Action brought on 20 June 2011 - TM.E v Commission
(Case T-329/11)
Language of the case: Italian
Parties
Applicant: TM.E SpA - Termomeccanica Ecologia (Milan, Italy) (represented by: C. Malinconico, S. Fidanzia and A. Gigliola, lawyers)
Defendant: European Commission
Form of order sought
The applicant claims that the Court should:
annul the decision of the European Commission of 20 April 2011 ruling out the need to initiate infringement proceedings against Romania for breach of the Community principles and directives on the award of public procurement contracts and of the 'Practical Guide to contract procedures financed from the General Budget of the European Communities in the context of external actions';
order the European Commission to pay damages in the amount of EUR 18.955.106, or such greater or lesser amount as may be considered appropriate by the Court, by way of compensation to TM.E for the damage sustained by TM.E SpA as a result of the breach of Community law on the part of the European Commission itself;
in the alternative, order the European Commission to pay compensation for the loss of opportunity suffered by TM.E, equivalent to EUR 3.791.021, or to pay such greater or lesser amount as may be considered appropriate by the Court;
in the further alternative, order the European Commission to pay compensation for the delay attributable to the European Commission in the performance of its duties, quantifiable as the overall amount represented by the legal fees incurred by TM.E, equal to EUR 73.044,32, or such greater or lesser amount as may be considered appropriate by the Court;
order the European Commission to pay the costs of the proceedings.
Pleas in law and main arguments
The present action seeks annulment of the letter of the European Commission of 20 April 2011 ruling out the need to initiate infringement proceedings against Romania for breach of the Community principles and directives on the award of public procurement contracts and of the 'Practical Guide to contract procedures for EU external actions' ('the PRAG') drawn up by the Commission itself, and compensation for the damage brought about by the Commission in the performance of its duties.
In support of the action, TM.E relies on three pleas in law.
First plea in law, alleging breach of the essential procedural requirements laid down in the PRAG, and breach of the Treaties or of any rule of law relating to their application
TM.E submits that, by the contested decision, the European Commission failed to give a reasoned opinion on the manifest and serious illegalities complained of in relation to the procedure for award of a contract for the project termed 'Bucharest Wastewater Treatment Plant Rehabilitation: Stage I ISPA 2004/RO/16/P/PE/003-03' and, in consequence, failed to initiate infringement proceedings against Romania or, what is more, to revoke the Community funding paid to Romania for execution of the project.
Second plea in law, alleging breach of essential procedural requirements and of the PRAG, and distortion of the facts
TM.E submits also that the contested decision is flawed because the Commission, distorting the facts covered by the complaint, did not point out the manifest procedural defects for which the Primaria Municipiului Bucaresti was responsible. Specifically, the latter authority first excluded TM.E's tender because of an alleged anomaly in the financial offer and then, realising that this was seriously unlawful, tried to justify the decision already taken by alleging defects in the technical offer. Furthermore, the Commission did not take account of the fact that, in flagrant breach of the rights of the defence and of Community principles, the application for annulment of the contract was not examined in the proceedings before the Romanian judicial authority on the pretext that stamp duty in the amount of EUR 7,3 million had not been paid.
Third plea in law, alleging failure by the Commission to make a finding in relation to the further breach complained of
TM.E submits also that, in the contested letter, the Commission failed to consider the other aspects brought to its attention. In particular, no appraisal whatsoever was made of the fact that TM.E's case was adjudicated at first instance by the same judicial authority as had declared the application inadmissible, by a judgment subsequently reversed on appeal, and accordingly by a judicial authority which was not impartial and which should have declined to adjudicate, this being in clear and undeniable breach of the rights of the defence, of the Community principles and of Article 6(1) of the European Convention on Human Rights. Lastly, as regards the claim for compensation, TM.E submits that the inaction attributable to the Commission, as well as its failure to revoke the Community funding paid to Romania in connection with the project in question, caused considerable financial damage because of the failure to execute the procurement contract, or because of TM.E's loss of any chance of being awarded that contract and, in any event, damage in the form of delay which compelled TM.E to engage in costly legal proceedings before the Romanian judicial authorities.
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