JUDGMENT OF THE GENERAL COURT (Fourth Chamber)
24 October 2019 (*)
(Action for annulment – Law governing the institutions – Obligation to award to the CdT the translation services required for the functioning of EUIPO – Termination of the arrangement between the CdT and EUIPO – Publication of a call for tenders for translation services – Objection of inadmissibility – No interest in bringing proceedings – No need to adjudicate in part – Partial inadmissibility)
In Case T‑417/18,
Translation Centre for the Bodies of the European Union (CdT), represented by J. Rikkert and M. Garnier, acting as Agents,
applicant,
v
European Union Intellectual Property Office (EUIPO), represented by N. Bambara and D. Hanf, acting as Agents,
defendant,
ACTION consisting of, in the first place, an application based on Article 263 TFEU seeking annulment, first, of EUIPO’s letter of 26 April 2018, inasmuch as it gives notice of EUIPO’s intention not to extend beyond 31 December 2018 the arrangement concluded in 2016 with the CdT concerning translation services required for the functioning of EUIPO, secondly, of EUIPO’s letter of 26 April 2018, inasmuch as it informs the CdT of its intention to take the necessary precautionary steps to ensure the continuity of translation services beyond 31 December 2018, in particular by publishing calls for tenders and, thirdly, of EUIPO’s decision to publish in the Official Journal of the European Union a call for tenders for translation services under reference 2018/S 114 – 258472; in the second place, an application for an order prohibiting EUIPO from signing contracts in connection with that call for tenders; and, in the third place, an application for a declaration that the publication of a call for tenders for translation services by an agency or any other body or office of the European Union, the regulation establishing which stipulates that translation services are to be provided by the CdT, is unlawful,
THE GENERAL COURT (Fourth Chamber),
composed of H. Kanninen, J. Schwarcz (Rapporteur) and C. Iliopoulos, Judges,
Registrar: M. Marescaux, Administrator,
having regard to the written part of the procedure and further to the hearing on 22 May 2019,
gives the following
Judgment
Background to the dispute
1 The Translation Centre for the Bodies of the European Union (CdT) is a body established by Council Regulation (EC) No 2965/94 of 28 November 1994 (OJ 1994 L 314, p. 1). Its purpose is to provide translation services to the agencies and offices referred to in the first subparagraph of Article 2(1) of that regulation and to the institutions and bodies of the European Union pursuant to Article 2(3) thereof.
2 The second recital of Regulation No 2965/94 states that the establishment of a single specialised centre provides a practical solution to the problem of meeting the translation needs of a large number of bodies in various locations throughout the European Union.
3 Under the first subparagraph of Article 2(1) of Regulation No 2965/94, the CdT is required to ‘provide the necessary translation services for the operation’ of the Office for Harmonisation in the Internal Market (OHIM), which became the European Union Intellectual Property Office (EUIPO) pursuant to Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark (OJ 2017 L 154, p. 1).
4 In addition, the second subparagraph of Article 2(1) of Regulation No 2965/94 provides that the CdT and the bodies listed in the first subparagraph thereof, and thus also EUIPO, are to ‘conclude arrangements covering the ways in which they will cooperate’.
5 In Statement 1 annexed to Regulation No 2965/94, the Council of the European Union stresses that it ‘attaches the utmost importance to ensuring proper application of the principles of efficiency and value for money’.
6 Article 148 of Regulation 2017/1001 provides that ‘the translation services required for the functioning of [EUIPO] shall be provided by the [CdT]’. That article corresponds to the former Article 121 of Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1), as amended.
7 On 13 December 2016, the CdT and EUIPO concluded an arrangement as referred to in the second subparagraph of Article 2(1) of Regulation No 2965/94 (‘the 2016 arrangement’).
8 The 2016 arrangement replaced a previous arrangement concluded on 30 November 2015.
9 Article 11 of the 2016 arrangement set out a specific procedure to be followed in the event of disagreement between the CdT and EUIPO.
10 Article 15 of the 2016 arrangement provided that the arrangement would enter into force on 1 January 2017 and would expire on 31 December of the same year, and that it would be tacitly renewed for a twelve-month period unless terminated by a registered letter sent by either of the parties two months prior to expiry.
