ORDER OF THE COURT OF FIRST INSTANCE (Seventh Chamber)
9 July 2009 (*)
(Action for declaration of failure to act, for annulment and for damages – Public service contracts – Call for tenders concerning the maintenance of OHIM’s computer systems – Administrative appeal before the Commission – Implied Commission decision to dismiss – New claims – Connection between the action for a declaration of failure to act and the action for damages – Manifest inadmissibility)
In Case T‑176/08,
infeurope, established in Luxembourg (Luxembourg), represented by O. Mader, lawyer,
applicant,
v
Commission of the European Communities, represented by N. Bambara and E. Manhaeve, acting as Agents,
defendant,
first, APPLICATION for a declaration that the Commission failed to act in that it unlawfully failed to annul the decision to award framework contracts under the tendering procedure AO/042/05 of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) for software maintenance relating to OHIM core business systems on trade marks and designs, and to terminate the specific contracts concluded under those framework contracts and, in the alternative, APPLICATION for annulment of the alleged implied decision of the Commission to dismiss the applicant’s administrative appeal of 2 December 2007 in the context of that tendering procedure and, secondly, APPLICATION for compensation for the harm allegedly suffered as a result of the alleged unlawful omissions on the part of the Commission,
THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Seventh Chamber),
composed of N.J. Forwood, President, D. Šváby and E. Moavero Milanesi (Rapporteur), Judges,
Registrar: E. Coulon,
makes the following
Order
Legal context
1 Article 118 of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1), as amended (now Article 122 of Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1)), is worded as follows:
‘1. The Commission shall check the legality of those acts of the President of the Office in respect of which Community law does not provide for any check on legality by another body and of acts of the Budget Committee attached to the Office pursuant to Article 133.
2. It shall require that any unlawful acts as referred to in paragraph 1 be altered or annulled.
3. Member States and any person directly and personally involved may refer to the Commission any act as referred to in paragraph 1, whether express or implied, for the Commission to examine the legality of that act. Referral shall be made to the Commission within one month of the day on which the party concerned first became aware of the act in question. The Commission shall take a decision within three months. If no decision has been taken within this period, the case shall be deemed to have been dismissed.’
Factual background to the proceedings
2 The applicant, infeurope, is a company specialised in IT services. It participated in the call for tenders AO/042/05 for the award of the contract for software maintenance relating to the core business systems of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) on trade marks and designs, issued by OHIM in July 2006.
3 After examining the tenders, OHIM was to select three tenderers and conclude a framework contract with each of them. If the tenderer ranked first proved unable to supply the services, OHIM was entitled to approach the second tenderer and, if it was also unable to supply the services, to approach the third tenderer.
4 The applicant participated in the procedure at issue and submitted a tender.
5 OHIM adopted the contract award decision for the call for tenders at issue on 12 April 2007. That decision was communicated to the applicant by letter on the same day. In that letter OHIM informed the applicant that its tender had been ranked third so that, in accordance with the tender specifications, it was offered a contract, as were the other two tenderers selected.
6 The applicant acknowledged receipt of that letter in a letter sent to OHIM on 16 April 2007. By the same letter the applicant also asked OHIM to provide it with more information.
7 By letter of 16 April 2007, received by the applicant on 17 April 2007, OHIM informed it of the identity of the other two tenderers selected, confirmed that its tender had been ranked third in the final classification and provided details in a table on the position of its tender with regard to the technical and financial evaluations as compared with those of the other two tenderers selected.
8 In accordance with the award decision, framework contracts were concluded with the first two tenderers in May 2007, then with the applicant on 24 May 2007, and the first specific contracts with the first ranked contractor commenced at the end of July 2007.
9 The relevant contract award notice was published in the Official Journal of the European Union on 16 June 2007.
10 On 11 May 2007, on the basis of Article 118(3) of Regulation No 40/94, the applicant lodged its first administrative appeal with the Commission, in which it disputed the legality of OHIM’s decisions ranking its tender in third position. The Commission informed the applicant on 3 October 2007 that its appeal had been dismissed.
