Order of the Court of First Instance (First Chamber) of 29 September 1997. – Société anonyme de traverses en béton armé (Sateba) v Commission of the European Communities.

BIB.ORDER

T-83/9761997B00830008.000115251154016T

ORDER OF 29. 9. 1997 — CASE T-83/97

SATEBA v COMMISSION

Order of the Court of 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,

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,

defendant,

APPLICATION for annulment of the decision of the Commission, notified to the applicant by letter dated 20 January 1997, to take no further action on the 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,

THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (First Chamber),

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

Registrar: H. Jung,

makes the following

Order

Background to the dispute

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 organized 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 jeopardizing 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, ‘[technical 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 specialized 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 no sufficient 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 characterized 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.

Procedure and forms of order sought by the parties

12The present application for the annulment of the aforementioned decision to close the file was lodged at the Registry of the Court of First Instance on 1 April 1997.

13By a separate document, lodged at the Registry of the Court of First Instance on 5 May 1997, the defendant raised a plea of inadmissibility on the basis of Article 114(1) of the Rules of Procedure. The applicant submitted its observations on the plea of inadmissibility on 16 June 1997.

14On 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.

15In 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.

16In its plea of inadmissibility the Commission contends that the Court should:

—
declare the application inadmissible;
—
order the applicant to pay the costs.

Admissibility

17Under Article 114 of the Rules of Procedure, if a party applies to the Court of First Instance for a decision on a preliminary issue of admissibility, the remainder of the proceedings are to be oral, unless the Court of First Instance otherwise decides.

18Furthermore, 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

19The Commission considers that the application is manifestly inadmissible, since it concerns a measure falling exclusively under the procedure for a declaration of failure to fulfil Treaty obligations.

20The 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 having 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 procurement 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 conduct of those authorities is imputable to the State itself and may be made the subject of an action against the State in question under the aforementioned provision of the Treaty for a declaration of failure to fulfil obligations.

21In the present case the examination of a possible infringement of the public procurement rules was followed by a decision to close the file which, according to the defendant, is nothing more than a decision not to pursue the Treaty infringement procedure in the context of which that examination took place.

22The Commission recalls the settled case-law of the Court of Justice and of the Court of First Instance according to which applications for the annulment of Commission decisions not to initiate or to pursue a Treaty infringement procedure are inadmissible. In that respect, the defendant cites the order of the Court of First Instance in Case T-126/95 Dumez v Commission [1995] ECR II-2863 and the judgment of the Court of Justice in Case C-107/95 P Bundesverband der Bilanzbuchhalter v Commission [1997] ECR I-947. As is made clear in paragraphs 34 and 37 of the order, that case-law is based essentially on the discretion conferred on the Commission by Article 169 of the Treaty and on the preliminary nature of the contested measure.

23The Commission is surprised that the applicant is now criticizing it for not having examined the complaint in the light of competition law. It points out that the applicant itself sent a copy of its complaint to DG XV and was informed from the outset that its complaint would be examined in the context of a possible infringement procedure. This was not in any way contested at the time.

24The defendant therefore considers that in the present case Sateba is not entitled to rely on the case-law relating to competition matters. Interested parties can rely on the rights conferred by the competition rules only in so far as their complaint, both in fact and in law, causes the Commission to carry out its examination in the light of those rules.

25The applicant, for its part, claims that the Commission used the procedure provided 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 judicial review of its decision.

26The 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 competition rules of the Treaty of which Directive 93/38 is just one example.

27According to the applicant, it was not necessary to initiate the infringement procedure 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.

28The applicant states that the allegations relate to anticompetitive 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.

29The applicant considers that it provided the Commission with all the factual and legal information necessary to enable it to investigate the complaint in the context of restrictions on competition and obstacles to the free movement of goods. It maintains that it is all the information brought to the attention of the Commission, including the covering letter and the annexes, which makes up the ‘complaint’. The Commission was therefore wrong in attempting to restrict the scope of the complaint to the question of failure to comply with Directive 93/38. The fact that Sateba sent a copy of its complaint to D G XV did not necessarily mean that the complaint was to be examined exclusively under Article 169 of the Treaty.

