OPINION OF ADVOCATE GENERAL

MENGOZZI

delivered on 27 January 2011 (1)

Case C‑401/09 P

Evropaïki Dynamiki - Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE

v

European Central Bank

(Appeal – Public service contracts – European Central Bank – Groupings – Standing of individual members of a consortium to bring proceedings – Review by the Court of the application of national law by European Union bodies)

1.        By the present appeal, the company Evropaïki Dynamiki seeks to have set aside the order of 2 July 2009 in Case T‑279/06 Evropaïki Dynamiki v ECB (‘the order under appeal’). (2) By that order, the Court of First Instance of the European Communities (now ‘the General Court’) dismissed as in part manifestly inadmissible and in part manifestly unfounded the action brought by Evropaïki Dynamiki for annulment of the letter of the European Central Bank (ECB) which had informed it on 31 July 2006 that it had been excluded from the subsequent stages of a tendering procedure for the provision of IT services.

I –  Legal context

A –    European Union (‘EU’) law

1.      ECB procurement rules

2.        At the material time, ECB procurement was governed by Administrative Circular No 8/2003 of 16 September 2003. Neither the public procurement directives, by their nature addressed to the Member States, nor the rules applicable to the institutions – set out, in particular, in the Financial Regulation (3) and in the related Implementing Regulation (4) – were of direct application.

3.        The provisions of Administrative Circular No 8/2003 are not directly relevant to the present appeal: I shall therefore simply refer to them below, as and when the need arises.

2.      The Rules of Procedure of the General Court

4.        Article 114(1) of the Rules of Procedure of the General Court states:

‘A party applying to the General Court for a decision on admissibility, on lack of competence or other preliminary plea not going to the substance of the case shall make the application by a separate document.

The application must contain the pleas of fact and law relied on and the form of order sought by the applicant; any supporting documents must be annexed to it.’

B –    German law

5.        As will be seen when the facts of the case are set out, the resolution of the present dispute depends, in part, on the application of certain national law rules applicable to the contract which the ECB intended to enter into with the successful tenderer. More specifically, the rules in question are those laid down in the German Law of 7 August 1972 on the supply of temporary staff (Arbeitnehmerüberlassungsgesetz or ‘the AÜG’).

6.        Article 1 of the AÜG provides:

‘1.      Employers wishing to provide workers … to third parties … on a professional basis must hold a permit.

…’.

II –  Facts

7.        On 19 July 2005, the ECB published a contract notice (5) concerning the ‘provision of IT consultancy and IT development services’. (6)

8.        Section III.1.3 of the original version of the notice excluded groupings of undertakings and consortia from participating in the procedure. However, on 11 August 2005, a corrigendum was published (7) which amended that section, allowing the participation of consortia and temporary groupings.

9.        Evropaïki Dynamiki participated in the procedure as a member of the E2Bank consortium, which comprised Evropaïki Dynamiki and the Italian company, Engineering Ingegneria Informatica SpA.

10.      The documentation sent to the participants by the ECB and, in particular, the call for tenders and the related annexes, laid down, inter alia, an obligation for all tenderers to hold the permit provided for under Article 1 of the AÜG (‘the permit’). However, it was not necessary to be in possession of the permit until a contract was signed: the E2Bank consortium’s tender was therefore found to be complete and in order, since, although the two companies comprising the consortium did not possess the document in question, they had undertaken to obtain it in good time.

11.      The E2Bank consortium completed the first stage of the tendering procedure successfully and was placed on the shortlist of the best tenderers. Subsequently, however, its tender was ranked fourth and accordingly excluded from the final stage of the selection procedure, which was restricted to the three best tenderers. Evropaïki Dynamiki was informed of this by a letter of 31 July 2006, which it challenged before the General Court.

III –  Action before the General Court and the order under appeal

12.      The action brought before the General Court by Evropaïki Dynamiki, which acted on behalf of the E2Bank consortium, was based on eight pleas in law.

13.      However, before examining the pleas in law put forward by Evropaïki Dynamiki, the General Court rejected a preliminary plea of inadmissibility raised by the ECB, alleging that Evropaïki Dynamiki had no legal interest in bringing proceedings owing to the fact that it did not hold a permit to supply temporary staff and that, by its own admission, it could never obtain such a permit. The General Court found that one of the pleas in law relied on by Evropaïki Dynamiki related specifically to the obligation to hold the permit in question: consequently, the action had to be held admissible, in so far as it sought precisely to obtain a ruling annulling the permit requirement.

14.      The General Court then proceeded to examine the pleas in law, commencing with the last plea in law, by which it was alleged that the clause relating to the requirement to hold the permit was unlawful. In addition to its claim that the requirement was unlawful, Evropaïki Dynamiki stated in its action before the General Court that it had discovered during the course of the proceedings that it was unable to obtain the permit. According to Evropaïki Dynamiki, this was because, in the case of companies established abroad, the German authorities issue permits only to companies which already hold a permit in their own country of origin, and the law of the Member State of establishment of Evropaïki Dynamiki (Greece) issues permits only to companies which are exclusively engaged in the supply of temporary staff. Since Evropaïki Dynamiki is not exclusively engaged in the supply of temporary staff, it could never have obtained the permit in Greece or, as a consequence, in Germany either.

