Case T-552/08: Action brought on 17 December 2008 — Commission v Domótica
Date: 2008-12-17
Institutions: Court of First Instance
Subjects: action for annulment (EU), medical institution, oil refining, petroleum product

7.3.2009

EN

Official Journal of the European Union

C 55/33

Form of order sought

Action brought on 17 December 2008 — Commission v
Domótica

— annul the contested decision in so far as it relates to the

applicant;

— in the alternative, reduce as appropriate the amount of the
fine imposed on the applicant in the contested decision;

— order the defendant to pay the costs of the proceedings.

Pleas in law and main arguments

Parties

(Case T-552/08)

(2009/C 55/61)

Language of the case: Portuguese

is

applicant

challenging

Commission

The
Decision
C(2008) 5476 final of 1 October 2008 in Case COMP/39.181
— Candle Waxes,
in which the defendant found that certain
including the applicant, had participated in a
undertakings,
continuing agreement and/or concerted practice in the paraffin
waxes sector, contrary to Article 81(1) EC and Article 53 of the
Agreement on the European Economic Area.

The applicant relies on four pleas in law in support of its action.

In its first plea, the applicant alleges infringement of its rights of
defence inasmuch as the contested decision does not differ-
entiate between it and other companies which were fined sepa-
rately, but instead refers uniformly to ‘H & R/Tudapetrol’. The
applicant asserts that it does not understand which specific acts
contributing to the offence are to be attributed to it. Its rights of
defence are thereby infringed in so far as the grounds of
complaint and the decision must indicate unambiguously which
specific acts lead to the allegation of a breach of law and the
resulting imposition of a fine.

In the alternative, the applicant argues in its second plea in law
that there is no evidence that it acted unlawfully. The Commis-
sion, on the basis of its broad-brush appraisal of the evidence in
relation to all of the undertakings to which the decision was
addressed, failed to have regard for the fact that there was no
evidence of an infringement on the part of the applicant. The
applicant submits that the Commission did not carry out a suffi-
ciently discriminating and individual appraisal of the evidence
which could, and would necessarily, have shown that
the
evidence adduced was insufficient to establish that the applicant
had committed an offence.

In the further alternative, the applicant claims in its third plea in
law that, in the calculation of the fine, the initial amount was
erroneously set too high.

In the further alternative, the applicant claims in its fourth plea
in law that the principle of proportionality and the prohibition
of discrimination were breached by reason of the erroneous
calculation of the fine. Specifically, the applicant asserts that an
error of assessment was made when fixing at 17 % the percen-
tage of turnover for the severity of the offence and the entry fee
and that the level of the fine was disproportionate as a result of
the disproportionate account taken of the size of the under-
taking. Finally, the applicant points out that the 2006 Guidelines
on fines were unlawfully applied retroactively in the present
case, which predates those Guidelines.

Applicant: Commission (represented by A.M. Rochaud-Jöet and
S. Petrova, Agents, assisted by G. Anastácio and A.R. Andrade,
lawyers)

Defendant: Domótica, Estudo e Projecto de Edifícios Inteligentes,
Lda (Lisbon, Portugal)

Form of order sought

— An order that the defendant should pay the applicant the
sum of EUR 124 319,22, being the repayment of an
advance paid by the applicant in performance of contract
No BU/466/94 PO/ES, concluded in connection with the
Thermie programme and terminated on grounds of
the
failure of the defendant and other cocontractors to perform
their
of
obligations, with
EUR 48 000 by way of default
interest accrued until
30 September 2008 and interest still to fall due until full
and final payment;

contractual

increase

an

— An order that the defendant should pay the costs.

Pleas in law and main arguments

On 17 January 1995 the Commission of the European Commu-
nities concluded Thermie contract No BU/466/94 PO/ES with
the defendant, with the teaching hospitals of Coimbra and with
the company Técnicas Reunidas S.S., pursuant to Regulation
(EEC) No 2008/90 (1).

The defendant was appointed to be project co-ordinator and
took on responsibility for submitting to the Commission the
necessary documents, and to act as link between the contractors
and the Commission. The liability of the cocontractors was joint
and several.

in accordance with what had been
On 10 February 1995,
agreed, the Commission paid the advance of 30 %, that is to
say, EUR 176 693.

