Judgments nº T-437/05 of Court of First Instance of the European Communities, September 09, 2009

• Resolution Date: September 09, 2009
• Issuing Organization: Court of First Instance of the European Communities
• Decision Number: T-437/05

(Public service contracts – Community tender procedure – Security and surveillance of Commission buildings in Luxembourg – Rejection of a tender – Equal treatment – Access to documents – Effective judicial protection – Obligation to state reasons – Transfer of an undertaking – Action for damages)

In Case T‑437/05,

Brink’s Security Luxembourg SA, established in Luxembourg (Luxembourg), represented by C. Point and G. Dauphin, lawyers,

applicant,

v

Commission of the European Communities, represented by E. Manhaeve, M. Šimerdová and K. Mojzesowicz, acting as Agents, assisted by J. Stuyck, lawyer,

defendant,

supported by

G4S Security Services SA, formerly Group 4 Falck – Société de surveillance et de sécurité SA, established in Luxembourg, represented by M. Molitor, P. Lopes Da Silva, N. Cambonie and N. Bogelmann, lawyers,

intervener,

APPLICATION for the annulment (i) of the Commission’s decision of 30 November 2005 rejecting the tender submitted by the applicant in response to invitation to tender No 16/2005/OIL (security and surveillance of buildings); (ii) the Commission’s decision of 30 November 2005 awarding the contract to another tenderer; (iii) an allegedly implied decision of the Commission refusing to withdraw decisions (i) and (ii); and (iv) two letters of the Commission, dated 7 and 14 December 2005, in reply to the applicant’s requests for information, and an action for damages for the harm allegedly suffered by the applicant,

THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Sixth Chamber),

composed of A.W.H. Meij, President, V. Vadapalas and L. Truchot (Rapporteur), Judges,

Registrar: K. Pocheć, Administrator,

having regard to the written procedure and further to the hearing on 20 November 2008,

gives the following

Judgment

Legal context

A – Legislation applying to public procurement contracts of the European Communities

1 Article 100(2) of Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 248, p. 1; ‘the Financial Regulation’) provides:

‘The contracting authority shall notify all candidates or tenderers whose applications or tenders are rejected of the grounds on which the decision was taken, and all tenderers whose tenders are admissible and who make a request in writing of the characteristics and relative advantages of the successful tender and the name of the tenderer to whom the contract is awarded.

However, certain details need not be disclosed where disclosure would hinder application of the law, would be contrary to the public interest or would harm the legitimate business interests of public or private undertakings or could distort fair competition between those undertakings.’

2 Article 149(1) of Commission Regulation (EC, Euratom) No 2342/2002 of 23 December 2002 laying down detailed rules for the implementation of the Financial Regulation (OJ 2002 L 357, p. 1), as amended by Commission Regulation (EC, Euratom) No 1261/2005 of 20 July 2005 (OJ 2005 L 201, p. 3), (‘the Implementing Rules’), provides:

‘The contracting authorities shall as soon as possible inform candidates and tenderers of decisions reached concerning the award of the contract or framework contract or admission to a dynamic purchasing system, including the grounds for any decision not to award a contract or framework contract, or set up a dynamic purchasing system, for which there has been competitive tendering or to recommence the procedure.’

3 Article 149(3) of the Implementing Rules provides:

‘In the case of contracts awarded by the Community institutions on their own account, under Article 105 of the Financial Regulation, the contracting authority shall inform all unsuccessful tenderers or candidates, simultaneously and individually, as soon as possible after the award decision and within the following week at the latest, by mail and fax or email, that their application or tender has not been accepted; specifying in each case the reasons why the tender or application has not been accepted.

The contracting authority shall, at the same time as the unsuccessful candidates or tenderers are informed that their tenders or applications have not been accepted, inform the successful tenderer of the award decision, specifying that the decision notified does not constitute a commitment on the part of the contracting authority.