11 On 26 April 2018, EUIPO sent a letter to the CdT (‘the letter of 26 April 2018’) expressing its dissatisfaction with the services provided by the CdT and the terms on which they were invoiced to EUIPO. In addition, EUIPO declared its intention to terminate the 2016 arrangement and, if it were not possible to agree a new arrangement, to put in place measures to ensure continuity in the translation service. In the same letter, EUIPO also suggested to the CdT that a meeting should be arranged as soon as possible in order to enter into a new arrangement before the end of 2018. Several additional emails were exchanged in order to fix a date for that meeting.
12 On 16 June 2018, EUIPO published in the Supplement to the Official Journal a contract notice for the provision of translation services (2018/S 114-258472) (‘the contract notice’), including a call for tenders (‘the call for tenders’).
13 Point I.3 of the contract notice stated the electronic address from which the procurement documents were available and point II.1.1 gave the reference number as AO/010/18.
14 According to point II.1.4 of the contract notice, ‘the purpose of the [call for tenders] [was] to obtain provision for translation services relating to European Union trade marks, registered Community designs and general administrative documents’.
15 In points II.2.6 and II.2.7 of the contract notice, the estimated value of the contract was stated as EUR 40.8 million excluding value added tax (VAT) and its initial duration as being 48 months.
16 In point IV.2.2 of the contract notice, the time limit for receipt of tenders was stated as being 23 July 2018.
Procedure and forms of order sought
17 By application lodged at the Court Registry on 6 July 2018, the CdT brought the present action.
18 In its application, the CdT claims that the Court should:
– annul EUIPO’s decision of 26 April 2018 to terminate the 2016 arrangement;
– annul EUIPO’s decision of 26 April 2018 to ‘[reserve] its right to put in place ahead of time any precautionary measures necessary to ensure continuity in the provision of the translation services it [needed]’, in particular by issuing calls for tenders;
– annul EUIPO’s decision to issue the call for tenders;
– prohibit EUIPO from signing any contracts in connection with the call for tenders;
– declare it unlawful for an agency or any other body or office of the European Union, the regulation establishing which provides that the translation services which it requires are to be provided by the CdT, to issue a call for tenders for translation services;
– order EUIPO to pay the costs.
19 By a separate document lodged at the Court Registry on 9 July 2018, the CdT submitted an application for interim measures. EUIPO lodged observations on the application for interim measures on 17 July 2018.
20 By order of 20 July 2018, CdT v EUIPO (T‑417/18 R, not published, EU:T:2018:502), the President of the General Court dismissed the application for interim measures and reserved the costs.
21 By document lodged at the Court Registry on 19 September 2018, EUIPO raised an objection of inadmissibility under Article 130(1) of the Rules of Procedure of the General Court.
22 In the objection of inadmissibility, EUIPO claims that the Court should:
– dismiss the application in its entirety as inadmissible;
– order the CdT to pay the costs incurred in these proceedings and in the interim proceedings.
23 By document lodged on 5 November 2018, the CdT submitted its observations on the objection of inadmissibility.
24 In its observations on the objection of inadmissibility, the CdT contends that the Court should:
– reject the objection of inadmissibility;
– reject all of EUIPO’s claims and arguments;
– order EUIPO to pay the costs;
– make any other appropriate orders.
25 On 22 January 2019, on a proposal from the Judge-Rapporteur, the General Court (Fourth Chamber), by way of measures of organisation of procedure under Article 89 of the Rules of Procedure, put a written question to the parties. The parties complied with that request within the time allowed.
26 The General Court (Fourth Chamber) decided, in accordance with Article 130(6) of the Rules of Procedure, to open the oral phase of the procedure, limited to the question of the admissibility of the action.
27 At the hearing held on 22 May 2019, the parties presented oral argument and replied to the oral questions put by the Court. On 23 May 2019, EUIPO, as requested by the Court during the hearing, submitted the new arrangement with the CdT, which had been signed on 7 December 2018 and adopted for the years 2019 and 2020 (‘the 2018 arrangement’). The oral part of the procedure was closed on 3 June 2019.
Law
28 In the application, the CdT submits, in essence, that EUIPO infringed Articles 2 and 11 of Regulation No 2965/94, Article 148 of Regulation 2017/1001 and Article 11 of the 2016 arrangement.
