Order of the Court (Fourth Chamber) of 17 July 1998. – Société Anonyme de Traverses en Béton Armé (Sateba) v Commission of the European Communities.

BIB.ORDER

C-422/97 P61997O04220026.000149161493318CJ

ORDER OF 17.7.1998 — CASE C-422/97 P

SATEBA ν COMMISSION

Order of the Court (Fourth Chamber)

17 July 1998^(*)

In Case C-422/97 P,

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,

appellant,

APPEAL against the order of the Court of First Instance of the European Communities (First Chamber) of 29 September 1997 in Case T-83/97 Sateba ν Commission [1997] ECR II-1523, seeking to have that order set aside,

the other party to the proceedings being:

Commission of the European Communities, represented by Hendrik van Lier, Legal Adviser, acting as Agent, with an address for service in Luxembourg at the office of Carlos Gómez de la Cruz, of its Legal Service, Wagner Centre, Kirchberg,

THE COURT (Fourth Chamber),

composed of: H. Ragnemalm (Rapporteur), President of the Chamber, J. L. Murray and Κ. M. Ioannou, Judges,

Advocate General: N. Fennelly,

Registrar: R. Grass,

after hearing the Advocate General,

makes the following

Order

1By application lodged at the Registry of the Court on 12 December 1997, Société Anonyme de Traverses en Béton Armé (hereinafter ‘Sateba ’) brought an appeal against the order of 29 September 1997 in Case T-83/97 Sateba ν Commission [1997] ECR II-1523, (hereinafter ‘the contested order ’) in which the Court of First Instance dismissed as inadmissible its application for annulment of the Commission's decision to take no further action on its complaint 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.

2The context of the dispute and the factual background to the application are set out in the contested order as follows:

‘1The applicant, Sateba, is a company established in France which produces reinforced concrete sleepers for railway tracks. Its dispute with Société Nationale des Chemins de Fer Belges (the Belgian National Railway Company, hereinafter “the SNCB”) arose in the context of a restricted call for tenders issued by the SNCB for the supply of monobloc concrete sleepers for use on the Belgian TGV network, when the tender submitted by the applicant for the supply of duo-bloc concrete sleepers was not accepted by the contracting authority.
2The applicant had previously been permitted to take part in a supplier qualification procedure organised by the SNCB, notice of which had been published in the Supplement to the Official Journal of the European Communities on 27 July 1994 (OJ 1994 S 142, p. 132). On 19 December 1994, while that qualification procedure was taking place, the applicant received a copy of the restricted call for tenders in which the SNCB invited it to submit a tender for the supply, by 31 August 1995 and 30 September 1995 respectively, of 50000 and 10000 monobloc concrete sleepers (Special Conditions 8133.8504.001 of 14.12.1994).
3In its reply dated 10 January 1995 Sateba offered to supply duo-bloc concrete sleepers, which it considered were compatible with the Belgian TGV network and satisfied the SNCB's requirements for use. In order to justify submission of a “variant” offer, the applicant first explained that, in view of the short periods for delivery laid down in the call for tenders, it would not be in a position to produce 60000 monobloc sleepers without jeopardising its commitments to the Société Nationale des Chemins de Fer Français (French National Railway Company) (SNCF). It also noted that certain technical specifications sent to it by the SNCB were incompatible with those used in its factories which, nevertheless, regularly produce sleepers for use on TGV lines and have received an “Assurance Qualité Ferroviaire AQF2” (Railway Quality Assurance) certificate from the SNCF.
4In 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 considered 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 followed the Ql specification applicable to the supplier qualification system devised by it, notice of which had been published in the Official Journal of the European Communities.
5In a letter dated 28 April 1995 to the SNCB the applicant challenged the decision to reject its tender “for failure to meet technical requirements”. Sateba claimed that Article 18(5) of Council Directive 93/38/EEC of 14 June 1993 coordinating the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors (OJ 1993 L 199, p. 84, hereinafter “Directive 93/38”) prohibits reference in the specifications to a specific type of concrete sleeper, such as “monobloc”, in the present case, unless it is accompanied by the phrase “or equivalent”. According to that provision, “[tjechnical specifications which mention ... a particular process and which have the effect of favouring or eliminating certain undertakings, shall not be used unless such specifications are indispensable for the subject of the contract”. From this the applicant concluded that the proposed duo-bloc concrete sleepers were perfectly substitutable for the monobloc concrete sleepers and that the SNCB could not reject tenders for the supply of goods which were perfectly fitted for the use for which they were intended. According to the applicant, the substitutability of the two types of concrete sleeper was, furthermore, confirmed in an article on the Belgian TGV network which was published in a specialised journal and written by a director of the SNCB.
6Furthermore, in its letter of 28 April 1995 the applicant claimed that the qualification system devised by the SNCB did not comply with the aforementioned directive. 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, however, 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 requirements imposed by the contracting authority. The qualification procedure devised by the SNCB thus served to duplicate that objective evidence.
7By 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 objections raised in the letter of 28 April 1995 to the SNCB, which is annexed to the applicant's complaint together with 13 other annexes.
8By letter dated 22 July 1995 the Secretariat-General acknowledged receipt of the applicant's letter and informed it that its complaint would be examined by the Commission in the light of the applicable provisions of Community law. The fourth paragraph of that letter mentioned the possibility “of the Commission deciding to bring infringement proceedings against the Member State in question for failure to comply with Community law” and drew the applicant's attention to “the purpose and nature of infringement proceedings under Article 169 of the EC Treaty”, which were set out in an annex.
9On 1 December 1995 the applicant informed the Commission that it had submitted a tender in the context of a new restricted call for tenders launched by the SNCB on 14 July 1995. That tender, which included the same variant, was rejected on grounds similar to those relied upon in order to justify the rejection of its previous tender.
10By letter dated 27 September 1996 the applicant expressed its disagreement, from both a legal and a technical point of view, with the conclusions of the experts consulted by the Commission. According to their reports, monobloc sleepers and duo-bloc sleepers are “comparable”, rather than “equivalent”, products. In its letter the applicant considered that “the question is not whether two products are different, comparable or equivalent, but whether they are substitutable or interchangeable”, since those are the criteria usually applied in competition matters, both by the Court of Justice of the European Communities and by the French Cour de Cassation (Court of Cassation). It also noted that, in this sector, there is one single market for concrete sleepers, and not separate markets for monobloc sleepers and duo-bloc sleepers. The European standard defining the general technical characteristics to be exhibited by reinforced concrete sleepers, which is currently undergoing approval, confirms that view and demonstrates that monobloc and duo-bloc sleepers are intended for the same use and are, consequently, perfectly substitutable.
11On 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 not sufficiënt 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 qualification system to suppliers of monobloc concrete sleepers, and which, according 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 knowledge, the Commission could not conclude that the two products should be characterised as equivalent products. On 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 disadvantages 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;
—
at Community level there were approximately 60 suppliers of monobloc concrete sleepers and between 35 and 40 suppliers of duo-bloc sleepers. Effective competition could therefore be guaranteed even if it was limited to suppliers of monobloc sleepers or of duo-bloc sleepers.’

3On 1 April 1997, the appellant brought an action before the Court of First Instance for annulment of the Commission's decision to take no further action.

4On 5 May 1997, the Commission raised a plea of inadmissibility, on the basis of Article 114(1) of the Rules of Procedure of the Court of First Instance, in respect of that application.

The contested order

5In the contested order, the Court of First Instance dismissed the application pursuant to Article 114 of its Rules of Procedure which enables the Court of First Instance, where one of the parties has so requested, to rule on the inadmissibility of an action without considering the substance of the case and, where appropriate, without opening the oral procedure.

6The Court of First Instance pointed out, at paragraph 32, 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 Council Regulation No 17 of 6 February 1962, First Regulation implementing Articles 85 and 86 of the Treaty (OJ, English Special Edition, 1959-1962 (I), p. 87).

7The Court of First Instance stated, at paragraph 33, that in the present case, the complaint submitted by the applicant to the Commission could be properly examined by that institution under the procedure established by Article 169 of the Treaty.

8It first pointed out, at paragraph 34, that the complaint formally identified the ‘failure to comply with Directive 93/38 ’ and that that formal heading was consistent with the substantive content of the complaint.

9The Court of First Instance then noted, at paragraph 35, that the applicant had itself claimed that the position adopted by the SNCB served to restrict competition and constituted an obstacle to the free movement of goods. The Court of First Instance stated that the applicant could not deny that the appropriate procedure to be followed by the Commission in respect of possible infringements of Article 30 of the Treaty was that provided for in Article 169 of the Treaty.

