Action brought on 27 October 2023 – Pomilio Blumm v EUIPO
(Case T-1051/23)
Language of the case: Italian
Parties
Applicant: Pomilio Blumm Srl (Pescara, Italy) (represented by: A. Clarizia, P. Ziotti and P. Nocito, lawyers)
Defendant: European Union Intellectual Property Office
Form of order sought
The applicant claims that the Court should:
as a measure of inquiry, order that all the administrative documents, the supporting evidence submitted by the successful tenderer during the procedure verifying the suitability of the offer for participation in the tendering procedure and a full copy of the decision awarding the tender to the successful tenderer, be admitted into evidence;
annul:
the EUIPO notice of 30 August 2023 by which it communicated the ranking of the tendering procedure launched and the award of the tender to Figame.Com Travel Organisation Ltd; the unknown decision awarding the tender to Figame.Com Travel Organisation Ltd;
the unknown decision containing the findings from the verification of anomalies in the offer regarding Figame.Com Travel Organisation Ltd; the letter of EUIPO of 8 September 2023 by which, in response to Pomilio Blumm Srl’s request, it refused access to the documents requested and rejected the request to re-examine the award under Article 7(2) of Regulation (EC) No 1049/2001 1 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents;
the letter of EUIPO of 28 September 2023 which allowed, upon Pomilio Blumm’s request, partial access to some of Figame.Com’s tender documents and, at the same time, rejected again the request for re-examination submitted pursuant to Article 7(2) of Regulation 1049/2001.
and order compensation in kind by EUIPO for the harm allegedly suffered, in particular through a declaration that the contract concluded between EUIPO and the successful tenderer on 15 September 2023 is void, annulled or ineffective, and the takeover by Pomilio Blumm as successful tenderer.
Pleas in law and main arguments
In support of the action, the applicant relies on four pleas in law.
First plea in law, alleging breach of the principle of transparency and infringement of Regulation 1049/2001 and Article 170 of Regulation No. 2008/1046 1 in so far as EUIPO first of all refused to grant access to the documents related to the highest ranked competitor’s technical offer and subsequently allowed only partial access, considering that the documents contained confidential commercial information, without giving adequate reasons;
Second plea in law, alleging that the successful tenderer should have been excluded from the tender, in so far as the documents submitted by it did not meet the requirement laid down in Article 6(2)(2) of the tender specifications, which ask for proof that it had an average annual workforce of 20 people in the last three years. Therefore, EUIPO, by not excluding the competitor, acted in obvious infringement of the specifications.
Third plea in law, alleging that the successful tenderer’s offer is abnormally low and as such, does not cover the costs that it has to incur in providing the service. Therefore, EUIPO should have rejected the offer for unsuitability and unreliability.
Fourth plea in law, alleging breach of the principles of competition and equal treatment between economic operators, in so far as the successful tenderer amended its own offer during the verification of anomalies, in breach of the principles of equal treatment between competitors and of competition. The successful tenderer stated that it would cover the costs by way of forms of additional compensation only when EUIPO asked it to justify its own offer. EUIPO therefore infringed the principle of equal treatment between tenderers, the purpose of which is to foster the development of healthy and effective competition between the undertakings participating in a public tender.
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1 OJ 2001 L 145, p. 43.
1 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).