| | CFIR-48 (Rules of Procedure)Further evidence and new plea    
| CFI (Rules of Procedure) | Article 48 | 1. In reply or rejoinder a party may offer further evidence. The party must, however, give reasons for the delay in offering it.
2. No new plea in law may be introduced in the course of proceedings unless it is based on matters of law or of fact which come to light in the course of the procedure.
If in the course of the procedure one of the parties puts forward a new plea in law which is so based, the President may, even after the expiry of the normal procedural time-limits, acting on a report of the Judge-Rapporteur and after hearing the Advocate General, allow the other party time to answer on that plea.
Consideration of the admissibility of the plea shall be reserved for the final judgment. |
| Case | Pte | Ref | Text | C-189/06-PA
TEA-CEGOS | 24-26 | ECS-58-impl
CFIR-48.2-impl | 24 Par la première branche de ce moyen, les requérantes font valoir que l’avis de marché et les instructions aux soumissionnaires ne contiennent aucune définition de la notion de groupement juridique figurant au point 13 de l’avis de marché. La Commission aurait d’abord retenu un critère fonctionnel pour ensuite lui préférer un critère structurel. Le principe de sécurité juridique s’opposerait à ce que la Commission agisse ainsi, au cas par cas, sans cadre préalablement défini. Les requérantes n’auraient donc pas pu connaître sans ambiguïté leurs droits et obligations au titre de la procédure d’appel d’offres en question et n’auraient pas pu prendre leurs dispositions en conséquence. En considérant, notamment au point 63 de l’arrêt attaqué, que la Commission n’avait pas violé le principe de sécurité juridique, le Tribunal aurait méconnu ce principe même.
25 La Commission fait valoir, à titre principal, que la première branche du présent moyen est irrecevable au motif que, étant tirée de l’absence de définition préalable de la notion de groupement juridique, elle constitue un moyen nouveau qui n’a pas été soulevé en première instance.
26 Cet argument ne saurait toutefois être retenu. En effet, il ressort notamment du point 42 de l’arrêt attaqué que l’argument tiré de l’absence de définition préalable de la notion de groupement juridique a bien été débattu devant le Tribunal, dans le cadre de la procédure de première instance. Par conséquent, les requérantes sont recevables à contester l’appréciation portée par le Tribunal sur cette question. . | T-495/05
Belfass | 87-90 | M4-139.1.1
CFIR-44.1.c
CFIR-48.2 | 87 According to settled case-law, it follows from Article 44(1)(c) in conjunction with Article 48(2) of the Rules of Procedure of the Court of First Instance that the original application must contain the subjectmatter of the proceedings and a summary of the pleas in law relied on, and that new pleas in law may not be introduced in the course of the proceedings unless they are based on matters of law or of fact which come to light in the course of the procedure. However, a submission or argument which may be regarded as amplifying a plea made previously, whether directly or by implication, in the original application, and which is closely connected therewith, will be declared admissible (Case 108/81 Amylum v Council [1982] ECR 3107, paragraph 25; Case 306/81 Verros v Parliament [1983] ECR 1755, paragraph 9; and Case T-216/95 Moles García Ortúzar v Commission [1997] ECR-SC I-A-403 and II-1083, paragraph 87).
88 The case-law also provides that, under Article 139(1) of the Implementing Rules, the contracting authority is obliged to allow the tenderer to clarify, or even explain, the characteristics of its tender before rejecting it, if it considers that a tender is abnormally low (Case T-148/04 TQ3 Travel Solutions Belgium v Commission [2005] ECR II-2627, paragraph 49).
89 In the present case, the Court finds that, in paragraph 17 of its application, the applicant places particular reliance, in support of it action against the decision of 13 October 2004, in so far as it relates to Lot No 2, on the infringement of the general principle of sound administration, infringement of the principle of non-discrimination and a manifest error of assessment, in that its tender was rejected, without being given further consideration, on the sole ground that the total number of hours of work in that tender was more than 12.5% lower than the average of the total number of hours proposed. Similarly, in paragraph 26 of its application, it submits that the implementation of that criterion is discriminatory in that it leads to the automatic exclusion, without further consideration, of objectively more advantageous tenders. It follows that the applicant, in its application, expressly criticised the Council for having rejected its tender without further consideration, by reason of its being abnormally low.
90 It follows that although the fourth plea, alleging infringement of Article 139(1) of the Implementing Rules, was not expressly raised by the applicant until its reply, that plea represents an amplification of the three pleas put forward in the original application and is closely connected with them. That plea must accordingly be declared admissible. | T-148/04
TQ3 Travel Solutions | 104-105 | ECJR-48.2 | 104. Finally, as regards the applicant's plea, put forward in its reply, alleging infringement of the principles of equal treatment and nondiscrimination given effect by Article 89(1) of the Financial Regulation, it must be pointed out that, under Article 48(2) of the Rules of Procedure, no new plea in law may be introduced in the course of proceedings unless it is based on matters of law or of fact which come to light in the course of the procedure. Since that plea was not mentioned in the application and is not a matter which has come to light in the course of the procedure, it must be declared inadmissible.
105. In the light of the foregoing, the Commission does not appear to have made a manifest error in the qualitative assessment of the selected tender. Accordingly, the second plea must be rejected. | T-40/01
Scan Office | 95-96 | CFIR-48.2 | 95 In its reply, the applicant argues that there is nothing in the Commission's file concerning the manner in which the criteria relating to warranty and services were assessed by the technical group. It also argues that there was no assessment of compliance by the products with environmental criteria.
