Action brought on 30 May 2014 — STC v Commission
(Case T-355/14)
Language of the case: Italian
Parties
Applicant: STC SpA (Forlì, Italy) (represented by: A. Marelli and G. Delucca, lawyers)
Defendant: European Commission
Form of order sought
The applicant claims that the Court should:
annul the contested decisions, with all legal consequences, and, in particular, in that connection:
order the Contracting Authority to provide compensation for the damage caused by the unlawful decisions taken, either in the specific form requested — that is, reappraisal in favour of the applicant — or in the form of any other equivalent action and, in the latter case, to pay compensation for loss of business profits and for ‘curricular’ damage amounting to 15% of the price indicated in the applicant’s tender or — in the alternative — 15% of the value of the contract, or otherwise — as appropriate — a larger or smaller sum considered to be equitable, with the addition, in any event, of compensatory interest in respect of damage caused by delay, and, in addition:
order the Commission to pay all procedural costs, including incidental and sundry expenses and any other statutory costs, subject to quantification.
Pleas in law and main arguments
The present action is brought against (i) the decision of the Maintenance and Utilities Unit of the Ispra Site Management Directorate of the Joint Research Centre Directorate-General of the European Commission, communicated by way of Note Ares(2014)1041060 of 3 April 2014, to give a negative assessment in respect of the tender submitted by the applicant in Tendering Procedure JRC IPR 2013 C04 0031 OC, (ii) the decision to award the contract to another company, and (iii) the decision to refuse the applicant’s request for access to the tender documents.
The contract in question was for the executive design, supply of equipment and construction of a new turbo-gas tri-generation plant, with ordinary and extraordinary maintenance scheduled for a period of six years, the first two years being under guarantee.
In support of its action, the applicant relies on three pleas in law.
First plea in law, alleging a failure to acknowledge the applicant’s right to access tender documents. In this regard, the applicant alleges infringement of:
Articles 42 and 47 of the Charter of Fundamental Rights of the European Union;
the right to access tender documents, given the lack of access to (i) the ranking list for the tendering procedure, (ii) the scores obtained by the other candidates, and (iii) the full text of the report on the assessment of the applicant; and
the rights of the defence and the right to an effective remedy.
Second plea in law, concerning the financial tender submitted by the applicant. In this regard, the applicant alleges:
infringement of Article 296 TFEU, owing to a contradictory and inadequate statement of reasons;
infringement of the right to good administration as described in Article 41(2) of the Charter of Fundamental Rights of the European Union;
infringement of Article 112(1) of Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council of 25 October 2012 on the financial rules applicable to the general budget of the Union and repealing Council Regulation (EC, Euratom) No 1605/2002 (OJ 2012 L 298, p. 1);
infringement of Article 160(3) of Commission Delegated Regulation (EU) No 1268/2012 of 29 October 2012 on the rules of application of Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council on the financial rules applicable to the general budget of the Union (OJ 2012 L 362, p. 1); and
failure to observe the principles of equal treatment and transparency at the stage of assessing the tenders with a view to awarding the contract, and failure to ensure that all tenderers had an equal chance.
Third plea in law, concerning the technical tender submitted by the applicant. In this regard, the applicant alleges:
infringement of Article 296 TFEU, owing to a contradictory and inadequate statement of reasons;
infringement of the right to good administration as described in Article 41(2) of the Charter of Fundamental Rights of the European Union;
infringement of Article 112(1) of Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council of 25 October 2012 on the financial rules applicable to the general budget of the Union and repealing Council Regulation (EC, Euratom) No 1605/2002 (OJ 2012 L 298, p. 1);
infringement of Articles 139(1) and 160(3) of Commission Delegated Regulation (EU) No 1268/2012 of 29 October 2012 on the rules of application of Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council on the financial rules applicable to the general budget of the Union (OJ 2012 L 362, p. 1); and
failure to observe the principle of transparency, and infringement of Article 16 of the Charter of Fundamental Rights of the European Union.
The applicant also claims that the documentary findings have been distorted.