Case T-69/05: Action brought on 11 February 2005 by European Dynamics S.A. against the European Food Safety Authority
Date: 2005-04-30
Institutions: Court of First Instance
Subjects: European Food Safety Authority, action for annulment (EU), award of contract, invitation to tender, services contract, software

C 106/34

EN

Official Journal of the European Union

30.4.2005

The applicants also submit a violation of the principle of legal
certainty. According to the applicants, the Commission did not
act in a timely manner while it had all relevant information at
its disposal. The applicants submit that the Commission only
started its inquiries in 1999, even though it was, according to
the applicants,
facts in early
fully informed of all relevant
1996. The procedure opened in February 2000 would also
have been extended to new elements that were never investi-
gated before, and for which the approval decisions did not
provide a legal basis.

Finally, as a subsidiary ground, the applicants submit that the
Commission failed to take all restructuring costs into account
when determining the amount to be recovered. According to
the applicants, much more was spent on the restructuring than
the amount of aid received for that purpose.

Action brought on 11 February 2005 by European
the European Food Safety
Dynamics S.A.

against

Authority

(Case T-69/05)

(2005/C 106/70)

(Language of the case: English)

An action against the European Food Safety Authority was
brought before the Court of First Instance of the European
Communities on 11 February 2005 by European Dynamics
S.A., established in Athens (Greece), represented by N. Koro-
giannakis, lawyer.

The applicant claims that the Court should:

— annul the decision of EFSA, to evaluate the applicant's bid
as not successful and award the contract to the successful
contractor as well as all other later decisions of EFSA
related to the above;

— order the EFSA to pay the applicant's legal and other costs
and expenses incurred in connection with this application,
even if the current application is rejected.

Pleas in law and main arguments

The applicant company filed a bid in response to EFSA's call
for tenders EFSA/IT/00012 (1) for the software and services for
establishing an Extranet between the Members States' national
agencies, EFSA and the European Commission. By the
contested decision the applicant's bid was rejected and the
contract awarded to another bidder.

In support of its application to annul the contested decisions
the applicant contends that the defendant violated the Financial
Regulation (2) as well as Article 17(1) of Directive 92/50 (3) by
using evaluation criteria, that were not well specified in the call
for tenders. According to the applicant, by accepting without
any further processing and cross-checking the opinion of offi-
cers of the tenderer's clients, EFSA attributed part of its evalua-
tion rights to third parties. The applicant further argues that
under Directive 92/50 the satisfaction of a bidder's clients
cannot be taken into account in order to exclude the bidder
but can only be used as an ‘award criterion’.

The applicant also claims that the defendant committed mani-
fest errors of appreciation in the evaluation of the bid it had
submitted. The applicant contests certain statements contained
in the report of the Evaluation Committee, regarding the fact
that one of the applicant's clients had neither purchased nor
used the product offered by the applicant and the fact that
another Community institution was not satisfied with the appli-
cant's product. The applicant also considers,
in the same
context, that the method used by EFSA during the evaluation
procedure, consisting in simple telephone calls without any
official requests nor cross-checks of the information received,
was inadequate and in itself suffices in order to establish a
manifest error of assessment.

finally submits that

failed to
The applicant
provide adequate reasons for its decision, in violation of Article
253 EC.

the defendant

(1) OJ 2004/S 153-132262.
(2) Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002
on the Financial Regulation applicable to the general budget of the
European Communities, OJ L 248, 16/09/2002, p. 1.

(3) Council Directive 92/50/EEC of 18 June 1992 relating to the coor-
dination of procedures for the award of public service contracts, OJ
L 209, 24/07/1992, p. 1.