JUDGMENT OF 28.10.1982 — CASE 135/81 GROUPEMENT DES AGENCES DE VOYAGES v COMMISSION

In Case 135/81

THE COURT (First Chamber) composed of: A. O'Keeffe, President of Chamber, G. Bosco and T. Koopmans, Judges, Advocate General: S. Rozès Registrar: P. Heim

gives the following

JUDGMENT

Facts and Issues

I — Facts and written procedure

An invitation to tender for the operation of a travel office at the seat of the Commission of the European Communities in Luxembourg and the conditions thereof were published in the Official Journal of the European Communities C 142 of 11 June 1980.

The invitation to tender provided in particular that tenders must be lodged not later than 15 September 1980. The third paragraph drew attention to the need to comply with Luxembourg law. The fourth paragraph stated further: “The agency appointed to run the Commission of the European Communities' travel office in Luxembourg will be required to possess, from 1 July 1980, the necessary authorizations from IATA and the main railway and shipping companies for issuing all tickets on the premises made available to it at the Commission's seat in Luxembourg.” It was contemplated that the travel office should be opened “with effect from 1 January 1981”.

The Groupement des Agences de Voyages and the Société Européenne de Voyages, sàrl, (in the process of formation) lodged a tender on 12 September 1980. Tenders were also lodged by four other firms including Hapag Lloyd Reisebüro GmbH, Bremen.

A Committee entrusted with checking that tenders met the terms of the contract proposed that the tender submitted by the Groupement des Agences de Voyages and the Société Européenne de Voyages sàrl, (in the process of formation) should be rejected. The committee then undertook a comparative examination of the tenders considered to be valid and expressed a preference for that from Hapag Lloyd Reisebüro GmbH.

On 24 October 1980 the Advisory Committee on Procurements and Contracts found, as appears from the minutes of its 206th Meeting, that “five tenders have been received” and that “consideration thereof leads the authorizing department ... to reject the Société Européenne de Voyages, which has not yet been formed as a duly constituted company, since it does not in practice offer a concrete guarantee for the proper performance of the requisite services”, and gave an opinion in favour of selecting Hapag Lloyd.

By letters dated 17 December 1980 the Director for Personnel and Administration of the Commission in Luxembourg informed the four tenderers whose tenders had not been accepted of that unfavourable decision.

On 18 February 1981 the Confédération du Commerce Luxembourgeois asbl and the Groupement des Agences de Voyages asked the Directorate for Personnel and Administration of the Commission in Luxembourg to inform them the reasons for the refusal in order that they might adapt themselves to the requirements of the contract.

By letter dated 26 February 1981 the director replied :

“I can confirm that after a comparative examination of all the firms which submitted tenders pursuant to the invitation to tender with regard in particular to the form of each company, the date on which it was formed, its material capacity, international network and the nature of its business, the Commission was not able to accept your tender.”

On 4 May 1981 a private limited liability company called “Hapag Lloyd Travel”, which was registered at the commercial registry of the Grand Duchy of Luxembourg on 27 March 1981 and is a 99 % subsidiary of Hapag Lloyd Reisebüro, Bremen, began to operate a travel office at the seat of the Commission in Luxembourg. By application dated 4 June 1981 the Groupement des Agences de Voyages asbl and, so far as may be necessary, the ten travel agencies grouped together in the form of a limited liability company in the course of formation, the Société Européenne de Voyages, brought an action against the Commission's decision to entrust the operation of a travel office at its seat in Luxembourg to Hapag Lloyd Travel.

Upon hearing the report of the Judge-Rapporteur and the views of the Advocate General the Court decided to open the oral procedure without any prepatory inquiry. It nevertheless requested the Commission of the European Communities to answer in writing before the hearing questions designed to ascertain whether the full result of the procedures relating to the invitation to tender has been published or brought to the knowledge of the tenderers and whether, when those procedures were completed, the firm selected possessed the attributes prescribed in the invitation to tender.

By order of 9 December 1981 made pursuant to Article 95(1) and (2) of the Rules of Procedure the Court referred the case to the First Chamber.

II — Conclusions of the parties

The applicants claim that the Court should:

1) Declare the Commission's decision to entrust the operation of a travel office at the seat of the Commission of the European Communities in Luxembourg to the company Hapag Lloyd Travel to be void;

2) Order the Commission of the European Communities to pay the costs pursuant to Article 69(2) of the Rules of Procedure and to pay the expenses necessarily incurred by the parlies for the purpose of the proceedings, and in particular the remuneration of the lawyers, pursuant to Article 73(b) of the Rules of Procedure.