10Finally, as regards the procedure, the Court of First Instance added, at paragraph 36, that the appropriate nature, in the present case, of the Commission's action was not altered by the fact that the applicant's complaint related exclusively to conduct by a contracting entity, namely the SNCB, and did not criticise the relevant national legislation or the conduct of the Belgian Government. In that respect, the Court of First Instance recalled 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.

11The Court of First Instance considered the alleged failure by the Commission to consider, on the basis of Regulation No 17, the anticompetitive practices supposedly committed by SNCB. The Court of First Instance noted, at paragraph 38, that as regards the exercise of the Commission's powers under Regulation No 17, the complaint submitted by the applicant did not contain any specific indication enabling it to be characterised as a request submitted under Article 3(2)(b) of that regulation. The Court of First Instance added that at no time had the applicant addressed to the Commission the requests which it claimed to have submitted and that it was only in the application for annulment that the applicant had referred for the first time to Article 86 of the Treaty and had identified the abuse of a dominant position allegedly committed by the SNCB.

12Furthermore, the Court of First Instance pointed out, at paragraph 39, that the procedure under Regulation No 17 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 procedures serve different purposes and are governed by different rules. The Court of First Instance concluded, at paragraph 40, that the decision to take no further action, which is challenged by the appellant, related exclusively to the procedure for a declaration of failure to fulfil obligations and did not constitute an implied rejection of a complaint submitted under Regulation No 17.

13Finally, the Court of First Instance pointed out, at paragraph 41, that the findings contained in the Commission's letter did not have the effect of resolving the dispute between Sateba and the SNCB as to the legality of the public procurement procedures undertaken by the latter and that the opinion notified in that letter was a factual element which the national court called upon to give a decision in the dispute must take into account in the course of its examination of the case but which is not binding on it.

14In those circumstances, the Court of First Instance concluded, at paragraph 42, that the Commission had not committed any abuse of procedure and that it had acted properly in examining the complaint on the basis of Article 169 of the Treaty. The Commission's decision to discontinue the procedure for a declaration of failure to fulfil obligations was not subject to judicial review, which meant that the application had to be declared inadmissible.

The pleas put forward by the appellant

15In support of its claim for annulment of the contested order, the appellant puts forward two pleas in law.

16By its first plea, which is divided into three parts, the appellant alleges that the Court of First Instance committed an error of law by holding that the Commission had been entitled to examine the complaint under Article 169 of the Treaty, even though it was clear from the documents before the Court of First Instance that the complaint should have been examined on the basis of Regulation No 17. First of all, the appellant complains that the Court of First Instance misinterpreted Regulation No 17. Next it alleges that it applied an erroneous interpretation of Article 169 of the Treaty. Finally, it considers that the Court of First Instance misconstrued the concept of actionable measure and incorrectly held that it was not adversely affected by the Commission's decision.

17By its second plea, the appellant alleges that the Court of First Instance seriously infringed the right of the defence and distorted the subject-matter of the proceedings by holding that the Commission had been entitled to adopt its decision on the basis of Article 169 of the Treaty.

18The Commission considers that the Court of First Instance did not commit any error of law and that the appeal is clearly unfounded.

Findings of the Court

19Pursuant to Article 119 of its Rules of Procedure, when the appeal is clearly inadmissible or clearly unfounded, the Court may, at any time, dismiss it by reasoned order.

The first part of the first plea

20The appellant submits that the Court of First Instance misinterpreted Regulation No 17 by failing to examine the complaint in the light of the competition rules within the framework of that regulation even though, according to the appellant, the complaint referred to a restriction on competition and, pursuant to Article 3(1) of Regulation No 17, the Commission may take action upon its own initiative in respect of an infringement of Articles 85 or 86 of the Treaty.

21In that respect it should be pointed out that the Court of First Instance held, at paragraph 38 of the contested order, that the complaint did not contain any specific indication enabling it to be characterised as a request submitted under Regulation No 17 and that it was only in the application for annulment that the applicant referred for the first time to the competition rules in Article 86 of the Treaty.

