BIB.ORDER
T-60/98 R61998B00600008.000122061221510TORDER OF 25. 5. 1998 — CASE T-60/98 R
ECORD CONSORTIUM v COMMISSION
Order of the President of the Court of First Instance
26 May 1998(*)
In Case T-60/98 R,
Ecord Consortium for Russian Co-operation, a joint venture under Danish law comprising the following members:
Danagro Adviser A/S, a company governed by Danish law, established at Glostrup (Denmark),
Plunkett Foundation, a foundation governed by English law, established at Long Hanborough (United Kingdom),
Irish Agri-Food Development Ltd, a company governed by Irish law, established at Dublin,
represented by Mia Declercq-Devisch and Kurt Haegeman, of the Brussels Bar, with an address for service in Luxembourg at the Chambers of Marc Loesch, 11 Rue Goethe,
applicant,Commission of the European Communities, represented by Marie-Josée Jonczy, Legal Adviser, acting as Agent, with an address for service at the office of Carlos Gómez de la Cruz, of its Legal Service, Wagner Centre, Kirchberg,
defendant,APPLICATION for interim measures relating to a Commission Decision of 17 March 1998 declaring inadmissible a tender submitted by the applicant in response to an invitation to tender for a project financed under the TACIS programme (Project FDRUS 9701, entitled ‘Russia: Promoting Co-operative Ventures by Independent Farmers’),
THE PRESIDENT OF THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES
makes the following
Order
Facts and Procedure
1The applicant is a joint venture set up by three firms in order to draw up a joint tender for a project concerning the provision of technical assistance in Russia (Project FDRUS 9701, entitled ‘Russia: Promoting Co-operative Ventures by Independent Farmers’). The project is financed by Commission funds under the TACIS programme (Programme for Technical Assistance to the Commonwealth of Independent States and Mongolia).
2On 16 January 1998 the Commission sent the applicant an invitation to tender for this project (‘the invitation to tender’).
3The invitation to tender stated that the tender was to be sent to the following address: TACIS Procurement Unit, Rue de la Loi 99, B-1040 Brussels.
4It stated, in particular:
| ‘Attention: | When addressing your offer to the Tacis Procurement Unit please strictly limit yourself to above address. Avoid to add or to use any other terms (e. g. Commission, European Union, ...). In these cases your offer may be submitted to the wrong place and risks to be delivered at the Procurement Unit after the deadline.’ |
5The tender had to be submitted by 11.00 hrs local time on 16 March 1998 at the latest.
6The file and oral pleadings reveal that the management of the TACIS programme was entrusted to a private firm governed by Luxembourg law. The TACIS Procurement Unit, which is responsible for that management, thus constitutes a technical assistance unit independent of the Commission. Its role is inter alia to assist the Commission in issuing invitations to tender, the organisation of assessment committees, for which it provides the secretarial services, and the drafting of contracts.
7On 13 March 1998 the applicant dispatched its tender by DHL courier.
8The following indications were given on DHL's air consignment note:
‘2 To (Receiver)
Company name
European Commission
Delivery address
TACIS Procurement Unit
Rue de la Loi, 99
Brussels’.
9In accordance with the Commission's instructions of 15 November 1991 that all mail for the Commission be delivered to the central mail office at Rue de Genève 12, B-1140 Evere, DHL delivered the applicant's tender to that address on 16 March 1998 at 8.30 hrs.
10According to statements by the Commission — which are not disputed by the applicant — DHL, following its usual practice, returned to the central mail office approximately two hours later, that is to say towards 10.30 hrs, to retrieve consignments not intended for the Commission. At that point the applicant's consignment was handed back to DHL so that it could deliver it to the right address.
11The following day, 17 March 1998, the applicant's tender was delivered by DHL to the TACIS Procurement Unit in Brussels, at 99 Rue de la Loi.
12By letter of 17 March 1998 (hereinafter the ‘contested decision’), the Commission rejected the applicant's tender on the ground that it was submitted to the TACIS Procurement Unit after the deadline.
13By application lodged at the Court Registry on 6 April 1998, the applicant brought an action for annulment of that decision. The case was registered under number T-60/98.
14By a separate application lodged at the Court Registry the same day it also brought an application for interim measures pursuant to Articles 185 and 186 of the Treaty.
15The applicant claims that the President of the Court of First Instance should:
- —
order the Commission to consider the applicant's tender and, if appropriate, admit the applicant to the talks it conducts with the other tenderers;
- —
in the alternative, ‘order the Commission to reissue the invitation to tender for the project to the companies on the same “shortlist” in accordance with the normal procedure in the very near future’.
16In its written observations lodged on 14 April 1998 the Commission contended that the application should be dismissed in its entirety.
17The oral submissions of the parties were heard on 5 May 1998.