30In the applicant's opinion, even though in matters of public procurement compliance 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 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, hereinafter ‘Regulation No 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 matters 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

31As 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 none the less maintains that, in view of its subject-matter, the complaint should also have been examined by the Commission under a procedure in application of the competition rules. To that extent, the Commission's decision to close the file on the complaint should, according to the applicant, be subject to judicial review, in accordance with the guarantees accorded to complainants in the sphere of application of the competition rules.

32The 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 Regulation No 17. In the case of a procedure initiated under that regulation, complainants have procedural rights which are clearly denned by Regulation No 99/63/EEC of the Commission of 25 July 1963 on hearings provided for in Article 19(1) and (2) of Council Regulation No 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 submit 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 contrast, 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 Commission 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 II-2417, paragraph 52).

33In 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.

34First, 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.

35Next, the applicant itself acknowledges that, in the letter accompanying the complaint, it claimed that the position adopted by the SNCB ‘constitutes a restriction on competition and an obstacle to the free movement of goods’. The applicant cannot deny that the appropriate procedure to be followed by the Commission in examining a complaint relating to possible infringements of Article 30 of the Treaty is that provided for in Article 169 of the Treaty (see, for example, Case 45/87 Commission v IreUnd [1988] ECR 4929, paragraphs 12 to 27).

36Finally, 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 Government. 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 I-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 comply with the principles of equal treatment of tenderers and transparency of the procedure).

37Furthermore, in Case C-359/93 Commission v NetherUnds [1995] ECR I-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 infringement 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 I-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 suggested, by the applicant, it is always permissible for that institution to examine the complaint in question in the perspective of the procedure laid down in Article 169 of the Treaty.

38As regards the exercise of the Commission's powers under Regulation No 17, the Court notes that the complaint submitted by the applicant does not contain any specific indication which would enable it to be characterized as a request submitted under Article 3(2)(b) of that regulation. In that connection, it is sufficient to compare the wording of the complaint, including the annexes and covering letter, with the wording of the originating application lodged at the Court to realize that at no time did the applicant address to the Commission the requests which it is now claiming to have submitted. It is also clear from the file that it was only in the application for annulment that the applicant referred for the first time to Article 86 of the Treaty and identified the abuse of a dominant position allegedly committed by the SNCB.

39Furthermore, even supposing that the applicant did properly request the Commission to initiate the procedure under Regulation No 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 procedures 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 termination 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 No 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] ECR II-733, paragraphs 35 and 36, upheld on appeal by the order in Case C-325/94 P [1996] ECR I-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 I-3319, paragraphs 22 and 23).

40It follows from the foregoing that, as the Commission correctly stated, the contested decision to close the file relates exclusively to the procedure for a declaration of failure to fulfil obligations and does not constitute an implied rejection of a complaint submitted under Regulation No 17. Accordingly, that decision does not affect the applicant's legal position in the context of a possible procedure in application of the competition rules.

41It should also be noted that, contrary to what is alleged by the applicant, the findings contained in the Commission's letter do not have the effect of resolving the dispute between Sateba and the SNCB as to the legality of the procurement procedures undertaken by the latter. The opinion notified in that letter is a factual element which the national court called upon to give a decision in the dispute must certainly take into account in the course of its examination of the case. However, findings resulting from an examination under Article 169 of the Treaty are not binding on national courts.

42In view of all the foregoing, it must be concluded that the Commission did not commit any abuse of procedure and that it acted properly in examining the applicant's complaint under the procedure established by Article 169 of the Treaty. According to settled case-law, the decision, adopted at the end of that examination, to discontinue the procedure for a declaration of failure to fulfil obligations is not subject to judicial review; that is not disputed by the applicant.

43The present application must therefore be declared inadmissible.

44Since 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.

Costs

45Under 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.

On those grounds,

THE COURT OF FIRST INSTANCE (First Chamber)

hereby orders:

1.The application is dismissed as inadmissible.
2.There is no need to adjudicate on the application for leave to intervene.
3.The applicant is ordered to pay the costs.