11 The applicant lodged a second administrative appeal on 2 December 2007, requesting the Commission to annul the tendering procedure at issue as well as the framework contracts and ensuing specific contracts and to organise a new tendering procedure. It simultaneously sent a copy of that appeal to OHIM.
12 The Commission did not reply to the applicant’s second administrative appeal.
Procedure and forms of order sought by the parties
13 The applicant brought this action by application lodged at the Registry of the Court of First Instance on 9 May 2008.
14 By a separate document lodged at the Court Registry on 31 July 2008, the Commission raised an objection of inadmissibility under Article 114(1) of the Rules of Procedure of the Court of First Instance.
15 The applicant submitted its observations on that objection of inadmissibility on 30 September 2008.
16 In its application, the applicant claims that the Court should:
– declare that the Commission has failed to annul the decision awarding the framework contracts under OHIM’s tendering procedure AO/042/05;
– declare that the Commission has failed to terminate the specific contracts concluded under those framework contracts;
– order the Commission to pay EUR 37 002, plus 4% interest on EUR 31 650 from 29 August 2006, plus 4% interest on EUR 3 650 from 3 December 2007, plus 4% interest on EUR 1 702 from 3 May 2008 and 8% interest on EUR 37 002 from the date of delivery of the judgment;
– order the Commission to pay EUR 1 209 037, plus 4% interest on that sum from 3 May 2008 and 8% interest thereon from the date of delivery of the judgment;
– order the Commission to pay the costs.
17 In its objection of inadmissibility, the Commission contends that the Court should:
– declare the action inadmissible;
– order the applicant to pay the costs.
18 In its observations on the objection of inadmissibility, the applicant in essence contends that the Court should:
– declare the objection of inadmissibility unfounded;
– in the alternative, in the event of the inadmissibility of the application for a declaration of failure to act, annul the Commission’s implied decision to dismiss the applicant’s administrative appeal of 2 December 2007.
19 In addition, the applicant requests the Court to order the Commission to produce certain documents relating to the tender evaluation procedure.
20 By a document lodged at the Court Registry on 25 August 2008, European Dynamics SA applied to intervene in support of the form of order sought by the Commission.
21 The Commission and the applicant lodged their observations on the application to intervene on 10 and 17 November 2008 respectively.
Law
22 Under Article 111 of the Rules of Procedure of the Court of First Instance, where an action brought before that court is manifestly inadmissible or manifestly lacking any foundation in law, the Court may, by reasoned order and without taking further steps in the proceedings, give a decision on the action.
23 In the present case, the Court considers itself to have sufficient information from the documents in the file to give a decision without taking further steps in the proceedings.
The application for a declaration of failure to act
24 The applicant has submitted an application for a declaration of failure to act under Article 232 EC. It requests the Court to declare that, despite a request to that effect in its administrative appeal of 2 December 2007, the Commission failed to annul the decision awarding the framework contracts under OHIM’s tendering procedure AO/042/05 and to terminate the specific contracts concluded under those framework contracts.
25 The Commission has raised an objection of inadmissibility in support of which it puts forward four pleas alleging, respectively, that there was no failure to act on its part, that the applicant’s administrative appeal to the Commission under Article 118 of Regulation No 40/94 was submitted out of time, that the application for a declaration of failure to act was lodged out of time and that the Commission has no power to annul acts of the President of OHIM.
Arguments of the parties
26 First, the Commission submits that Article 232 EC can be applied only where there is a pure omission on the part of the defendant institution where it is under a duty to act. In the present case, there was no failure to act contrary to the Treaty, since the Commission adopted a position, in the form of an implied dismissal, on the administrative appeal lodged by the applicant on 2 December 2007. In this connection it points out that, under Article 118(3) of Regulation No 40/94, if no decision has been taken by the Commission within three months of an administrative appeal lodged against an act of the President of OHIM, the case is deemed to have been dismissed. Therefore, the fact that when this action was brought the Commission had not replied to the applicant’s administrative appeal of 2 December 2007 does not constitute a failure to act for the purpose of Article 232 EC and the action is on that basis inadmissible.
