# C_2010317EN.01002402.xml

| 20.11.2010 | EN | Official Journal of the European Union | C 317/24 |
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20.11.2010

EN

Official Journal of the European Union

C 317/24

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Appeal brought on 24 September 2010 by Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE against the judgment of the General Court (Fifth Chamber) delivered on 8 July 2010 in Case T-331/06: Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE v European Environmental Agency (EEA)

(Case C-462/10 P)

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2010/C 317/43

Language of the case: English

Parties

Parties

Appellant: Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE (represented by: N. Korogiannakis, Δικηγόρος)

Appellant:

Other party to the proceedings: European Environmental Agency (EEA)

Other party to the proceedings:

Form of order sought

Form of order sought

The appellant claims that the Court should:

| — | set aside the decision of the General Court |
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set aside the decision of the General Court

| — | annul the decision of the EEA to evaluate the Appellant's bid as not successful and award the contract to the successful contractor; |
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annul the decision of the EEA to evaluate the Appellant's bid as not successful and award the contract to the successful contractor;

| — | order EEA to pay the Appellant's legal expenses incurred in connection with the Application in case T-331/06 and this Appeal, even if the current Appeal is rejected. |
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order EEA to pay the Appellant's legal expenses incurred in connection with the Application in case T-331/06 and this Appeal, even if the current Appeal is rejected.

Pleas in law and main arguments

Pleas in law and main arguments

| 1. | The Appellant argues that the General Court committed an error in law by adopting a wrong interpretation or by not applying Art.97 of the Financial Regulation (1) and Art.138 of the Implementing Rules, since the announcement of the sub-criteria before the submission of the tenders is essential so that tenderers can present their best offer. The General Court erroneously rejected the Appellant's argument concerning the mixing of the selection and award-criteria on the grounds that it was introduced out of time. It is submitted that even if the approach of the General Court was correct it misinterpreted the content of the tender specifications when examining whether the use of the individual CVs in the award phase infringed the tender specifications. |
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1.

The Appellant argues that the General Court committed an error in law by adopting a wrong interpretation or by not applying Art.97 of the Financial Regulation (1) and Art.138 of the Implementing Rules, since the announcement of the sub-criteria before the submission of the tenders is essential so that tenderers can present their best offer. The General Court erroneously rejected the Appellant's argument concerning the mixing of the selection and award-criteria on the grounds that it was introduced out of time. It is submitted that even if the approach of the General Court was correct it misinterpreted the content of the tender specifications when examining whether the use of the individual CVs in the award phase infringed the tender specifications.

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| 2. | Furthermore, the Appellant argues that the fact that the Evaluation Report is drafted in such way as not to demonstrate how the Evaluation Committee arrived at its conclusions cannot be attributed to the Appellant. If the EEA did not apply further weighting to the sub-criteria this should have resulted directly in the annulment of the attacked decision for insufficient motivation since the fact that ‘it is not apparent’ what kind of criteria were used is part of the obligation to state reasons. |
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2.

Furthermore, the Appellant argues that the fact that the Evaluation Report is drafted in such way as not to demonstrate how the Evaluation Committee arrived at its conclusions cannot be attributed to the Appellant. If the EEA did not apply further weighting to the sub-criteria this should have resulted directly in the annulment of the attacked decision for insufficient motivation since the fact that ‘it is not apparent’ what kind of criteria were used is part of the obligation to state reasons.

| 3. | Concerning environmental policy, it is submitted that the General Court erred in finding that an award criterion worded in such a general way is fulfilled by the simple submission certification which is just one of the ways of providing evidence. The General Court also erred in ignoring the fact that the Environmental Policy can only be examined in the selection phase. |
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3.

Concerning environmental policy, it is submitted that the General Court erred in finding that an award criterion worded in such a general way is fulfilled by the simple submission certification which is just one of the ways of providing evidence. The General Court also erred in ignoring the fact that the Environmental Policy can only be examined in the selection phase.

| 4. | The General Court failed to find that EEA infringed Art. 100(2) of the Financial Regulation and Art. 149(2) of the Implementing Rules by not disclosing the full evaluation report to tenderers that submit such a request in order to be in position to assess the reasons for the rejection of their bids. |
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4.

The General Court failed to find that EEA infringed Art. 100(2) of the Financial Regulation and Art. 149(2) of the Implementing Rules by not disclosing the full evaluation report to tenderers that submit such a request in order to be in position to assess the reasons for the rejection of their bids.

| 5. | Furthermore, the reasoning of the General Court, apart from being wrong, is not only contrary to the general and pre-existing duty to state reasons, but also to the Lisbon Treaty which gives EU Charter of fundamental rights equal legal force to the Treaties, in particular article 41. |
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5.

Furthermore, the reasoning of the General Court, apart from being wrong, is not only contrary to the general and pre-existing duty to state reasons, but also to the Lisbon Treaty which gives EU Charter of fundamental rights equal legal force to the Treaties, in particular article 41.

| 6. | Finally the Appellant submits that the contested judgment not only did not sufficiently motivate the rejection of the individual pleas concerning the manifest error of assessment but did not even examine them individually. |
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6.

Finally the Appellant submits that the contested judgment not only did not sufficiently motivate the rejection of the individual pleas concerning the manifest error of assessment but did not even examine them individually.

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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

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OJ L 248, p. 1

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