# C_2014235EN.01003101.xml

| 21.7.2014 | EN | Official Journal of the European Union | C 235/31 |
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21.7.2014

EN

Official Journal of the European Union

C 235/31

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Action brought on 30 May 2014 — Europower v Commission

(Case T-383/14)

2014/C 235/42

Language of the case: Italian

Parties

Parties

Applicant: Europower SpA (Milan, Italy) (represented by: G. Cocco and L. Salomoni, lawyers)

Applicant:

Defendant: European Commission

Defendant:

Form of order sought

Form of order sought

The applicant claims that the Court should:

| — | annul the decision rejecting, in favour of another tenderer, the tender submitted by Europower SpA in the call for tenders for the construction of a gas-turbine tri-generation power plant and the associated maintenance; |
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annul the decision rejecting, in favour of another tenderer, the tender submitted by Europower SpA in the call for tenders for the construction of a gas-turbine tri-generation power plant and the associated maintenance;

| — | annul the decision relating to the characteristics and advantages of the selected tender; |
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annul the decision relating to the characteristics and advantages of the selected tender;

| — | annul the decision refusing to provide a copy of the documentation requested by the applicant by application of 7 April 2014 and make any orders which are accordingly necessary directing that the documentation be provided; |
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annul the decision refusing to provide a copy of the documentation requested by the applicant by application of 7 April 2014 and make any orders which are accordingly necessary directing that the documentation be provided;

| — | annul the additional refusal to provide access, issued following the confirmatory application; |
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annul the additional refusal to provide access, issued following the confirmatory application;

| — | annul every consequent, intended or related measure, including even measures as yet unknown, and, in particular, annul the tender evaluation reports, any contract entered to with the successful tenderer, the verifications as to whether the successful tenderer satisfied the requirements as declared, all unknown measures, subject to the pleas being supplemented under Article 48(2) of the Rules of Procedure of the General Court. |
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annul every consequent, intended or related measure, including even measures as yet unknown, and, in particular, annul the tender evaluation reports, any contract entered to with the successful tenderer, the verifications as to whether the successful tenderer satisfied the requirements as declared, all unknown measures, subject to the pleas being supplemented under Article 48(2) of the Rules of Procedure of the General Court.

In the alternative:

| — | annul in part the call for tenders; |
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annul in part the call for tenders;

| — | annul in part the administrative annex to the call for tenders; |
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annul in part the administrative annex to the call for tenders;

| — | lastly, order the Commission to pay compensation for the harm caused, to the extent determined in the course of the proceedings. |
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lastly, order the Commission to pay compensation for the harm caused, to the extent determined in the course of the proceedings.

Pleas in law and main arguments

Pleas in law and main arguments

The present action is brought against the decision rejecting the tender submitted by the applicant in the same tendering procedure as that at issue in Case T-355/14 STC SpA v Commission.

STC SpA

Commission

In support of the action, the applicant relies on five pleas in law:

| | First plea: infringement of essential procedural requirements; breach of the principles of equal treatment under Article 148 of Regulation No 1268/2012 (1): infringement of Article 113 of Regulation No 966/2012 and infringement of the tendering procedure rules; together with the existence, in the present case, of a misuse of powers.






  — | The applicant claims in that regard that, in order to be admitted to the tendering procedure it was necessary to satisfy the technical capacity requirements referred to in point II.2.3, which required, on pain of exclusion, the complete construction — directly by the tenderers — of at least two combined power plants with a capacity of at least 8 MW. The successful tenderer should have been excluded because it did not satisfy those minimum requirements set out in tendering procedure rules. |
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First plea: infringement of essential procedural requirements; breach of the principles of equal treatment under Article 148 of Regulation No 1268/2012 (1): infringement of Article 113 of Regulation No 966/2012 and infringement of the tendering procedure rules; together with the existence, in the present case, of a misuse of powers.

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The applicant claims in that regard that, in order to be admitted to the tendering procedure it was necessary to satisfy the technical capacity requirements referred to in point II.2.3, which required, on pain of exclusion, the complete construction — directly by the tenderers — of at least two combined power plants with a capacity of at least 8 MW. The successful tenderer should have been excluded because it did not satisfy those minimum requirements set out in tendering procedure rules.

| | Second plea: infringement of Article 149 of Regulation No 1268/2012; infringement of Article 113 of Regulation No 966/2012 (2); infringement of Directive 2004/18/EC (3) (recital 39 thereto); together with the existence, in the present case, of a misuse of powers.






