Order of the Court of First Instance (Seventh Chamber) of 9 July 2009 – infeurope v Commission

(Case T-176/08)

Action for declaration of failure to act, for annulment and for damages – Public service contracts – Call for tenders concerning the maintenance of OHIM’s computer systems – Administrative appeal before the Commission – Implied Commission decision to dismiss – New claims – Connection between the action for a declaration of failure to act and the action for damages – Manifest inadmissibility

1.                     Actions for failure to act – Failure to act – Definition – Administrative action against a measure of the President of the Office for Harmonisation in the Internal Market in the context of the awarding of public contracts – Implied rejection decision by the Commission – Not included – Action for failure to act inadmissible (Art. 232 EC; Council Regulation No 40/94, Art. 118) (see paras 36-40)

2.                     Procedure – Subject-matter of the dispute – Alteration once proceedings have been started (Rules of Procedure of the Court of First Instance, Art. 48(2)) (see para. 42)

3.                     Actions for damages – Autonomy in relation to action for annulment and action for failure to act – Manifest inadmissibility of actions for annulment and for failure to act – Compensation claim closely linked to the action for a declaration of failure to act – Inadmissibility (Art. 288, second para., EC) (see paras 46-48)

Re:

First, application for a declaration that the Commission failed to act in that it unlawfully failed to annul the decision to award framework contracts under the tendering procedure AO/042/05 of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) for software maintenance relating to OHIM core business systems on trade marks and designs, and to terminate the specific contracts concluded under those framework contracts and, in the alternative, application for annulment of the alleged implied decision of the Commission to dismiss the applicant’s administrative appeal of 2 December 2007 in the context of that tendering procedure and, secondly, application for compensation for the harm allegedly suffered as a result of the alleged unlawful omissions on the part of the Commission.

Operative part

1.     The action is dismissed.

2.     infeurope is ordered to bear its own costs and pay those incurred by the Commission.

3.     It is not necessary to rule on the application to intervene submitted by European Dynamics SA.

4.     infeurope, the Commission and European Dynamics are ordered to bear their own costs in connection with the application to intervene.