(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.