29 In the objection of inadmissibility, EUIPO claims, in accordance with Article 130(1) of the Rules of Procedure, that the Court should rule on inadmissibility and lack of competence without going to the substance of the case. In the first place, EUIPO takes the view that the acts contested by the CdT, namely the letter of 26 April 2018 and the contract notice, cannot be the subject of an action for annulment under the fourth paragraph of Article 263 TFEU since they are acts of a preparatory nature which do not constitute decisions and which are not of direct concern to the CdT. EUIPO also maintains that the application is inadmissible due to the insufficiency of the arguments in law relied on by the CdT. In the second place, in relation to a lack of jurisdiction on the part of the Court, EUIPO asserts that the letter of 26 April 2018, which was adopted on the basis of Article 15 of the 2016 arrangement, occurs within a context which is purely contractual and does not constitute one of the legal acts of the European Union referred to in Article 288 TFEU, annulment of which can be sought pursuant to Article 263 TFEU.
The regularity of the filing of EUIPO’s objection of inadmissibility
30 In the preamble to its observations on the objection of inadmissibility filed by EUIPO, the CdT states that it will leave to the discretion of the Court the matter of the formal admissibility of that objection.
31 In that regard, it must be noted that, although it can be assumed that the CdT’s intention in making that statement is to contest the regularity of the objection of inadmissibility, it does not put forward any argument in support of the existence of any such irregularity.
The jurisdiction of the Court to rule on the present action
32 According to EUIPO, the 2016 arrangement does not contain any arbitration clause conferring on the EU Courts jurisdiction to rule on a dispute relating to that arrangement, even though it would have been possible to include such a clause pursuant to Article 118(2) of Regulation No 207/2009 (now Article 145(2) of Regulation 2017/1001), which was applicable at the date on which the 2016 arrangement was entered into. EUIPO points out that such a clause constitutes the practical application of the general provision contained in Article 272 TFEU. According to EUIPO, in those circumstances, the EU Courts cannot hold that they have jurisdiction to annul acts that are purely contractual in nature. EUIPO relies in this regard on the judgment of 27 September 2012, Applied Microengineering v Commission (T‑387/09, EU:T:2012:501, paragraph 37).
33 The CdT considers that the action is admissible in so far as it relates to the letter of 26 April 2018, since its relationship with EUIPO is not purely contractual but, on the contrary, amounts to an interinstitutional relationship governed by Regulation No 2965/94 and Regulation 2017/1001. The purpose of the 2016 arrangement, it submits, is merely to implement, in concrete form, the principles provided for by those regulations.
34 It is in this regard necessary to determine whether, as is maintained by EUIPO, the present action comes within a purely contractual context in which the Court has no jurisdiction.
35 Although, under Article 263 TFEU, the EU Courts review only the legality of acts of the institutions intended to produce legal effects vis-à-vis third parties by bringing about a distinct change in their legal position (judgment of 17 June 2010, CEVA v Commission, T‑428/07 and T‑455/07, EU:T:2010:240, paragraph 51), that jurisdiction concerns only the acts referred to by Article 288 TFEU, which those institutions must adopt under the conditions laid down by the Treaty, in the exercise of their prerogatives as public authorities (see, to that effect, orders of 10 May 2004, Musée Grévin v Commission, T‑314/03 and T‑378/03, EU:T:2004:139, paragraphs 62, 63 and 81, and of 26 February 2007, Evropaïki Dynamiki v Commission, T‑205/05, not published, EU:T:2007:59, paragraph 39). By contrast, measures adopted by the institutions in a purely contractual context from which they are inseparable are, by reason of their very nature, not among the measures covered by Article 288 TFEU, annulment of which can be sought pursuant to Article 263 TFEU (order of 10 May 2004, Musée Grévin v Commission, T‑314/03 and T‑378/03, EU:T:2004:139, paragraph 64, and judgment of 17 June 2010, CEVA v Commission, T‑428/07 and T‑455/07, EU:T:2010:240, paragraph 52).
36 In the present case, the 2016 arrangement was adopted on the basis of Article 2(1) of Regulation No 2965/94, as was acknowledged by EUIPO at the hearing. The arrangement, which makes express reference to Regulation No 2965/94, comes within the context of that provision as well as that of Article 148 of Regulation 2017/1001.
37 Under both of those provisions, the CdT is to provide translation services required for the functioning of EUIPO within the context of an arrangement defining the details of how they are to cooperate.
38 It should also be noted that Regulation No 2965/94 draws a distinction between ‘arrangements’ under Article 2(1) and (2), which the CdT is to conclude with the agencies, bodies or institutions referred to in that provision and which cover the ways in which they are to cooperate, and simple contractual relationships, the details of which are governed by a separate provision of Regulation No 2965/94, namely Article 18(1) thereof. The latter provision merely provides that the contractual liability of the CdT is to be governed by the law applicable to the contract in question and that the Court of Justice of the European Union is to have jurisdiction to give judgment pursuant to any arbitration clause contained in contracts concluded by the CdT. It should be noted that that provision refers to contracts concluded by the CdT, whereas Article 2 of Regulation No 2965/94 relates to arrangements concluded with the CdT.