15.      In examining the plea in law, the General Court noted that the tender documents clearly stated that the contract was governed by German law – a point which was in no way disputed by Evropaïki Dynamiki – and went on to find that the ECB’s interpretation of German law was correct, thus holding that German law does indeed require, for the activities referred to in the call for tenders, possession of the permit. As regards the problems arising from the fact that Evropaïki Dynamiki is established in Greece and would therefore have been unable to obtain the permit from the German authorities, the General Court observed that, in an action for annulment under Article 230 EC, it is not possible to address the question whether a national provision is discriminatory or, more generally, contrary to EU law.

16.      After rejecting the eighth plea in law in that manner, the General Court observed that Evropaïki Dynamiki could not, by its own admission, have obtained the permit to supply temporary staff. Consequently, since it had been established that the relevant clause was lawful, there was no longer any need to examine the remaining seven pleas in law, since they could not in any event have resulted in the contract being awarded to Evropaïki Dynamiki, given that it did not hold the permit in question. Consequently, the General Court held that the first seven pleas in law were manifestly inadmissible. The action was therefore dismissed in its entirety.

IV –  Proceedings before the Court of Justice and the forms of order sought

17.      The present appeal was lodged at the Court Registry on 3 October 2009. By the appeal, Evropaïki Dynamiki, acting on behalf of the E2Bank consortium, claims that the Court should:

–        set aside the order under appeal;

–        annul the measures by which the ECB excluded Evropaïki Dynamiki from the procedure and awarded the contract to another tenderer;

–        order the ECB to pay the costs, including those incurred at first instance.

18.      The ECB contends that the Court should:

–        dismiss the appeal;

–        order Evropaïki Dynamiki to pay the costs.

V –  Admissibility of the appeal

19.      The ECB has raised a preliminary plea that the appeal is inadmissible: for obvious reasons, that is the plea which I must examine first.

A –    Positions of the parties

20.      The ECB submits that the power of attorney for bringing proceedings, which was granted to Evropaïki Dynamiki by the other company in the E2Bank consortium and lodged at the same time as the action at first instance, covered only the proceedings before the General Court and must not therefore be considered applicable to the proceedings before the Court of Justice. Consequently, Evropaïki Dynamiki did not have authority to bring the appeal on behalf of the consortium.

21.      In addition, the ECB submits that the individual members of a grouping of companies do not have an independent right to contest decisions which relate to the grouping as a whole. Evropaïki Dynamiki does not therefore have the capacity to bring the appeal on its own behalf, as a mere member of the consortium.

22.      Consequently, the appeal should be held inadmissible in its entirety.

23.      In its reply, Evropaïki Dynamiki disputed both branches of the preliminary plea of inadmissibility put forward by the ECB.

24.      First, the power of attorney granted to Evropaïki Dynamiki is not in fact limited solely to proceedings before the General Court, but also covers any appeal proceedings.

25.      Second, each of the members of a consortium has an independent right to contest measures which harm the consortium itself. Evropaïki Dynamiki emphasises further that the E2Bank consortium did not have legal personality and that Evropaïki Dynamiki played the role of lead partner within the consortium, whereas the other company in the consortium held a completely subordinate position, comparable to that of a subcontractor.

B –    Assessment

26.      The preliminary plea of inadmissibility put forward by the ECB must not, in my view, be upheld. I shall set out below the reasons for my position, addressing separately the interpretation of the power of attorney and the right of action of individual members of a grouping of companies.

1.      Interpretation of the power of attorney granted to Evropaïki Dynamiki

27.      In the first place, the actual wording of the document granting power of attorney to the tenderer on 11 September 2006 does not categorically rule out the possibility that it is valid, not only for the proceedings before the General Court, but also for any appeal proceedings before the Court of Justice.

28.      It is true that, in the first part of the document granting power of attorney, Evropaïki Dynamiki is authorised ‘to undertake all the necessary legal actions, in its own name or on behalf of the E2Bank consortium, through the legal Counsels of [its] choice, before the Court of First Instance of the European Communities’. Immediately thereafter, however, it is stated that ‘[t]his proxy … will remain valid for as long as it is necessary in order to complete all legal actions as they are prescribed by the applicable legislation’.

29.      Undoubtedly, the above wording is somewhat infelicitous. However, the presence of the final clause, which refers to the completion of all legal actions, means that the possibility that the power of attorney is valid also for an appeal to the Court of Justice cannot be completely ruled out. From the perspective of a participant in a tendering procedure who decides to bring an action, a reference to the General Court may even be interpreted as a general, almost redundant, reference to the court before which an application is lodged at the commencement of proceedings which, in the event of an appeal, may be concluded before the Court of Justice. From that perspective, the final clause can be interpreted as confirmation that the power of attorney is applicable to both sets of proceedings.

30.      I therefore consider that the power of attorney granted to Evropaïki Dynamiki to act on behalf of the E2Bank consortium can be regarded as valid also for appeal proceedings before the Court of Justice.

2.      The independent right of the members of a grouping to bring proceedings

31.      Should the Court not concur with my broad interpretation of the power of attorney as set out in the preceding paragraphs and, in any event, for the sake of completeness, I shall now examine the issue of whether the members of a grouping of companies may, in general, challenge independently a measure addressed to the grouping itself.

