Action brought on 17 February 2014 – Alesa v Commission
(Case T-99/14)
Language of the case: Italian
Parties
Applicant: Alesa Srl (Chieti, Italy) (represented by: N. Giampaolo, lawyer)
Defendant: European Commission
Form of order sought
The applicant claims that the Court should:
As an interim precautionary measure, order the suspension of the award by the European Commission on behalf of the People’s Republic of China (the beneficiary) of Contract No DCI-ASIE/2013/329-453, published on 3 December 2013, with a value of EUR 9 304 400, to the consortium led by GIZ GmbH;
As regards the substance, allow the action on the grounds set out in the application and, as a result, annul the award by the European Commission on behalf of the People’s Republic of China of Contract No DCI-ASIE/2013/329-453, published in the TED (Tenders Electronic Daily web portal) on 3 December 2013, with a value of EUR 9 304 400, to the consortium led by GIZ GmbH;
As regards the substance, on the basis of the various pleas raised in the application, order the European Commission to pay compensation in the amount of EUR 900 000, or whatever sum the Court considers to be fair and equitable relief, for the damage suffered by the applicant on its own account and on account of the members of the SHAREWICH Consortium;
Order the European Commission to pay the costs;
Within the meaning and for the purposes of Article 277 TFEU, assess the lawfulness/unlawfulness and applicability/inapplicability of Article 266.1 of the Implementing Rules for the Financial Regulation and Article 2.4.13 of the 2013 PRAG (Practical Guide to Contract Procedures for EU External Actions) by reference to the other rules on the management and award of public contracts, in so far as those provisions – regardless of the value of the contract and whether it is above the threshold established by the law in force – allow the contracting authority, after it has cancelled the tendering procedure, to enter into negotiations with one or more tenderers directly, without giving prior notification to the other tenderers which are not party to such negotiations.
Pleas in law and main arguments
This action has been brought against the Contract Award by which the European Commission has awarded Contract No DCI-ASIE/2013/329-453 to the GIZ GmbH Consortium in the context of Public Notice of Invitation to Tender No 2012/S 223-366462 regarding the technical assistance to be provided to the Ministry of Housing and Urban-Rural Development (MOHURD) of the People’s Republic of China in transferring European best practice with regard to urbanisation policies and reducing greenhouse gas emissions (‘Sustainable urbanisation – Europe-China eco-cities link’).
In support of the action, the applicant relies on four pleas in law.
First plea in law, alleging infringement, misinterpretation and misapplication of Commission Delegated Regulation (EU) No 1268/2012 of 29 October 2012 on the rules of application of Regulation (EU, Euratom) No 966/2012, and ultra vires exercise of the discretion granted to the European Commission – including all its bodies and delegated authorities – in its role as Contracting Authority;
Second plea in law, alleging infringement, misinterpretation and misapplication of Article 2.4.13 of the 2013 Practical Guide to Contract Procedures for EU External Actions, and ultra vires exercise of the discretion granted to the European Commission – including all its bodies and delegated authorities – in its role as Contracting Authority;
Third plea in law, alleging infringement, misinterpretation and misapplication of the principles of transparency referred to in Article 15 TFEU, Article 298 TFEU and Articles 102(1) (Principles applicable to public contracts) to 112(1) (Principles of equal treatment and transparency) of Regulation (EU, Euratom) No 966/2012, and ultra vires exercise of the discretion granted to the European Commission – including all its bodies and delegated authorities – in its role as Contracting Authority;
Fourth plea in law, alleging infringement, misinterpretation and misapplication of the fundamental principles laid down by Article 2 of Directive 18/2004/EC and by the other specific references made in that directive to legislation relating to the management and award of public service contracts, and ultra vires exercise of the discretion granted to the European Commission – including all its bodies and delegated authorities – in its role as Contracting Authority.