Opinion of Mrs Advocate General Rozès

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Société Européene de Voyages, have submitted an application to this Court to have declared void an undated and as yet unpublished decision of the Commission of the European Communities entrusting the operation of a travel office at the Commission's seat in Luxembourg to the company Hapag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 :

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 :

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.

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.

1 Translated from the French.