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Action brought on 31 December 2009 - De Post v Commission

(Case T-514/09)

Language of the case: English

Parties

Applicant: De Post NV van publiek recht (Brussel, Belgium) (represented by: R. Martens and B. Schutyser, lawyers)

Defendant: European Commission

Form of order sought

the annulment of the decision of the Publications Office of the European Union to award the contract referred to in the invitation to tender No 10234 "Daily transport and delivery of the Official Journal, books, other periodicals and publications" (OJ 2009/S 176-253034) to "Entreprises des Postes et Télécommunications Luxembourg" and not to the applicant, as notified to the latter on 17 December 2009;

in the event that, at the time of the rendering of the judgment, the Publications Office would have already signed the contract with Entreprises des Postes et Télécommunications Luxembourg pursuant to invitation to tender No 10234, a declaration that this contract is null and void;

an award of damages as compensation for the loss that the applicant has incurred as a consequence of the contested decision, provisionally estimated at EUR 2 386 444,94, to be increased by the moratory and compound interest as from the date of the filing of this application;

an order that the European Commission pays the costs of the proceedings, including the expenses for legal counsel incurred by the applicant.

Pleas in law and main arguments

By means of its application, the applicant seeks on the one hand, the annulment of the decision of the Publications Office of the European Union (hereinafter "the Publications Office") of 17 December 2009, to award the contract referred to in the invitation to tender No 10234 "Daily transport and delivery of the Official Journal, books, other periodicals and publications" (OJ 2009/S 176-253034), to Entreprises des Postes et Télécommunications Luxembourg (hereinafter "Post Luxembourg") and, consequently, not to award the contract to the applicant and, on the other, compensation of an estimated amount of 2.386.444,94 EUR for the damages allegedly suffered by the applicant following the rejection of its tender.

In support of its application, the applicant puts forward a single plea in law, consisting of four parts.

The first and only plea in law raised by the applicant points at the alleged infringement by the Publications Office of the principles of transparency and equal treatment of tenderers contained in Article 15 TFEU and in Article 89 of Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (hereinafter "the Financial Regulation")¹, to the infringement of the obligation to award the contract on the basis of an evaluation of the selection criteria contained in Article 100(1) of the Financial Regulation, to its failure to adequately state the reasons for its decision (breach of Article 296 TFEU) and to the several manifest errors of assessment it has allegedly made, thus invalidating its decision that the tender of Post Luxembourg, and not that of the applicant, is the economically the most advantageous tender.

In the first part of the plea in law, the applicant claims that the Publications Office has failed to base its decision on an evaluation of the selection and award criteria, in breach of Article 100 (1) of the Financial Regulation.

In the second part of the plea in law, the applicant argues that the Publications Office has applied various sub criteria in its evaluation of the tenders that were not contained in the tender specifications and has thus violated the principle of transparency as laid down in Article 15 TFEU and Article 89 pf the Financial Regulation.

In the third part of its plea, the applicant claims that the Publications Office has applied the open-ended technical award criteria in an inconsistent manner, effectively removing all transparency from the evaluation process.

In the fourth part of its plea, the applicant contends that the Publications Office, in violation of Articles 15, 296 TFUE, 89 of the Financial Regulation as well as the general procedural requirements of the duty to state reasons and of transparency, has not provided an adequate an unequivocal statement of reasons for its evaluation of the tenders, the motivation of the decision allegedly being contradictory and vitiated by manifest errors of assessment.

Further, the applicant submits that since the contested decision is vitiated by breaches of European law, the Publications Office has committed a fault and is thus liable under Article 340 TFUE. In fact, the applicant claims that due to the decision to award the contract to Post Luxembourg instead of the applicant, the latter has incurred a serious loss, consisting of a chance to have the contract awarded to it and of all the expenses made by it relating to the preparation and the drafting of the tender, as well as in defending its position.

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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)