32.      While not entirely novel, the issue is one on which the Court has not yet had occasion to give a ruling in circumstances similar to those of the present case. Until now, in fact, the case-law has focussed on the issue of whether national rules on this point are compatible with Directive 89/665 (also ‘the Remedies Directive’). (8)

33.      In that context, the Court has regarded as compatible with Community law both a national rule under which actions were admissible only if brought by all the members of a temporary association acting together (9) and a national rule under which, by contrast, actions were also admissible if brought by an individual member of a consortium. (10) The reason for this is that Directive 89/665 simply lays down the ‘minimum conditions to be satisfied by the review procedures established in the national legal systems, so as to ensure compliance with the requirements of Community law concerning public contracts’. (11)

34.      In the area of damages, on the other hand, EU law is regarded as conferring an individual right of action on every member of a temporary association. (12)

35.      Directive 89/665 is not applicable, as such, to public procurement contracts put out to tender by the institutions or by the ECB, since it is a measure addressed to the Member States. However, the directive represents the expression in a specific context of the right to effective judicial protection, which is a general principle of EU law. (13) Today, as is common knowledge, that principle is also enshrined in Article 47 of the Charter of Fundamental Rights, which, pursuant to Article 6 TEU, has the same legal authority as the Treaties. (14)

36.      In that regard, it should be observed that Directive 89/665 is characterised, in general, by a clear and obvious inclination in favour of the bringing of actions. It sets out the minimum level of judicial protection which must be recognised and, as has been noted above, allows the Member States, for example, to guarantee a right of action to a broader category of persons than that specified in the directive itself. Moreover, this aspect is immediately apparent from the wording of the directive, Article 1 of which provides that a right to seek review must be ensured ‘at least’ for persons to whom an adverse decision has been addressed. (15)

37.      In the present case, there is no doubt that the addressee of the contested decision is the consortium as a whole, which was also the case for the temporary associations in the judgments referred to above. Likewise, however, there is no doubt that, as a member of such a consortium, Evropaïki Dynamiki has a practical interest in obtaining the annulment of a measure which, in its submission, has unlawfully harmed the consortium to which it belongs.

38.      In the absence of an express limitation of the right of action, I consider that such a right must be recognised not only in favour of the consortium as such but also in favour of the individual companies belonging to that consortium. If the legislature had decided, in the case of public procurement contracts put out to tender by EU institutions, to restrict the right to seek review solely to consortia acting as a body, it ought to have done so explicitly. Since that was not the case, the principle which facilitates the bringing of actions must be allowed to prevail.

39.      Moreover, in the order in Consorzio Elisoccorso San Raffaele, referred to above, the Court emphasised that, far from being contrary to Directive 89/665, a national rule which allows any member of a consortium to bring an individual action for annulment helps to achieve the directive’s objectives. (16)

40.      Nor should it be overlooked that, in the present case, the consortium would appear to lack legal personality. In that context, the individual right of action of the companies in the consortium could be strengthened by the transparency of the consortium and the ‘visible’ nature of their membership within it. (17)

41.      In my estimation, there is no good reason to uphold the ECB’s contention that recognition of an individual right of action for all consortium members would entail an unacceptable risk of conflicting judgments. It is an inherent aspect of any given legal situation that it may be the subject of a number of judicial decisions and possibly of judgments which take different approaches. Moreover, in keeping with the spirit of Directive 89/665, the main concern here is to make it possible, in as many cases as possible, to secure the annulment of unlawful procedures: generally speaking, that aim appears best served by a generous interpretation of the right to seek review rather than a restrictive approach.

42.      Nor, in my view, can reliance be placed to contrary effect on the fact that some members of a consortium may no longer have an interest in bringing proceedings, so that to allow member companies an individual right of action would create a risk that proceedings might be brought by one consortium member which are not (any longer) in the interests of the other members. A similar objection has been rejected by the Court (18) and, in any event, an objection along those lines can also be used in the opposite sense to that argued for by the ECB. If the refusal of an individual consortium member to countenance proceedings could also be binding on all the other members, this could open the way for abuse; it would mean that a successful tenderer could always prevent the initiation of proceedings by ensuring that at least one member of the competing consortia no longer had any interest in bringing an action: for example, because the successful tenderer had offered it a subcontract.

43.      In conclusion, even if the power of attorney granted to Evropaïki Dynamiki by the E2Bank consortium were to be interpreted as valid only for the proceedings before the General Court, Evropaïki Dynamiki should, in any event, be recognised as having capacity in its own right to challenge a decision concerning the consortium to which it belongs.

44.      The appeal must therefore be regarded as admissible.

VI –  Substance of the appeal

45.      Evropaïki Dynamiki relies on four grounds of appeal: (i) infringement of Article 114 of the Rules of Procedure of the General Court; (ii) misinterpretation of the concept of a legal interest in bringing proceedings; (iii) misapplication of the German legislation on temporary employment; and (iv) breach of the duty to state reasons. I will consider the grounds below in the order which seems to me the most appropriate for the logical exposition of my argument: in particular, the third ground of appeal must be examined before the second ground.

A –    The first ground of appeal: infringement of Article 114 of the Rules of Procedure of the General Court

1.      Arguments of the parties

46.      Evropaïki Dynamiki’s first ground of appeal is that the General Court infringed Article 114 of its Rules of Procedure by finding that the ECB’s preliminary plea of inadmissibility was admissible, even though it was not lodged by separate document.

47.      The ECB contends that the ground is unfounded since, under Article 114 of the Rules of Procedure of the General Court, a preliminary plea of inadmissibility must be lodged by separate document only where the General Court is requested to give a decision on a matter not going to the substance of a case.

2.      Assessment

48.      First of all, it must be considered whether the ground of appeal is admissible. It is not intended, in fact, to obtain an amendment to the operative part of the order under appeal: in practice, rejecting a plea of inadmissibility, as the General Court did, or declaring that that plea is itself inadmissible, which Evropaïki Dynamiki claims ought to have been done, produces the same result.

