# C_2006048EN.01003901.xml

| 25.2.2006 | EN | Official Journal of the European Union | C 48/39 |
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25.2.2006

EN

Official Journal of the European Union

C 48/39

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Action brought on 15 December 2005 — Brink's Security Luxembourg v Commission

(Case T-437/05)

(2006/C 48/76)

Language of the case: French

Parties

Applicant(s): Brink's Security Luxembourg SA (Luxembourg) (represented by: Christian Point, Lawyer)

Applicant(s):

Defendant(s): Commission of the European Communities

Defendant(s):

Form of order sought

The applicant(s) claim(s) that the Court should:

| — | declare the present action admissible and well-founded; |
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declare the present action admissible and well-founded;

| — | annul the decision not to award the contract, that is, the Commission's unilateral decision not to award the contract to Brink's Security Luxembourg; |
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annul the decision not to award the contract, that is, the Commission's unilateral decision not to award the contract to Brink's Security Luxembourg;

| — | annul the decision to award the contract, that is, the Commission's unilateral decision to award the contract to Group 4 Falck Luxembourg; |
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annul the decision to award the contract, that is, the Commission's unilateral decision to award the contract to Group 4 Falck Luxembourg;

| — | annul the implicit decision of the Commission to refuse to withdraw its two aforementioned decisions; |
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annul the implicit decision of the Commission to refuse to withdraw its two aforementioned decisions;

| — | annul the Commission's two letters dated respectively 7 and 14 December 2005 replying to the applicant's requests for information pursuant to Article 149(3) of the regulation implementing the Financial Regulation; |
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annul the Commission's two letters dated respectively 7 and 14 December 2005 replying to the applicant's requests for information pursuant to Article 149(3) of the regulation implementing the Financial Regulation;

| — | order the Commission to pay to the applicant the sum of EUR 1 000 000 by way of damages for the material and non-material harm suffered by reason of the illegality of the decision challenged, that sum being determined ex aequo et bono and on a provisional basis; |
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order the Commission to pay to the applicant the sum of EUR 1 000 000 by way of damages for the material and non-material harm suffered by reason of the illegality of the decision challenged, that sum being determined ex aequo et bono and on a provisional basis;

ex aequo et bono

| — | order the Commission to pay the entire costs. |
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order the Commission to pay the entire costs.

Pleas in law and main arguments

The present application seeks, firstly, the annulment of the Commission's decision rejecting the tender submitted by the applicant in call for tenders No 16/2005/OIL (provision of building surveillance and security services) and, secondly, the annulment of the decision awarding the contract to a competitor.

The arguments relied on by the applicant in support of the orders for annulment sought can be categorised, in substance, into seven pleas.

By the first plea the applicant relies on the alleged infringement of the principle of equal treatment and non-discrimination in so far as the Commission imposed a requirement for length of service of one year for the employees of each tenderer to be assigned to the contract which, according to the applicant — the current holder of the contract with long-serving employees — placed it at a disadvantage vis-à-vis the other tenderers, who could recruit people with the minimum experience and have lower wage costs than those of the applicant.

By the second plea, the applicant claims that the Commission infringed the provisions of Directive 2001/23/EC (1). That plea has two parts: alleged irregularity in the tender accepted by the Commission in that that tender did not guarantee the retention of the applicant's employees nor, moreover, did it ensure that all of their rights would be respected. The applicant alleges that the decision to award taken by the Commission was illegal from the time it was taken since the accepted tender involved the infringement of employment law.

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The third plea is based on an alleged infringement of the principle of equal treatment in so far as the successful party, at the time of submission of its tender, had privileged information in relation to the applicant, in particular in relation to turnover by client and activity, contracts and their expiry dates, and analysis of their prices and costs, which had been obtained by reason of the merger with the applicant's former parent company. In the applicant's opinion, this would have allowed its competitor to prepare a more favourable tender compared with that submitted by the applicant itself.

By the fourth plea, the applicant relies on the alleged infringement of the decision of Directorate General IV of the Commission of 28 May 2004 (2) and the rules aimed at ensuring undistorted competition in that, by the decision challenged in the present application, the Commission permitted the group to which the successful tenderer selected belonged to recover assets which it was obliged to relinquish at the time of the merger authorised by the decision of 28 May 2004.

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The fifth plea is based on the alleged infringement of the obligation to give reasons for the decision, the alleged infringement of the transparency principle and the right of access to documents of the Community institutions. The applicant alleges that the Commission, despite several written requests, send it only a brief explanation, which was limited to comparative tables of the tenders, of the reasons for its decision.

The applicant also relies on the infringement of the rules applying to the award of the contract, a failure to take account of the contract documents and a manifest error of assessment in relation to the analysis and evaluation of the third qualitative award criterion in relation to the basic first-aid and fire fighting training of the security agents. It alleges that it has proof that the tenderer selected by the Commission does not have all of the operatives whom it proposed to assign to the performance of the contract at issue.

By its last plea, the applicant alleges infringement of the principle of transparency and of the right of citizens to access documents of the institutions in so far as the Commission refused it information on the composition of the selection and award committees.

The applicant also seeks, by relying on the principle of extra-contractual liability, compensation for the harm which it claims to have suffered by reason of the illegality of the Commission's conduct in the tender award procedure for the contract at issue.

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(1)  Directive 2001/23/EC of 12 March 2001 on the approximation of the laws of the Member States relating to the safeguarding of employees' rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses.

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(2)  Commission Decision of 28/05/2004 declaring a concentration to be compatible with the common market (Case N IV / M. 3396 – Group 4 Falck / Securicor (4064) pursuant to Council Regulation (EEC) No 4064/89).

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