T-83/97

SATEBA v COMMISSION

O R D E R O F T H E C O U R T O F FIRST INSTANCE (First Chamber) 29 September 1997*

In Case T-83/97,

Société Anonyme de Traverses en Béton Armé (Sateba), a company incorporated under French law, with its registered office in Paris, represented by Jacques Manseau, of the Paris Bar, with an address for service in Luxembourg at the Chambers of Ernest Arendt, 8-10 Rue Mathias Hardt,

applicant,

v

complaint lodged by the applicant against Société Nationale des Chemins de Fer Belges (SNCB) of failing to comply with Community law in awarding a contract for the supply of concrete sleepers for use on its high-speed train line,

T H E C O U R T O F FIRST INSTANCE O F T H E E U R O P E A N C O M M U N I T I E S (First Chamber),

composed of: A. Saggio, President, V. Tiili and R. M. Moura Ramos, Judges,

Registrar: H . Jung,

makes the following

Order

4 In a letter dated 24 March 1995 the SNCB informed the applicant that its tender had not been accepted 'for failure to meet technical requirements'. The SNCB con- sidered that duo-bloc sleepers are different products from monobloc sleepers, as are wooden sleepers, and cannot therefore constitute a 'variant' under Belgian law, since that term is reserved for solutions which are similar to the original concept and for which provision is made in the Special Conditions. The SNCB also pointed out that the applicant's approval procedure was not yet complete and fol- lowed the Q l specification applicable to the supplier qualification system devised by it, notice of which had been published in the Official Journal of the European Communities.

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6 Furthermore, in its letter of 28 April 1995 the applicant claimed that the qualifica- tion system devised by the SNCB did not comply with the aforementioned direc- tive. First, the fact that applicants for qualification were invited to submit tenders in restricted procurement procedures constituted an infringement of Article 31 of the directive, which provides that 'the number of candidates selected must, how- ever, take account of the need to ensure adequate competition'. The SNCB thus reserved the right to eliminate candidates previously invited to submit tenders and, in so doing, rendered illusory the goal of ensuring adequate competition. Second, the alleged difficulty in approving the duo-bloc concrete sleepers produced by the applicant was contrary to Articles 30 and 34 of the directive. Since those goods were currently used on several thousand kilometres of track, in particular on the SNCF's TGV network, there was already objective evidence that the goods in question satisfied the L.23 technical specifications and thus the minimum require- ments imposed by the contracting authority. The qualification procedure devised by the SNCB thus served to duplicate that objective evidence.

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SATEBA v COMMISSION

7 By letter dated 12 July 1995 the applicant lodged a complaint with the Secretariat- General of the Commission against the SNCB. In that letter it claimed that the position adopted by the SNCB served to restrict competition and constituted an obstacle to the free movement of goods, but it did not specify the provisions of the EC Treaty which it considered to have been breached or on which it based its complaint. The text of the complaint, under the heading 'failure to comply with Directive 93/38/EEC of 14 June 1993', contained a short summary of the objec- tions raised in the letter of 28 April 1995 to the SNCB, which is annexed to the applicant's complaint together with 13 other annexes.

n O n 20 January 1997 the Directorate-General for Internal Market and Financial Services (DG XV), which is responsible for the drafting and implementation of Community public procurement law, informed the applicant of the Commission's decision to close the file on the ground that, in the case in point, there was no suf- ficient Community interest to justify pursuing the matter by formally initiating a procedure against the Belgian State. The Commission based that conclusion on the following considerations:

— the fact, of which the applicant complained, that the SNCB restricted its quali- fication system to suppliers of monobloc concrete sleepers, and which, accord- ing to the applicant, amounts to discrimination against suppliers of duo-bloc concrete sleepers, did not constitute an infringement of Community public procurement law, in particular Directive 93/38;

— on the basis of the information available to it and the current state of knowl- edge, the Commission could not conclude that the two products should be characterized as equivalent products. O n the contrary, various technical experts considered that, although the products were comparable and could both be used in the construction of a high-speed train line, they were not equivalent products since they exhibited different characteristics, and presented different advantages and disadvantages. In addition to the relative advantages and disad- vantages presented by the various types of sleeper, the contracting authority could take account of other technical information when fixing the criteria according to which it selected its material;

H O n 2 September 1997 the SNCB applied for leave to intervene in the present case in support of the form of order sought by the Commission.

is In its application and its observations on the plea of inadmissibility the applicant claims that the Court should:

— declare the application admissible;

— annul the Commission's decision of 20 January 1997;

— order the defendant to pay the costs.