  — | The applicant claims in that regard that the assessment and the award of the contract are unlawful in so far as the successful tenderer was not entitled to the score awarded to it, since the evaluation of the technical offer, on the basis of the criteria laid down by the Commission, must necessarily be based on the effective output of the plant and not on a unilateral declaration made by the tenderer. Consequently, there was breach of transparency and of equal treatment with respect to the tendering procedure. |
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Second plea: infringement of Article 149 of Regulation No 1268/2012; infringement of Article 113 of Regulation No 966/2012 (2); infringement of Directive 2004/18/EC (3) (recital 39 thereto); together with the existence, in the present case, of a misuse of powers.

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The applicant claims in that regard that the assessment and the award of the contract are unlawful in so far as the successful tenderer was not entitled to the score awarded to it, since the evaluation of the technical offer, on the basis of the criteria laid down by the Commission, must necessarily be based on the effective output of the plant and not on a unilateral declaration made by the tenderer. Consequently, there was breach of transparency and of equal treatment with respect to the tendering procedure.

| | Third plea: infringement of Article 112 of Regulation No 966/2012; breach of the principle of the secrecy of tenders, referred to in Article 111 of Regulation No 966/2012; infringement of Articles 157 and 159 of Regulation No 1268/2012; together with the existence, in the present case, of a misuse of powers.






  — | The applicant claims in that regard that the tendering procedures for award of the contract were carried out in a single sitting through the concurrent examination of administrative documents for the purpose of determining admission to the tendering procedure, technical offers and economic offers. Such a modus operandi is incompatible with the principle of the secrecy of tenders and the principle of the separation of tenders. |
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Third plea: infringement of Article 112 of Regulation No 966/2012; breach of the principle of the secrecy of tenders, referred to in Article 111 of Regulation No 966/2012; infringement of Articles 157 and 159 of Regulation No 1268/2012; together with the existence, in the present case, of a misuse of powers.

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The applicant claims in that regard that the tendering procedures for award of the contract were carried out in a single sitting through the concurrent examination of administrative documents for the purpose of determining admission to the tendering procedure, technical offers and economic offers. Such a modus operandi is incompatible with the principle of the secrecy of tenders and the principle of the separation of tenders.

modus operandi

| | Fourth plea: breach of the principles of equal treatment and transparency; infringement of Articles 15 and 298 of the Treaty; infringement of Article 102 of Regulation No 966/2012; infringement of Article 6 of Directive 2004/18/EC; together with the existence, in the present case, of a misuse of powers.






  — | The applicant claims in that regard that, following the decision refusing its tender, the Commission provided only the grid of the scores awarded and then unlawfully refused access to the documentation requested, even following the confirmatory application submitted by the applicant pursuant to Article 7 et seq. of Regulation No 1049/2001 (4). |
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Fourth plea: breach of the principles of equal treatment and transparency; infringement of Articles 15 and 298 of the Treaty; infringement of Article 102 of Regulation No 966/2012; infringement of Article 6 of Directive 2004/18/EC; together with the existence, in the present case, of a misuse of powers.

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The applicant claims in that regard that, following the decision refusing its tender, the Commission provided only the grid of the scores awarded and then unlawfully refused access to the documentation requested, even following the confirmatory application submitted by the applicant pursuant to Article 7 et seq. of Regulation No 1049/2001 (4).

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| | Fifth plea: breach of the principles of equal treatment and transparency; infringement of Articles 157 and 158 of Regulation No 1268/2012; together with the existence, in the present case, of a misuse of powers.






  — | The applicant claims in that regard that, in breach of Article 157 of Regulation No 1268/2012, the failure to provide a copy of the evaluation reports and of the final award decisions prevented the applicant from gaining full knowledge of the preconditions laid down in the rules referred to. |
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Fifth plea: breach of the principles of equal treatment and transparency; infringement of Articles 157 and 158 of Regulation No 1268/2012; together with the existence, in the present case, of a misuse of powers.

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The applicant claims in that regard that, in breach of Article 157 of Regulation No 1268/2012, the failure to provide a copy of the evaluation reports and of the final award decisions prevented the applicant from gaining full knowledge of the preconditions laid down in the rules referred to.

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(1)  Commission Delegated Regulation (EU) No 1268/2012 of 29 October 2012 on the rules of application of Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council on the financial rules applicable to the general budget of the Union (OJ 2012 L 362, p. 1).

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(2)  Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council of 25 October 2012 on the financial rules applicable to the general budget of the Union and repealing Council Regulation (EC, Euratom) No 1605/2002 (OJ 2012 L 298, p. 1).

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(3)  Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (OJ 2004 L 134, p. 114).

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(4)  Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43).

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