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Action brought on 21 September 2010 - Evropaïki Dynamiki v Court of justice

(Case T-447/10)

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: Court of justice

Form of order sought

annul the defendant's decision to reject the bids of the applicant, filed in response to the open call for tenders CJ 7/09 "Public contracts for the provision of information technology services"¹, and all further related decisions of the defendant including the one to award the respective contracts to the successful contractors;

order the defendant to pay the applicant's damages suffered on account of the tendering procedure in question for an amount of EUR 5.000.000

order the defendant to pay the applicant's damages suffered on account of the loss of opportunity and damage to its reputation and credibility of the amount of EUR 500.000;

order the defendant 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 the present case the applicant seeks the annulment of the defendant's decision of 12 July 2010 to reject its bids submitted in response to a call for an open tender CJ 7/09 for the services of information technology and to award the contracts 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 grounds.

First, the applicant argues that the contracting authority failed to observe the principle of non discrimination of candidate tenderers since several of the winning tenderers did not comply with the exclusion criteria and thus has infringed Articles 93 and 94 of the financial regulation², Article 133 of the implementing rules as well as the principle of good administration.

Further, the applicant submits that the defendant infringed the provisions of Article 100(2) of the financial regulation in the context of both lots, i.e. the obligation to state reasons by refusing to provide sufficient justification or explanation to the applicant. Especially, the characteristics and relative advantages of the tender selected were not adequately provided. Only a simple technical mark on the applicant's offer under each criterion as well as vague terms were provided, while for the winning tenderers it was only mentioned that its offer was considered as of higher quality.

Third, the applicant argues that the defendant did not ensure a fair treatment to all tenderers when inviting them to visit its premises since this exercise did not allow them to compete in a fair manner against the contractor who finally won this call for tenders.

Finally, the applicant contends that by using criteria other than those allowed for in Article 138 of the financial regulation and by processing data which were not proposed by the applicant itself for award and by mixing selection and award criteria and not using criteria linked to the economic advantage of the offer, the defendant infringed Article 97 of the financial regulation and Article 138 of the implementing rules.

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¹ - OJ 2009/S 217-312293

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)