Action brought on 21 October 2011 - European Dynamics Luxembourg and Others v OHIM
(Case T-556/11)
Language of the case: English
Parties
Applicants: European Dynamics Luxembourg SA (Ettelbrück, Luxembourg); European Dynamics Belgium SA (Brussels, Belgium); and Evropaïki Dynamiki - Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE (Athens, Greece) (represented by: N. Korogiannakis and M. Dermitzakis, lawyers)
Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)
Form of order sought
Annul the decision of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) to reject the bid of the applicants filed in response to the open call for tender AO/029/10 (E-Alicante: software development and maintenance services), communicated by letter dated 11.08.2011, and all the related decisions of the OHIM including those to award the respective contract to the first, second and third cascade contractor; and
Order the OHIM to pay the applicants' damages suffered on account of the tendering procedure in question in the amount of 67.500.000 euros (EUR); and
Order the OHIM to pay the applicants' damages suffered on account of loss of opportunity and damage in its reputation and credibility in the amount of 6.750.000 euros (EUR); and
Order the OHIM to pay the applicants' legal and other costs and expenses incurred in connection with the present application, even if the present application is rejected.
Pleas in law and main arguments
In support of the action, the applicants rely on three pleas in law.
First plea in law, alleging
Non-compliance of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) with the provisions of Article 100(2) of the Financial Regulation; in that:
(a) it failed to state reasons;
(b) it failed to disclose the relative merits of successful tenderers.
Second plea in law, alleging
Manifest errors of assessment; use of new award criteria, contrary to the tender specification; use of criteria which were not clarified in the Q&A session; deficient motivation; vague and unsubstantiated comments given by the OHIM; use of erroneous financial formula, which allowed for distortions; and modification of the scope and object of the contract.
Third plea in law, alleging
Discriminatory treatment of tenderers and non-compliance with exclusion criteria of the wining tenderers; infringement of Articles 93(1)(f), 94 and 96 of the Financial Regulation; of Articles 133a and 134b of the Implementing Rules and the principle of good administration, in that:
(a) members of the winning consortium are subject to a conflict of interest;
(b) one member of the winning consortium is involved in fraud, corruption and briberies.
____________1 - OJ 2011/S 10-013995