22The Court of First Instance held, at paragraph 34 of the contested order, that the complaint formally identified the ‘failure to comply with Directive 93/38 ’ and that that formal heading was consistent with the substantive content of the complaint

23The Court of First Instance therefore rightly held that, since the appellant's complaint concerned the public procurement rules in Directive 93/38, it could properly be examined by the Commission within the framework established by Article 169 of the Treaty and not from the point of view of the competition rules contained in Article 86 of the Treaty, which were not mentioned in the complaint.

24Furthermore, the mere fact that reference is made to a restriction of competition is not sufficient to characterise an infringement of the competition rules in Article 86 of the Treaty when such a restriction is mentioned in the context of infringement of the public procurement rules contained in Directive 93/38. It is clear from the second, eleventh and twelfth recitals in the preamble to Directive 93/38 that one of its objectives is to ensure the free movement of goods by reacting against the absence of Community-wide competition for the supply to entities such as the SNCB, operating in the rail transport sector. The establishment of increased competition for the supply to such entities is thus one of the consequences of compliance with that directive. In those circumstances, a straightforward reference to a restriction on competition may therefore be interpreted as intended to supplement the allegation of infringement of the public procurement rules contained in Directive 93/38 and not as constituting a separate allegation based on the competition rules contained in the Treaty.

25The fact that the Commission may take action upon its own initiative, pursuant to Article 3(1) of Regulation No 17, in order to examine a possible infringement of the competition rules contained in the Treaty cannot alter that conclusion, contrary to what the appellant appears to suggest.

26The first part of the first plea must therefore be dismissed as clearly unfounded.

The second part of the first plea

27Second, the appellant submits that the Court of First Instance applied an erroneous interpretation of Article 169 of the Treaty. It states that the Commission failed to state the legal basis for its decision in its letter concerning the closure of the file, and that the Court of First Instance was wrong in holding that the legal basis was Article 169 of the Treaty. Furthermore, it is not sufficient that Directive 93/38 be involved in order for Article 169 to apply, since the complaint related only to the conduct of the SNCB. Finally, the Court of First Instance did not establish the appropriate nature of the procedure by citing the case-law of the Court of Justice according to which acts of contracting entities are imputable to the Member States.

28As regards the alleged lack of legal basis for the Commission's decision to take no further action, it is sufficient to point out that the appellant made no such allegation at any time before the Court of First Instance and, on the contrary, considered that the Commission had relied on Article 169 of the Treaty. Such a claim is therefore clearly inadmissible.

29Pursuant to Article 48(2) of the Rules of Procedure of the Court of First Instance, no new plea in law may be introduced in the course of proceedings, unless it is based on matters of law or of fact which come to light in the course of the procedure.

30To allow a party to put forward for the first time before the Court of Justice a plea in law which it has not raised before the Court of First Instance would be to allow it to bring before the Court of Justice, whose jurisdiction in appeals is limited, a case of wider ambit than that which came before the Court of First Instance. In an appeal the jurisdiction of the Court of Justice is thus confined to review of the findings of law on the pleas argued before the Court of First Instance (Case C-136/92 P Commission ν Brazzelli Lualdi and Others [1994] ECR I-1981, paragraph 59).

31As regards the argument that it is not sufficient that Directive 93/38 be involved in order for Article 169 to apply, that argument overlaps with the first part of the first plea in so far as it criticises the Court of First Instance for having held that Article 169 applied. The argument must therefore be rejected as clearly unfounded for the same reasons as those set out at paragraphs 23 to 25 above.

32Finally, as regards the argument that the Court of First Instance failed to establish the appropriate nature of the procedure, the Court of First Instance cited the relevant case-law of the Court of Justice, at paragraph 36 of the contested order, referring, in particular, to Case C-87/94 Commission ν Belgium [1996] ECR I-2043. As the Court of First Instance rightly 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.

33The second part of the first plea must therefore be dismissed as both clearly unfounded and clearly inadmissible.

The third part of the first plea

34Third, the appellant considers that by attributing a legal basis which did not exist to the Commission's decision not to take further action, the Court of First Instance misconstrued the concept of actionable measure in so far as it proceeded on the premiss that the Commission's decision did not affect the appellant's legal position in the context of a possible procedure in application of the competition rules. In particular, the appellant criticises the Court of First Instance for characterising as facts the findings contained in the Commission's letter concerning its decision to take no further action, since that characterisation, in so far as it may be taken into account by third parties, including a national court, is prejudicial to the appellant's interests.

