Case T-447/04: Action brought on 15 November 2004 by Capgemini Nederland B.V. against the Commission of the European Communities
Date: 2004-12-18
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), area of freedom, security and justice, award of contract, information system, invitation to tender

18.12.2004

EN

Official Journal of the European Union

C 314/27

The applicant claims that the Court should:

Pleas in law and main arguments

— annul the explanatory note to point 103 of Annex I to
Commission Regulation No 1429/2004, relating to the fact
that the name ‘Tocai friulano’ may be used only until 31
March 2007.

Pleas in law and main arguments:

The pleas in law and main arguments are the same as those put
forward in Case T-417/04 Regione Autonoma del Friuli
Venezia Giulia v Commission (1).

(1) Not yet published in the OJ.

Action brought on 15 November 2004 by Capgemini
Nederland B.V. against the Commission of the European
Communities

(Case T-447/04)

(2004/C 314/62)

(Language of the case: English)

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the
European Communities on 15 November 2004 by Capgemini
Nederland B.V.,Utrecht, The Netherlands, represented by M.
Meulenbelt and H. Speyart, lawyers.

The applicant claims that the Court should:

— Annul the Commission's decision, notified to the applicant
by letter dated 13 September 2004, not to retain the appli-
cant's offer in the context of the call for tender JAI-C3-
2003-01;

On 25 June 2003 the Commission published a Contract Notice
for the development and installation of a large scale informa-
tion system in the field of justice and home affairs, referred to
as SIS II and VIS. The applicant submitted a bid. By letter dated
13 September 2004 the Commission notified the applicant of
its decision not to retain its offer and to award the contract to
another tenderer. In the same letter it informed the applicant
that it would not be signing the contract with the successful
tenderer before the expiry of a period of two weeks from the
date of the letter. An exchange of correspondence between the
applicant and the Commission followed, in the course of which
the Commission confirmed its intention to award the contract
to another tenderer. On 26 October 2004 the Commission
published a press release stating that it had signed a contract
with the successful tenderer.

By its application the applicant requests the annulment of both
the Commission's decision to reject its offer as well as the deci-
sion to sign a contract with the successful tenderer. In support
of the request to annul the decision rejecting the applicant's
offer, the applicant invokes a number of alleged violations of
Regulation 1605/2002 (1)
(the Financial Regulation) and of
Regulation 2342/2002 (2)
laying down detailed rules for the
implementation of the Financial Regulation. In this context the
applicant submits that the method of price evaluation chosen
by the Commission is unusual in that it is not based on a fixed
price for the project but rather on price ratios between the
price offered by each particular tenderer and the lowest price
offered, calculated at the level of each of the 15 individual
items included in the project, which all carry equal weight even
though they are of greatly diverging sizes. Use of this method,
according to the applicant, did not result in a fair and equitable
outcome. The applicant further alleges that the Commission
to abnormally low prices in the successful
failed to react
tenderer's offer,
failed to take into account a corrigendum
submitted by the applicant and failed to reject the successful
tenderer's offer in spite of non-compliance with technical
criteria. The applicant also claims that the commission violated
the ‘best value for money’ principle since the total contract
value for the successful tenderer is higher than that for the
applicant.

to annul

its request

In support of
the decision to sign a
contract with the successful tenderer the applicant submits that
by concluding that contract the Commission willingly deprived
the applicant of an effective remedy. The applicant also
invokes, in this context, a violation of Article 230 EC arguing
that, by informing the applicant that it would only wait for
two weeks before signing the contract with the successful
tenderer, the Commission effectively shortened the two-month
time limit for the introduction of an application set out in that
article. Finally,
the Commission
the applicant argues that
violated Article 103 of Regulation 1605/2002 by failing to
suspend the procedure leading to the decision to sign the
contract even though the applicant, by its letters, had drawn its
attention to possible irregularities in the award procedure.

— Annul the Commission's decision to sign a contract with

another tenderer;

(1) OJ 2002, L 248 p. 1.
(2) OJ 2002, L 357 p. 1.

— Order the Commission to pay its own costs and those of

the applicant.