# C_2016402EN.01001401.xml

| 31.10.2016 | EN | Official Journal of the European Union | C 402/14 |
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31.10.2016

EN

Official Journal of the European Union

C 402/14

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Appeal brought on 7 July 2016 by European Union Intellectual Property Office against the judgment of the General Court (Fourth Chamber) delivered on 27 April 2016 in Case T-556/11: European Dynamics Luxembourg SA, European Dynamics Belgium SA, Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE v European Union Intellectual Property Office

(Case C-376/16 P)

(2016/C 402/17)

Language of the case: English

Parties

Parties

Appellant: European Union Intellectual Property Office (represented by: N. Bambara, Agent, P. Wytinck, B. Hoorelbeke, advocaten)

Appellant:

Other parties to the proceedings: European Dynamics Luxembourg SA, European Dynamics Belgium SA, Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE

Other parties to the proceedings:

Form of order sought

Form of order sought

The appellant claims that the Court should:

| — | In principal order






  — | Annul the Contested Judgment of the General Court in its entirety, |
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In principal order

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Annul the Contested Judgment of the General Court in its entirety,

| — | reject the Application for annulment of the Contested Decision and the request for damages as brought forward by the Applicant in first instance; |
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reject the Application for annulment of the Contested Decision and the request for damages as brought forward by the Applicant in first instance;

| — | In subsidiary order, annul the Contested Judgment of the General Court in its entirety, and refer the case back to the General Court; |
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In subsidiary order, annul the Contested Judgment of the General Court in its entirety, and refer the case back to the General Court;

| — | In secondary subsidiary order, annul the Contested Judgment of the General Court in so far as it orders the EUIPO to pay damages to European Dynamics Luxembourg for loss of opportunity to be awarded the framework contract, and refer the case back to the General Court; |
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In secondary subsidiary order, annul the Contested Judgment of the General Court in so far as it orders the EUIPO to pay damages to European Dynamics Luxembourg for loss of opportunity to be awarded the framework contract, and refer the case back to the General Court;

| — | Order the Applicants in first instance to pay the entire costs of the proceedings. |
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Order the Applicants in first instance to pay the entire costs of the proceedings.

Pleas in law and main arguments

Pleas in law and main arguments

| 1. | The Appeal is based on four main grounds l, notably that: 1) the General Court erred in law in the interpretation and application of the principles of equal opportunities and transparency, and has in any event distorted the facts, 2) the General Court erred in law in the interpretation and application of the test regarding manifest errors of assessment and in some cases distorted the facts, 3) the General Court erred in law in the application of Article 100 (2) of the General Financial Regulation read in conjunction with the second paragraph of Article 296 TFEU, and 4) the General Court erred in law by the award for damages on the basis of the loss of opportunity. |
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1.

The Appeal is based on four main grounds l, notably that: 1) the General Court erred in law in the interpretation and application of the principles of equal opportunities and transparency, and has in any event distorted the facts, 2) the General Court erred in law in the interpretation and application of the test regarding manifest errors of assessment and in some cases distorted the facts, 3) the General Court erred in law in the application of Article 100 (2) of the General Financial Regulation read in conjunction with the second paragraph of Article 296 TFEU, and 4) the General Court erred in law by the award for damages on the basis of the loss of opportunity.

| 2. | In the First Ground of Appeal, the Appellant alleges that the General Court ruled ultra petita in breach of Article 21 of the Statute of the Court and Articles 76 (1) and 84 (1) of the Rules of Procedure of the General Court, or in the alternative erred in law in ruling that a violation of the principles of equal opportunities and due diligence could lead to an annulment of the Contested Decision, by holding that the Contested Decision should be annulled in so far as EUIPO did not request nor obtain extracts from the judicial records of Siemens SA and Siemens SL demonstrating the absence of any of the exclusion grounds listed in Art. 93 and 94 FR. In the second part of the first ground of appeal, the Appellant also demonstrates that the General Court has distorted the facts by holding that EUIPO did not request nor produce any evidence which was in accordance to Article 134b Implementing rules sufficient to demonstrate the absence of exclusion grounds for Siemens SL, as the case file does contain an extract from the registro mercantil which is an equivalent document to an extract from the judicial record in the sense of Article 134b Implementing rules. |
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2.