Unsuccessful tenderers or candidates may request additional information about the reasons for their rejection in writing by mail, fax or email, and all tenderers who have put in an admissible tender may obtain information about the characteristics and relative merits of the tender accepted and the name of the successful tenderer, without prejudice to the second subparagraph of Article 100(2) of the Financial Regulation. The contracting authority shall reply within no more than 15 calendar days from receipt of the request.

The contracting authority may not sign the contract or framework contract with the successful tenderer until two calendar weeks have elapsed from the day after the simultaneous dispatch of the rejection and award decisions. If necessary it may suspend signing of the contract for additional examination if justified by the requests or comments made by unsuccessful tenderers or candidates during the two calendar weeks following the rejection or award decisions or any other relevant information received during that period. In that event all the candidates or tenderers shall be informed within three working days following the suspension decision.’

B – Legislation relating to the right of access to documents of the institutions

4 Under Article 4 of Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43):

‘1. The institutions shall refuse access to a document where disclosure would undermine the protection of:

…

(b) privacy and the integrity of the individual, in particular in accordance with Community legislation regarding the protection of personal data.

…

6. If only parts of the requested document are covered by any of the exceptions, the remaining parts of the document shall be released.

   …’

   5 Article 6 of Regulation No 1049/2001 provides:

   ‘1. Applications for access to a document shall be made in any written form, including electronic form, in one of the languages referred to in Article 314 [EC] and in a sufficiently precise manner to enable the institution to identify the document. The applicant is not obliged to state reasons for the application.

2. If an application is not sufficiently precise, the institution shall ask the applicant to clarify the application and shall assist the applicant in doing so, for example, by providing information on the use of the public registers of documents.

3. In the event of an application relating to a very long document or to a very large number of documents, the institution concerned may confer with the applicant informally, with a view to finding a fair solution.

4. The institutions shall provide information and assistance to citizens on how and where applications for access to documents can be made.’

   6 Article 7 of Regulation No 1049/2001, which lays down detailed rules for the processing of initial applications, provides:

   ‘1. An application for access to a document shall be handled promptly. An acknowledgement of receipt shall be sent to the applicant. Within 15 working days from registration of the application, the institution shall either grant access to the document requested and provide access in accordance with Article 10 within that period or, in a written reply, state the reasons for the total or partial refusal and inform the applicant of his or her right to make a confirmatory application in accordance with paragraph 2 of this Article.

2. In the event of a total or partial refusal, the applicant may, within 15 working days of receiving the institution’s reply, make a confirmatory application asking the institution to reconsider its position.

3. In exceptional cases, for example in the event of an application relating to a very long document or to a very large number of documents, the time-limit provided for in paragraph 1 may be extended by 15 working days, provided that the applicant is notified in advance and that detailed reasons are given.

4. Failure by the institution to reply within the prescribed time-limit shall entitle the applicant to make a confirmatory application.’

   7 Article 8 of Regulation No 1049/2001, concerning the processing of confirmatory applications, provides:

   ‘1. A confirmatory application shall be handled promptly. Within 15 working days from registration of such an application, the institution shall either grant access to the document requested and provide access in accordance with Article 10 within that period or, in a written reply, state the reasons for the total or partial refusal. In the event of a total or partial refusal, the institution shall inform the applicant of the remedies open to him or her, namely instituting court proceedings against the institution and/or making a complaint to the Ombudsman, under the conditions laid down in Articles 230 [EC] and 195 [EC], respectively.

2. In exceptional cases, for example in the event of an application relating to a very long document or to a very large number of documents, the time-limit provided for in paragraph 1 may be extended by 15 working days, provided that the applicant is notified in advance and that detailed reasons are given.

3. Failure by the institution to reply within the prescribed time-limit shall be considered as a negative reply and entitle the applicant to institute court proceedings against the institution and/or make a complaint to the Ombudsman, under the relevant provisions of the EC Treaty.’

   C – Legislation applying to the safeguarding of workers’ rights in the event of transfers...