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Action brought on 6 June 2011 - European Dynamics Luxembourg and others/OHIM
(Case T-299/11)
Language of the case: English
Parties
Applicants: European Dynamics Luxembourg SA (Ettelbrück, Luxembourg), Evropaïki Dynamiki - Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE (Athènes, Greece) and European Dynamics Belgium SA (Brussels, Belgium) (represented by: N. Korogiannakis and M. Dermitzakis, lawyers)
Defendants: Office for Harmonisation in the Internal Market (Trade Marks and Designs)
Form of order sought
Annul the OHIM's decision to select the bid of the applicant filed in response to the open call for tenders No AO/021/10 for "External service provision for program and project management and technical consultancy in the field of information technologies (PMTC)" as third contractor in the cascade mechanism, communicated to the applicant by letter dated 28 March 2011, and all the related decisions of OHIM including those to award the respective contract to the first and second cascade contractor;
Order the OHIM to pay the applicants' damages suffered on account of the tendering procedures in question for an amount of 6 500 000 EUR;
In addition order the OHIM to pay the applicants' damages suffered on account of the loss of opportunity and damage in its reputation and credibility for an amount 650 000 EUR;
Order the OHIM to pay the applicant's legal and other costs and expenses incurred in connection with this application, even if the current 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 a violation of Article 100(2) of Regulation No 1605/2002
1. The applicant submits in particular a violation of the obligation to state reasons by refusing to provide sufficient justification or explanation to the applicant and objects to the non disclosure of the relative merits of the successful tenderers.
Second plea in law, alleging a violation of the tender specifications by taking into account during the evaluation requirements not mentioned in the tender specifications.
Third plea in law, alleging manifest errors of assessment and vague and unsubstantiated comments of the evaluation committee.
Fourth plea in law, alleging a discriminatory treatment of tenderers, non compliance with exclusion criteria of the winning tenderers, a violation of Articles 93(1)(f); 94 and 96 of Regulation No 1605/2002 and of Article 133a and 134b of Regulation No 2342/2002
2 as well as a violation of the principle of good administration. According to the applicant, the 2nd winning tenderer should have been excluded.