27 Secondly, the Commission points out that any person who intends to challenge the legality of an act of the President of OHIM which directly and personally involves it must refer that act to the Commission within one month of the day on which the party concerned first became aware of the act in question. According to the Commission, the act in question for the purposes of Article 118(3) of Regulation No 40/94 is OHIM’s decision of 12 April 2007 to award the contract at issue, sent to the applicant on the same day. That decision was received by the applicant on 16 April 2007 at the latest, the date on which it effectively became aware of the act in question. The Commission infers from this that the administrative appeal should have been lodged within one month of 16 April 2007, so that the administrative appeal of 2 December 2007 was lodged out of time. Therefore, the application for a declaration of failure to act under Article 232 EC is also inadmissible because the administrative appeal under Article 118(3) of Regulation No 40/94 was lodged out of time.
28 Thirdly, the Commission claims that, even if the administrative appeal was lodged in due time, the application for a declaration of failure to act should, in accordance with the second paragraph of Article 232 EC, have been made within four months of the date on which that administrative appeal was lodged. The case was first referred to the Commission on 11 May 2007, so that the application for a declaration of failure to act should have been made on 11 September 2007 at the latest. Since the application in this case was lodged on 9 May 2008, the application for a declaration of failure to act is also inadmissible because it is out of time.
29 Fourthly, the Commission states that it does not have the power to annul or alter any decision taken by OHIM since, under Article 118(2) of Regulation No 40/94, it may only require that acts adopted by the President of OHIM be altered or annulled. Since the Commission did not have the power to adopt the annulment decision requested by the applicant, the latter was not entitled to bring an application for a declaration of failure to act against the Commission under Article 232 EC.
30 The applicant disputes the four grounds of inadmissibility put forward by the Commission.
31 First, the applicant submits that Article 232 EC is to be applied in the present case, since the implied dismissal under Article 118(3) of Regulation No 40/94, which results from the Commission’s failure to define its position, does not allow the addressee of the decision to assess the content of that implied dismissal and cannot therefore constitute the definition of a position for the purpose of Article 232 EC.
32 Article 232 EC is also applicable on the ground that the expiry of the three-month period within which the Commission should have taken a decision pursuant to Article 118(3) of Regulation No 40/94 does not exclude the Commission’s obligation to act in its capacity as the supervisory body of OHIM in order to ensure the legality of its acts, and the inaction of the Commission did not bring about a distinct change in the applicant’s legal position.
33 Secondly, as regards the contention that the administrative appeal was lodged out of time, the applicant submits that the period of one month under Article 118(3) of Regulation No 40/94 should start to run from the time when it became aware of OHIM’s infringements, that is to say, in the present case, during November 2007, and not from the receipt of the award decision on 16 April 2007. Therefore, the administrative appeal brought on 2 December 2007 is not out of time.
34 Thirdly, the applicant denies that the application for a declaration of failure to act was submitted out of time. The period of two months during which the institution concerned should define its position, under Article 232 EC, is displaced by the period of three months provided for in Article 118(3) of Regulation No 40/94. Furthermore, the applicant specifies that the two-month period for the purpose of bringing an application for a declaration of failure to act can start to run only from the implied dismissal referred to in Article 118(3). In the present case, since the administrative appeal was lodged on 2 December 2007, the three-month period for defining a position on the administrative appeal expired on 2 March 2008 and the period for bringing an action for failure to act expired on 2 May 2008, a time-limit which is to be extended by 10 days on account of distance as provided for in Article 102(2) of the Rules of Procedure, so that the action had to be brought on 12 May 2008 at the latest. Since this action was brought on 9 May 2008, it was therefore not brought out of time.