The Commission contends that the Court should:

Dismiss the action as inadmissible or, in the alternative and in any event, as unfounded;

Order the applicants to pay the costs.

III — Submissions and arguments of the parties

Admissibility

The Coinmission has raised an objection of inadmissibility in regard to this action. In support of that objection, it claims in particular:

1) The action is out of time since the applicants did not within the period of two months prescribed in Article 173 of the EEC Treaty contest the Commission's decision, notified to the applicants by letter dated 17 December 1980, not to accept the applicants' tender;

2) The action cannot be entertained either inasmuch as it is brought by a trade association in the guise of a non-profit-making association (asbl), since such as association cannot according to the Luxembourg Law of 21 April 1928 engage in industrial or commercial transactions or seek to obtain material profit for its members, or inasmuch as it is brought by the Société Européenne de Voyages, since that company has not yet been formed;

3) The applicants (whoever they are) are not in a position to prove that they satisfied on 15 September 1980 the conditions which the tenderer accepted by the Commission may not have satisfied.

The applicants' reply is as follows:

1) As clearly appears from the application, the contested decision is the one by which the Commission engaged the company Hapag Lloyd to operate a travel office at the Commission's seat in Luxembourg and that decision was never published or notified in any way so that it is only as from 4 May 1981, the date on which the applicant; could have learned of the contested decision, that the period for bringing an action began to run;

2) According to the Luxembourg case-law a non-profit-making association of the representatives of a trade or profession may engage in proceedings before the courts in order to defend the interests of their members;

3) At the material time the Société Européenne de Voyages satisfied the conditions stipulated in the invitation to tender and the Groupement des Agences de Voyages was not required to satisfy them, since its concern was not to obtain the contract but to defend the commercial interests of its members.

In its rejoinder the Commission contends:

The contested decision was already known to the applicants in March 1981 as appears from a letter dated 17 March 1981 in which the Secretary General of the Conseil de Gouvernement of the Grand Duchy of Luxembourg made itself the spokesman vis-à-vis the Commission of the criticism expressed by the travel agents against the choice of Hapag Lloyd as the successful tenderer;

Although the applicant's tender was submitted on paper bearing the heading “Fédération des Commerçants/Groupement Agences de Voyages” to which the typed name “Société Européenne de Voyages (SEV) sari (en formation [in the process of formation])” was added, it is drafted as such only in the name of the Société Européenne de Voyages in the process of formation, represented by some ten delegates from existing agencies who jointly signed the tender.

The substance of the case

The applicants rely on the grounds of infringement of the Treaty of any rules of law in relation to its application and also misuse of powers inasmuch as the Commission accepted a tender which did not satisfy the conditions laid down in the invitation to tender and in the special conditions of contract.

In particular as regards the obligation to comply with Luxembourg law the company selected as successful tenderer was not in possession when it submitted its tender of a licence to engage in commerce in the Grand Duchy of Luxembourg. As for the obligation to possess as from 1 July 1980 the necessary authorizations from IATA and the main railway and shipping companies for issuing all tickets, the company was still not in possession of an authorization from LATA when the action was brought, that is to say 4 June 1981, so that a fortiori it was not in possession of such authorization previously.

The Commission's reply is as follows :

The obligation to comply with the Luxembourg law could not become effective as regards the company which successfully tendered for the contract until the opening of the travel office and consequently the limited liability company Hapag Lloyd Travel, which was entered in the commercial register for the Grand Duchy on 27 March 1981, obtained a licence to carry on business as a travel agency on 27 April 1981 and opened its office on 4 May 1981, satisfied the conditions laid down in that respect in the invitation to tender;

It was the same as regards the IATA licences and the authorizations needed for issuing tickets since the date of 1 July 1980 referred to in the invitation to tender was obviously a mistake as may be seen when comparison is made with similar invitations to tender.

The Commission adds that the approval to be given by IATA in respect of a travel agency is subject to a thorough investigation relating, amongst other things, to the layout of the premises. If the condition laid down in the invitation to tender were to be interpreted as suggested by the applicants it could not be satisfied by any of the tenderers.

In their reply the applicants observe that while the Commission agreed that the date of 1 July 1980 is a mistake it does not specify when it in fact required that the condition of obtaining the approval of LATA should be met. They add that if in fact the defendant had made a mistake it could have corrected it by means of the procedure laid down for that purpose.

Further, it must be emphasized that the successful company did not meet the requisite conditions even on 1 January 1981 when the travel office ought to have begun business.

