Case T-17/09: Action brought on 9 January 2009 — Evropaïki Dynamiki v Commission
Date: 2009-01-09
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), award of contract, disclosure of information, electronic mail, exchange of information, invitation to tender, sexual discrimination

4.4.2009

EN

Official Journal of the European Union

C 82/27

Action brought on 6 January 2009 — Dredging
International and Ondernemingen Jan de Nul v EMSA

regulation (3) and Article 158a(1) of the Commission Regulation
No 2342/2002 (4).

(Case T-8/09)

(2009/C 82/48)

Language of the case: English

Second, the applicants submit that the defendant committed
manifest errors of assessment while evaluating the bid submitted
by the successful tenderer by which it infringed the principles of
equal treatment and non-discrimination as stated in Article 89
of the financial regulation.

the

Third, the applicants contend that the defendant committed
several manifest errors of assessment in its decision to reject the
reason of non compliance with
applicants' bid for
Article 12.2 of the tender specifications without further exam-
ining the applicants' arguments. In the applicants' opinion, the
defendant infringed therefore the principles of proportionality,
equal
and non-discrimination in violation of
Article 89(1) of the financial regulation.

treatment

Fourth, the applicants claim that in the interpretation given by
the defendant
the
budget ceiling is manifestly unreasonable and does not allow
that any confirming tenders are submitted.

tender specifications,

to Article 12.2 of

(1) OJ 2008/S 48-065631.
(2) The regulation of the European Maritime Safety Agency adopted on
9 December 2003 laying down detailed rules for the implementation
of the financial regulation of 9 December 2003 which applies to the
budget of the European Maritime Safety Agency adopted by the
Administrative Board on 3 July 2003.

(3) 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, p. 1).

(4) 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 L 357, p. 1).

Euratom) No

2342/2002

(EC,

Parties

Applicant: Dredging International NV (Zwijndrecht, Belgium)
and Ondernemingen Jan de Nul NV (Hofstade-Aalst, Belgium)
(represented by: R. Martens, lawyer)

Defendant: European Maritime Safety Agency (EMSA)

Form of order sought

— annul EMSA's decision to reject the tender from the Joint
Venture Oil Combat (JVOC) constituted by the applicants
and to award the contract to the successful contractor;

— declare that the contract signed between EMSA and the
successful contractor pursuant to procurement procedure
EMSA/NEG/3/2008 is null and void;

— award damages as compensation for the loss that JVOC has
incurred as a consequence of the contested decision, provi-
sionally estimated at 725 500 EUR, to be increased by the
moratory interest as from the date of the filing of this appli-
cation;

— order that the Commission pay the costs of the proceedings,
including the expenses for legal counsel incurred by JVOC.

Pleas in law and main arguments

In the present case the applicants seek the annulment of the
defendant's decision to reject their bid submitted in response to
for a tender EMSA/NEG/3/2008 (Lot 2: North Sea)
a call
regarding the service contracts
recovery
vessel(s) (1) and to award the contract
to the successful
contractor. The applicant further requests compensation for the
alleged damages in account of the tender procedure.

stand-by oil

for

Action brought on 9 January 2009 — Evropaïki Dynamiki
v Commission

(Case T-17/09)

(2009/C 82/49)

In support of their claims, the applicants put forward four pleas
in law.

Language of the case: English

First, they argue that by refusing to provide the applicants with
the information they requested regarding the reasons for rejec-
tion of the bid submitted by them and on the characteristics
and relative advantages of the bid of the successful contractor
the Regulation (2),
the defendant infringed Article 135(2) of
Article 253 EC and the essential procedural requirements of
duty to state reasons and of respect for the rights of defence.
failed to
The applicants
the defendant
suspend the signature of
the contract with the successful
tenderer pending the exchange of relevant information with the
applicants by which it violated Article 105(2) of the financial

further claim that

Parties

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

Defendant: Commission of the European Communities

C 82/28

EN

Official Journal of the European Union

4.4.2009

Form of order sought

Action

brought

on

19

January

2009 — Stella

Kunststofftechnik v OHIM

filed in response to the open Call

— annul Commission's decision to reject the bid of the appli-
for Tender
cant,
VT/2008/019 — EMPL EESSI for the ‘Informatics services
and products
(Electronic
Exchange of Social Security Information) project’ (1) commu-
nicated to the applicant by letter dated 30 October 2008
and all further related decisions including the one to award
the contract to the successful contractor;

in the contest of

the EESSI

— order

the Commission to pay the applicant's damages
suffered on account of the tendering procedure in question
for an amount of 883 703,5 EUR;

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

Pleas in law and main arguments

In the present case the applicant seeks the annulment of the
defendant's decision to reject its bid submitted in response to a
call for an open tender VT/2008/019 — EMPL CAD A/17543
for the informatics services and products in the context of the
(Electronic Exchange of Social Security Information)
EESSI
project and to award the contract to the successful contractor.
The applicant further requests compensation for the alleged
damages in account of the tender procedure.

In support of its claims the applicant puts forward four pleas in
law.

First, it argues that the winning tenderer enjoyed a privileged
treatment from the Commission in the context of numerous
other contracts and that it was favoured in the case of the
present call for tenders. Further the applicant claims that it was
systematically discriminated by the defendant
in the same
context.

Second, the applicant submits that the Commission failed to
observe the rules concerning the exclusion criteria of the tender
specifications and therefore infringed Articles 93 and 94 of the
financial regulation (2) and Articles 133a and 134 of its imple-
menting rules as well as Article 45 of Directive 2004/18/EC (3).

Third, the applicant claims that the defendant committed several
manifest errors of assessment in evaluation of the applicant's
tender by the Evaluation Committee.

the applicant contends that

Fourth,
the defendant based its
evaluation of the applicant's tender on general and arbitrary
considerations, failed to motivate its decision and in this context
committed several manifest errors of assessment.

(1) OJ 2008/S 111-148231.
(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, p. 1).

(3) Directive 2004/18/EC of

the
Council of 31 March 2004 on the coordination of procedures for
the award of public works contracts, public supply contracts and
public service contracts (OJ L 134, p. 114).

the European Parliament and of

(Case T-27/09)

(2009/C 82/50)

Language in which the application was lodged: German

Parties

Applicant: Stella Kunststofftechnik GmbH (Eltville, Germany)
(represented by: M. Beckensträter, lawyer)

Defendant: Office for Harmonisation in the Internal Market
(Trade Marks and Designs)

Other party to the proceedings before the Board of Appeal of OHIM:
Stella Pack Sp. z o. o. (Lubartow, Republic of Poland)

Form of order sought

— annul

the decision of

the Fourth Board of Appeal of
13 November 2008, notified on 19 November 2008, and
hold that
the application of 22 December 2006 for a
declaration of revocation ought to have been dismissed as
being inadmissible;

— in the alternative, suspend the decision on the application
for a declaration of revocation of 22 December 2006 until
the opposition proceedings in opposition B 863177 have
been concluded in law, and at the same time annul the deci-
sion of 13 November 2008 and that of the Cancellation
Division of 27 February 2008;

— order the intervener to pay the recoverable costs, including

those of the initial proceedings and of the defendant.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of
revocation has been sought: the word mark ‘Stella’ for goods in
Classes 6, 8, 16, 20 and 21 (Community trade mark No 15 479)

Proprietor of the Community trade mark: the applicant

Applicant for the declaration of revocation: Stella Pack Sp. z o. o

Decision of the Cancellation Division: declaration of revocation of
the Community trade mark concerned for certain goods in
Classes 6, 8, 16 and 20

Decision of the Board of Appeal: dismissal of the applicant's appeal