11.9.2010

Official Journal of the European Union

C 246/20

(Case C-289/10 P)

()

2010/C 246/35

Language of the case: English

Parties

Appellant: European Dynamics SA (represented by: N. Korogiannakis, Attorney at Law)

Other party to the proceedings: European Commission

Form of order sought

The appellant claims that the Court should:

—set aside the decision of the General Court

—annul the decision of the Commission (DG Taxation and Customs Union) to reject the bid of the Appellant, filed in response to the Call for Tender TAXUD/2004/AO-004 for the ‘Specification, Development, Maintenance and Support of Telematic Systems to Control the Movements of Products Subject to Excise Duty within the European Community under the Excise-Duty Suspension Arrangement (EMCS-DEV)’ (OJ 2004/S 139-118603) and to award the same Call for Tender to another bidder

—order the Commission to pay the Appellant's legal and other costs including those incurred in connection with the initial procedure, even if the current Appeal is rejected as well as those of the current Appeal, in case it is accepted.

Pleas in law and main arguments

The Appellant submits that the contested judgment should be set aside on the following grounds:

First, because the General Court committed an error in law, by adopting an erroneous interpretation of Article 89 (1) of the Financial Regulation and of the principles of equality of treatment, non-discrimination, transparency and freedom of competition, when it rejected the plea of the Appellant that two types of technical information that were necessary for the formulation of tenders for the contract at issue, namely the exact specifications for the EMCS and the source-code and design and technical documentation for the NCTS were not made available to the appellant.

Second, the Appellant submits that the General Court erred in law when it concluded that the statement of reasons provided by the Commission enabled the Appellant to assert its rights. More specifically, the GC erred in considering that DG TAXUD communicated to the Appellant sufficient information ‘enabling it to assert its rights and the GC to exercise its review’.

Thirdly, the Court erred at par. 102-116 of the judgment when it considered that the Appellant did not substantiate its claim that the award criteria were ‘vague and subjective’. The Appellant considers, especially in the light of the total uncertainty on the scope of the work and the degree of potential re-use of NCTS requested by the contracting authority, that Article 97 par. 1 of the Financial Regulation and Article 17 par. 1 of Directive 92/50 (1) have been infringed.

Finally, the Appellant considers that the General Court appears to err in law by stating, with regard to the plea as to the manifest error of assessment, that the Appellant limited its arguments to general assertions and consequently failed to show whether, and in what way, the alleged errors affected the final outcome of the evaluation of the tender.

Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts, OJ L 209, 24.07.1992, p. 1