Action brought on 30 May 2008 - Antwerpse Bouwwerken v Commission

(Case T-195/08)

Language of the case: Dutch

Parties

Applicant: Antwerpse Bouwwerken NV (Antwerp, Belgium) (represented by: J. Verbist and D. de Keuster, lawyers)

Defendant: Commission of the European Communities

Form of order sought

Annul (i) the decision of 29 April 2008, notified by the Commission by letter of 29 April 2008, received by the applicant on 5 May 2008, by which the Commission informed the applicant that the latter's tender had been unsuccessful, as further explained in a letter from the European Commission of 6 May 2008 and received by the applicant on 8 May 2008, in which the Commission sets out its reasons for its rejection decision, and (ii) the decision of 23 April 2008 on the award of the contract, notified by the Commission by letter of 15 May 2008, received by the applicant on 16 May 2008;

declare the Commission to be non-contractually liable for the damage suffered by the applicant, to be quantified at a later date;

order the Commission to pay the costs.

Pleas in law and main arguments

The applicant submitted a tender in response to the Commission's call for tenders for the construction of a reference materials production hall. ¹ Ultimately, the applicant's tender was not selected by the Commission.

The applicant relies in its application on an infringement of Article 91 of Regulation 1605/2002 ² and of Articles 122, 138 and 148 of Regulation 2342/2002 ³ in conjunction with Articles 2 and 28 of Directive 2004/18/EC. ⁴

According to the applicant, it is apparent from the official records of selection of tenders that the successful tender did not comply with an essential tendering specification and that, consequently, it should have been rejected for failure to comply with the conditions of the contract. The intervention by the tenderer of the successful bid was not merely a case of the tender being clarified but of it being supplemented, which was not permissible at that stage of the procedure.

In addition, the decision on the award of the contract does not satisfy the principle of transparency, as essential elements of the assessment records, as provided to the applicant, have been rendered illegible.

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¹ - B-Geel: Construction of a reference materials production hall (2006/S 102-108785).

² - Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 248, p. 1).

³ - Commission Regulation (EC, Euratom) No 2342/2002 of 23 December 2002 laying down detailed rules for the implementation of Council Regulation (EC, Euratom) No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 357, p. 1).

⁴ - Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (OJ 2004 L 134, p. 114).