61981J0135

1 . APPLICATION FOR A DECLARATION THAT A MEASURE IS VOID - NATURAL AND LEGAL PERSONS - MEASURES OF DIRECT AND INDIVIDUAL CONCERN TO THEM - COMMUNITY INVITATION TO TENDER - DECISION ACCEPTING THE TENDER FROM A COMPANY COMPETING WITH CERTAIN MEMBERS OF A TRADE ASSOCIATION - MEASURE NOT OF DIRECT CONCERN TO THE APPLICANT ASSOCIATION

( EEC TREATY , ART . 173 , SECOND PARA .)

2 . APPLICATION FOR A DECLARATION THAT A MEASURE IS VOID - NATURAL AND LEGAL PERSONS - LEGAL PERSON - INDEPENDENT MEANING IN COMMUNITY LAW - ASSOCIATION ALLOWED TO TENDER PURSUANT TO A COMMUNITY INVITATION TO TENDER - CHARACTER OF LEGAL PERSON

( EEC TREATY , ART . 173 , SECOND PARA .)

3 . APPLICATION FOR A DECLARATION THAT A MEASURE IS VOID - NATURAL AND LEGAL PERSONS - MEASURES OF DIRECT AND INDIVIDUAL CONCERN TO THEM - ASSOCIATION ALLOWED TO TENDER IN ANSWER TO A COMMUNITY INVITATION TO TENDER - DECISION ACCEPTING THE TENDER OF A COMPETING COMPANY - MEASURE OF DIRECT AND INDIVIDUAL CONCERN TO THE APPLICANT ASSOCIATION

( EEC TREATY , ART . 173 , SECOND PARA .)

1 . A COMMUNITY DECISION , FOLLOWING AN INVITATION TO TENDER , TO ACCEPT THE TENDER OF A COMPANY IN COMPETITION WITH CERTAIN MEMBERS OF A TRADE ASSOCIATION IN THE FORM OF A NON- PROFIT-MAKING ASSOCIATION CANNOT BE OF ' ' DIRECT ' ' CONCERN AS REQUIRED BY THE SECOND PARAGRAPH OF ARTICLE 173 SINCE AS A NON-PROFIT-MAKING ASSOCIATION THE SAID ASSOCIATION DID NOT AND COULD NOT SUBMIT A TENDER IN RESPONSE TO THE INVITATION TO TENDER SO THAT THE DEFENDANT INSTITUTION ' S SELECTION COULD NOT IN ANY EVENT HAVE INJURED IT DIRECTLY . ITS APPLICATION IS NOT ADMISSIBLE EVEN IF ACCORDING TO ITS NATIONAL LAW A NON-PROFIT-MAKING ASSOCIATION MAY BE A PARTY TO PROCEEDINGS IN ORDER TO DEFEND THE BUSINESS OR PROFESSIONAL INTERESTS OF ITS MEMBERS .

2 . THE MEANING OF ' ' LEGAL PERSON ' ' IN THE SECOND PARAGRAPH OF ARTICLE 173 OF THE TREATY IS NOT NECESSARILY THE SAME AS IN THE VARIOUS LEGAL SYSTEMS OF THE MEMBER STATES .

THUS SINCE AN AD HOC ASSOCIATION OF PERSONS GROUPED TOGETHER IN ORDER TO RESPOND JOINTLY TO A COMMUNITY INVITATION TO TENDER WAS ALLOWED BY AN INSTITUTION 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 EVEN IF ACCORDING TO ITS NATIONAL LAW IT DOES NOT HAVE THE CAPACITY TO BE A PARTY TO PROCEEDINGS .

3 . AN AD HOC ASSOCIATION OF LEGAL PERSONS GROUPED TOGETHER IN ORDER TO RESPOND JOINTLY TO AN INVITATION TO TENDER ISSUED BY THE EUROPEAN COMMUNITIES MAY BE REGARDED AS ' ' DIRECTLY AND INDIVIDUALLY ' ' INJURED BY A COMMUNITY DECISION ACCEPTING THE TENDER FROM A COMPETING COMPANY WHERE THE ASSOCIATION HAS BEEN ALLOWED TO SUBMIT A TENDER , SUBJECT TO ITS BEING SUBSEQUENTLY TRANSFORMED INTO A FORMALLY CONSTITUTED COMPANY , SINCE AFTER BEING SO ALLOWED IT OBVIOUSLY HAS AN INTEREST IN HAVING ITS TENDER ACCEPTED .

IN CASE 135/81

GROUPEMENT DES AGENCES DE VOYAGES , ASBL , AFFILIATED TO THE FEDERATION DES COMMERCANTS DU GRAND-DUCHE DE LUXEMBOURG , ASBL , WITH ITS REGISTERED OFFICE IN LUXEMBOURG , 23 ALLEE SCHEFFER ,

AND , SO FAR AS MAY BE NECESSARY ,

THE TEN TRAVEL AGENCIES GROUPED TOGETHER IN THE FORM OF A SOCIETE A RESPONSABILITE LIMITEE ( PRIVATE LIMITED LIABILITY COMPANY ), THE SOCIETE EUROPEENNE DE VOYAGES , REPRESENTED BY ROLAND MICHEL , OF THE LUXEMBOURG BAR , ASSISTED BY MARTINE REICHERTS AND MARC JAEGER , OF THE LUXEMBOURG BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF THE SAID ROLAND MICHEL , 47 AVENUE DE LA LIBERTE ,

APPLICANTS ,

V

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY ITS PRINCIPAL LEGAL ADVISER , RAYMOND BAEYENS , ACTING AS AGENT , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ORESTE MONTALTO , A MEMBER OF ITS LEGAL DEPARTMENT , JEAN MONNET BUILDING , KIRCHBERG ,

DEFENDANT ,

APPLICATION FOR A DECLARATION THAT THE COMMISSION ' S DECISION , FOLLOWING A TENDER SUBMITTED BY HAPAG LLOYD REISEBURO GMBH , BREMEN , TO ENTRUST THE OPERATION OF A TRAVEL OFFICE AT THE SEAT OF THE COMMISSION IN LUXEMBOURG TO THE AGENCY HAPAG LLOYD REISEBURO SARL . IN LUXEMBOURG , IS VOID ,

1 BY APPLICATION LODGED AT THE COURT REGISTRY ON 4 JUNE 1981 THE GROUPEMENT DES AGENCES ET BUREAUX DE VOYAGES DU GRAND-DUCHE DE LUXEMBOURG ( HEREINAFTER REFERRED TO AS ' ' THE GROUPEMENT ' ' ), A NON-PROFIT-MAKING ASSOCIATION AFFILIATED TO THE FEDERATION DES COMMERCANTS 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 SOCIETE EUROPEENNE 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 SOCIETE EUROPEENNE 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 . AS 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 FAR AS 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 SOCIETE EUROPEENNE 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 SOCIETE EUROPEENNE 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 SOCIETE EUROPEENNE 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 SOCIETE EUROPEENNE 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 EUROPEENS 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 SOCIETE EUROPEENNE 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 SOCIETE EUROPEENNE 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 .