49.      In France v Comafrica and Others, the Court of Justice accepted that a party whose preliminary plea of inadmissibility is rejected by the General Court may challenge that part of the judgment even if it has been successful on the merits. (19) In the present case, however, it is not the party which raised the plea of inadmissibility (the ECB) which is seeking amendment of the order under appeal in so far as it relates to that plea, but Evropaïki Dynamiki, which submits that the plea of inadmissibility at first instance ought itself to have been declared inadmissible.

50.      From the point of view of Evropaïki Dynamiki, it seems to me that the fact that a preliminary plea of inadmissibility has itself been declared inadmissible is equivalent to a rejection of that plea. If it is supposed that, in the context of a single case, the admissibility of the action and the merits of the action are the subject of two different decisions, it becomes clear how the present situation differs from that in France v Comafrica and Others, referred to in the previous paragraph. Whereas the appeal in France v Comafrica and Others sought to overturn the decision on admissibility (in other words, seeking a declaration that the action was inadmissible, rather than its dismissal on the merits), in the present case, the decision on admissibility would remain the same (the plea of inadmissibility rejected as being itself inadmissible rather than rejected as being unfounded). In other words, if the ground of appeal in question were upheld, this would still not alter the fact that the preliminary plea of inadmissibility at first instance would be rejected.

51.      I am therefore minded to conclude that Evropaïki Dynamiki has no legal interest in raising the first of its grounds of appeal. In particular, it seems to me that the present situation is in some respects similar to that in which a party which has succeeded on the merits contests the fact that the court adjudicating at first instance failed to rule on a preliminary plea of inadmissibility. It is well known that, in such cases, the Court has consistently held that there is no legal interest in bringing an action. (20) That is because there has been no decision on admissibility which could be reversed. In the present case, admittedly, a decision on admissibility was taken, but it is not claimed that that decision should be reversed. Only the party which was unsuccessful with regard to that decision – namely, the ECB – could challenge it.

52.      In my view, therefore, the first ground of appeal must be regarded as inadmissible.

53.      In any event, quite aside from the matter of its admissibility, the ground of appeal is unfounded. It must be observed that, like Article 91 of the Rules of Procedure of the Court of Justice, Article 114 of the Rules of Procedure of the General Court does not require that every preliminary plea of inadmissibility be lodged by separate document. On the contrary, the lodging of a separate document is necessary, as is clear from that provision, only where the party submitting it intends to ask the Court for a decision on admissibility ‘not going to the substance of the case’. This, moreover, is reflected in the practice both of the General Court and of the Court of Justice, in which preliminary pleas of inadmissibility are frequently contained in the normal defence pleadings and intended for consideration together with the substance of the case.

54.      The first ground of appeal must therefore be rejected.

B –    The third ground of appeal: relating to the obligation to hold a permit to supply temporary staff

1.      Arguments of the parties

55.      Evropaïki Dynamiki’s third ground of appeal is that the General Court erred in confirming the obligation imposed by the ECB on contractors to hold or to obtain the permit to supply temporary staff, as provided for under German law. Evropaïki Dynamiki submits that, in reality, the German legislation does not impose any formality of that kind in a situation such as the present. According to Evropaïki Dynamiki, it had already entered into other contracts with the ECB and had never before been required to obtain the permit.

56.      By contrast, the ECB, for its part, maintains that certain of the services to be supplied in order to carry out the contract clearly fall within the scope of the AÜG, with the attendant obligation, for those supplying temporary staff, to hold the permit. The General Court did not therefore err in law in that regard.

2.      Assessment

a)      Admissibility of the ground of appeal

57.      Although the parties have not addressed this point, it must first of all be considered whether the ground of appeal, which in essence reproduces the eighth plea in law relied on before the General Court, is admissible.

58.      I am not referring here to the inadmissibility which, according to the ECB’s defence at first instance, characterised Evropaïki Dynamiki’s action as a whole because the latter did not hold the permit. As has been observed, that plea was rightly rejected by the General Court.

59.      Rather, the admissibility issue here is specific to this ground of appeal, which relates to the obligation to hold the permit, and arises from the fact that – as is apparent and undisputed by the parties – Evropaïki Dynamiki was not excluded from the tendering procedure for lack of a permit. As I pointed out when rehearsing the facts which gave rise to the dispute, the consortium to which Evropaïki Dynamiki belonged was not excluded from the procedure at any stage because it failed to meet the requirements, since it was not necessary to be in possession of the permit until a contract with the ECB was signed. On the contrary, what happened was that, after the first stage for the selection of applicants, to which Evropaïki Dynamiki was admitted, its tender was not ranked as one of the three best tenders, which are those admitted to the final stage of the selection procedure.

60.      Accordingly, the General Court could have held that, since the terms of the call for tenders laying down the obligation to hold the permit did not cause Evropaïki Dynamiki any practical harm, the latter had no legal interest in challenging them. In that connection, it should be recalled that, according to settled case-law, the Courts of the European Union may, if necessary of their own motion, determine whether there is a legal interest in bringing proceedings. (21)

61.      However, in view of the circumstances of the case, I consider that the General Court’s decision to examine the substance of the plea was correct. It should be observed that, if the eighth plea in law put forward before the General Court had been declared inadmissible, the outcome would still have been that the first seven pleas in law were declared inadmissible, since Evropaïki Dynamiki had stated in its own application that it would have been unable to obtain the permit for supplying temporary staff. In other words, the paradoxical situation would have arisen in which certain pleas in law (the first seven) would have been declared inadmissible owing to the failure to meet a requirement whose mandatory character – the subject-matter of the eighth plea in law – could not have been challenged because it had not caused Evropaïki Dynamiki any actual harm.

