Action brought on 3 May 2006 - Centro Studi A. Manieri v Council of the European Union

(Case T-125/06)

Language of the case: Italian

Parties

Applicant(s): Centro Studi A. Manieri (Rome, Italy) (represented by: Carlo Forte, Mario Forte and Giannicola Forte, lawyers)

Defendant(s): Council of the European Union

Form of order sought

Annul the decision of the General Secretariat of the Council of the European Union of 16 January 2006 to withdraw the restricted invitation to tender UCA-459/03 for full crèche management and, at the same time to accept the proposal of the Office for infrastructure and logistics (OIB) of the European Commission for the supply of the same services;

Assess the damage suffered by the applicant on an equitable basis:

Order the Council to pay the costs.

Pleas in law and main arguments

This action has been brought against the decision of the Secretary-General of the defendant to withdraw the invitation to tender launched in the autumn of 2003 by contract notice 2003/S 209-187862 by restricted procedure for the full management of a crèche. The reason for the decision is alleged to be the acceptance of a proposal by the Office for infrastructure and logistics (OIB) of the Commission regarding the management of the crèche in question. That proposal was judged to be much more advantageous than the applicant's tender, particularly as regards the contractual conditions offered to the staff, the economies of scale and the optimisation of the available resources.

In support of its claims the applicant relies on pleas of:

Breach of the principles of transparency and equal treatment, in so far as the contested measure, a decision to bring the service which was the subject of the procedure under internal management, was adopted without being advertised or opened up to competition.

Breach of Article 86(1) EC in that it is inconceivable that there should be a system which requires Member States not to maintain in force a national system which allows the award of contracts for public services without competition while the Community institutions are allowed to conduct themselves in such a manner.

Misapplication of the provisions cited as the legal basis of the contested decision: section 4 of the specification and Article 101 of the Financial Regulation, in so far as the withdrawal of the invitation cited by the Council was not intended to recommence the procedure.

Breach of the obligation to state reasons and error of assessment of the facts, as regards the correctness of the criteria supporting the choice of the proposal of the OIB.

Breach of Articles 43 and 49 EC. It is argued on this point that the OIB is not a department of the Council and it does not have any control over it. It follows that it is not possible in the circumstances of this case to rely on the case-law according to which the application of the public procurement procedures is precluded if the control exercised over the concessionaire by the concession-granting public authority is similar to that which the authority exercises over its own departments and if, at the same time, that entity carries out the essential part of its activities with the controlling authority.

____________