Order — ECLI:EU:T:2005:27
Date: 2005-01-31
Language of the case: English
Court formation: President of the Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Public procurement in the European Union
Concepts: Application for interim measures: suspension of operation of the contested measure and other interim measures;Provisional measures
Procedure: Action for annulment;Application for interim measures - unfounded
Origin: Netherlands

Notice for the OJ Action brought on 15 November 2004 by Capgemini Nederland B.V. against the Commission of the European communities (Case T-447/04) Language of the case: English An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 15 November 2004 by Capgemini Nederland B.V.,Utrecht, The Netherlands, represented by M. Meulenbelt and H. Speyart, lawyers. The applicant claims that the Court should: - Annul the Commission's decision, notified to the applicant by letter dated 13 September 2004, not to retain the applicant's offer in the context of the call for tender JAI-C3-2003-01; - Annul the Commission's decision to sign a contract with another tenderer; - Order the Commission to pay its own costs and those of the applicant. Pleas in law and main arguments On 25 June 2003 the Commission published a Contract Notice for the development and installation of a large scale information system in the field of justice and home affairs, referred to as SIS II and VIS. The applicant submitted a bid. By letter dated 13 September 2004 the Commission notified the applicant of its decision not to retain its offer and to award the contract to another tenderer. In the same letter it informed the applicant that it would not be signing the contract with the successful tenderer before the expiry of a period of two weeks from the date of the letter. An exchange of correspondence between the applicant and the Commission followed, in the course of which the Commission confirmed its intention to award the contract to another tenderer. On 26 October 2004 the Commission published a press release stating that it had signed a contract with the successful tenderer. By its application the applicant requests the annulment of both the Commission's decision to reject its offer as well as the decision to sign a contract with the successful tenderer. In support of the request to annul the decision rejecting the applicant's offer, the applicant invokes a number of alleged violations of Regulation 1605/20021 (the Financial Regulation) and of Regulation 2342/20022 laying down detailed rules for the implementation of the Financial Regulation. In this context the applicant submits that the method of price evaluation chosen by the Commission is unusual in that it is not based on a fixed price for the project but rather on price ratios between the price offered by each particular tenderer and the lowest price offered, calculated at the level of each of the 15 individual items included in the project, which all carry equal weight even though they are of greatly diverging sizes. Use of this method, according to the applicant, did not result in a fair and equitable outcome. The applicant further alleges that the Commission failed to react to abnormally low prices in the successful tenderer's offer, failed to take into account a corrigendum submitted by the applicant and failed to reject the successful tenderer's offer in spite of non-compliance with technical criteria. The applicant also claims that the commission violated the "best value for money" principle since the total contract value for the successful tenderer is higher than that for the applicant. In support of its request to annul the decision to sign a contract with the successful tenderer the applicant submits that by concluding that contract the Commission willingly deprived the applicant of an effective remedy. The applicant also invokes, in this context, a violation of Article 230 EC arguing that, by informing the applicant that it would only wait for two weeks before signing the contract with the successful tenderer, the Commission effectively shortened the two-month time limit for the introduction of an application set out in that article. Finally, the applicant argues that the Commission violated Article 103 of Regulation 1605/2002 by failing to suspend the procedure leading to the decision to sign the contract even though the applicant, by its letters, had drawn its attention to possible irregularities in the award procedure. ____________ 1 - OJ 00, L48 p. 1 2 - OJ 00, L357 p. 1