The Commission is wrong in saying that the LATA authorization could not have been obtained by any of the tenderers before the travel office was opened. According to the applicants Section G, Article 15, of Resolution 810a of the LATA Regulations allows, on the contrary, an approved agent to transfer his business to an authorized office in the same town provided that the Administrateur des Agences [Administrator for Agencies] is informed. On the basis of that provision the agent may continue his business as approved agent in the new office until reconsideration of the approval.

In its rejoinder the Commission observes that the LATA Resolution 810 was replaced with effect from 1 July 1980 by LATA Resolution 800. In its opinion it is apparent from Sections D and I of the latter resolution that where it is a question of the establishment of a new travel office such as that to be set up on the premises at the seat of the Commission in Luxembourg the conditions for granting the LATA authorization can in no event be satisfied in advance, inasmuch as the inspection laid down for the purposes of granting the authorization is always made after the office is opened.

IV — Oral procedure

The parties presented oral argument at the sitting on 28 January 1982.

The Advocate General delivered her opinion at the sitting on 4 March 1982.

Decision

1. By application lodged at the Court Registry on 4 June 1981 the Groupement des Agences et Bureaux de Voyages du Grand-Duché de Luxembourg (hereinafter referred to as “the Groupement”), a non-profit-making association affiliated to the Federation des Commerçants du Grand Duchy of Luxembourg, a non-profit-making association, and so far as may be necessary, the ten travel agencies grouped together in the form of a private limited liability company in the course of formation, the Société Européenne de Voyages, instituted proceedings pursuant to the second paragraph of Article 173 of the EEC Treaty for a declaration that the unpublished decision of the Commission of the European Communities to accept the tender submitted by the company Hapag Lloyd GmbH, Bremen, following an invitation to tender published in the Official Journal of the European Communities C 142 of 11 June 1980 in relation to the operation of a travel office at the seat of the Commission in Luxembourg be declared void.

2. The applicants claim that the contested decision is not valid because the company whose tender was accepted did not satisfy the conditions laid down in the invitation to tender. They emphasize in particular that the company was not in possession, when it submitted its tender, of an authorization to engage in commerce in the Grand Duchy of Luxembourg and further did not have on 1 July 1980, contrary to the requirements referred to in the invitation to tender, “the necessary authorizations from IATA and the main railway and shipping companies for issuing all tickets on the premises made available to it at the Commission's seat in Luxembourg”.

3. The defendant Commission has raised a preliminary objection of inadmissibility in regard to the action and has made several submissions in support of that objection, namely the fact that the action was brought out of time, lack of capacity to initiate proceedings and the applicants' own failure to satisfy the conditions in the invitation to tender which they claim were not fulfilled by the tenderer selected by the Commission. In view of the preliminary nature of the problem it is appropriate first of all to consider the submission that the applicants have no capacity to institute proceedings.

4. In raising this submission the Commission contends that the action is inadmissible on the ground that neither the Groupement nor the Société Européenne de Voyages satisfies the conditions laid down in the second paragraph of Article 173 of the EEC Treaty which provides that “Any natural or legal person may ... institute proceedings against a decision addressed to that person or against a decision which, although in the form of a regulation or a decision addressed to another person, is of direct and individual concern to the former”.

5. As regards the Groupement, the Commission maintains that the Luxembourg Law of 21 April 1928 prevents any non-profit-making association from engaging in industrial or commercial transactions or from seeking to procure for its members material profit, which would preclude such an association from becoming a party to proceedings before a court in order to defend the commercial interest of its members. In reply the Groupement says that according to Luxembourg case-law a non-profit-making association may be a party to such proceedings in order to defend the business or professional interest of its members.

6. It must nevertheless be observed that although the problem has been placed by the parties on the footing of the municipal law of the applicant, the admissibility of an action for a declaration of nullity brought pursuant to the second paragraph of Article 173 of the EEC Treaty is subject to specific conditions which are more restrictive than those placed on actions of the same kind brought before the national courts.

7. In this case a decision, following an invitation to tender, to accept the tender of a company in competition with certain members of the Groupement which are linked together in a de facto association may not be regarded as of “direct” concern to the Groupement as required by Article 173. A.s a non-profit-making association the Groupement did not and could not submit a tender in response to the invitation to tender so that the Commission's selection could not in any event have injured it directly. Accordingly, so faias the action is brought by the Groupement it is not admissible.

8. There remains to be considered the question of the admissibility of the action as brought by the Société Européenne de Voyages, a private limited liability company in the process of formation, in so far as it said that the latter does not have the capacity to institute proceedings.

