Case T-170/01: Action brought on 24 July 2001 by Vieira Argentina SA against the Commission of the European Communities
Date: 2001-10-13
Institutions: Court of First Instance
Subjects: Argentina, European Commission, action for failure to act, aid system, balance of payments assistance, sea fishing

C 289/30

EN

Official Journal of the European Communities

13.10.2001

The applicant claims that the Court should:

— annul

the Commission’s decision not

the
SAGEM’s tender submitted for the Eurodac AFIS Central
Unit;

to accept

— annul the Commission’s decision to award the contract

for the Eurodac AFIS Central unit to BULL.

Pleas in law and main arguments

The applicant in the present case, a company incorporated
under French law, seeks the annulment of the Commission’s
decisions rejecting the tender which it submitted in response
to invitation to tender no. DG JAI A2/2000/002 concerning
the contract for the ‘EURODAC’ Automated Fingerprint identi-
fication System (AFIS) Central Unit, and accepting the tender
submitted by BULL.

In support of
following pleas in law:

its claims the applicant puts forward the

— infringement of the duty to state the reasons on which
challenged decisions are based. It alleges in this respect
that the Commission

— did not establish whether the qualifying criteria had

been fulfilled;

— did not provide the detailed marks corresponding to

the weighting of each technical criterion;

— compared inappropriately the technical perform-
ances of the tenders and evaluated them on different
financial grounds, and

— amended the purpose of the benchmark tests, added
a rule to compare the variable costs of the tenders
and took into account only a few items of the
financial compulsory reply form, although the Ten-
dering Specifications provided that all the items
were to be taken into account.

— Manifest error of assessment. It is pointed out in this
regard that the Commission assessed the tenders by using
different bases. Concerning the benchmark tests,
in
particular the performance test, the Commission con-
cluded that BULL’s solution was faster than the applicant’s
whereas none of the tenderers used the same number of
pieces of equipment. Concerning the financial evaluation,
the Commission used different bases to compare the
operational support proposed by the tenders.

Action brought on 24 July 2001 by Vieira Argentina SA
against the Commission of the European Communities

(Case T-170/01)

(2001/C 289/70)

— provided very partial results of the benchmark tests;

(Language of the case: Spanish)

— could not allege protection of business secrets, and

— provided unclear and equivocal explanations, as
regards both the selected tenderer’s identity and the
question relating to high matching accuracy.

— infringement of principles of equal treatment and of

transparency, in as much as the Commission:

— gave the tenderers very different information relating
to the same technical requirements of the EURO-
DAC AFIS Central Unit;

— amended the technical criterion relating to high
matching accuracy during the evaluation procedure;

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 24 July 2001 by Vieira Argentina
SA, a company with registered offices in Buenos Aires,
represented by D. Ramo´ n Garcı´a-Gallardo and Marı´a Dolores
Domı´nguez Pérez, Lawyers.

The applicant claims that the Court should:

— declare that, by failing to define its position within a
period of two months from the date when notice was
given, being 18 May 2001, the Commission failed to
fulfil its obligations;

13.10.2001

EN

Official Journal of the European Communities

C 289/31

— adopt such measures as it deems necessary;

Action brought on 25 July 2001 by Asahi Vet Sa against
the Commission of the European Communities

— order the Commission of the European Communities to
pay the applicant the costs of the proceedings in their
entirety.

Pleas in law and main arguments

The applicant is a joint-enterprise company governed by
Argentinean law, established by a European Communities
undertaking and an Argentinean ship owning company, to
which the Commission granted aid by decision of 25 July
1995 (1).
In 1997 the Commission decided to initiate a
procedure to reduce the aid granted, without first suspending
payment of the balance of the aid by formal decision (2).
On 19 March 2001 the Commission adopted a decision
withdrawing the balance of the aid. The applicant was excluded
from the scope of application of that decision (3).

(Case T-173/01)

(2001/C 289/71)

(Language of the case: German)

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 25 July 2001 by Asahi Vet SA of
Rubı´, Barcelona (Spain), represented by Dr Carsten Bittner.

The applicant claims that the Court should:

Faced with that situation, on 18 May 2001, the applicant
formally called upon the Commission to pay the balance of
the aid still outstanding. That request satisfies all the legal
requirements laid down in case-law. The Commission failed to
define its position with regard to that request within the two-
month period provided for in Article 232 EC.

— Annul Commission Regulation No 937/2001 of 11 May
2001 (1) in so far as it limits the provisional authorisation
of the additives Bacillus cereus var. toyoi (ToyoCerin) for
fattening chickens, laying hens, calves, fattening cattle,
fattening rabbits and breeding rabbits to the period up to
1 March 2002;

The applicant maintains that the Commission was under an
obligation to act, given that it is the body responsible for
ordering the payment of the aid and remitting the Community
funds in question to the Argentinean authorities, who merely
execute the payment. Thus, by failing to answer the said
request, the Commission failed to fulfil its obligations.

Pleas in law and main arguments

— Order the defendant to pay the costs.

(1) Aid granted within the framework of Council Regulation (EEC)
No 3447/93 of 28 September 1993 on the conclusion of the
Agreement between the European Economic Community and the
Argentine Republic on relations in the sea fisheries sector (OJ
1993 L 318, p. 1).

(2) The two addressees of the decision to grant the aid (the Com-
munity undertaking and the joint enterprise) then brought an
action in non-contractual liability, claiming damages on account
of the Commission’s unlawful action (Case T-44/01 Eduardo
Vieira and Vieira Argentinav Commission, OJ 1997 C 134, p. 26).
(3) The decision was challenged by its addressee, the Community
undertaking, in Case T-126/01 Eduardo Vieirav Commission, ECR
II-0000.

The applicant is a subsidiary of the Japanese company Asahi
Vet Japan Co. Ltd, which developed the feeding stuff additive
ToyoCerin and is the only manufacturer of that additive in the
world. The applicant produces the additive for the European
market in Spain and distributes it in Europe. In that capacity,
the applicant is the applicant in a procedure for Community
authorisation in respect of the additive ToyoCerin pursuant to
Article 3 and following of Council Directive 70/524/EEC (2).

The applicant first applied for a Community authorisation in
respect of ToyoCerin for all categories of animal in 1991, and
a temporary authorisation for ToyoCerin in respect of the
following categories of animal was granted in 1994: rearing
pigs, piglets and sows. That temporary authorisation was
periodically extended until April 1999. As regards other
animals, such as fattening chickens, cattle and fattening rabbits,
ToyoCerin was authorised on a temporary basis by Regulation
(EC) No 1411/1999 (3). That temporary authorisation was
extended to 20 February 2001 by Regulation (EC)
No 2697/2000 (4). The use of ToyoCerin was not authorised
for a period of more than three months under that regulation.