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is Furthermore, Article 111 of the Rules of Procedure provides that where an action is manifestly inadmissible, the Court of First Instance may, by reasoned order, and without taking further steps in the proceedings, give a decision on the action. In the present case the Court of First Instance (First Chamber) considers that it has sufficient information from the documents before it and there is no need to take any further steps in the proceedings.

Arguments of the parties

i9 The Commission considers that the application is manifestly inadmissible, since it concerns a measure falling exclusively under the procedure for a declaration of fail- ure to fulfil Treaty obligations.

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SATEBA v COMMISSION

20 The Commission points out that the applicant's complaint was expressed to be concerned with 'failure to comply with Directive 93/38'. In that context, and hav- ing regard to the wording of the complaint itself, the Commission examined the SNCB's conduct in purchasing the sleepers under the procedure provided for by Article 169 of the Treaty. It is clear from the definitions used in all the public pro- curement directives, and from the case-law of the Court of Justice, that contracting authorities must be regarded as emanations or organs of the State. Thus, the con- duct of those authorities is imputable to the State itself and may be made the sub- ject of an action against the State in question under the aforementioned provision of the Treaty for a declaration of failure to fulfil obligations.

25 The applicant, for its part, claims that the Commission used the procedure pro- vided for by Article 169 of the Treaty precisely in order to evade the procedure which specifically applied to the matters raised and, consequently, to prevent judi- cial review of its decision.

26 The applicant effectively claims that it never asked the Commission to find that the Belgian State had failed to fulfil its Treaty obligations and that, in its complaint, it was seeking a finding of failure to fulfil obligations on the part of a contracting entity which, in its capacity as a public undertaking, was subject to the compe- tition rules of the Treaty of which Directive 93/38 is just one example.

27 According to the applicant, it was not necessary to initiate the infringement pro- cedure established by Article 169 of the Treaty, since the practices complained of were imputable only to the SNCB and were not based on provisions of Belgian law. Therefore any action taken against the Belgian State not only fails to meet the request contained in Sateba's complaint but, in addition, is not justified.

28 The applicant states that the allegations relate to anti-competitive practices by a public undertaking which, by virtue of Article 90(2) of the Treaty, is required to comply with Articles 85 and 86. It complains that the SNCB was able to select candidates for its invitations to tender as it pleased and was also able to lay down technical requirements which made it impossible to submit tenders for the supply of equivalent products. That is contrary to Articles 86 and 30 of the Treaty, the principles of which are reproduced in Directive 93/38.

30 In the applicant's opinion, even though in matters of public procurement compli- ance with the directives serves its own specific purpose, the Commission is none the less not relieved of its general task of monitoring compliance with the Treaty, in accordance with Article 155 thereof. Furthermore, when the conditions for infringement of the competition rules are satisfied, the Commission is competent to find that such an infringement has occurred and to impose sanctions on the undertakings concerned. The particular powers conferred by Article 90(3) of the Treaty enable the Commission to use its powers under both Council Regulation N o 17 of 6 February 1962, First Regulation implementing Articles 85 and 86 of the Treaty (OJ, English Special Edition 1959-1962 (I), p. 87, hereinafter 'Regulation N o 17'), and Article 89, notwithstanding those which it derives from Article 169. The applicant concludes that, while resolving the dispute between Sateba and the SNCB, the Commission adopted a decision closing the file which is directed to the Belgian State, in order to circumvent the procedure applicable to competition mat- ters and, under cover of settled case-law on the application of Article 169 of the Treaty, to prevent judicial review of its decision.

Findings of the Court

3i As a preliminary point, it should be noted that the applicant's case is based on the assertion that the Commission committed an abuse of procedure by examining its complaint exclusively from the point of view of the procedure under Article 169 of the Treaty. It is clear from the applicant's observations on the Commission's plea of inadmissibility that the plea alleging abuse of procedure, put forward in the originating application as a ground for annulment, constitutes the principle plea for establishing the admissibility of the present action. Although the applicant has acknowledged that no action lies against a decision to close a file adopted in the context of a procedure for a declaration of failure to fulfil Treaty obligations, it

32 The Court points out that the procedural position of parties who have submitted a complaint to the Commission is fundamentally different in the case of a procedure under Article 169 of the Treaty from their position in a procedure under Regu- lation N o 17. In the case of a procedure initiated under that regulation, complain- ants have procedural rights which are clearly denned by Regulation N o 99/63/EEC of the Commission of 25 July 1963 on hearings provided for in Article 19(1) and (2) of Council Regulation N o 17 (OJ, English Special Edition 1963-1964 (I), p. 47), in particular the right to be informed of the reasons for which the Commission intends not to uphold their complaint and the right to sub- mit observations in that connection. In addition, they are entitled to judicial review of the decision adopted by the Commission at the end of that procedure. In con- trast, in the case of a procedure under Article 169 of the Treaty, persons who have lodged a complaint have no procedural rights enabling them to require the Com- mission to inform them and to grant them a hearing, nor is it open to them to bring an action before the Community judicature against the Commission's decision closing the file on their complaint (see Case T-16/91 Rendo and Others v Commission [1992] ECR 11-2417, paragraph 52).

