Action brought on 25 July 2019 — Intering and Others v Commission

(Case T-525/19)

(2019/C 328/72)

Language of the case: German

Parties

Applicants: Intering SH.P.K. (Obiliq, Kosovo), Steinmüller Engineering GmbH (Gummersbach, Germany), Deling d.o.o. za proizvodnju, promet i usluge (Šići bb, Tuzla, Bosnia and Herzegovina), ZM- Vikom d.o.o. za proizvodnju, konstruckcije i montažu (Šibenik, Croatia) (represented by: R. Spielhofen, Rechtsanwalt), forming a consortium

Defendant: European Commission

Form of order sought

The applicants claim that the Court should:

— annul the decision of the defendant, represented by the European Commission, in the name of and on behalf of Kosovo, of June 2019 (by means of an undated document, made available to the applicant on 7 June 2019) — Ref.: Ares(2019)3677456-07/06/2019 — on the exclusion of the applicant from the further tendering procedure and its non-inclusion on the short list in connection with a procedure for the award of a contract under the programme entitled ‘EU Support to clean air in Kosovo’ to reduce dust and NOx emissions at TPP Kosovo B, Units B1 and B2 — Publication reference no.: EuropeAid/140043/DH/WKS/XK.

By application of 2 August 2019, the form of order was modified as follows:

— annul the decision of the defendant, represented by the European Commission, in the name of and on behalf of Kosovo, of 29 June 2019 (disclosed to the applicant by letter of 30 July 2019) — Ref.: Ares(2019)4979920-30/07/2019 and Ares D(2019) NA/vk — on the exclusion of the applicant from the further tendering procedure and its non-inclusion on the short list in connection with a procedure for the award of a contract under the programme entitled ‘EU Support to clean air in Kosovo’ to reduce dust and NOx emissions at TPP Kosovo B, Units B1 and B2 — Publication reference no.: EuropeAid/140043/DH/WKS/XK.

Pleas in law and main arguments

In support of the action, the applicants rely on eight pleas in law:

1. First plea in law: Infringement of the principles of transparency, proportionality and equal treatment of tenderers in that the defendant failed to resolve its doubts with regard to the documents filed by the applicants, despite the fact that it appeared to have doubts to that effect, and excluded the applicants from the further tendering procedure without giving them the opportunity to resolve the abovementioned doubts.

2. Second plea in law: Infringement of the principles of transparency and proportionality in that the defendant failed to justify its decision to exclude the applicants from the further tendering procedure while at the same time failing to grant the applicants access to the detailed evaluation report on which the contested decision was based or to provide them with information on the advantages and characteristics of the tenderers included on the short list.

3. Third plea in law: Infringement of the general principle that the tender documents are to be protected from any changes during the tendering procedure in that, in accordance with the defendant’s communication, the applicants’ tender was evaluated on the basis of sub-criteria and interpretations that were not provided for in the documents of the relevant procedure.

4. Fourth plea in law: Infringement of Article 5(1) (‘Financial assistance under this Regulation shall be consistent with Union policies’) and Article 5(2) (‘The Commission, in liaison with Member States, shall contribute to the implementation of Union commitments towards increased transparency and accountability in the delivery of assistance, including by publicly disclosing information on assistance volume and allocation, ensuring that data is internationally comparable and can be easily accessed, shared and published’) of Regulation (EU) No 231/2014 of the European Parliament and of the Council of 11 March 2014 establishing an Instrument for Pre-Accession Assistance (IPA II) (1) with regard to the fact that the contested decision infringes the general principles of public procurement law.

5. Fifth plea in law: Infringement of Article 1(3) (‘The Commission shall ensure that actions are implemented in accordance with the objectives of the applicable Instrument, and in conformity with an effective protection of the financial interests of the Union’) and Article 1(6) (‘The Union shall seek to promote, develop and consolidate the principles of democracy, the rule of law and respect for human rights and fundamental freedoms on which it is founded, on the basis of, where appropriate, dialogue and cooperation with partner countries and regions’) of Regulation (EU) No 236/2014 of the European Parliament and of the Council of 11 March 2014 laying down common rules and procedures for the implementation of the Union’s instruments for financing external action, (2) with regard to the fact that the contested decision infringes the general principles of public procurement law.

6. Sixth plea in law: Infringement of the provisions of the ‘Practical Guide on Procurement and Grants for European Union external actions’ (applicable as from 2 August 2018) (‘PRAG’) with regard to the scope of this procedure and the terms of the notice (as defined above), as specified by the contracting authorities, in particular point 17 of the notice.

7. Seventh plea in law: Infringement of the provisions of Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents, (3) in that the defendant did not justify its decision to exclude the applicants from the further tendering procedure while at the same time failing to grant the applicants access to the detailed evaluation report on which the contested decision was based or to provide them with information on the advantages and characteristics of the contractors included on the short list.

8. Eighth plea in law: Infringement of the provisions of Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council of 25 October 2012 on the financial rules applicable to the general budget of the Union and repealing Council Regulation (EC, Euratom) No 1605/2002 (4) (‘the Financial Rules’) in connection with the failure to state adequate reasons for the rejection of the applicants’ request to participate in the procedure covered by the contract notice.

(1) Regulation (EU) No 231/2014 of the European Parliament and of the Council of 11 March 2014 establishing an Instrument for Pre-Accession Assistance (IPA II) (OJ 2014 L 77, p. 11).

(2) Regulation (EU) No 236/2014 of the European Parliament and of the Council of 11 March 2014 laying down common rules and procedures for the implementation of the Union’s instruments for financing external action (OJ 2014 L 77, p. 95).

(3) Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, pp. 43 to 48).

(4) Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council of 25 October 2012 on the financial rules applicable to the general budget of the Union and repealing Council Regulation (EC, Euratom) No 1605/2002 (OJ 2012 L 298, pp. 1 to 96). No longer in force, repealed by 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, pp. 1 to 222).