Action brought on 26 July 2011 - Elti v Delegation of the European Union to Montenegro

(Case T-395/11)

Language of the case: English

Parties

Applicant: Elti d.o.o. (Gornja Radgona, Republic of Slovenia) (represented by: N. Zidar Klemenčič, lawyer)

Defendant: European Union, represented by the Delegation of the European Union to Montenegro

Form of order sought

Declare the defendant in violation of Article 2 and 30(3) of Directive 2004/18/EC¹;

Annul the negotiation procedure conducted in the framework of the tender procedure "Support to the Digitalisation of the Montenegrin Public Broadcasting - Supply of equipment, Montenegro" (reference EuropaAid/129435/C/SUP/ME-NP) (OJ 2010/S 178-270613), since the applicant had not been given an equal treatment and, as a result, it had not been able to correct/explain its tender;

Annul the contract award decision in the above mentioned tender procedure;

In the event the contract had already been concluded, to declare such contract null and void;

In the alternative, if the contract had already been carried out when the Court gives judgment, or the decision can no longer be declared void, declare the defendant in violation of Article 2 and 30(3) of Directive 2004/18/EC and order defendant to pay the applicant damages of EUR 172,541.56 as compensation for the loss suffered by the applicant in regard to that procedure; and

Order the defendant to pay the applicant's costs, including the costs of any intervening party.

Pleas in law and main arguments

In support of the action, the applicant relies on one plea in law.

First plea in law, alleging that the defendant violated Articles 2 and 30(3) of Directive 2004/18/EC, as:

Information relevant for submitting the offer was not made available to all participants in the public procurement procedure in the same manner and quality;

The successful tenderer was provided information in a discriminatory manner which gave it an advantage as it was able to correct its tender; and

The negotiation procedure was conducted in such a way that the defendant influenced the outcome of the procedure by requesting additional information or clarifications from only certain participants, thereby violating the principle of non-discrimination and transparency.

____________

¹ - 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)