C-135/81

JUDGMENT OF 28. 10. 1982 — CASE 135/81

not submit a tender in response to the considered and its tender rejected, it invitation to tender so that the fulfils the conditions required by defendant institution's selection could Community law for the purpose of not in any event have injured it recognition as having the character of directly. Its application is not a "legal person" within the meaning admissible even if according to its of Article 173 even if according to its national law a non-profit-making national law it does not have the association may be a party to capacity to be a party to proceedings. proceedings in order to defend the business or professional interests of its members. 3. An ad hoc association of legal persons grouped together in order to respond jointly to an invitation to tender 2. The meaning of "legal person" in the issued by the European Communities second paragraph of Article 173 of may be regarded as "directly and the Treaty is not necessarily the same individually" injured by a Community as in the various legal systems of the decision accepting the tender from a Member States. competing company where the association has been allowed to Thus since an ad hoc association of submit a tender, subject to its being persons grouped together in order to subsequently transformed into a respond jointly to a Community formally constituted company, since invitation to tender was allowed by an after being so allowed it obviously has institution to take part in the an interest in having its tender invitation to tender and was accepted.

defendant,

APPLICATION for a declaration that the Commission's decision, following a tender submitted by Hapag Lloyd Reisebüro GmbH, Bremen, to entrust the operation of a travel office at the seat of the Commission in Luxembourg to the agency Hapag Lloyd Reisebüro sari, in Luxembourg, is void,

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

need to comply with Luxembourg law. By letters dated 17 December 1980 The fourth paragraph stated further: the Director for Personnel and "The agency appointed to run the Administration of the Commission in Commission of the European Luxembourg informed the four tenderers Communities' travel office in Luxem­ whose tenders had not been accepted of bourg will be required to possess, from 1 that unfavourable decision. July 1980, the necessary authorizations from IATA and the main railway and shipping companies for issuing all tickets On 18 February 1981 the Confédération on the premises made available to it at du Commerce Luxembourgeois asbl and the Commission's seat in Luxembourg." the Groupement des Agences de It was contemplated that the travel office Voyages asked the Directorate for should be opened "with effect from Personnel and Administration of the 1 January 1981". Commission in Luxembourg to inform them the reasons for the refusal in order that they might adapt themselves to the The Groupement des Agences de requirements of the contract. Voyages and the Société Européenne de Voyages, sàrl, (in the process of formation) lodged a tender on 12 September 1980. Tenders were also By letter dated 26 February 1981 the lodged by four other firms including director replied : Hapag Lloyd Reisebüro GmbH, Bremen.

GROUPEMENT DES AGENCES DE VOYAGES v COMMISSION

action against the Commission's decision The Commission contends that the Court to entrust the operation of a travel office should: at its seat in Luxembourg to Hapag Lloyd Travel. Dismiss the action as inadmissible or, in the alternative and in any event, as Upon hearing the report of the Judge- unfounded; Rapporteur and the views of the Advocate General the Court decided to Order the applicants to pay the costs. open the oral procedure without any prepatory inquiry. It nevertheless requested the Commission of the European Communities to answer in III — Submissions and argu­ writing before the hearing questions ments of the parties designed to ascertain whether the full result of the procedures relating to the invitation to tender has been published Admissibility or brought to the knowledge of the tenderers and whether, when those pro­ The Coinmission has raised an objection cedures were completed, the firm of inadmissibility in regard to this action. selected possessed the attributes pre­ In support of that objection, it claims in scribed in the invitation to tender. particular:

By order of 9 December 1981 made (1) The action is out of time since the pursuant to Article 95(1) and (2) of the applicants did not within the period Rules of Procedure the Court referred of two months prescribed in Article the case to the First Chamber. 173 of the EEC Treaty contest the Commission's decision, notified to the applicants by letter dated 17 December 1980, not to accept the II — Conclusions of the parties applicants' tender;

