Case T-591/08: Action brought on 29 December 2008 — Evropaïki Dynamiki v Commission
Date: 2008-12-29
Institutions: Court of First Instance
Subjects: European Commission, Eurostat, Greece, action for annulment (EU), information technology, statistics

C 82/26

EN

Official Journal of the European Union

4.4.2009

to three

The applicant submits that the decision limits the finding of
infringement
exploitation of
performing rights (internet, satellite transmission and cable
retransmission), whilst the reciprocal representation agreements
generally cover all forms of exploitation of performing rights.

forms of

specific

In support of its application, the applicant raises the following
two main pleas in law:

(i) According to the applicant's submissions, the Commission
made an error of assessment and infringed Article 81 EC as
well as Article 253 EC by determining that the parallel terri-
torial delineation resulting from the reciprocal representa-
tion agreements concluded by the EEA CISAC members
constitutes a concerted practice. The applicant considers that
the presence of a territorial delineation clause in all the reci-
procal representation agreements concluded by its members
is not the product of a concerted practice to restrict compe-
tition. Rather, this state of affairs exists because all the socie-
ties find it in the interest of their members to include such a
clause in their reciprocal representation agreements.

restrictive of

(ii) In the alternative, the applicant claims that if there were a
concerted practice on territorial delineations, it would not
be
competition within the meaning of
Article 81 EC for two reasons. First, the alleged concerted
practice on territorial delineations is not illegal because it
concerns a form of competition that
is not worthy of
protection. Second, even if the alleged practice would be
considered to restrict competition,
infringe
Article 81(1) EC according to the applicant's allegations
because it is necessary and proportionate to the legitimate
objective.

it does not

Action brought on 29 December 2008 — Evropaïki
Dynamiki v Commission

(Case T-591/08)

(2009/C 82/47)

Language of the case: English

Parties

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

Defendant: Commission of the European Communities

Form of order sought

— annul EUROSTAT's decision to select the bid of the appli-
cant, filed in response to the open Call for Tenders for the
‘Statistical Information Technologies’, Lot 2 ‘SDMX develop-
ment’ and Lot 3 ‘SDMX support’ as second contractor of the
cascade mechanism (OJ 2008/S 120-159017) communi-
cated to the applicant by two separate letters dated
17 October 2008 and all further related decisions of EURO-
STAT including the one to award the contract
to the
successful contractor;

— order EUROSTAT to pay the applicant's damages suffered on
the tendering procedure in question for an

account of
amount of EUR 4 326 000;

— order EUROSTAT 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

By means of its application the applicant seeks the annulment
pursuant to Article 230 EC of the decisions of EUROSTAT to
select the bid of the applicant, filed in response to the open Call
for Tenders for the ‘Statistical Information Technologies’, Lot 2
‘SDMX development’ and Lot 3 ‘SDMX support’ as second
contractor of the cascade mechanism (OJ 2008/S 120-159017)
which were communicated to the applicant by two separate
letters dated 17 October 2008, as well as the award of damages
pursuant to Article 235 EC.

The applicant claims that EUROSTAT committed various mani-
fest errors of assessment, whereas fundamental rules and princi-
ples of public procurement have been allegedly infringed by the
contracting authority. It is submitted that the evaluation of the
applicant's tender was deficient, that EUROSTAT failed to state
reasons, denied to address the applicant's detailed administrative
appeal and associated observations and that it did not present
the results of its internal examination to the applicant.

The applicant further submits that the treatment of the candi-
dates was discriminatory; that the exclusion criteria were not
complied with by one of the members of the winning consor-
tium and that Articles 93(1) and 94 of the Financial Regulation
were infringed. Moreover, the applicant contends that should
the Court find that the defendant infringed the Financial Regu-
lation and/or the principles of transparency and of equal treat-
ment, given the fact that the Court will rule on the application
— in all likelihood — after the contract has been fully executed,
the applicant requests monetary compensation EUR 4 326 000
from EUROSTAT, corresponding to its estimated gross profit
from the public procurement procedure Lot 2 and Lot 3, should
it have been awarded the contract.