Action brought on 22 April 2019 — Imagina Media Audiovisual and Others v Commission

(Case T-268/19)

(2019/C 213/62)

Language of the case: English

Parties

Applicants: Imagina Media Audiovisual, SA (Barcelona, Spain), Imagina EU (Brussels, Belgium), dpa Deutsche Presse-Agentur GmbH (Hamburg, Germany) (represented by: P. Kuypers, N. Groot, B. Vitez, lawyers)

Defendant: European Commission

Form of order sought

The applicants claim that the Court should:

— annul the decision of the Commission dated 12 February 2019 with reference Ares(2019)856949 on the exclusion of IMAGINA MEDIA AUDIOVISUAL SL from the procurement and grant award procedures governed by Regulation (EU, Euratom) no 2018/1046 of the European Parliament and of the Council, (1) to the extent that it excluded the Imagina/dpa Consortium or rejected its bids;

— annul the decision of the Commission dated 9 April 2019 with reference Ares(2019)2494476 in so far as it should be considered the decision to exclude the Consortium from the tender with reference number PO/2018-05/A4 or rejected its bids;

— annul the act(s) by which the Commission awards the contracts, or allows a party other than the Imagina/dpa Consortium to execute the audiovisual coverage of EU current affairs, related to Lots I, III and VI as described in the Tender;

— order the Commission to compensate the Consortium for the damage that the Commission caused by preventing the Consortium to execute the contracts for Lots I, III and VI;

— order the Commission to pay the applicants’ costs.

Pleas in law and main arguments

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

1. First plea in law, alleging that the Commission committed a manifest error of assessment by failing to recognise that the exclusion of Imagina Media Audiovisual SL — being one of the members of the Consortium — has no effect on the execution of the contract regarding Lots I, III and VI of the Tender by the Consortium. Nor does the exclusion of Imagina Media Audiovisual SL have any effect on the decisions by which the Commission awarded these contracts to the Consortium.

2. Second plea in law, alleging that the Commission committed a manifest error of assessment by failing to correctly apply the tender documents. Consequently, the Commission did not require the Consortium to replace Imagina Media Audiovisual SL with another entity to form part of the Consortium, as was required by the tender documents.

3. Third plea in law, alleging that the Commission committed a manifest error of assessment by failing to apply correctly Article 136(9) of Regulation 2018/1046. Consequently, the authorising officer of the Commission did not require the Consortium to replace Imagina Media Audiovisual SL with another entity to form part of the Consortium, as was required by Regulation 2018/1046.

4. Fourth plea in law, alleging that the Commission infringed the Consortium’s right to an effective remedy, and the principle of sound administration. The Commission unlawfully used its decision dated 12 February 2019 with reference Ares(2019) 856949 on the exclusion of Imagina Media Audiovisual SL or its letter dated 9 April 2019 with reference Ares(2019) 2494476 to exclude the Consortium from the tender with reference number PO/2018-05/A4.

5. Fifth plea in law, alleging that the Commission infringed the Consortium’s right to an effective remedy, the Commission’s obligation to state reasons and the principle of sound administration. The Commission committed procedural errors and illegally awarded the contracts for Lots I, III and VI of the tender with reference number PO/2018-05/A4 to a tenderer other than the Consortium.

6. Sixth plea in law, alleging that the Commission caused damages to the Consortium by the unlawful conduct on the part of the Commission as a consequence whereof the Consortium cannot execute the contracts for Lots I, III and VI of the tender with reference number PO/2018-05/A4.

(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 L 193, 30.7.2018, p.1.