61981C0135
OPINION OF MRS ADVOCATE GENERAL ROZÈS
DELIVERED ON 4 MARCH 1982 (
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Mr President,
Members of the Court,
The Groupement des Agences de Voyages and, so far as may be necessary, those agencies themselves linked together in the guise of a limited liability company in the course of formation, the Société Européene de Voyages, have submitted an application to this Court to have declared void an undated and as yet unpublished decision of the Commission of the European Communities entrusting the operation of a travel office at the Commission's seat in Luxembourg to the company Hapag Lloyd Travel.
The facts are as follows:
I — As a travel office was to be set up on the premises of the European Communities in Luxembourg invitations to tender were issued in order to select the operator.
The invitation to tender, which was published in the Official Journal of 11 June 1980, mentioned inter alia the following conditions :
“Attention is drawn to the need to comply with Luxembourg law” (third paragraph);
“The agency appointed ... will be required to possess, from 1 July 1980, the necessary authorizations from LATA [International Air Transport Association] 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” (fourth paragraph);
“In addition to the location of the head office the tender should state, accurately and in detail, all relevant information regarding the firm submitting the tender, and in particular the form and date of its establishment ...” (penultimate paragraph).
One of the applicants in this case, the Société Européenne de Voyages (which I shall refer to as the SEV), a limited liability company in the course of formation, was excluded because it did not fulfil the last-mentioned condition. The other applicant, the Groupement des Agences de Voyages, a non-profitmaking association, whose members include inter alia various agencies composing the SEV, was not selected. The Groupement represents the branch specializing in travel arrangements of the Confederation du Commerce Luxembourgeois [Luxembourg Confederation of Commerce], which is also constituted in the form of an association and has as its objects all the trading activities carried out in the Grand Duchy.
The Groupement and the SEV have brought their application, which is based on the second paragraph of Article 173 of the EEC Treaty, on the ground that the undertaking chosen by the Commission did not fulfil two of the abovementioned conditions.
They claim :
That the company incorporated under German law, Hapag Lloyd Reisebüro, did not comply with Luxembourg law at the time when it submitted its tender since the authorization to engage in trade, required by Luxembourg legislation, was not issued to it until 27 April 1981.
That the Luxembourg subsidiary of Hapag Lloyd Reisebüro, which was set up to run the office in question, did not hold the authorization for issuing railway tickets from 1 July 1980 since the authorization was only issued to it on 4 May 1981; furthermore, that at the date of institution of the proceedings it was still not approved by LATA.
The Commission replies to these arguments that the question whether Luxembourg law is complied with must be judged solely in relation to the date of opening of the office. Accordingly if the undertaking selected had ultimately been unable to comply with that condition the decision selecting it could not have taken effect. In other words, according to the Commission, the decision at issue was subject to a suspensory condition. It adopts, by implication, the same reasoning in regard to the lateness of the authorization to issue railway tickets and merely points out that, whilst it is true that the date of 1 July 1980 was published in the Official Journal, that date was so obviously wrong that it was unnecessary to correct it. It states that the condition of authorization by IATA could not be fulfilled by any of the candidates and it must therefore be set aside as “impossible to fulfil” since IATA grants its authorization only after visiting the premises of the applicant agency, which implies that it is already in operation.
II — It is plain from the foregoing that faults in the drafting of the invitation to tender have given rise to the dispute.
The admissibility of the application, which is disputed by the Commission, should be considered.
The Commission has put forward three objections of inadmissibility. It contends that the action is time-barred, that the applicants lack capacity to institute proceedings and have no reasonable cause of action.
(a)
The application was lodged on 4 July 1981, that is more than two months after 17 December 1980, the date on which the applicants were notified that their tenders were not accepted. It should be observed in this connection that the application is not directed against the negative decision adopted with regard to the SEV but against the positive, undated decision to select Hapag Lloyd. Accordingly the date of 17 December 1980 is irrelevant with regard to the point from which time begins to run for the purpose of a possible barring of the proceedings. The conditions for the admissibility of an application must be examined by the Court of its own motion (Opinion of Mr Advocate General Capotorti of 13 March 1980 in Case 155/78 Miss M. v Commission [1980] ECR 1813; judgment of 17 May 1976 in Joined Cases 67 to 85/75 Lesieur Cotelle, paragraph 12 of the decision [1976] ECR 406).
The third paragraph of Article 173 states:
“The proceedings provided for in this article shall be instituted within two months of the publication of the measure, or of its notification to the plaintiff, or, in the absence thereof, of the day on which it came to the knowledge of the latter, as the case may be.”
In this case, since the contested decision was not published or notified to the applicants the time when it came to their knowledge must be ascertained. They assert that only on 4 May 1981, the date on which Hapag Lloyd's office opened, did they learn that ultimately that company had been chosen. Thus, they say, their application was well within the prescribed time-limit.
