Action brought on 23 December 2009 Ecoceane v EMSA
(Case T-518/09)
Language of the case: French
Parties
Applicant: Ecoceane (Paris, France) (represented by: S. Spalter, lawyer)
Defendant: European Maritime Safety Agency (EMSA)
Forms of order sought
Declare Ecoceane's action admissible;
Annul the contested decision of EMSA of 28 October 2009 rejecting Ecoceane's tender;
Annul EMSA's decision to award the contract (2009/S 42-060271) and the signature thereof;
Order EMSA to pay to Ecoceane, the applicant, the amount of EUR 224 774 by way of damages and interest;
Order EMSA to pay to Ecoceane, the applicant, the amount of EUR 25 000 by way of non-recoverable costs ;
Order EMSA to pay the costs.
Pleas in law and main arguments
In the present case the applicant seeks annulment of the decision of 28 October 2009 by which EMSA rejected its tender at the end of a tendering procedure for the award of a public services contract relating to intervention by support vessels for combating oil pollution, and EMSA's decision to award the contract and the signature thereof. The applicant also seeks damages for the losses occasioned by the contested decision.
The applicant puts forward four pleas in law in support of its application.
First, it submits that EMSA, in failing to provide the information requested by the applicant, namely the analysis report of the tenders containing the information relating to the running of the procedure, the grounds for the rejection of its tender, the scores obtained by the tenders using the percentages set out in the tender specifications, and also the features and advantages of the successful tenderer's tender, infringed Article 100(2) of Financial Regulation No 1605/2002/EC
1 and Article 149(3) of Regulation No 2342/2002/EC
2, as the reasons given for the rejection decision do not comply with those provisions.
The applicant submits, secondly, that the additional criteria imposed by EMSA in its tender specifications, with a view to examining and assessing the tenders, were not objective and justifiable, given the subject-matter of the contract; consequently, the choice of the additional criteria corresponding to a pre-identified technology does not ensure equal access to candidates offering an innovative method and infringes the Community principles of equal treatment, non-discrimination and transparency, referred to in Article 89(1) of Financial Regulation No 1605/2002/EC.
The applicant submits, thirdly, that the defendant infringed the principles of equal treatment, non-discrimination and transparency in dealing with the candidates, by refusing to visit the de-pollution vessel offered by Ecoceane, contrary to the treatment accorded the other candidates. The defendant also infringed those principles by failing to have Ecoceane heard by a committee for the evaluation of tenders, composed of at least three members present throughout the meeting, in accordance with Article 146 of Regulation No 2342/2002/EC.
Lastly, the applicant submits that EMSA made manifest errors of assessment.
____________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 for the implementation of Council Regulation (EC, Euratom) No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities, as amended by Commission Regulation (EC, Euratom) No 1261/2005 of 20 July 2005 (OJ 2005 L 201, p. 3).