96 It should be pointed out that under Article 48(2) of the Rules of Procedure of the Court of First Instance no new plea in law may be introduced in the course of proceedings unless it is based on matters of law or of fact which have come to light in the course of the procedure. In the present case, as the Commission has rightly pointed out, the arguments, first, that there is nothing in the Commission's file about the manner in which the criteria relating to warranty and services were assessed by the technical group and, secondly, that there was no assessment of compliance by the products with environmental criteria, cannot be regarded as amplifying, directly or by implication, pleas already put forward in the original application and closely connected therewith. Consequently, they must be declared inadmissible (see Case C-104/97 P Atlanta v European Community [1999] ECR I-6983, paragraphs 27 and 29; Case T-252/97 Dürbeck v Commission [2000] ECR II-3031, paragraph 43; and Case T-62/99 Sodima v Commission [2001] II-655, paragraphs 67 and 68). | T-139/99
Alsace | 59-67 | CFIR-44.1.c
CFIR-48.2 | 59 It is clear from the provisions of Articles 44(1)(c) and 48(2) of the Rules of Procedure of the Court of First Instance, taken together, that the application initiating proceedings must indicate the subject-matter of the dispute and set out in summary form the pleas raised and that no fresh issue may be raised in the course of proceedings unless it is based on matters of law or of fact which come to light in the course of the written procedure (see, inter alia, judgments in Case 306/81 Verros v Parliament [1983] ECR 1755, paragraph 9, Case T-207/95 Ibarra Gil v Commission [1997] ECR-SC I-A-13 and II-31, paragraph 51 and Case T-217/95 Passera v Commission [1997] ECR-SC I-A-413 and II-1109, paragraph 87).
60 The plea in question was not raised, either directly or by implication, in the application, nor is it closely linked with the other pleas raised therein. It is therefore a fresh plea, as the applicant itself acknowledges. It follows that it is inadmissible unless it is based on matters of law or of fact which have come to light in the course of the written procedure.
61 The applicant claimed that it was only on reading the defence that it became aware of the fact that Coopérative Taxi 13 did not meet the requirement that tenderers had to prove that they had been active in the sector for three years.
62 It is important to point out, in that connection, that the fact that the applicant became aware of a factual matter during the course of the procedure before the Court of First Instance does not mean that that element constitutes a matter of fact coming to light in the course of the procedure. A further requirement is that the applicant was not in a position to be aware of that matter previously (see judgment in Case T-141/97 Yasse v EIB [1999] ECR-SC II-929, paragraphs 126 to 128).
63 As is clear from the case-file, the applicant was indeed in a position to be able to ascertain, prior to lodgment of the application, the circumstances under which Coopérative Taxi 13 was set up. It stated in its letter to the Parliament of 15 April 1999 that it was given to understand that the Parliament was renewing the contract which had been entered into with the association (coopérative) des artisans taxis. In that letter it went on to state that although the tender submitted by the artisans taxis strasbourgeois might be financially more favourable, the services provided would not be covered by any legal framework, contrary to the terms of the invitation to tender.
64 In response to those allegations the Parliament's Director-General for Administration, in his letter of 11 May 1999, clearly stated that the successful tenderer was Coopérative Taxi 13 (see paragraph 18 above). On lodging its application on 8 June 1999, the applicant was therefore perfectly aware of the fact that Coopérative Taxi 13 had obtained the contract as a result of the invitation to tender. It could therefore have made inquiries with the competent authority as to the date on which Coopérative Taxi 13 was set up.
65 Consequently, on the supposition that it was only on reading the defence that the applicant noticed that there might be an inconsistency between acceptance of the tender by Coopérative Taxi 13 and the condition in the Notice under which tenderers had to prove that they had been active in the sector for three years, it cannot be heard to say that it was not possible for it to raise that inconsistency in the application.
66 Therefore, since the applicant was in a position to raise in its originating application the plea based on an infringement of the abovementioned condition, it cannot, under the terms of Article 48(2) of the Rules of Procedure, raise it at the stage of the hearing (see judgment in Joined Cases T-305/94 to T-307/94, T-313/94 to T-316/94, T-318/94, T-325/94, T-328/94, T-329/94 and T-335/94 Limburgse Vinyl Maatschappij and Others v Commission [1999] ECR II-931, paragraph 63). 67 In light of the foregoing, the abovementioned plea put forward for the first time at the hearing is not based on matters of law or fact coming to light during the course of the procedure and must consequently be declared inadmissible. | C-422/97-PA
Sateba | 29-30 | ECS-58-impl
CFIR-48.2 | 29. Pursuant to Article 48(2) of the Rules of Procedure of the Court of First Instance, no new plea in law may be introduced in the course of proceedings, unless it is based on matters of law or of fact which come to light in the course of the procedure.
30. To allow a party to put forward for the first time before the Court of Justice a plea in law which it has not raised before the Court of First Instance would be to allow it to bring before the Court of Justice, whose jurisdiction in appeals is limited, a case of wider ambit than that which came before the Court of First Instance. In an appeal the jurisdiction of the Court of Justice is thus confined to review of the findings of law on the pleas argued before the Court of First Instance (Case C-136/92 P Commission v Brazzelli Lualdi and Others [1994] ECR I-1981, paragraph 59). |
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