On 24 May 2000 the Commission rescinded the contract for
just cause (having put the defendant on notice), putting forward
the following failures to perform contractual obligations:

— delays in performance not communicated timeously to the

Commission;

— Domótica's

inability to begin to perform the contract

(admitted by the defendant);

— failure to send to the Commission financial and technical

reports in good time and due form;

— failure to conclude work implementing the project within
the original period, or within the extension subsequently
granted (31 August 2000).

C 55/34

EN

Official Journal of the European Union

7.3.2009

As a result of the wrongful conduct of the cocontractors, the
latter failed to fulfil their contractual obligations.

— order DG TAXUD to pay the applicant's damages suffered
on account of the tendering procedure in question for an
amount of EUR 7 638 125;

The contract provided that it was possible for the Commission
to demand repayment, in whole or in part, of its financial assis-
tance, together with interest in the case of non-performance by
the cocontractors.

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

to the value of

The Commission is entitled to repayment of EUR 172 499,22,
equivalent
the original amount advanced,
together with interest accrued, as from 10 February 1995, the
costs of part performance incurred by the defendant and
accepted by the Commission having been deducted, to which
sum must be added interest not yet fallen due.

(1) Council Regulation (EEC) No 2008/90 of 29 June 1990 concerning
the promotion of energy technology in Europe (thermie programme)
(OJ 1990 L 185, p. 1).

Action brought on 8 December 2008 — Evropaïki
Dynamiki/Commission

(Case T-554/08)

(2009/C 55/62)

Language of the case: English

Parties

Applicant: Evropaïki Dynamiki — Proigmena Systimata Tilepi-
koinonion Pliroforikis kai Tilematikis AE (Athènes, Greece)
(represented by: N. Korogiannakis, P. Katsimani and M. Dermit-
zakis, lawyers)

Defendant: Commission of the European Communities

Form of order sought

filed in response to the open Call

— annul DG TAXUD's decision to reject the bid of the appli-
cant,
for Tender
TAXUD/2007/AO-005 (TIMEA) for the ‘Provision of services
for the Community computer applications in the customs,
excise and taxation areas’ (OJ 2008/S 203-268728) which
applicant by letter dated
was
26 September 2008 and all further related decisions of the
Commission including the one to award the contract to the
successful contractor;

communicated to the

Pleas in law and main arguments

applicant

application the
to Article 230 EC of

seeks
the
By means of
its
annulment pursuant
the European
Commission's (DG TAXUD) decision to reject the bid filed by
for Tenders
in response to the open Call
the applicant
TAXUD/2007/AO-005(TIMEA) for the ‘Provision of services for
the Community computer applications in the customs, excise
and taxation areas’
(OJ 2008/S 203-268728) which was
communicated to the applicant by letter dated 26 September
2008,
to
as well
Article 235 EC.

award of damages pursuant

the

as

The applicant claims that the Evaluation Committee committed
various manifest errors of assessment with regards to the evalua-
tion of the tender. According to the applicant, the Evaluation
Committee deviated from the standard policy of the Commis-
sion and ignored the provisions included in the tender specifica-
tions of TIMEA, which suggest that the contracting authorities
should contact the tenderer in the context of the selection phase
of a Call for Tenders, and ask for additional information or clari-
fications. It is further submitted that Article 100 of the Financial
Regulation and the principles of good administration and of
legitimate
contracting
expectations were breached by the
authority. In addition, the applicant claims that the contracting
authority misused its powers and violated the principles of
transparency and equal treatment provided for in Article 93(1)
of the Financial Regulation.

The applicant claims that the defendant failed to provide the
applicant with an adequate analysis of the outcome of the verifi-
cations carried out further to the applicant's comments on the
evaluation report.

The applicant contends that the defendant used abusively the
selection criteria in order to de-select the applicant's tender. By
doing so, it infringed Articles 134(2) and 148(3) of Commission
Regulation (EC, Euratom) No 2342/2002 (1),
as
Article 32(2) of Directive 92/50 (2).

as well

(1) Commission Regulation

of
23 December 2002 laying down detailed rules for the implementa-
tion of Council Regulation (EC, Euratom) No 1605/2002 on the
Financial Regulation applicable to the general budget of the European
Communities (OJ 2002 L 357, p. 1).

Euratom) No

2342/2002

(EC,

(2) Council Directive 92/50/EEC of 18 June 1992 relating to the coordi-
nation of procedures for the award of public service contracts
(OJ 1992 L 209, p. 1).