Case T-437/05

Brink’s Security Luxembourg SA

Commission of the European Communities

‛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’

Judgment of the Court of First Instance (Sixth Chamber), 9 September 2009 II ‐ 3237

Summary of the Judgment

Actions for annulment — Actionable measures — Definition

(Art. 230 EC; European Parliament and Council Regulation No 1049/2001, Art. 7(1) and (8); Commission Decision 2001/937, Annex, Arts 3 and 4)
European Communities’ public procurement — Tender procedure

(Council Regulation No 1605/2002, Art. 89(1))
Acts of the institutions — Statement of reasons — Obligation — Scope — Decision, in a procedure for the award of a public service contract, not to select a tender

(Art. 253 EC; Council Regulation No 1605/2002, Art. 100(2))
European Communities’ public procurement — Conclusion of a contract following a call for tenders
European Communities — Institutions — Right of public access to documents — Regulation No 1049/2001

(European Parliament and Council Regulation No 1049/2001, Art. 4(1)(b))

The procedure for gaining access to Commission documents, which is governed by Articles 6 to 8 of Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents and by Articles 2 to 4 of the Annex to Commission Decision 2001/937, amending the Commission’s rules of procedure, takes place in two stages. First, the applicant must send the Commission an initial request for access to documents. In principle, the Commission must reply to the initial request within 15 working days from registration of the application. Secondly, in the event of a total or partial refusal, the applicant may, within 15 working days of receiving the Commission’s initial reply, make a confirmatory application to the Secretary-General of the Commission, to which the latter must in principle reply within 15 working days from the registration of that application. In the event of a total or partial refusal, the applicant may institute court proceedings against the Commission or make a complaint to the European Ombudsman, in accordance with the conditions laid down in Articles 230 and 195 EC respectively.

It is clear from Articles 3 and 4 of the Annex to Decision 2001/937, read in conjunction with Article 8 of Regulation No 1049/2001, that the response to the initial application is only an initial statement of position, conferring on the applicant the right to request the Secretary-General of the Commission to reconsider that position. Consequently, only the measure adopted by the Secretary-General of the Commission, which is a decision and which entirely replaces the previous statement of position, is capable of producing legal effects such as to affect the interests of the applicant and, accordingly, capable of being the subject of an action for annulment under Article 230 EC.

However, since the Commission omitted to inform the applicant, which the Commission is required to do under Article 7(1) of that regulation, of its right to make a confirmatory application, that irregularity has the consequence of rendering admissible, exceptionally, an action for annulment of the initial application, so as to prevent the Commission from being able to avoid review by the Community judicature of a breach of procedure attributable to it.

Since the European Community is a community based on the rule of law in which its institutions are subject to judicial review of the compatibility of their acts with the EC Treaty, the procedural rules governing actions brought before the Community judicature must be interpreted in such a way as to ensure, as far as possible, that those rules are implemented in such a way as to contribute to the attainment of the objective of ensuring effective judicial protection of an individual’s rights under Community law. The requirement of judicial control reflects a general principle of Community law which flows from the constitutional traditions common to the Member States and which is laid down in Articles 6 and 13 of the European Convention for the Protection of Human Rights. The right to an effective remedy was also reaffirmed by Article 47 of the Charter of Fundamental Rights of the European Union.

(see paras 69-71, 74, 75)
Under Article 89(1) of Regulation No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities, all public procurement contracts financed in whole or in part by the budget must comply with the principles of transparency, proportionality, equal treatment and non-discrimination.

The contracting authority must, at each stage of the tendering procedure, act in accordance with the principle of equal treatment of tenderers and, in consequence, ensure that all tenderers have an equal chance.

Under the principle of equal treatment as between tenderers, the aim of which is to promote the development of healthy and effective competition between undertakings taking part in a public procurement procedure, all tenderers must be afforded equality of opportunity when formulating their tenders, which therefore implies that the tenders of all competitors must be subject to the same conditions.

The principle of transparency, which is its corollary, is essentially intended to preclude any risk of favouritism or arbitrariness on the part of the contracting authority. It implies that all the conditions and detailed rules of the award procedure must be drawn up in a clear, precise and unequivocal manner in the notice or contract documents.

(see paras 112-115)
The contracting authority fulfils its obligation to state reasons if, first of all, it immediately informs the unsuccessful tenderers of the reasons for the rejection of their tenders and if, secondly, it informs tenderers who have submitted an admissible tender and who so request of the characteristics and the relative advantages of the selected tender, together with the name of the successful tenderer, within 15 days of receiving a written request. That method is consistent with the purpose of the obligation under Article 253 EC to state reasons.

(see paras 160, 161)
The Commission has a broad margin of discretion with regard to the factors to be taken into account for the purpose of a decision awarding a contract following an invitation to tender, and review by the Court is limited to checking compliance with the procedural rules and the duty to give reasons, the correctness of the facts found and to ascertaining that there has been no manifest error of assessment or misuse of powers.

(see para. 193)
Any exception to the right of access to documents of the institutions must be interpreted strictly. The examination required for the purposes of processing a request for access to documents must be specific in nature. The mere fact that a document concerns an interest protected by an exception cannot justify application of that exception. In principle, the exception can be justified only if the institution has considered beforehand whether access to the document would be likely to undermine, specifically and actually, the protected interest. In addition, the risk of undermining that interest must be reasonably foreseeable and not purely hypothetical.

Disclosure of the composition of the committee responsible for the evaluation of tenders relating to the security and surveillance services for the Commission’s buildings is not likely, specifically and actually, to undermine the protection of privacy and the integrity of the persons concerned. The mere fact of belonging to the committee on behalf of the entity which the persons concerned represented is not of an undermining nature and the privacy and integrity of the persons concerned is not compromised.

(see paras 212, 213, 216)