9. In that respect it is apparent from the file on the case that the Commission's decision of 17 December 1980 to exclude the Société Européenne de Voyages from the tendering procedure was adopted, as may be seen from the minutes of the meeting of 24 October 1980 of the Advisory Committee on Procurements and Contracts, on the ground that the Société Européenne de Voyages “does not in practice offer a concrete guarantee for the proper performance of the requisite services”. Further, it is apparent from a letter dated 26 February 1981 from the Director for Personnel and Administration of the Commission in Luxembourg that the decision was adopted “after a comparative examination of all the firms which submitted tenders”. That obviously shows that the Commission recognized the validity of the tender submitted by the Société Européenne de Voyages. It may not therefore challenge the capacity to institute proceedings of a body which it allowed to take part in a tendering procedure and whose tender it rejected after a comparative examination of all those who submitted tenders.

10. Further it should be pointed out that, as may be inferred from the judgments of the Court of 8 October 1974 in Case 18/74 Syndicat General du Personnel des Organismes Européens v Commission [1974] ECR 933 and Case 175/73 Union Syndicale, Massa & Kortner v Council [1974] ECR 917, the meaning of “legal person” in the second paragraph of Article 173 of the EEC Treaty is not necessarily the same as in the various legal systems of the Member States.

11. In the present case since the Société Européenne de Voyages, which is an ad hoc association of ten travel agencies grouped together in order to respond jointly to an invitation to tender, was allowed by the Commission itself to take part in the invitation to tender and was considered and its tender rejected, it fulfils the conditions required by Community law for the purpose of recognition as having the character of a “legal person” within the meaning of Article 173.

12. The objection to the admissibility of the action based on the lack of capacity to institute proceedings is therefore unfounded as far as concerns the Société Européenne de Voyages.

13. The contested decision may further be regarded as having caused “direct and individual” injury to the association constituted by the ten agencies since if the association could submit a tender, subject of course to being subsequently transformed into a formally constituted company, it obviously had an interest in having its tender accepted.

14. In the second place the Commission submits that the action is out of time on the ground that it was brought after the expiry of the period prescribed in the third paragraph of Article 173, namely two months from the day on which the contested decision came to the knowledge of the applicant.

15. In support of that submission the Commission produces in its rejoinder a letter sent on 17 March 1981 by the Secretary General of the Luxembourg Government to the Director for Personnel and Administration of the Commission in Luxembourg and worded as follows :

“Dear Sir,

I have the honour to inform you that the State Secretary at the Ministry for Economic Affairs, Small Firms and Traders has received a complaint from the local travel agents whose tender was in their view wrongly rejected on the occasion of an invitation issued by your institution to tender for the establishment of a travel agency in the Jean Monnet Building.

In particular it is necessary to know the reasons which led the Commission to refuse the tender of Luxembourg agents; they claim that they have fulfilled all the necessary conditions, in particular that prescribed in the fourth paragraph of the invitation to tender, whilst the company which was awarded the tender and which is only in the course of formation does not even now fulfil them.

Should it no longer be possible to review the award it ought to be possible to obtain an assurance that the temporary contract (Article 8 of the invitation to tender) will be subject to a new public tender procedure after a specified period in order to ensure that all those engaged in the business in the various Member States of the EEC are given an equal opportunity.

I should be very much obliged if as soon as you are able you would give me the necessary information on the foregoing and I draw your special attention to the fact that the application for authorization to engage in commerce submitted by the company which was awarded the contract is being processed by the competent Ministry.

Yours faithfully.”

16. It is apparent from that document that as early as 17 March 1981 the travel agencies in Luxembourg were aware that a decision of appointment had been taken and considered that the successful tenderer did not satisfy the conditions stated in the invitation to tender.

17. Therefore the period for bringing an action laid down in the third paragraph of Article 173 commenced on 17 March 1981 and expired on 17 May 1981. The present action which was brought on 4 June 1981 is therefore out of time.

18. In those circumstances, since it is established that the limitation period had expired before the action was brought the action is inadmissible. Accordingly the other submission made by the Commission in support of its objection of inadmissibility no longer has any purpose.

Costs

19. Article 69(2) of the Rules of Procedure provides that the unsuccessful party is to be ordered to pay the costs. However the last part of the first subparagraph of Article 69 (3) provides that where the circumstances are exceptional, the Court may order that the parties bear their own costs.

20. In this case the Commission belatedly, that is to say only in its rejoinder, produced the whole text of the letter of 17 March 1981 which, if it had been lodged with the defence, might have led the applicants to discontinue the proceedings. The Court regards the Commission's conduct in this respect as amounting to exceptional circumstances justifying an order that the parties bear their own costs.

On those grounds, THE COURT (First Chamber) hereby:

1 Dismisses the application as inadmissible;

2 Orders the parties to bear their own costs.