62.      Accordingly, although the consortium to which Evropaïki Dynamiki belonged was not excluded because of failure to comply with the obligation to obtain the permit, the General Court was correct to examine the substance of the eighth plea in law. Moreover, it happens relatively often that, rather than dwelling on the issue of admissibility, the Courts of the European Union reject a plea in law directly on its merits. (22)

b)      Substance of the ground of appeal

63.      Although the parties have not addressed the issue expressly and in detail, examination of the substance of the third ground of appeal requires some consideration of the type of review which the Court of Justice may carry out, in general, of the way in which EU bodies have applied rules of national law. As has been observed, the origins of the present ground of appeal essentially lie in a difference of opinion as to the interpretation of the German legislation on the supplying of temporary staff.

i)      General considerations in relation to national law in cases before the Courts of the European Union

64.      The field of public procurement contracts put out to tender by EU bodies is undoubtedly one of the areas in which the interplay between EU law and national law can more easily be observed. Generally speaking, clauses are frequently laid down, in the calls for tenders published by the institutions, requiring compliance with the national legislation of the State in which the activities covered by the call for tenders must be carried out. (23) What is more, to the extent that the provisions of the Treaties or the Protocols appended thereto do not lay down exceptions or specific rules, it is difficult to see how EU bodies could avoid the application of the rules in force in the places in which they operate. It may also be observed that Article 130(4)(c) of the Implementing Regulation (which, it must be remembered, is not applicable to the present case), as amended by Regulation No 478/2007, (24) provides that ‘when the institutions are contracting authorities, Community law is the law which applies to the contract, complemented, where necessary, by national law as specified in the contract’. (25)

65.      The contract which the successful tenderer would have entered into with the ECB in the present case encompassed two types of activity which were quite distinct. One of those activities was the classic provision of consultancy and development services, whereas the other concerned the provision of staff, who were to be made available to the ECB – on the basis of specific requirements which the ECB was to indicate from to time to time – in order to carry out employment duties at its premises. The need to hold the permit provided for under the AÜG relates, of course, to that second type of activity.

66.      In order to examine the ground of appeal, the Court is to a certain extent required to interpret national law, in this case German law. And a situation of that kind is undoubtedly somewhat delicate. From the outset, the Court has stated clearly that its task is to interpret Community law, not national law. (26) In addition, Article 58 of the Statute of the Court of Justice expressly provides that appeal to the Court of Justice against decisions of the General Court may relate to lack of competence and breaches of procedure, as well as ‘the infringement of Union law by the General Court’. On the other hand, however, the very fact that a tendering procedure launched by an institution may contain references to national law makes it inevitable that the Courts of the European Union come ‘into contact’ with that law. Furthermore, the present case is one in which the Courts of the European Union do not have to apply national law, but only to check the interpretation of national law by an EU body at a stage (that of the administrative procedure for the award of the contract) in which the national courts are unable to intervene. What then should be the approach adopted in such cases? (27)

67.      One possible solution to the problem is that to be found in the case-law of the General Court and reflected to a certain extent also in the order under appeal, according to which review by the Courts of the European Union does not extend to the interpretation and application of national law as such, but is limited to checking that the relevant institution has not made serious and manifest errors in interpreting the national provisions which must be complied with in order to perform the contract. (28) That case-law does not seem to me, however, to be entirely convincing, since it might render certain aspects of the administrative practice of the Community institutions immune, at least in part, to review by the Court.

68.      On the other hand, it should also be noted that, in general, the Courts of the European Union are often called on to interpret the national law of a Member State.

69.      First, as is obvious, this occurs in the case of actions for failure to fulfil obligations which involve a decision as to whether a provision of national law infringes EU law. In such cases, it is clear that a national provision of that kind must be assessed and, accordingly, interpreted.

70.      Second, Article 272 TFEU, corresponding to former Article 238 EC, provides that the Court of Justice is to have jurisdiction to give judgment ‘pursuant to any arbitration clause contained in a contract concluded by or on behalf of the Union, whether that contract be governed by public or private law’. In such cases, it is perfectly normal that the Courts of the European Union should interpret the applicable national law, where appropriate having regard also to the relevant national case‑law. (29)

71.      In the present case, the review to be undertaken concerns a measure adopted by an EU body. In that context, I consider that, albeit acting with all due caution, the Courts of the European Union cannot avoid the obligation to examine in their entirety the administrative measures to be reviewed, including that part of those measures in which an assessment of national law has been carried out.

72.      In particular, it appears to me simplistic to hold that the institutions’ interpretation of national law is open to review by the Courts of the European Union only for the purposes of checking that there is no distortion or manifest error. In my view, where national law has been ‘incorporated’ by an institution into its legal measure, such national law becomes part of the legal context which the Courts of the European Union must take into account in their assessment.

73.      That is without prejudice to the principle that the natural authority for the interpretation of national law is, obviously, the national court. The ‘incorporation’ of national law into EU law to which I referred in the previous paragraph is brought about through its inclusion in a measure of an EU institution or other EU body and, accordingly, its application is valid only to that specific case and may in no way be generalised. Moreover, as I remarked above, in the present case it is not national law as such which must undergo review by the Courts of the European Union, but merely a legal measure of an EU body within which an assessment/interpretation of national law has been made.