39 Finally, although, in its letter of 26 April 2018, EUIPO gave notice of its intention not to extend the 2016 arrangement for the following year on the basis of Article 15 of that arrangement (see paragraph 10 above), it must be stated that that fact in no way alters EUIPO’s obligation to comply with the provisions of Regulation No 2965/94 and Regulation 2017/1001, with the result that the circumstances of the present case cannot be regarded as being purely contractual. In that regard, it should be noted that, at the hearing, EUIPO acknowledged, in essence, that, pursuant to Regulation No 2965/94 and Regulation 2017/1001, there was an obligation on EUIPO and the CdT to conclude an arrangement covering the details of the ways in which they would cooperate. Thus, according to EUIPO, in essence, it is only in certain exceptional and urgent situations that it may, on a temporary basis, ensure provision of the translation service itself until the European Commission has settled any dispute between EUIPO and the CdT.
40 In those circumstances, the present dispute cannot be regarded as coming within a purely contractual framework. The Court therefore has jurisdiction to rule on the present action.
The admissibility of the action brought against the letter of 26 April 2018 in so far as it gives notice of EUIPO’s intention not to extend the 2016 arrangement beyond 31 December 2018
41 EUIPO submits that the letter of 26 April 2018 does not constitute an act intended to produce legal effects for the purposes of the fourth and fifth paragraphs of Article 263 TFEU. Any alleged ‘illegality’ of that letter would be tantamount to rendering Article 15 of the 2016 arrangement devoid of its content. EUIPO points out that the CdT did not raise any plea of illegality in relation to that article with respect to Article 148 of Regulation 2017/1001. EUIPO also claims that the letter of 26 April 2018 is merely a preparatory act. It maintains that, even if the letter of 26 April 2018 were to be regarded as an act intended to produce legal effects and were to be classified as a decision in regard to the CdT, its effects would be future and uncertain.
42 The CdT submits that the letter of 26 April 2018, the terms of which are clear and unequivocal, does not constitute a mere preparatory act but is a firm and definitive notification of a breakdown between the two parties. As such, they are both directly concerned by that decision, which constitutes an act that is challengeable under Article 263 TFEU. According to the CdT, the effects of the letter of 26 April 2018 are in no way future and uncertain since EUIPO fixed the date for termination of the 2016 arrangement The signature of a new arrangement, however, was hypothetical and uncertain. The failure to extend the 2016 arrangement and the issue of the call for tenders are corroborating evidence of EUIPO’s wish to terminate that arrangement in order to end its cooperation with the CdT, and thus to implement the contracts for the supply of translation services from 1 January 2019. In addition, EUIPO made inappropriate use of Article 15 of the 2016 arrangement by ending the cooperation with the CdT, in breach of Regulation No 2965/94 and Regulation 2017/1001.
43 In that regard, as has already been noted, any measure the legal effects of which are binding on, and capable of affecting the interests of, an applicant by bringing about a distinct change in its legal position is an act or a decision which may be the subject of an action under Article 263 TFEU for a declaration that it is void (judgments of 11 November 1981, IBM v Commission, 60/81, EU:C:1981:264, paragraph 9, and of 16 July 1998, Region of Tuscany v Commission, T‑81/97, EU:T:1998:180, paragraph 21).
44 More specifically, in the case of acts or decisions adopted pursuant to a procedure involving several stages, in particular where they are the culmination of an internal procedure, an act is open to review only if it is a measure definitively laying down the position of the institution at the conclusion of that procedure, and not a provisional measure intended to pave the way for that final decision (judgments of 11 November 1981, IBM v Commission, 60/81, EU:C:1981:264, paragraph 10, and of 10 July 1990, Automec v Commission, T‑64/89, EU:T:1990:42, paragraph 42).
45 Furthermore, according to settled case-law, an action for annulment brought by a natural or legal person is admissible only in so far as that person has an interest in having the contested act annulled. Such an interest requires that the annulment of that act must be capable, in itself, of having legal consequences and that the action may therefore, through its outcome, procure an advantage for the party which brought it (judgments of 17 September 2009, Commission v Koninklijke FrieslandCampina, C‑519/07 P, EU:C:2009:556, paragraph 63, and of 17 September 2015, Mory and Others v Commission, C‑33/14 P, EU:C:2015:609, paragraph 55).
