# C_2020443EN.01002101.xml

| 21.12.2020 | EN | Official Journal of the European Union | C 443/21 |
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21.12.2020

EN

Official Journal of the European Union

C 443/21

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Action brought on 3 October 2020 — EMCS v EASO

(Case T-621/20)

(2020/C 443/25)

Language of the case: English

Parties

Applicant: EMCS ltd. (Msida, Malta) (represented by: P. Kuypers and N. Groot, lawyers)

Defendant: European Asylum Support Office (EASO)

Form of order sought

The applicant claims that the Court should:

| — | annul the decision of EASO, dated 23 July 2020, with reference ‘Procurement procedure EASO/2020/789, provision of temporary agency workers for EASO in Malta’ from the procurement procedure governed by Regulation (EU, Euratom) 2018/1046, (1), to the extent that it rejected the applicant’s bid from the tender with reference number EASO/2020/789; and/or |
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annul the decision of EASO, dated 23 July 2020, with reference ‘Procurement procedure EASO/2020/789, provision of temporary agency workers for EASO in Malta’ from the procurement procedure governed by Regulation (EU, Euratom) 2018/1046, (1), to the extent that it rejected the applicant’s bid from the tender with reference number EASO/2020/789; and/or

| — | annul the act(s) by which EASO allowed or allows a party other than the applicant to establish a framework contract following the tender with reference number EASO/2020/789; |
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annul the act(s) by which EASO allowed or allows a party other than the applicant to establish a framework contract following the tender with reference number EASO/2020/789;

| — | order EASO to compensate the applicant for the damage that EASO caused by preventing the applicant from executing the framework contract; and |
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order EASO to compensate the applicant for the damage that EASO caused by preventing the applicant from executing the framework contract; and

| — | order EASO to pay the applicant’s costs. |
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order EASO to pay the applicant’s costs.

Pleas in law and main arguments

In support of the action, the applicant relies on four pleas in law.

| 1. | First plea in law, alleging that EASO infringed the principle of equal treatment and the principle of transparency, as the tender documents were not sufficiently clear, precise and unequivocal and EASO could and should have clarified the tender documents. Although the applicant asked for a clarification on multiple occasions, EASO chose not to clarify its tender documents. Therefore, EASO willingly accepted a continuous breach of the transparency principle. |
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1.

First plea in law, alleging that EASO infringed the principle of equal treatment and the principle of transparency, as the tender documents were not sufficiently clear, precise and unequivocal and EASO could and should have clarified the tender documents. Although the applicant asked for a clarification on multiple occasions, EASO chose not to clarify its tender documents. Therefore, EASO willingly accepted a continuous breach of the transparency principle.

| 2. | Second plea in law, alleging that EASO unlawfully recalculated the financial bid of the applicant on its own, acting in breach of its own tender specifications and case law of both the General Court and the European Court of Justice. Subsequently, EASO based its assessment of the applicant’s tender on the modified amount. Therefore, EASO acted contrary to the principles of equal treatment and transparency. As a result, EASO could not have come to its award decision. |
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2.

Second plea in law, alleging that EASO unlawfully recalculated the financial bid of the applicant on its own, acting in breach of its own tender specifications and case law of both the General Court and the European Court of Justice. Subsequently, EASO based its assessment of the applicant’s tender on the modified amount. Therefore, EASO acted contrary to the principles of equal treatment and transparency. As a result, EASO could not have come to its award decision.

| 3. | Third plea in law, alleging that EPASO violated Article 170(3) of Regulation 2018/1046, by not stating the relative advantages of the consortium vis-à-vis the bid of the applicant, even after the applicant specifically requested EASO to do so. EASO did not disclose why the bid of the consortium scored higher than the bid of the applicant, resulting in the fact that the applicant was not able to identify the respective strengths and weaknesses of its own tender compared to that of the consortium. |
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3.

Third plea in law, alleging that EPASO violated Article 170(3) of Regulation 2018/1046, by not stating the relative advantages of the consortium vis-à-vis the bid of the applicant, even after the applicant specifically requested EASO to do so. EASO did not disclose why the bid of the consortium scored higher than the bid of the applicant, resulting in the fact that the applicant was not able to identify the respective strengths and weaknesses of its own tender compared to that of the consortium.

| 4. | Fourth plea in law, in relation to the claim for damages, stating that the applicant suffered damage due to the loss of profit resulting from the loss of the concluding of the framework contract. |
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4.

Fourth plea in law, in relation to the claim for damages, stating that the applicant suffered damage due to the loss of profit resulting from the loss of the concluding of the framework contract.

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(1)  Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council of 18 July 2018 on the financial rules applicable to the general budget of the Union, amending Regulations (EU) No 1296/2013, (EU) No 1301/2013, (EU) No 1303/2013, (EU) No 1304/2013, (EU) No 1309/2013, (EU) No 1316/2013, (EU) No 223/2014, (EU) No 283/2014, and Decision No 541/2014/EU and repealing Regulation (EU, Euratom) No 966/2012 (OJ 2018 L 193, p. 1).

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