JUDGMENT OF 28.10.1982 — CASE 135/81 GROUPEMENT DES AGENCES DE VOYAGES v COMMISSION

In Case 135/81

THE COURT (First Chamber) composed of: A. O'Keeffe, President of Chamber, G. Bosco and T. Koopmans, Judges, Advocate General: S. Rozès Registrar: P. Heim

gives the following

JUDGMENT

Facts and Issues

I — Facts and written procedure

II — Conclusions of the parties

III — Submissions and arguments of the parties

Admissibility

The substance of the case

IV — Oral procedure

Decision

Costs

I —. Facts and written procedure

II —. Conclusions of the parties

(1). Declare the Commission's decision to entrust the operation of a travel office at the seat of the Commission of the European Communities in Luxembourg to the company Hapag Lloyd Travel to be void;

(2). Order the Commission of the European Communities to pay the costs pursuant to Article 69(2) of the Rules of Procedure and to pay the expenses necessarily incurred by the parlies for the purpose of the proceedings, and in particular the remuneration of the lawyers, pursuant to Article 73(b) of the Rules of Procedure.

III —. Submissions and arguments of the parties

(1). The action is out of time since the applicants did not within the period of two months prescribed in Article 173 of the EEC Treaty contest the Commission's decision, notified to the applicants by letter dated 17 December 1980, not to accept the applicants' tender;

(2). The action cannot be entertained either inasmuch as it is brought by a trade association in the guise of a non-profit-making association (asbl), since such as association cannot according to the Luxembourg Law of 21 April 1928 engage in industrial or commercial transactions or seek to obtain material profit for its members, or inasmuch as it is brought by the Société Européenne de Voyages, since that company has not yet been formed;

(3). The applicants (whoever they are) are not in a position to prove that they satisfied on 15 September 1980 the conditions which the tenderer accepted by the Commission may not have satisfied.

(1). As clearly appears from the application, the contested decision is the one by which the Commission engaged the company Hapag Lloyd to operate a travel office at the Commission's seat in Luxembourg and that decision was never published or notified in any way so that it is only as from 4 May 1981, the date on which the applicant; could have learned of the contested decision, that the period for bringing an action began to run;

(2). According to the Luxembourg case-law a non-profit-making association of the representatives of a trade or profession may engage in proceedings before the courts in order to defend the interests of their members;

(3). At the material time the Société Européenne de Voyages satisfied the conditions stipulated in the invitation to tender and the Groupement des Agences de Voyages was not required to satisfy them, since its concern was not to obtain the contract but to defend the commercial interests of its members.

IV —. Oral procedure

1. By application lodged at the Court Registry on 4 June 1981 the Groupement des Agences et Bureaux de Voyages du Grand-Duché de Luxembourg (hereinafter referred to as the Groupement), a non-profit-making association affiliated to the Federation des Commerçants 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 Société Européenne 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 Société Européenne 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. A.s 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 faias 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 Société Européenne 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 Société Européenne 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 Société Européenne 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 Société Européenne 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 Européens 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 Société Européenne 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 Société Européenne 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 :

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.

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.