The applicants' reply is as follows: Although the applicant's tender was submitted on paper bearing the heading "Fédération des Commerçants/Grou­ (1) As clearly appears from the pement Agences de Voyages" to which application, the contested decision is the typed name "Société Européenne de the one by which the Commission Voyages (SEV) sari (en formation [in the engaged the company Hapag Lloyd process of formation])" was added, it is to operate a travel office at the drafted as such only in the name of the Commission's seat in Luxembourg Société Européenne de Voyages in the and that decision was never process of formation, represented by published or notified in any way so some ten delegates from existing that it is only as from 4 May 1981, agencies who jointly signed the tender. the date on which the applicant; could have learned of the contested decision, that the period for bringing an action began to run; The substance of the case

The applicants rely on the grounds of (2) According to the Luxembourg case- infringement of the Treaty of any rules law a non-profit-making association of law in relation to its application and of the representatives of a trade or also misuse of powers inasmuch as the profession may engage in pro­ Commission accepted a tender which did ceedings before the courts in order not satisfy the conditions laid down in to defend the interests of their the invitation to tender and in the special members; conditions of contract.

successfully tendered for the contract The Commission is wrong in saying that until the opening of the travel office the LATA authorization could not have and consequently the limited liability been obtained by any of the tenderers company Hapag Lloyd Travel, which before the travel office was opened. was entered in the commercial register According to the applicants Section G, for the Grand Duchy on 27 March 1981, Article 15, of Resolution 810a of the obtained a licence to carry on business as LATA Regulations allows, on the a travel agency on 27 April 1981 and contrary, an approved agent to transfer opened its office on 4 May 1981, his business to an authorized office in satisfied the conditions laid down in that the same town provided that the respect in the invitation to tender; Administrateur des Agences [Administrator for Agencies] is informed. On the basis of that provision the agent may continue his business as approved It was the same as regards the IATA agent in the new office until licences and the authorizations needed reconsideration of the approval. for issuing tickets since the date of 1 July 1980 referred to in the invitation to tender was obviously a mistake as may be seen when comparison is made with In its rejoinder the Commission observes similar invitations to tender. that the LATA Resolution 810 was replaced with effect from 1 July 1980 by LATA Resolution 800. In its opinion it is The Commission adds that the approval apparent from Sections D and I of the to be given by IATA in respect of a latter resolution that where it is a travel agency is subject to a thorough question of the establishment of a new investigation relating, amongst other travel office such as that to be set up on things, to the lay-out of the premises. If the premises at the seat of the the condition laid down in the invitation Commission in Luxembourg the to tender were to be interpreted as conditions for granting the LATA auth­ suggested by the applicants it could not orization can in no event be satisfied in be satisfied by any of the tenderers. advance, inasmuch as the inspection laid down for the purposes of granting the authorization is always made after the office is opened. In their reply the applicants observe that while the Commission agreed that the date of 1 July 1980 is a mistake it does not specify when it in fact required that the condition of obtaining the approval of LATA should be met. They add that if IV — Oral procedure in fact the defendant had made a mistake it could have corrected it by means of the procedure laid down for that purpose. The parties presented oral argument at the sitting on 28 January 1982. Further, it must be emphasized that the successful company did not meet the requisite conditions even on 1 January 1981 when the travel office ought to The Advocate General delivered her have begun business. opinion at the sitting on 4 March 1982.

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 pre­ liminary nature of the problem it is appropriate first of all to consider the submission that the applicants have no capacity to institute proceedings.

GROUPEMENT DES AGENCES DE VOYAGES v COMMISSION

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.

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 & Kortnerv 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.

1 1 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.

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.

JUDGMENT OF 28. 10. 1982 — CASE 135/81

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.

On those grounds,

THE COURT (First Chamber)

hereby:

1. Dismisses the application as inadmissible;

2. Orders the parties to bear their own costs.

O'Keeffe Bosco Koopmans