Case T-45/21: Action brought on 27 January 2021 — Ciano Trading & Services CT & S and Others v Commission
Date: 2021-01-27
Institutions: General Court
Subjects: abuse of power, award of contract, collective agreement, public procurement, service concession, tendering








C_2021088EN.01003901.xml










15.3.2021   


EN


Official Journal of the European Union


C 88/39






Action brought on 27 January 2021 — Ciano Trading & Services CT & S and Others v Commission
(Case T-45/21)
(2021/C 88/52)
Language of the case: French

Parties


Applicants: Ciano Trading & Services CT & S SpA (Fiumicino, Italy), Silvia Brizio (Venaria Reale, Italy), Laurence André (Grivegnée, Belgium), Lidia Pacitti (Neder-over-Heembeek, Belgium) (represented by: S. Van Besien and D. Gillet, lawyers)

Defendant: European Commission

Form of order sought

The applicants claim that the Court should:






—


declare admissible the present request for annulment;










—


declare the present request for annulment to be well founded and, accordingly, annul the contested decision;










—


order the Commission to pay all the costs of the proceedings.





Pleas in law and main arguments

In support of the action for annulment of the Commission decision of 20 November 2020 annulling tendering procedure No OIB/2019/CPN/039 entitled ‘Sustainable restoration for the European Commission in Brussels and its surroundings’, the applicants rely on two pleas in law.






1.


First plea in law, alleging infringement of the principle of protection of legitimate expectations. The applicants claim that before the adoption of the contested decision, the Commission gave them precise assurances that, first, a new concession contract covering all the lots, A, B and C, would be concluded from January 2021 onwards within the framework of the public procurement procedure No OIB/2019/CPN/0039, secondly, the concession contract regarding the services relating to lots A and C, actually provided by the applicants, would, in the event of delay in public procurement procedure No OIB/2019/CPN/0039, be extended until the selection by the Commission of a new service provider who would be responsible for carrying out the said services and, thirdly, the workers assigned to the services relating to lots A and C would be transferred to the new service provider in application of collective labour agreement No 32 bis.
Such precise assurances, given barely a few days before the contested decision was sent to Ciano, created well-founded expectations on the part of the applicants that the workers assigned to the services relating to lots A and C would, in any event, be transferred to the new service provider.
However, by adopting the contested decision, which cancelled outright public procurement procedure No OIB/2019/CPN/0039, without extending the concession contract relating to lots A and C, the Commission has precluded the transfer of those workers, given that no new service provider will be selected in the near future, and has adopted a position radically opposed to the assurances it had given.
The applicants therefore consider that by adopting the contested decision in such a context, the Commission infringed the principle of protection of legitimate expectations.










2.


Second plea in law, alleging infringement of the prohibition on abuse of rights. The applicants consider in that regard that by adopting the contested decision, the Commission abused its right to withdraw the public procurement procedure, in that its real objective was to circumvent the application of collective labour agreement No 32 bis, in order to prevent the new service provider from having the workers assigned to the services relating to lots A and C transferred to it. The Commission has, moreover, on a number of occasions since the adoption of the contested decision, acted in bad faith towards the applicants, in particular when it stated, in a letter, that the concession contract is silent on the subject of the employees of Ciano being taken on by a possible new concessionaire and when it stated that the collective agreement 32 bis was not applicable, even though the concession contract makes express reference to it, in a provision entitled ‘conventional transfer’, under the section relating to personnel.
The applicants therefore consider that by adopting the contested decision in such a context, the Commission infringed the prohibition on abuse of rights.