Action brought on 18 February 2022 — Arhs developments v Commission

(Case T-88/22)

(2022/C 294/46)

Language of the case: English

Parties

Applicant: Arhs developments SA (Belvaux, Luxembourg) (represented by: P. Teerlinck, M. Gherghinaru and L. Panepinto, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

— annul Decision ARES (2022) 1027365, dated 11 February 2022, by which the Commission decided that the applicant’s tender has not been successful in the Procurement procedure DIMOS V — Lot 2 (BUDG. Ref: BUDG19/PO/04, COM. Ref: BUDG/2020/OP/0001);

— order the Commission to pay to the applicant the amount of EUR 6 945 492,50, to be augmented with compensatory interest from the date of the adoption of the contested decision until the date of the judgment of the General Court which will contain the judicial assessment of the amount of damage, and then with default interest from the date of the judgment establishing the obligation to make good the damage, until full payment;

— order the Commission to bear its own costs as well as the applicant’s costs.

Pleas in law and main arguments

In support of the action, the applicant relies on a single plea in law, alleging violation of Article 167(2) of the Financial Regulation, (1) of the principles of transparency, equal treatment and non-discrimination laid down in Article 160(1) thereof, of points 18.2 and 20 of Annex I (Procurement) thereto, and of the obligation to state reasons.

— The applicant submits that the Decision ARES (2022) 1027365, dated 11 February 2022, was adopted in breach of Article 167(2) of the Financial Regulation, of the principles of transparency, equal treatment and non-discrimination laid down in Article 160(1) of the Financial Regulation and of points 18.2 and 20 of Annex I (Procurement) to the Financial Regulation, given that the Commission used the service level agreement (SLA) as a selection criterion, whereas the requirements provided for in this document can, under no circumstances, qualify as a selection criterion. Indeed, SLAs, by definition, refer to the quality of the service to be performed and not to the tenderers’ capacity to perform the service. Insofar as the Commission erroneously used the SLA as a selection criterion, the entire award procedure is illegal.

— Furthermore, it is argued that the Commission infringed the aforementioned provisions and the obligation to state reasons, since the justifications it provided with regard to the qualification of the SLA as a selection criterion are erroneous and insufficient.

— Consequently, the present plea in law comprises two parts: — Firstly, the applicant argues that the SLA does not pertain to the tenderers’ capacity to perform the contract, but to the quality of the service to be performed; — Secondly, the justifications given by the Commission relating to the qualification of the SLA as a selection criterion are unfounded and violate the provisions referred to in the present plea in law. In support of the action for damages, the applicant argues that the illegality of the contested decision caused it harm, consisting in:

— The loss of an opportunity to be awarded a contract for the provision of services concerned by Lot 2 of the DIMOS V;

— The costs and expenses relating to the participation in the tendering procedure.

(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).