35In so far as the appellant's argument concerns an alleged lack of legal basis for the Commission's decision, it overlaps with the second part of the first plea and must be rejected as inadmissible for the same reasons as those set out at paragraph 28 above.

36As regards the alleged effect of the Commission's decision on the appellant's legal position in the context of a competition procedure, the Court of First Instance rightly pointed out, at paragraphs 39 to 41 of the contested order, that the procedure under Regulation No 17 was independent of the procedure based on Article 169 of the Treaty for a finding that the conduct of a Member State infringes Community law and for termination of that conduct. The two procedures serve different purposes and are governed by different rules. The Court of First Instance rightly cited the case-law of the Court of Justice according to which the initiation of a procedure under Article 169 of the Treaty cannot automatically entail the adoption of a decision on the basis of Regulation No 17.

37The Court of First Instance rightly concluded that the Commission's decision to take no further action related exclusively to the procedure for a declaration of failure to fulfil obligations and did not constitute an implied rejection of a complaint submitted under Regulation No 17.

38Furthermore, the Court of First Instance correctly held that, although they constituted a factual element, the Commission's findings were not prejudicial to the appellant's interests in a possible procedure under the competition rules or the public procurement rules. As regards the latter procedure, the Court of First Instance was also correct in holding that the findings at issue were not binding on national courts.

39As regards a possible competition procedure, it should be added that, according to the case-law of the Court of Justice, letters from the Commission concerning its decision to close a competition file may be taken into account by a national court called upon to resolve a dispute within the same field. However, the national court remains free to accept or reject the Commission's observations (see, in particular, Joined Cases 253/78 and 1/79 to 3/79 Giry and Guerhin and Others [1980] ECR 2327, paragraphs 12 and 13). The same is, a fortiori, true when the decision to close the file was adopted by the Commission in respect of matters falling within the scope of the public procurement rules, rather than the competition rules of the Treaty.

40It follows that the third part of the first plea must be dismissed and that the first plea must be dismissed as both clearly unfounded and clearly inadmissible.

The second plea

41In support of its second plea, the appellant claims that the Court of First Instance manifestly undermined the rights of the defence by laying down the principle that a person who has submitted a complaint has no procedural rights in the context of a procedure under Article 169 of the Treaty. Furthermore, the Court of First Instance distorted the subject-matter of the proceedings since it was aware that the case before it concerned an application for annulment of a decision adversely affecting the interests of a person in the sense contemplated in Article 173 of the Treaty.

42As regards the first argument, concerning the absence of procedural rights for complainants under Article 169, the Court of First Instance rightly pointed out, at paragraph 32 of the contested order, 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 the case of a proceeding under Regulation No 17. According to the settled case-law of the Court of Justice, the Commission is not bound to initiate a procedure under Article 169 but has a discretion which excludes the right for individuals to require it to adopt a specific position (see, in particular, Case 247/87 Star Fruit ν Commission [1989] ECR 291, paragraph 11). It follows that the Court of First Instance was correct in stating that, in the case of a procedure under Article 169 of the Treaty, it is not open to persons who have lodged a complaint to bring an action before the Community judicature against a decision to take no further action on their complaint; nor do they have any procedural rights, comparable to those they may have in the case of a procedure under Regulation No 17, enabling them to require the Commission to inform them and to grant them a hearing. The appellant's argument must therefore be rejected as clearly unfounded.

43As regards the second argument according to which the Court of First Instance distorted the subject-matter of the proceedings, that argument overlaps with the first plea. For the reasons set out at paragraphs 23 to 25 above, that argument should also be rejected as clearly unfounded.

44In those circumstances, pursuant to Article 119 of the Rules of Procedure of the Court of Justice, the appeal must be dismissed as both clearly unfounded and clearly inadmissible.

Costs

45Under Article 69(2) of the Rules of Procedure, applicable to the appeal procedure by virtue of Article 118, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings. Since the appellant has been unsuccessful, it must be ordered to pay the costs.

On those grounds,

THE COURT (Fourth Chamber)

hereby orders:

1.The appeal is dismissed;
2.The appellant is ordered to pay the costs of these proceedings.