Case T-269/19: Action brought on 22 April 2019 — Imagina Media Audiovisual v Commission
Date: 2019-04-22
Institutions: General Court
Subjects: United States, audiovisual industry, award of contract, equal treatment, public prosecution, rights of the defence, tendering








C_2019213EN.01006501.xml










24.6.2019   


EN


Official Journal of the European Union


C 213/65






Action brought on 22 April 2019 — Imagina Media Audiovisual v Commission
(Case T-269/19)
(2019/C 213/63)
Language of the case: English

Parties


Applicant: Imagina Media Audiovisual, SA (Barcelona, Spain) (represented by: P. Kuypers, N. Groot, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:






—


annul the Commission decision Ares(2019)856949, whereby the Commission imposed a two-year exclusion on the applicant and registered the applicant in the early detection and exclusion database (1);










—


order the Commission to compensate the applicant for the damage caused by the contested decision;










—


order the Commission to pay the costs.





Pleas in law and main arguments

In support of the action, the applicant relies on six pleas in law.






1.


First plea in law, alleging that the Commission errs in law by failing to conduct its own review or analysis, solely relying on the findings of the US Department of Justice without own proper review and incorrectly interpreting the findings of the US Department of Justice. As a result, the Commission makes an error of assessment of the facts and thus breaching the duty of care.










2.


Second plea in law, alleging that the Commission wrongfully excludes the applicant, therefore breaching Article 136(1)(c) of Regulation 2018/1046 and the rights of defence of the applicant by not clearly stating what exactly constitutes grave professional misconduct. Furthermore, the Commission allegedly errs in stating that the applicant is also excluded from on-going tenders since this does not follow from the operative part of the contested decision, by excluding the applicant for conduct related to media and marketing rights in sports in a tender for audio-visual coverage of EU current affairs since these are different markets that do not impact each other so that the reliability of the applicant in contracts for the European Union can be demonstrated, and in deciding that the applicant should be excluded since it did not have sufficient evidence to reach the contested decision and the non-prosecution agreement of the applicant with the US Department of Justice does not state that the applicant or its CEO’s are guilty.










3.


Third plea in law, alleging that the Commission errs in law by deciding that the exclusion would be proportional within the meaning of Article 136(3) Regulation 2018/1046 and thereby disregarding lack of impact on the financial interests and image of the Union and the time elapsed since the conduct.










4.


Forth plea in law, alleging that the Commission erred in deciding that the remedial measures taken by the Applicant are provisional and are insufficient having regard to Article 136(6)(a) in conjunction with 136(7) Regulation 2018/1046.










5.


Fifth plea in law, alleging that the Commission breaches the fundamental principle of equal treatment by treating the Applicant differently than other tenderers who concluded non-prosecution agreement with the US Department of Justice.










6.


Sixth plea in law, alleging that the Commission caused damages to the applicant by unlawfully deciding that the applicant should be excluded from the procurement grant procedures governed by Regulation 2018/1046.






(1)  Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council of 18 July 2018 on the financial rules applicable to the general budget of the Union, amending Regulations (EU) No 1296/2013, (EU) No 1301/2013, (EU) No 1303/2013, (EU) No 1304/2013, (EU) No 1309/2013, (EU) No 1316/2013, (EU) No 223/2014, (EU) No 283/2014, and Decision No 541/2014/EU and repealing Regulation (EU, Euratom) No 966/2012, OJ L 193, 30.7.2018, p.1.