33 In the present case the complaint submitted by the applicant to the Secretariat- General of the Commission could properly be examined by that institution under the procedure established by Article 169 of the Treaty.

34 First, the complaint formally identified the 'failure to comply with Directive 93/38' and that formal heading was consistent with the substantive content of the complaint. The documents annexed to the text of the complaint, in particular the letter to the SNCB dated 28 February 1995, confirm that the applicant considered that the conduct at issue had to be characterized as an infringement of Directive 93/38.

36 Finally, the appropriate nature of the procedure followed by the Commission in the present case is not altered by the fact that the applicant's complaint related exclusively to conduct by a contracting entity, namely the SNCB, and that it did not criticize the relevant national legislation or the conduct of the Belgian Govern- ment. As the Commission has pointed out, it follows from the application of the Community rules on public procurement and the case-law of the Court of Justice, that acts of contracting entities are imputable to the Member States to which those entities belong and may therefore be condemned in the context of the infringement procedure established by Article 169 of the Treaty (see, in particular, Case C-87/94 Commission v Belgium [1996] ECR 1-2043, in particular paragraph 91, from which it may be seen that the Kingdom of Belgium was held to have failed to fulfil its obligations because, in the context of a public contract procedure initiated by the Société Régionale Wallonne du Transport, the contracting entity had failed to com- ply with the principles of equal treatment of tenderers and transparency of the procedure).

37 Furthermore, in Case C-359/93 Commission v NetherUnds [1995] ECR 1-157, paragraphs 11 to 15, the Court of Justice held that a specific procedure established by a public procurement directive, which requires the Commission to give notice of its objections to the Member State and the contracting entity before the contract is concluded, where the Commission considers that a clear and manifest infringe- ment of the Community rules has been committed, can neither derogate from nor replace the powers of the Commission under Article 169 of the Treaty (see also the Opinion of Advocate General Tesauro in that case, ECR 1-159, points 4 and 5). It follows that, even where the Commission could have had recourse to a preventive measure provided for by the directive applicable in this case and addressed itself to the SNCB directly, a course of action which was not specifically requested, or even

39 Furthermore, even supposing that the applicant did properly request the Commis- sion to initiate the procedure under Regulation N o 17, that procedure remains independent of the procedure for a finding that the conduct of a Member State infringes Community law and for termination of that conduct. The two proce- dures serve different purposes and are governed by different rules. The fact that the Commission decides not to initiate a procedure for a declaration of failure to fulfil obligations or decides to discontinue such a procedure already initiated, cannot imply that it is prevented from finding that the conduct of the contracting entity at issue constitutes an infringement of Article 86 of the Treaty and ordering termina- tion of the infringement. Conversely, neither the initiation of a procedure under Article 169 of the Treaty for failure to fulfil obligations nor even a declaration by the Court of Justice that there has been such a failure can automatically entail the adoption of a decision on the basis of Article 3 of Regulation N o 17 (see judgment of the Court of Justice in Joined Cases 15/76 and 16/76 France v Commission [1979] ECR 321, paragraphs 26 to 28, and judgment of the Court of First Instance in Case T-461/93 An Taisce and WWF UK y Commission [1994] E C R 11-733, para- graphs 35 and 36, upheld on appeal by the order in Case C-325/94 P [1996] ECR 1-3727, paragraphs 23 to 26; see also Rendo and Others v Commission, cited above, paragraphs 49 and 50, and the judgment on appeal in the same case, C-19/93 P [1995] ECR 1-3319, paragraphs 22 and 23).

43 The present application must therefore be declared inadmissible.

44 Since the application is dismissed as inadmissible, there is no need to adjudicate on the SNCB's application for leave to intervene in support of the form of order sought by the Commission.

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ORDER OF 29. 9. 1997 — CASE T-83/97

Costs

45 Under Article 87(2) of the Rules of Procedure the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings. As the applicant has been unsuccessful, it must be ordered to pay the costs.

Luxembourg, 29 September 1997.

H. Jung A. Saggio

Registrar President

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