Action brought on 12 December 2011 - European Dynamics Belgium and Others v European Medicines Agency

(Case T-638/11)

Language of the case: Greek

Parties

Applicants: European Dynamics Belgium SA (Brussels, Belgium), European Dynamics Luxembourg SA (Ettelbruck, Luxembourg), Evropaiki Dinamiki - Proigmena Sistimata Tilepikinonion Pliroforikis kai Tilematikis AE (Athens, Greece), European Dynamics UK Ltd (London, United Kingdom) (represented by: V. Khristianos, lawyer)

Defendant: European Medicines Agency

Form of order sought

The applicants claim that the General Court should:

annul the decision under number EMA/787935/2011 of the European Medicines Agency ('the EMA'), of which the applicants were notified on 3 October 2011, and by which the EMA rejected their tender in the procurement procedure at issue;

annul the decision under number EMA/882467/2011 of the Acting Executive Director of the EMA of 9 November 2011 rejecting the applicants' request for the composition of the evaluation committee to be disclosed to them;

order the EMA to pay all the applicants' entire costs.

Pleas in law and main arguments

By this action, the applicants seek annulment of the following measures: (i) the EMA's decision under number EMA/787935/2011 of which the applicants were notified on 3 October 2011 and by which the EMA rejected their tender in the open procurement procedure under number EMA/2011/05/DV and (ii) the decision under number EMA/882467/2011 of the Acting Executive Director of the EMA of 9 November 2011 by which the EMA, following a confirmatory application by the applicants, rejected their request for access to documents in the procurement procedure, relating to the composition of the evaluation committee.

The applicants request the annulment of the first of the contested decisions for breach of essential procedural requirements, more specifically, because of a defective or inadequate statement of reasons and also because of a complete absence of reasons, since: (a) that decision did not contain and continues not to contain a sufficient statement of reasons as to the grounds for rejecting the applicants' tender and in any event the statement of reasons is defective, the applicants submitting in particular that the decision does not contain comments regarding the places where their tender was inferior and regarding those where the tenders submitted by the other tenderers excelled; (b) it did not contain and continues not to contain a statement of reasons regarding the mathematical formula (algorithm) on the basis of which the applicants' precise mark (to the second decimal place) was reached; (c) it did not contain and continues not to contain a statement of reasons as to why the financial offer of one of the tenderers was not considered abnormally low.

The applicants submit that the second of the contested decisions must be annulled, under Article 263 TFEU, for infringement of a rule of law of the European Union, namely of Regulation No 1049/2001, as rendered more specific by the provisions applying that regulation to the EMA, because the EMA rejected the applicants' request for access to the names and other details of the members of the evaluation committee for the procurement procedure at issue.

____________