CELEX: C2001/289/70
Language: en
Date: 2001-10-13 00:00:00
Title: Case T-170/01: Action brought on 24 July 2001 by Vieira Argentina SA against the Commission of the European Communities

C 289/30                EN                    Official Journal of the European Communities                                  13.10.2001
The applicant claims that the Court should:                                   —      compared inappropriately the technical perform-
                                                                                     ances of the tenders and evaluated them on different
                                                                                     financial grounds, and
—     annul the Commission’s decision not to accept the
      SAGEM’s tender submitted for the Eurodac AFIS Central
      Unit;                                                                   —      amended the purpose of the benchmark tests, added
                                                                                     a rule to compare the variable costs of the tenders
—     annul the Commission’s decision to award the contract                          and took into account only a few items of the
      for the Eurodac AFIS Central unit to BULL.                                     financial compulsory reply form, although the Ten-
                                                                                     dering Specifications provided that all the items
                                                                                     were to be taken into account.
Pleas in law and main arguments                                          —    Manifest error of assessment. It is pointed out in this
                                                                              regard that the Commission assessed the tenders by using
                                                                              different bases. Concerning the benchmark tests, in
                                                                              particular the performance test, the Commission con-
The applicant in the present case, a company incorporated                     cluded that BULL’s solution was faster than the applicant’s
under French law, seeks the annulment of the Commission’s                     whereas none of the tenderers used the same number of
decisions rejecting the tender which it submitted in response                 pieces of equipment. Concerning the financial evaluation,
to invitation to tender no. DG JAI A2/2000/002 concerning                     the Commission used different bases to compare the
the contract for the ‘EURODAC’ Automated Fingerprint identi-                  operational support proposed by the tenders.
fication System (AFIS) Central Unit, and accepting the tender
submitted by BULL.
In support of its claims the applicant puts forward the
following pleas in law:
—     infringement of the duty to state the reasons on which
      challenged decisions are based. It alleges in this respect
      that the Commission                                                Action brought on 24 July 2001 by Vieira Argentina SA
                                                                           against the Commission of the European Communities
      —     did not establish whether the qualifying criteria had
            been fulfilled;
                                                                                                  (Case T-170/01)
      —     did not provide the detailed marks corresponding to
            the weighting of each technical criterion;                                            (2001/C 289/70)
      —     provided very partial results of the benchmark tests;                           (Language of the case: Spanish)
      —     could not allege protection of business secrets, and
                                                                         An action against the Commission of the European Communi-
      —     provided unclear and equivocal explanations, as              ties was brought before the Court of First Instance of the
            regards both the selected tenderer’s identity and the        European Communities on 24 July 2001 by Vieira Argentina
            question relating to high matching accuracy.                 SA, a company with registered offices in Buenos Aires,
                                                                         represented by D. Ramón Garcı́a-Gallardo and Marı́a Dolores
                                                                         Domı́nguez Pérez, Lawyers.
—     infringement of principles of equal treatment and of
      transparency, in as much as the Commission:
      —     gave the tenderers very different information relating       The applicant claims that the Court should:
            to the same technical requirements of the EURO-
            DAC AFIS Central Unit;
                                                                         —    declare that, by failing to define its position within a
                                                                              period of two months from the date when notice was
      —     amended the technical criterion relating to high                  given, being 18 May 2001, the Commission failed to
            matching accuracy during the evaluation procedure;                fulfil its obligations;
 ---pagebreak--- 13.10.2001              EN                      Official Journal of the European Communities                                        C 289/31
—      adopt such measures as it deems necessary;                          Action brought on 25 July 2001 by Asahi Vet Sa against
                                                                                  the Commission of the European Communities
—      order the Commission of the European Communities to
       pay the applicant the costs of the proceedings in their
       entirety.                                                                                    (Case T-173/01)
                                                                                                    (2001/C 289/71)
Pleas in law and main arguments
                                                                                             (Language of the case: German)
The applicant is a joint-enterprise company governed by
Argentinean law, established by a European Communities
undertaking and an Argentinean ship owning company, to                     An action against the Commission of the European Communi-
which the Commission granted aid by decision of 25 July                    ties was brought before the Court of First Instance of the
1995 (1). In 1997 the Commission decided to initiate a                     European Communities on 25 July 2001 by Asahi Vet SA of
procedure to reduce the aid granted, without first suspending              Rubı́, Barcelona (Spain), represented by Dr Carsten Bittner.
payment of the balance of the aid by formal decision (2).
On 19 March 2001 the Commission adopted a decision
withdrawing the balance of the aid. The applicant was excluded
from the scope of application of that decision (3).                        The applicant claims that the Court should:
                                                                           —     Annul Commission Regulation No 937/2001 of 11 May
Faced with that situation, on 18 May 2001, the applicant                         2001 (1) in so far as it limits the provisional authorisation
formally called upon the Commission to pay the balance of                        of the additives Bacillus cereus var. toyoi (ToyoCerin) for
the aid still outstanding. That request satisfies all the legal                  fattening chickens, laying hens, calves, fattening cattle,
requirements laid down in case-law. The Commission failed to                     fattening rabbits and breeding rabbits to the period up to
define its position with regard to that request within the two-                  1 March 2002;
month period provided for in Article 232 EC.
                                                                           —     Order the defendant to pay the costs.
The applicant maintains that the Commission was under an
obligation to act, given that it is the body responsible for
ordering the payment of the aid and remitting the Community
funds in question to the Argentinean authorities, who merely
execute the payment. Thus, by failing to answer the said                   Pleas in law and main arguments
request, the Commission failed to fulfil its obligations.
                                                                           The applicant is a subsidiary of the Japanese company Asahi
                                                                           Vet Japan Co. Ltd, which developed the feeding stuff additive
                                                                           ToyoCerin and is the only manufacturer of that additive in the
                                                                           world. The applicant produces the additive for the European
                                                                           market in Spain and distributes it in Europe. In that capacity,
                                                                           the applicant is the applicant in a procedure for Community
(1) Aid granted within the framework of Council Regulation (EEC)           authorisation in respect of the additive ToyoCerin pursuant to
    No 3447/93 of 28 September 1993 on the conclusion of the               Article 3 and following of Council Directive 70/524/EEC (2).
    Agreement between the European Economic Community and the
    Argentine Republic on relations in the sea fisheries sector (OJ
    1993 L 318, p. 1).
(2) The two addressees of the decision to grant the aid (the Com-          The applicant first applied for a Community authorisation in
    munity undertaking and the joint enterprise) then brought an           respect of ToyoCerin for all categories of animal in 1991, and
    action in non-contractual liability, claiming damages on account       a temporary authorisation for ToyoCerin in respect of the
    of the Commission’s unlawful action (Case T-44/01 Eduardo
                                                                           following categories of animal was granted in 1994: rearing
    Vieira and Vieira Argentinav Commission, OJ 1997 C 134, p. 26).
                                                                           pigs, piglets and sows. That temporary authorisation was
(3) The decision was challenged by its addressee, the Community            periodically extended until April 1999. As regards other
    undertaking, in Case T-126/01 Eduardo Vieirav Commission, ECR          animals, such as fattening chickens, cattle and fattening rabbits,
    II-0000.
                                                                           ToyoCerin was authorised on a temporary basis by Regulation
                                                                           (EC) No 1411/1999 (3). That temporary authorisation was
                                                                           extended to 20 February 2001 by Regulation (EC)
                                                                           No 2697/2000 (4). The use of ToyoCerin was not authorised
                                                                           for a period of more than three months under that regulation.