74.      Furthermore, when interpreting and applying national law, the Courts of the European Union must always have regard to the manner in which such law is interpreted and applied by the courts of the Member State where that law was made. (30)

75.      Not to allow the interpretation of national law made by EU bodies to be reviewed could even, to my mind, undermine the right to effective legal protection, which constitutes a general principle of EU law and is now also enshrined in the Charter of Fundamental Rights. (31)

76.      The General Court was therefore correct to examine in detail the German legislation applied by the ECB, while taking into account at the same time the relevant national case-law.

ii)    The interpretation of German law by the General Court

77.      In the present case, I consider that the General Court’s interpretation of the German legislative framework is persuasive and that the arguments marshalled against it by Evropaïki Dynamiki cannot succeed.

78.      Contrary to Evropaïki Dynamiki’s claims, the German legislation on the supplying of temporary staff, as interpreted by the national case-law, requires a permit to be held by those whose principal activity is not the supply of staff (32) as well as by those established abroad who supply staff in Germany, since no relevant exception is provided for under the national legislation. This, it has to be said, is consistent with the fact that the Court has accepted that, owing to the sensitive nature of the provision of manpower, the Member States are entitled to make the pursuit of such activity within their territory subject to the possession of a specific national authorisation. (33)

79.      If, on the other hand, Evropaïki Dynamiki had shown that it met the requirements for supplying staff laid down in the legislation of another Member State and, in particular, the legislation of its Member State of establishment (possibly in the form of an express authorisation, or an authorisation impliedly granted to all economic operators of that State), and had also argued that those requirements were equivalent to those imposed by the German legislation in accordance with the case-law of the Court referred to in the previous paragraph, the ECB might have had to address the issue of whether Evropaïki Dynamiki’s tender was acceptable even in the absence of the permit provided for under German law. However, Evropaïki Dynamiki has made only vague assertions and, in fact, it has stated that it does not hold even the permit provided for under Greek law.

80.      Moreover, even assuming that the interpretation of the German legislation is uncertain, the ECB’s decision to require possession of the permit could not be criticised in any event. Even if there were only a possibility that the authorities of the Member State concerned might take the view that a permit must be held for the activity to be carried out, the conduct of the EU institution imposing such a requirement on the applicants in the relevant call for tenders would, in my view, be prudent and wholly consistent with the principle of sound administration.

81.      Lastly, I would observe that – as was also emphasised, correctly, by the General Court in the order under appeal – the fact that Evropaïki Dynamiki has already been awarded contracts in Germany without at any stage having to obtain the permit is wholly irrelevant. First, as has been noted, the permit is necessary only in order to supply staff, and not for the mere provision of services, which is undoubtedly the more usual activity of a company such as Evropaïki Dynamiki. Second, the fact that certain earlier contracts may have been awarded in disregard of the law most certainly did not exempt the ECB from the obligation to comply with that law.

82.      In concluding this part of my argument, I therefore consider that Evropaïki Dynamiki’s third ground of appeal must also be rejected.

C –    The second ground of appeal: relating to whether Evropaïki Dynamiki had a legal interest in bringing proceedings even after its eighth plea in law had been rejected by the General Court

1.      Arguments of the parties

83.      Evropaïki Dynamiki’s second ground of appeal is that the General Court should have examined the first seven pleas in law even after rejecting the eighth plea, and should not have held that the legal interest in bringing proceedings had been lost. It is apparent from the case-law of the Court that the concept of a legal interest in bringing proceedings must be interpreted broadly. The Remedies Directive itself confirms that approach.

84.      Evropaïki Dynamiki further submits (34) that, even assuming that the eighth plea in law fell to be rejected and the lawfulness of the permit requirement accordingly upheld, the permit itself could have been obtained by a subsidiary of Evropaïki Dynamiki established in Germany rather than by Evropaïki Dynamiki itself.

85.      The ECB contends, for its part, that the General Court’s reasoning was correct. It is apparent both from an analysis of the legislation and of the case-law that, in circumstances such as those of the present case, Evropaïki Dynamiki no longer had a legal interest in bringing proceedings once the eighth plea in law had been rejected, since Evropaïki Dynamiki itself had acknowledged that it did not hold, and was unable to obtain, the required permit.

2.      Assessment

86.      I would state at the outset that, in my view, the General Court was right to decide that, should the eighth plea in law be rejected, it would no longer be necessary to examine the first seven pleas in law. As was noted in the order under appeal, the case-law is consistent on this point. Since the eighth plea in law was rejected, and the requirement to hold the permit in order to enter into the contract accordingly upheld, Evropaïki Dynamiki could no longer obtain redress through its legal action. (35)

87.      Consideration might nevertheless be given as to whether, in circumstances such as those of the present case, it might have been correct to categorise the first seven pleas in law as ineffective rather than as inadmissible for lack of a legal interest in bringing proceedings. Generally speaking, according to the case-law, a plea in law which is ineffective is one which, even if upheld, could not produce the outcome sought by the applicant. The ineffectiveness of a plea in law is unrelated to the issue of its admissibility. (36)

88.      However, I consider that, in the present case, it is preferable to categorise the first seven pleas in law as inadmissible rather than as ineffective. In general, the ineffective nature of a plea arises from the fact that it cannot bring about the amendment of the measure contested. Typically, an ineffective plea is one which criticises an aspect of a measure (for example, part of the statement of reasons) in cases where the measure may lawfully be based exclusively on other considerations (for example, other parts of the statement of reasons). In the present case, however, if upheld, the first seven pleas in law could even have led to the annulment of the measure concerned and its replacement with a measure with a different content: in any event, however, the lack of the permit meant that Evropaïki Dynamiki could not, in any event, have been awarded the contract. In other words, the futility of examining the first seven pleas in law did not have its source in the pleas themselves, but in the specific nature of Evropaïki Dynamiki’s individual situation.