Law
18Under the combined provisions of Articles 185 and 186 of the Treaty and Article 4 of Council Decision 88/591/ECSC, EEC, Euratom, of 24 October 1988 establishing a Court of First Instance of the European Communities (OJ 1988 L 319, p. 1), as amended by Council Decision 93/350/Euratom, ECSC, EEC, of 8 June 1993 (OJ 1993 L 144, p. 21), the Court of First Instance may, if it considers that circumstances so require, in any cases before it prescribe any necessary interim measures.
19Article 104(1) of the Rules of Procedure provides that an application to suspend the operation of any measure is to be admissible only if the applicant is challenging that measure in proceedings before the Court of First Instance. Paragraph 2 of that Article provides that an application for the adoption of interim measures is to state the circumstances giving rise to urgency and the pleas of fact and law establishing a prima facie case for the interim measures applied for. The measures applied for must be of a provisional nature in that they must not prejudge the decision on the substance (see, most recently, Case T-86/96 R Arbeitsgemeinschaft Deutscher Luftfahrt-Unternehmen and Hapag-Lloyd v Commission [1998] ECR II-641, paragraph 24).
20In view of the circumstances of the case, we should first consider the condition relating to the establishment of a prima facie case.
Arguments of the parties
21In support of its application for interim measures the applicant argues that the contested decision constitutes a prima facie breach of the principle of the protection of legitimate expectations. It maintains, in support of that argument, that it followed the Commission's instructions scrupulously. The address of TACIS Procurement Unit was given on DHL's air consignment note as stipulated in the invitation to tender.
22It was only because of the Commission's contradictory instructions that the applicant's consignment was delivered in time but to a different place. That change in its destination was the result of a permanent instruction of the Commission, dating from 1991, that all mail was to be delivered to a central mail office within the Commission, even where the address given in the air consignment note differed from the usual postal address of the Commission.
23The applicant argues that, if the Commission had not given those instructions to DHL, its tender would have reached the TACIS Procurement Unit in time. The applicant submits that, in the circumstances, it could legitimately expect that its tender would be delivered to the correct address.
24In reply to a question put by the President of the Court, the applicant pointed out that, although the invitation to tender stipulated that any reference to the Commission was to be avoided, the Commission itself had contributed to the confusion by printing the invitation to tender on its own headed notepaper.
25The Commission had, therefore, committed a wrongful act in rejecting the applicant's tender. The contested decision, it is alleged, constitutes a prima facie breach of the principle of the protection of legitimate expectations, a principle which forms part of the Community legal order (Case 112/77 Töpfer v Commission [1978] ECR 1019).
26The Commission submits that, as the applicant's tender was submitted after the deadline, it had no choice but to reject it under the rules applied by the institution regarding invitations to tender. Their purpose was to guarantee equal treatment of tenderers. The Commission submits that to accept the applicant's tender would entail discrimination against the other firms which did submit their tenders in time.
27As regards the existence of a prima facie case, it points out that the applicant, contrary to its claims, did not follow scrupulously the instructions given in the invitation to tender in that it wrote the name of the Commission on DHL's air consignment note. Under the circumstances it should have been aware of the risk that the tender would be delivered to the wrong address, and consequently would arrive at the TACIS Procurement Unit after the deadline.
Findings of the court hearing the application for interim measures
28In support of its application for interim measures the applicant confines itself to pleading that the contested decision constitutes a prima facie breach of the principle of the protection of legitimate expectations.
29Despite the express warning in the invitation to tender (see paragraph 4 above), the applicant indicated on DHL's air consignment note that the consignment in question was intended for the ‘European Commission’ (see paragraph 8 above).
30The application for interim measures is therefore based on the incorrect premiss that the applicant followed scrupulously the instructions in the invitation to tender.
31As is clear from the oral pleadings, the purpose of those instructions was precisely to prevent events such as those which occurred in this case. If the Commission's name features on the air consignment note there is a great risk that the consignment in question will be delivered to the central mail office at Evere, in accordance with the general instructions of 1991 (see paragraph 9 above).
32The applicant cannot plead lack of experience in this area. It does not dispute the Commission's claims, first, that it had already responded to invitations to tender from the TACIS Procurement Unit without making any mistakes in the address and, second, that it recently signed an extension of contract following an invitation to tender organised in the same way as that in this case.
33As it did not heed the warning in the invitation to tender, it could not legitimately expect that its tender would be delivered in time to the TACIS Procurement Unit. Accordingly, the plea alleging breach of the principle of the protection of legitimate expectations appears prima facie to be unfounded.
34In the absence of any other pleas in fact or in law which would justify prima facie the adoption of the interim measures applied for, the application for interim measures must be dismissed, without there being any need to consider whether the other conditions for the adoption of interim measures have been met in this case.
On those grounds,
THE PRESIDENT OF THE COURT OF FIRST INSTANCE
hereby orders:
- 1.The application for interim measures is dismissed.
- 2.The decision as to costs is reserved.