Case T-437/05: Action brought on  15 December 2005  — Brink's Security Luxembourg v Commission
Date: 2006-02-25
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), award of contract, restriction on competition, security services, services contract

25.2.2006

EN

Official Journal of the European Union

C 48/39

— to the extent necessary, annul the decisions rejecting the
applications for an administrative review (decisions of 17
May 2005) and grievances under the grievance procedure
(decisions of 26 September 2005);

in respect of

— order the defendant to pay compensation for the damage
suffered by the applicants, consisting in the payment of
EUR 5 000 to each applicant
loss of
purchasing power since 1 July 2001, arrears of remunera-
tion corresponding to an increase in salary and all the
applicants' associated rights of 0.3 % from 1 July 2001 and
0.6 % from 1 July 2003, and interest on the said arrears
from the respective due dates until the date of payment.
The interest rate must be the rate fixed by the European
Central Bank for principal refinancing operations applicable
for the period in question, increased by two points;

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)

— order the defendant to pay the entirety of the costs.

Defendant(s): Commission of the European Communities

Pleas in law and main arguments

the Court of First

In Case T-63/02, brought by the same applicants, staff of the
European Central Bank (ECB),
Instance
annulled the decisions contained in the salary statements sent
on 13 July 2001 to the applicants, for July 2001, as the ECB
did not consult the Staff Committee at the time of the adoption
of the salary adjustment for 2001. In consequence of that judg-
ment, the ECB consulted the Staff Committee concerning the
salary adjustments for the period 2001-2003, and a salary
increase for all staff from 1 July 2004. Moreover, it produced,
in February 2005, new pay slips for the applicants replacing
those of July 2001, which were annulled by the Court of First
Instance.

The applicants claim first of all that, by refusing to apply to
them retrospectively from July 2001 the correction linked to
the salary adjustment for 2001, the ECB infringed Article 233
EC, and the principle of res judicata with regard to the judg-
ment given on 20 November 2003 in Case T-63/02.

Moreover, they claim the infringement of Articles 45 and 46 of
the Conditions of Employment for Staff of the ECB, of the
Memorandum of Understanding on relations between the ECB's
managing bodies and the Staff Committee, of the principles of
good administration and non-discrimination and of the obliga-
tion of good faith.

Finally,
allegedly caused by the ECB's conduct.

the applicants claim compensation for the damage

Form of order sought

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

— 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;

— annul

the decision to award the contract,

the
Commission's unilateral decision to award the contract to
Group 4 Falck Luxembourg;

that

is,

— 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;

— 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;

— 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 compe-
titor.

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

C 48/40

EN

Official Journal of the European Union

25.2.2006

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.

The third plea is based on an alleged infringement of the prin-
ciple 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 its last plea, the applicant alleges infringement of the prin-
ciple 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.

(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, busi-
nesses or parts of undertakings or businesses.

(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).

Action brought on 21 December 2005 — Navigazione
Libera del Golfo v Commission

(Case T-444/05)

(2006/C 48/77)

Language of the case: Italian

By the fourth plea, the applicant relies on the alleged infringe-
ment of the decision of Directorate General IV of the Commis-
sion of 28 May 2004 (2) and the rules aimed at ensuring undis-
torted 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.

Parties

The fifth plea is based on the alleged infringement of the obli-
gation to give reasons for the decision, the alleged infringement
of the transparency principle and the right of access to docu-
ments 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.

Applicant: Navigazione Libera del Golfo (NLG) (Naples, Italy)
(represented by: Salvatore Ravenna, lawyer)

Defendant: Commission of the European Communities

Form of order sought

The applicant claims that the Court should:

the rules
The applicant also relies on the infringement of
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.

— annul the decision of the Commission of 12 October 2005
refusing access to data and information concerning the
extra costs arising as a result of PSO (public service obliga-
tions) and payments to offset those costs in respect of the
services carried out by Caremar SpA on the Naples Bever-
ello-Capri route;

— order the Commission to pay the costs.