89.      Moreover, even if the first seven pleas in law ought to have been categorised as ineffective rather than as inadmissible, it would still be necessary to reject the second ground of appeal. It should be borne in mind that, according to the case-law, ‘if the grounds of a judgment of the [General Court] reveal an infringement of Community law, but the operative part appears well founded on other legal grounds, the appeal must be dismissed’. (37) In other words, even if the first seven pleas in law ought to have been declared ineffective, the Court of Justice could simply make a substitution of grounds.

90.      Evropaïki Dynamiki’s argument that it had retained a legal interest in relation to the first seven pleas in law since it could in any case have obtained the permit required, if necessary by establishing a subsidiary in German territory, cannot be accepted.

91.      In that connection, it must be noted that, in its action before the General Court, Evropaïki Dynamiki clearly referred to a situation in which it was absolutely impossible to obtain the permit. At no point in the action did Evropaïki Dynamiki state that it could in any case have obtained the document in question, or that the other member of the consortium could have done so. On the contrary, the application initiating proceedings stated that the permit could not have been obtained. The General Court cannot be criticised for its treatment of a plea in law as put forward by the applicant, which has a duty to submit its own arguments in a diligent and proper manner.

92.      The second ground of appeal must therefore also be rejected.

D –    The fourth ground of appeal: breach of the duty to state reasons

93.      Evropaïki Dynamiki’s fourth ground of appeal is entitled ‘Failure to apply the legal provisions on the duty of the contracting authority to provide reasons (art. 253 EC, art. 12 (1) Dir. 92/50, art. 100 (2) Financial Regulation, art. 149 (2) Implementing Rules)’. By that ground, Evropaïki Dynamiki submits that the General Court did not, in the case before it, correctly apply the rules on the duty to state reasons for EU measures, with particular reference to the fact that the ECB had not provided Evropaïki Dynamiki with sufficient information concerning the decision not to regard its tender as the most meritorious.

94.      This ground of appeal, which Evropaïki Dynamiki has set out in very brief terms, must in my view be held inadmissible.

95.      First, it is unclear which part of the order under appeal is being criticised. As has been noted, the General Court dealt only with the plea in law concerning the obligation to obtain from the German authorities the permit for supplying staff, holding in consequence that the other pleas in law were inadmissible. The issue as to whether the information supplied to Evropaïki Dynamiki by the ECB was sufficient was – rightly – not dealt with by the General Court.

96.      Second, the ground of appeal is set out in such a brief and confused manner – referring, moreover, to a host of provisions which, as has been noted, are not applicable to the present case – that it does not, in my view, meet the minimum standard necessary to enable the Court to understand the ground and to adjudicate upon it. In particular, it must be noted that, according to the case-law, a mere abstract statement of a plea, unsupported by more specific information, cannot be sufficient to fulfil the duty to state the reasons for an application. (38)

97.      In addition, if, for the sake of completeness, the ground of appeal were interpreted as criticising the General Court’s decision not to deal with certain of the arguments relied on by Evropaïki Dynamiki at first instance (I am thinking specifically of the fifth plea in law, which appears – at least in part – similar to the fourth ground of appeal), it would be sufficient to recall my comments above regarding the General Court’s treatment of the first seven pleas in law set out in the application initiating proceedings. (39) As has been noted, the General Court’s decision not to consider their merits was correct.

98.      In conclusion, the fourth ground of appeal cannot be upheld either.

VII –  Conclusion

99.      For the reasons set out above, I propose that the Court should:

–        dismiss the appeal;

–        order Evropaïki Dynamiki to pay the costs.

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1 – Original language: Italian.

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2 – Not published in the ECR.

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3 – Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 248, p. 1; ‘the Financial Regulation’).

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4 – Commission Regulation (EC, Euratom) No 2342/2002 of 23 December 2002 laying down detailed rules for the implementation of Council Regulation (EC, Euratom) No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 357, p. 1; ‘the Implementing Regulation’).

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5 – OJ 2005 S 137, Contract notice No. 2005/S 137-135354.

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6 – This footnote is not relevant to the English-language version.

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7 – OJ 2005 S 154, Contract notice No 2005/S 154-153356.

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8 – Directive of 21 December 1989 (OJ 1989 L 395, p. 33).

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9 – Case C-129/04 Espace Trianon and Sofibail [2005] ECR I‑7805, paragraph 26.

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10 – Order of 4 October 2007 in Case C-492/06 Consorzio Elisoccorso San Raffaele [2007] ECR I‑8189, paragraph 31.

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11 – Case C-327/00 Santex [2003] ECR I‑1877, paragraph 47.

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12 – Joined Cases C-145/08 and C-149/08 Club Hotel Loutraki and Others [2010] ECR I-0000, paragraph 80.

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13 – On the nature of the principle of effective judicial protection, see Case C-432/05 Unibet [2007] ECR I‑2271, paragraph 37 and the case-law cited. For an example of the application of the principles laid down in Directive 89/665 to an area in which that directive was not applicable as such, see paragraphs 69 to 74 of Club Hotel Loutraki and Others, cited in footnote 12.

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14 – See, for example, for an application of the Charter in accordance with its new status, Joined Cases C-92/09 and C-93/09 Volker and Markus Schecke [2010] ECR I-0000, paragraph 45 et seq.