35 Fourthly, the applicant disputes the ground for inadmissibility based on the Commission’s alleged lack of power to annul OHIM acts. It submits that it is for the Commission and not OHIM to take a decision on the legality of OHIM’s acts. Even if the power to alter or annul an OHIM act rests exclusively with that body, the Commission has the power to take a decision which OHIM must strictly follow.
Findings of the Court
36 Community law provides that, in certain specific instances, silence on the part of an institution is deemed to amount to a decision where the institution has been called upon to express its view and has not done so by the end of a given period. In such cases, by an express provision, laying down a deadline by which an implied decision is deemed to have been taken and prescribing the tenor of the decision, an institution’s inaction is deemed to be equivalent to a decision, without calling into question the system of remedies instituted by the Treaty (see, to that effect, Joined Cases T-189/95, T-39/96 and T-123/96 SGA v Commission [1999] ECR II-3587, paragraph 27).
37 That applies to Article 118 of Regulation No 40/94, which lays down a system for control of the legality of those acts of the President of OHIM in respect of which Community law does not provide for any check on legality by another body. That is true of acts adopted in the context of public procurement.
38 That control is entrusted to the Commission, before which an administrative appeal must be brought within one month of the day on which the party concerned first became aware of the act in question. At the end of that procedure, the Commission is to require, where appropriate, that the acts which it regards as unlawful be altered or annulled. The fact that a time-limit is laid down for bringing an administrative appeal attests to the obligatory nature – which has never been called into question by the applicant – of such an administrative procedure, which is a prerequisite of bringing an action before the Community Courts (see, to that effect and by analogy, Case T-411/06 Sogelma v EAR [2008] ECR II-0000, paragraphs 60 to 63). The Community legislature did not design the procedure laid down by Article 118 of Regulation No 40/94 as offering individuals an alternative remedy to that of an action before the Community Courts in order to protect their interests, unlike that which was provided for, for example, with regard to bringing a matter before the European Ombudsman, which is an alternative remedy to that of a direct action before the Community Courts (see, to that effect, order in Case T‑294/04 Internationaler Hilfsfonds v Commission [2005] ECR II-2719, paragraphs 47 and 48).
39 Therefore, an action for failure to act seeking a declaration that the Commission has been guilty of inaction is not admissible in the context of a system such as that established by Article 118 of Regulation No 40/94, in which it is expressly provided that the Commission’s inaction results in an implied dismissal. Any declaration that the Commission acted unlawfully is possible only in the context of an action for annulment brought against the final decision of the institution, in which it decides on the merits of the applicant’s complaint, both where that decision is express and where it is deemed to have been adopted on the expiry of a specified period.
40 Having regard to the foregoing, and without it being necessary to examine the other grounds of inadmissibility relied on by the Commission, the application for a declaration of failure to act must be dismissed as manifestly inadmissible.
The application for annulment
Arguments of the parties
41 In its observations on the plea of inadmissibility, the applicant submits that, if the Court were to find its application for a declaration of failure to act inadmissible, it should be treated as an application for annulment of the Commission’s implied decision of dismissal, which is deemed to have been adopted on the expiry of the period of three months from the day on which the administrative appeal was lodged. The conditions for bringing an action for annulment under Article 230 EC are fulfilled in the present case, since the implied decision is of direct and individual concern to the applicant, and the time-limit for bringing an action under the fourth paragraph of Article 230 EC was complied with in this case, since the action was brought within two months of the expiry of the three-month period after the administrative appeal was lodged on 2 December 2007. The applicant adds that Articles 230 EC and 232 EC merely prescribe one and the same method of recourse and that the new application for annulment does not in any way change the subject‑matter of the proceedings.