In the First Ground of Appeal, the Appellant alleges that the General Court ruled ultra petita in breach of Article 21 of the Statute of the Court and Articles 76 (1) and 84 (1) of the Rules of Procedure of the General Court, or in the alternative erred in law in ruling that a violation of the principles of equal opportunities and due diligence could lead to an annulment of the Contested Decision, by holding that the Contested Decision should be annulled in so far as EUIPO did not request nor obtain extracts from the judicial records of Siemens SA and Siemens SL demonstrating the absence of any of the exclusion grounds listed in Art. 93 and 94 FR. In the second part of the first ground of appeal, the Appellant also demonstrates that the General Court has distorted the facts by holding that EUIPO did not request nor produce any evidence which was in accordance to Article 134b Implementing rules sufficient to demonstrate the absence of exclusion grounds for Siemens SL, as the case file does contain an extract from the registro mercantil which is an equivalent document to an extract from the judicial record in the sense of Article 134b Implementing rules.

| 3. | In the Second Ground of Appeal, the Appellant submits that the General Court erred in law by not examining whether the established manifest errors of assessment made by the evaluation committee in the evaluation of European Dynamics’ tender could have had an impact on the final outcome of the contested award decision. The Appellant points out the General Court is required to examine whether the established manifest errors of assessment would lead to a different outcome for the award procedure by examining whether the established manifest errors have an effect on the score awarded for a given criterion in case there are several other reasons (which are not vitiated by a manifest error of assessment) which equally support the scores awarded. In addition, 82 the Appellant demonstrates that on numerous occasions the General Court has either distorted the facts, applied the wrong test to establish manifest errors of assessment by simply substituting its assessment of the facts for that of EUIPO, or erred in law by holding that an insufficient motivation could be considered as an evidence of a manifest error of assessment. |
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3.

In the Second Ground of Appeal, the Appellant submits that the General Court erred in law by not examining whether the established manifest errors of assessment made by the evaluation committee in the evaluation of European Dynamics’ tender could have had an impact on the final outcome of the contested award decision. The Appellant points out the General Court is required to examine whether the established manifest errors of assessment would lead to a different outcome for the award procedure by examining whether the established manifest errors have an effect on the score awarded for a given criterion in case there are several other reasons (which are not vitiated by a manifest error of assessment) which equally support the scores awarded. In addition, 82 the Appellant demonstrates that on numerous occasions the General Court has either distorted the facts, applied the wrong test to establish manifest errors of assessment by simply substituting its assessment of the facts for that of EUIPO, or erred in law by holding that an insufficient motivation could be considered as an evidence of a manifest error of assessment.

| 4. | In the Third Ground of Appeal, the Appellant puts forward that the General Court erred in law by requiring that the motivation of the decision should make clear how each (negative) comment impacted on the points awarded for each sub-criterion and subpoint, and as such applied a stricter test regarding the duty to state reasons as the one that follows from the settled case-law of the Court of Justice. For that reason the General Court erred in law in annulling the contested decision on the grounds of a violation of Article 100 (2) General Financial Regulation read in conjunction with Article 296 TFEU. |
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4.

In the Third Ground of Appeal, the Appellant puts forward that the General Court erred in law by requiring that the motivation of the decision should make clear how each (negative) comment impacted on the points awarded for each sub-criterion and subpoint, and as such applied a stricter test regarding the duty to state reasons as the one that follows from the settled case-law of the Court of Justice. For that reason the General Court erred in law in annulling the contested decision on the grounds of a violation of Article 100 (2) General Financial Regulation read in conjunction with Article 296 TFEU.

| 5. | In the Fourth Ground of Appeal, the Appellant alleges that the General Court erred in law in awarding damages to the first Applicant in first instance as one of the cumulative conditions for incurring non-contractual liability of EU institutions (i.e. the presence of unlawful conduct) has not been demonstrated. In subsidiary order, the Appellant submits that, even if the Appeal of EUIPO would only succeed on its first ground of appeal, the Contested Judgment should still be annulled insofar as it imposes the obligation to pay damages as in that case the existence of a causal link between the remaining unlawful conduct (manifest error of assessment and failure to state reasons) and the alleged harm is not demonstrated. In the alternative the Appellant demonstrated that the General Court erred in law by awarding damages on the basis of the loss of opportunity as such a basis to award damages cannot be considered as a general principle common to the laws of the Member States and thus violated the explicit provision of Article 340 TFEU. |
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5.

In the Fourth Ground of Appeal, the Appellant alleges that the General Court erred in law in awarding damages to the first Applicant in first instance as one of the cumulative conditions for incurring non-contractual liability of EU institutions (i.e. the presence of unlawful conduct) has not been demonstrated. In subsidiary order, the Appellant submits that, even if the Appeal of EUIPO would only succeed on its first ground of appeal, the Contested Judgment should still be annulled insofar as it imposes the obligation to pay damages as in that case the existence of a causal link between the remaining unlawful conduct (manifest error of assessment and failure to state reasons) and the alleged harm is not demonstrated. In the alternative the Appellant demonstrated that the General Court erred in law by awarding damages on the basis of the loss of opportunity as such a basis to award damages cannot be considered as a general principle common to the laws of the Member States and thus violated the explicit provision of Article 340 TFEU.

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