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15 – It should be noted that, after the amendments made by Directive 2007/66/EC of 11 December 2007 (OJ 2007 L 335, p. 31), Article 1(3) of the Italian version of the directive no longer contains the phrase ‘per lo meno’ (‘at least’). This is clearly a drafting error, however, as a comparison with the other language versions, where the expression has been retained, confirms. On the interpretation of EU legislation where there is a single conflicting language version, see, for example, Case C-372/88 Cricket St Thomas [1990] ECR I‑1345, paragraph 18, and Case C‑455/05 Velvet & Steel Immobilien [2007] ECR I-3225, paragraph 19.

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16 – The order in Consorzio Elisoccorso San Raffaele, footnote 10 above, paragraph 30.

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17 – That is the line of reasoning followed by the General Court which, in a similar case again involving the appellant, recognised an individual right of action. See Case T-50/05 Evropaïki Dynamiki v Commission [2010] ECR II-0000, paragraph 40.

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18 – Order in Consorzio Elisoccorso San Raffaele, footnote 10 above, paragraph 30. On that occasion, the claim was put forward by the Cypriot Government.

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19 – Case C-73/97 P France v Comafrica and Others [1999] ECR I-185. For the specific discussion of the issue, see points 11 to 16 of the Opinion of Advocate General Mischo in that case, delivered on 25 June 1998.

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20 – Case C-23/00 P Council v Boehringer [2002] ECR I‑1873, paragraph 52, and the judgment of 22 November 2007 in Case C-6/06 P Cofradía de pescadores ‘San Pedro’ de Bermeo and Others v Council.

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21 – The possibility for the Courts of the European Union to decide of their own motion, after hearing the parties, that an action is inadmissible on grounds of public policy is provided for in Article 92(2) of the Rules of Procedure of the Court of Justice and in Article 113 of the Rules of Procedure of the General Court. The Court of Justice has inferred from this that it may of its own motion, in an appeal against a judgment of the General Court, raise the objection that a party has no interest in bringing an appeal even if the grounds for that objection arose after delivery of the judgment of the General Court. See Case C-19/93 P Rendo and Others v Commission [1995] ECR I‑3319, paragraph 13, and Case C-535/06 P Moser Baer India v Council [2009] ECR I ‑7051, paragraph 24.

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22 – See footnote 20 above. See also Case C-414/08 P Sviluppo Italia Basilicata v Commission [2010] ECR I-0000, paragraphs 51 and 52.

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23 – In that regard, the General Court has established a line of authority to the effect that ‘in accordance with the principles of sound administration and solidarity as between the Community institutions and the Member States, the institutions are required to ensure that the conditions laid down in an invitation to tender do not induce potential tenderers to infringe the national legislation applicable to their business’ (Case T-139/99 AICS v Parliament [2000] ECR II‑2849, paragraph 41). To my knowledge, the Court of Justice has not as yet had occasion to give a ruling on the point.

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24 – Commission Regulation (EC, Euratom) No 478/2007 of 23 April 2007 amending Regulation (EC, Euratom) No 2342/2002 laying down detailed rules for the implementation of Council Regulation (EC, Euratom) No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2007 L 111, p. 13).

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25 – My italics. It should be noted, in passing, that in the present case once the contract had been awarded, it was to be governed in its entirety by German law, jurisdiction lying with the German courts.

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26 – See, for example, Joined Cases 36/59 to 38/59 and 40/59 Präsident Ruhrkohlen‑Verkaufsgesellschaft and Others v High Authority [1960] ECR 423; see p. 439 in particular. For obvious reasons, the Court has placed particular emphasis on that requirement in the context of cases involving references for a preliminary ruling. See – as being representative of all such cases – Case C-222/04 Cassa di Risparmio di Firenze and Others [2006] ECR I‑289, paragraph 63 and the case-law cited.

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27 – It should be added that another case is pending before the Court of Justice which could help to clarify the context of the situation under discussion: the dispute in that case is concerned principally with the interpretation of the Italian trade marks legislation. The case in question is Case C-263/09 P Edwin v OHIM (see the notice of the appeal published on 12 September 2009, OJ 2009 C 220, p. 25).

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28 – AICS v Parliament, footnote 23 above, paragraphs 40 to 42.

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29 – See, for example, Case 318/81 Commission v CO.DE.MI. [1985] ECR 3693, paragraph 24.

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30 – See, in particular, the judgment cited in footnote 29 above.

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31 – See also point 35 above.

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32 – See the judgment of the Bundesarbeitsgericht (German Federal Labour Court) of 8 November 1978, 5 AZR 261/77.

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33 – Case 279/80 Webb [1981] ECR 3305, paragraphs 18 to 21. In its observations, however, Evropaïki Dynamiki has expressly denied calling into question the compatibility with EU law of the German legislation on the supplying of temporary staff.

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34 – Such an argument is developed by the appellant in the context of its third ground of appeal, but logically that argument appears to relate instead to the second ground.

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35 – For a similar case, in which the lack of legal interest in bringing proceedings followed from the rejection of some of the pleas in law, see Case 432/85 Souna v Commission [1987] ECR 2229, paragraph 20.

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36 – See Case C-46/98 P EFMA v Council [2000] ECR I‑7079, paragraph 38, and Case C-76/01 P Eurocoton and Others v Council [2003] ECR I‑10091, paragraph 52.

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37 – Case C-30/91 P Lestelle v Commission [1992] ECR I‑3755, paragraph 28. See also Case C‑320/92 P Finsider v Commission [1994] ECR I‑5697, paragraph 37.

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38 – See, for example, Case C-51/92 P Hercules Chemicals v Commission [1999] ECR I‑4235, paragraph 113.

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39 – See point 86 above.