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Action brought on 22 July 2009 - Evropaïki Dynamiki v EASA

(Case T-297/09)

Language of the case: English

Parties

Applicant: Evropaïki Dynamiki - Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE (Athens, Greece) (represented by: N. Korogiannakis and M. Dermitzakis, lawyers)

Defendant: European Aviation Safety Agency

Form of order sought

annul the EASA's decisions to select the bids of the applicant, filed in response to the open Call for Tenders EASA.2009.OP.02 Lot 1, Lot 2, Lot 3 and Lot 5 on ICT services (OJ 2009/S 22-030588) as second and third contractor in the cascade mechanism, communicated to the applicant by four separate letters dated 12 May 2009, 8 July 2009, 13 July 2009 and 15 July 2009 and all further related decisions of EASA including the one to award the contract to the successful contractors;

order the EASA to pay the applicant's damages suffered on account of the tendering procedure in question for an amount of EUR 6.100.000;

order the EASA to pay the applicant's legal costs and expenses incurred in connection with this application, even if the current application is rejected.

Pleas in law and main arguments

In the present case, the applicant seeks the annulment of the defendant's decision to select its bids submitted in response to a call for an open tender for ITC services (EASA.2009.OP.02) as second and third contractor in the cascade mechanism and to award the contract to the successful contractors. The applicant further requests compensation for the alleged damages in account of the tender procedure.

In support of its claims, the applicant puts forward the following pleas in law.

First, the applicant claims that the defendant infringed the principle of good administration and equal treatment as it failed to observe the exclusion criteria provided for by Articles 93(1) and 94 of the financial regulation¹ by not excluding from the tender proceeding one of the members of the winning consortium being accused by national authorities and even accepting to be guilty for illegal activities and specifically for fraud, corruption, bribery, in the context of contract awarded from public authorities in the European Union and internationally, as well as for falsifying its books and one other winning contractor being in serious breach of its contractual obligations in its relations with the European Commission. By doing so, the defendant infringed as well Articles 133a and 134 of the implementing rules² and Article 45 of directive 2004/18/CE³.

Furthermore, the applicant invokes the defendant's alleged professional misconduct arising from the potential usage of non WTO/GPA subcontractors by one of the winning tenderers.

Second, the applicant submits that the defendant committed manifest errors of assessment and that it failed to state reasons in breach of the financial regulation and its implementing rules as well as in breach of directive 2004/18/CE3 and of Article 253 EC. It states that the defendant also infringed the principle of equal treatment as one of the winning tenderers had not complied with the tender specifications.

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¹ - 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)

² - Commission Regulation (EC, Euratom) No 2342/2002 of 23 December 2002 laying down detailed rules forthe implementation of Council Regulation (EC, Euratom) No 1605/2002 on the Financial Regulationapplicable to the general budget of the European Communities (OJ 2002 L 357, p. 1)

³ - Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordinationof procedures for the award of public works contracts, public supply contracts and public service contracts(OJ 2004 L 134, p. 114)