiki v European Commission (Environment for Young Europeans), the General Court addressed a submission by (the ever more creative) Evropaïki Dynamiki whereby it was argued that the lack of a (pre-judicial) administrative appeal against the public procurement decisions of the EU Institutions required an extension of the scope of the judicial review conducted by the EU Courts.
According to Evropaïki Dynamiki, the procedure for the award of public contracts by the EU Institutions is different from the legislation applicable to the Member States, which provides for non-judicial remedies, thus reinforcing the principles of transparency and equal treatment between tenderers. And, consequently, the General Court should take account of the incomplete nature of the procedure for the award of public contracts by the EU Institutions by carrying out a thorough review of the assessments of the evaluation committee--since, otherwise, a restricted review, limited to declaring invalid manifest errors of assessment, diminishes the possibility of a detailed examination of the substance of the contested decision.
The GC clearly dismissed Evropaïki Dynamiki's contention and declared that:
The fact that the legislature did not establish an administrative appeal procedure, in the context of the procedure for the award of public contracts by the institutions of the European Union, cannot have any effect on the scope of the review carried out by the Courts of the European Union [which must be 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]. The existence or absence of such an appeal procedure is irrelevant to defining the scope of the Court’s review, since that review is different – both in its nature and the safeguards it presents – from an administrative appeal procedure (T-32/08 at 30).
I agree with the general principle that the existence or not of a prior administrative appeal does not alter the scope of judicial review, but I do not share the GC's (almost) obiter dictum that judicial review is that different from an administrative appeal procedure, at least as the substantive review tests go. I tend to disagree particularly because, even within administrative appeals, challenges against the assessments of the evaluation committees rarely imply a second assessment by a different team or by an independent adjudicator and, consequently, all public procurement litigation tends to be bound to the initial evaluation carried out by the evaluation committees.
Moreover, (administrative) judges are not in a good position to directly carry out technical assessments (afresh) and they must, by necessity, defer (at least to some extent) to the technical discretion of the evaluation committee / contracting authority--unless they can identify factual mistakes or manifest errors of assessment, in which case they tend to strike out the administrative decision, rather than substituting the incorrect technical assessment with their own. Courts cannot really use a finer sieve to separate gold from rocks. And that is why, even within administrative appeals systems, roughly the same standards of (gross) misrepresentation of the facts or the extraction of unsound conclusions / assessments are applied.
Overall, in my opinion, the GC Judgment should be welcome and not seen as an attempt to duck its review responsibilities, nor as a source of defencelessness for tenderers for contracts of the EU Institutions. I think that few doubts can seriously be harboured as to the effectiveness of the review mechanisms already in place (as the long Evropaïki Dynamiki saga shows for itself).