In contesting that assertion the Commission relies upon a document of 17 March 1981 which in its view proves that at the date the applicants had already been notified of its choice of Hapag Lloyd.
The document in question is a letter, produced as an annex to the Commission's rejoinder, bearing the signature of the Secretary-General of the Luxembourg Government and addressed to the Director of Personnel and Administration of the Commission in Luxembourg. It contains the following passages:
“(The local travel agents) claim that they have fulfilled all the necessary conditions, in particular that prescribed in the fourth paragraph of the invitation to tender (authorization by IATA) whilst the company which was awarded the tender and which is only in the course of formation does not even now fulfil them; ”
“... The application for authorization to engage in commerce submitted by the company which was awarded the contract is being processed by the competent ministry.”
When oral argument was presented the applicants did not deny that the content of that letter proved that the Luxembourg authorities and the persons who referred the matter to them knew of the Commission's decision to choose Hapag Lloyd. They observe nevertheless that the letter was not written by them or at their request but as a result of steps taken by the Director of the Luxembourg Chamber of Commerce. Furthermore the matter referred to the Director was the refusal of the applicants' tenders and not the contested decision to choose the German undertaking.
I do not find this line of argument convincing. It seems to me unlikely that an association representing a particular business sector and belonging to the Luxembourg Confederation of Commerce would have been unacquainted with steps taken by the Luxembourg Chamber of Commerce. Even though these two organizations pursue different objectives it is clear that of necessity they are closely linked. Moreover it is of little importance that the steps which led to the letter of 17 March 1981 were based on the refusal addressed to the applicants and not on the decision to select Hapag Lloyd. The only point which has to be considered is whether or not the applicants were aware of that decision before 17 March 1981.
In my opinion that knowledge may safely be inferred from the extracts which I have quoted. Nevertheless, even if the Court were to give the applicants the benefit of the doubt on that point their application would in my view still be clearly inadmissible on other grounds.
(b)
This application was submitted by two distinct applicants: on the one hand, the non-profitmaking association, the Groupement des Agences de Voyages, which is affiliated to the Fédération des Commerçants du Grand-Duché de Luxembourg [Federation of Traders of the Grand Duchy of Luxembourg], which has become since the institution of the proceedings the Confédération de Commerce Luxembourgeois, which is also constituted as an association; on the other hand, “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 SEV (Société Européenne de Voyages)”.
1.
With regard to the SEV it emerges from the oral argument and, more particularly, from the information provided as to the “identity of the applicants”, that we are concerned with that company, as such, and not with each of its ten founding members taken individually. It is common ground that that company is in the course of formation and under the relevant provisions of national law — to which reference must be made since there is no rule of Community law on this point — it has no legal personality, as may be deduced from Article 9 (4) of the Luxembourg Law on Companies of 10 August 1915 (as amended by the Law of 23 November 1972).
Accordingly the question arises whether a group which does not have or does not yet have legal personality has capacity to institute before this Court proceedings to have a measure declared void or, indeed, any proceedings at all. The answer is obvious and indeed is provided by the very terms of the second paragraph of Article 173, wide though their scope may be: “Any natural or legal person ...”. If it were necessary, I would also invoke the authority of Mr Advocate General Lagrange who as long ago as 1963 expressed his views in the following general terms: “What I wish to emphasize from this analysis of the various provisions is that the Treaty appears to require, for any legal proceedings, the existence of legal personality. In speaking on several occasions of ‘legal persons’ side by side with ‘natural persons’, the Treaty refers to entities which are, like natural persons, capable of being the subject of rights and obligations and consequently of possessing a legal personality. There seems to be no doubt that under the Treaty such a ‘person’ is alone capable of bringing legal proceedings ...” (Opinion of 5 November 1963 in Case 15/63 [1964] ECR 55, which the Court adopted in its order of 14 November 1963).
Accordingly the action, in so far as it is brought — in the alternative, it is true — by the SEV, a commercial company in the course of formation and governed by Luxembourg law, appears to me to be inadmissible.
It might have been otherwise if the persons who were forming the company had themselves brought this action. In certain Member States, including Luxembourg, it is in fact common practice for a number of companies to come together in order to reply jointly to an invitation to tender. In order to avoid costs they do not in fact form themselves into a legal entity unless they are selected. In such a case it appears to me that to refuse to recognize as admissible an action brought by them jointly as the founders of the future company would be tantamount to depriving them of any redress, which is in breach of the principle expressed in the maxim ubi jus, ibi remedium which there is no reason not to apply Community law.
2.
