Order — ECLI:EU:T:2022:569
Date: 2022-09-21
Language of the case: English
Court formation: President of the Chamber
Subject matter: Freedom to provide services;Public procurement in the European Union
Procedure: Action for annulment;Application for interim measures - unfounded
Origin: Belgium

Action brought on 13 May 2022 – Xpand Consortium and Others v Commission (Case T-281/22) Language of the case: English Parties Applicants: Xpand Consortium (Brussels, Belgium), NTT Data Belgique (Brussels), Sopra Steria Benelux (Brussels), Fujitsu Technology Solutions (Brussels) (represented by: M. Troncoso Ferrer, L. Lence de Frutos and A. Rebollar Corrales, lawyers) Defendant: European Commission Form of order sought The applicants claim that the Court should: annul the European Commission’s decision of 3 March 2022 cancelling the procurement procedure with reference BUDG19/PO/04; order the defendant to pay all the legal fees and costs. Pleas in law and main arguments In support of the action, the applicants rely on four pleas in law. First plea in law, alleging an infringement of the duty to state reasons and a manifest error of assessment committed by the European Commission, on the grounds that the service level agreement is a valid selection criterion. Second plea in law, alleging an infringement of the principles of legal certainty and legitimate expectations, on the grounds that the European Commission (i) limited itself in its interpretation of the concepts contained in the tendering documents during the procurement procedure with reference BUDG19/PO/04 and then changed its position and (ii) led Xpand Consortium to entertain justified expectations about the legality of the service level agreement as a selection criterion. Third plea in law, alleging an infringement of the principle of sound administration, on the grounds that the European Commission did not (i) communicate the cancellation of procurement procedure with reference BUDG19/PO/04 as soon as possible, as required by Article 171 of the Financial Regulation 1 and (ii) notify Xpand Consortium of the European Commission’s Decision of 3 March 2022 cancelling the procurement procedure with reference BUDG19/PO/04 and the reasons for adopting said decision as soon as possible. 4. Fourth plea in law, alleging an infringement of the principles of proportionality and equal treatment, on the grounds that (i) by cancelling procurement procedure with reference BUDG19/PO/04 the European Commission adopted the most onerous and disadvantaged measure whereas there were other proportionate measures and (ii) by launching a new procurement procedure with the same object the European Commission is giving an undue competitive advantage to Xpand Consortium’s rivals in the tender. ____________ 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).