Official Journal of the European Union

C 373/3

(Case C-418/12 P)

2012/C 373/03

Language of the case: Italian

Parties

Appellant: TME SpA — Termomeccanica Ecologia (represented by: C. Malinconico, S. Fidanzia and A. Gigliola, lawyers)

Other party to the proceedings: European Commission

Form of order sought

—Set aside the order of the General Court of 4 July 2012 in Case T-329/11, notified on 9 July 2012, for the reasons set out in the grounds of the application, and accordingly;

—Annul the decision of the European Commission of 20 April 2011 ruling out the need to initiate infringement proceedings against Romania for breach of 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’ (PRAG);

—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 for the damage sustained by TME 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 TME, 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 TME, 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 Commission was required, under Clause 2.4.12 of the PRAG and Volume I, Clause 37, of the offer document, to deliver an ‘opinion’ on the procedure which was challenged by TME. The Commission did not fulfil that obligation.

Moreover, the Commission erred by failing to intervene to remedy the clear breach of Community law and recover the funds granted to the Romanian State in connection with the contract at issue, following the complaint lodged by TME on 10 December 2008.