With regard to the Groupement des Agences de Voyages the Commission has formally raised an objection of inadmissibility based on the fact that the applicant is a non-profitmaking association. According to the Commission such an association may not by virtue of Article 1 (1) of the Luxembourg Law on Associations of 21 April 1928 engage in industrial or commercial operations or endeavour to obtain material benefits for its members. It thus does not have the capacity to seek a declaration that the decision whereby a company was chosen to operate a travel office, an activity of a commercial nature, is void.
The Groupement admits, on the one hand, that it brought its action in order to defend the business interests of its members in accordance with Article 2 of its constitution but explains, on the other hand, that it did so also for disinterested reasons: to ensure compliance with the procedure laid down by the Commission in its invitation to tender which, in its view, was infringed by its author when it accepted Hapag Lloyd's tender. It adds that such an application is admissible before the Comité du Contentieux [Judicial Committee] of the Luxembourg Conseil d'État [State Council] as is established by its judgment of 9 July 1969Walter & Cons., Conzémius et Cons, et Ordre des Architectes v Ministre des Travaux Publics (Pasicrisie Luxembourgeoise, Volume XXI, p. 113).
Both parties thus place the problem in the context of the applicant's national law. The admissibility of proceedings to have a measure declared void brought before this Court by ordinary applicants under the second paragraph of Article 173 is subject to specific conditions which are more restrictive than those laid down for proceedings of the same nature instituted before the national courts.
The second paragraph of Article 173 states 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 decision addressed to another person, is of direct and individual concern to the former.”
In the present case may it be said that the Commission's decision was of “direct concern” to the applicant? The case-law of the Court has essentially defined these words in cases involving areas — such as the agricultural field — where the Community institutions do not have direct administrative powers. In such cases the court considers that condition fulfilled if the intermediary Member State, or more precisely the intervention agency which it has designated, “merely performs, irrespective of its own will in the matter, a task conferred upon it by the Community”, to adopt the words, which are still relevant, of Mr Advocate General Gand in his Opinion of 11 March 1965 in Case 38/65 Getreide-Import Gesellschaft, [1965] ECR 211.
Does the same apply where direct administrative powers are vested in the institutions of the Community, for example with regard to invitations to tender which are intended to facilitate the operation of their departments? Although it is clear that the condition cannot be dispensed with — because it is laid down in the Treaty — it will not as a general rule have a specific meaning or at least it will not have the meaning which is conferred upon it in the case-law of the Court: since the administration is direct it is clear that there is no intermediary national agency giving rise to the question whether or not it possesses a margin of discretion.
This case nevertheless shows us that the condition of “direct concern” may in certain cases — which will no doubt be quite exceptional — bear a specific meaning. May it be considered that an association is directly concerned by a decision choosing, within the framework of an invitation to tender, a company which competes with another company formed by a number of the members of that association? To ask the question is to answer it. The decision was of direct concern — and no doubt also of individual concern — only to those groupings which could themselves have benefited from the decision, in other words, the companies whose tenders were not accepted.
That could not be so in the case of an association, even if it had links with one of those companies. It is here that we encounter for the second time the objection of inadmissibility raised by the Commission, but placed in its proper context, namely the procedure before this Court: the decision to award the tender to Hapag Lloyd is not of direct concern to the Groupement des Agences de Voyage because, being an association, it was not and could not have been a candidate in response to that invitation to tender.
In short, the inadmissibility of the Groupement's application is not based on its lack of interest but on the indirect nature of that interest. Contrary to what the Groupement maintains, its action in this case is aimed at defending indirectly the collective interests which it protects, those of the Luxembourg travel agencies. In reality, its application resembles not so much an action by a trade or professional body as an individual action since it is intended to obtain a specific advantage for the benefit of certain of its members designated by name, that is to say, those belonging to the SEV, in course of formation. Accordingly it is on the basis of the principle nul ne plaide par procureur that its application must be declared inadmissible; the SEV, stands as a screen between the Groupement and the decision contested by it.
(c)
It accordingly seems to me unnecessary to consider the third objection of inadmissibility raised by the Commission.
III — Since the foregoing leads to the conclusion that the application should be declared inadmissible, I shall only examine the substance of the case purely as a secondary consideration and very briefly.
The substance of the case of necessity has been broached in connection with the problems raised by the question of inadmissibility concerning the circumstances of the dates, the necessary authorizations and the date when they took effect.
Although I am still extremely critical of the faulty drafting of the invitation to tender which should have been scrutinized before publication in the Official Journal the fact nevertheless remains that under Article 51 (2) of the Financial Regulation the Commission retained the right freely to choose the tender judged to be the most advantageous and in this matter possessed a wide power of discretion in making its choice amongst the candidates.
Consequently I am of the opinion that the application is inadmissible and in the alternative that it is not well founded and that, pursuant to Article 69 (2) of the Rules of Procedure, the applicants should be ordered to pay the costs.
(
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