Findings of the Court
42 Whilst Article 48(2) of the Rules of Procedure authorises, in certain circumstances, new pleas in law to be introduced in the course of proceedings, that provision cannot in any circumstances be interpreted as authorising the applicants to bring a new claim before the Community judicature and thereby to modify the subject-matter of the proceedings. In that context, it is not permissible to substitute a claim for annulment for the claim for a declaration of failure to act initially brought before the Court (see, to that effect, Case T-28/90 Asia Motor France and Others v Commission [1992] ECR II-2285, paragraph 43 and the case-law cited).
43 It follows that the applicant, which initially applied to the Court on the basis of Article 232 EC, is not entitled to request, even in the alternative, that its initial claim be converted into a claim for annulment on the basis of Article 230 EC and directed against the implied decision of dismissal which is deemed to have been adopted on the expiry of the three-month period after the administrative appeal was lodged on 2 December 2007.
The application for damages
Arguments of the parties
44 According to the Commission, the application for damages is inadmissible on two grounds. First, the action for damages should have been directed against OHIM under Article 114 of Regulation No 40/94 (now Article 118 of Regulation No 207/2009) and, secondly, there is neither a sufficiently serious breach of a rule of law nor a direct causal link between the damage suffered by the applicant and the Commission’s inaction.
45 The applicant contends in reply, first, that the action for damages was correctly brought against the Commission as the supervisory body of OHIM and, secondly, that the examination of the conditions relating to whether there is a sufficiently serious breach of a rule of law, damage and a causal link is not relevant at the stage of examining the action’s admissibility.
Findings of the Court
46 According to settled case-law, the action for damages was established by the Treaty as an independent form of action with a particular purpose to fulfil within the system of actions and subject to conditions for its use conceived with a view to its specific purpose. Thus it has been held that, although actions for annulment and for a declaration of failure to act seek a declaration that a legally binding measure is unlawful or that such a measure has not been taken, an action for damages seeks compensation for damage resulting from a measure, whether legally binding or not, or from conduct, attributable to a Community institution or body (see order of 17 October 2007 in Case T-454/05 Sumitomo Chemical Agro Europe and Philagro France v Commission, not published in the ECR, paragraphs 70 and 71 and the case-law cited).
47 However, an application for damages which is closely connected to an application for a declaration of failure to act is itself inadmissible (see order of 3 May 2004 in Case T-24/04 Leighton and Others v Council and Commission, not published in the ECR, paragraph 24 and the case-law cited).
48 The Court finds that the present application for damages is closely connected to an application for a declaration of failure to act and to an application for annulment which are manifestly inadmissible, as is apparent from the foregoing explanations.
49 It follows that the application for damages made in these proceedings is itself also manifestly inadmissible.
50 Consequently, the action must be dismissed in its entirety, without it being necessary to rule on the request that certain documents relating to the tender evaluation procedure be produced.
51 Since this action must be declared manifestly inadmissible, it is not necessary to rule on the application to intervene submitted by European Dynamics in support of the form of order sought by the Commission (see, to that effect, order in Case C-341/00 P CNPA and Others v Commission [2001] ECR I-5263, paragraphs 33 to 39).
Costs
52 Article 87(2) of the Rules of Procedure provides that the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
53 In the present case, since the applicant has been unsuccessful, it must be ordered to pay the Commission’s costs in accordance with the form of order sought by the Commission.
54 In respect of the costs connected with the application to intervene, pursuant to Article 87(6) of the Rules of Procedure, European Dynamics, the applicant and the Commission must be ordered to bear their own costs.
On those grounds,
THE COURT OF FIRST INSTANCE (Seventh Chamber)
hereby orders:
1. The action is dismissed.
2. infeurope shall bear its own costs and pay those incurred by the Commission.
3. It is not necessary to rule on the application to intervene submitted by European Dynamics SA.
4. infeurope, the Commission and European Dynamics shall bear their own costs in connection with the application to intervene.
Luxembourg, 9 July 2009.