46 An applicant’s interest in bringing proceedings must be vested and current. It may not concern a future and hypothetical situation (judgment of 17 September 2015, Mory and Others v Commission, C‑33/14 P, EU:C:2015:609, point 56).
47 Finally, that interest must, in the light of the purpose of the action, exist at the stage at which that action is lodged, failing which the action will be inadmissible, and must continue until the final decision, failing which there will be no need to adjudicate (judgment of 17 September 2015, Mory and Others v Commission, C‑33/14 P, EU:C:2015:609, paragraph 57, and order of 23 May 2019, Fujifilm Recording Media v EUIPO – iTernity (d:ternity), T‑609/18, not published, EU:T:2019:366, paragraph 25).
48 In the present case, it is necessary to examine whether the action brought against the letter of 26 April 2018, in so far as it gives notice of EUIPO’s intention not to extend the 2016 agreement, meets the admissibility criteria.
49 In that regard, it should be pointed out that, in response to the written questions put by the Court to the parties on 22 January 2019, the CdT and EUIPO stated inter alia that, following negotiations, an agreement had been reached for 2019 and 2020, namely the 2018 arrangement.
50 In those circumstances, without there even being any need to assess whether the letter of 26 April 2018 contained a final decision or whether, as EUIPO argues, it was merely a preparatory act having uncertain effects which did not directly concern the CdT, the question must be raised as to whether the applicant’s interest in bringing proceedings has continued after the new 2018 arrangement was signed (see, to that effect, judgment of 17 September 2015, Mory and Others v Commission, C‑33/14 P, EU:C:2015:609, paragraph 57).
51 It must first of all be stated that, as is clear from the introductory letter to the 2018 arrangement, sent on 6 December 2018 by the Executive Director of EUIPO to the Director of the CdT, the signature of the 2018 arrangement is the result of cooperative efforts undertaken by both bodies.
52 Secondly, it is clear from Article 15 of the 2018 arrangement that, as mentioned by the parties in response to the questions put by the Court at the hearing, that arrangement indeed covers the period from 1 January 2019 to 31 December 2020. The same article also states that, six months prior to 31 December 2020, the parties are to begin negotiations to conclude a new arrangement.
53 Finally, it is also apparent from a reading of the 2018 arrangement that there is an expectation and a framework for cooperation between EUIPO and the CdT in relation to the translation services to be provided by the CdT. The 2018 arrangement includes details of matters including, in particular, the procedures to be followed in carrying out translations, as well as technical annexes dealing with deadlines, prices, multilingual services and other items.
54 In those circumstances, irrespective of whether the letter of 26 April 2018 was an act that was capable of being challenged or of whether it contained a final decision to terminate the 2016 arrangement, it must be held that there was no period following the letter of 26 April 2018 during which the relationship between the CdT and EUIPO was not governed by an agreement signed by the two agencies. The 2016 arrangement was in force until 31 December 2018 and the new 2018 arrangement entered into force directly on 1 January 2019 (see paragraph 52 above). Therefore, even if it were to be held that the CdT initially had an interest in bringing proceedings against a decision supposedly contained in the letter of 26 April 2018, it must be held that it lost that interest through the conclusion of the new 2018 arrangement. In any event, it is not possible to identify how annulment of the decision supposedly contained in the letter of 26 April 2018 would improve the position of the CdT. In particular, the CdT cannot maintain that it would benefit from the delivery by the Court of a purely declaratory judgment reiterating that EUIPO and the CdT have an obligation to cooperate. Likewise, contrary to the CdT’s assertions, which, incidentally, are unsubstantiated, the view cannot be taken that the letter of 26 April 2018 had the effect of jeopardising the CdT’s very existence.
55 In those circumstances, it must be concluded that the CdT’s interest in obtaining annulment of EUIPO’s decision to terminate the 2016 agreement, supposedly contained in the letter of 28 April 2018, did not, in any event, continue to exist following the conclusion of the 2018 arrangement.
The admissibility of the action brought against the letter of 26 April 2018, in so far as it informs the CdT of EUIPO’s intention to take the precautionary measures necessary to ensure continuity in the provision of translation services beyond 31 December 2018
56 EUIPO submits, in essence, that the letter of 26 April 2018 merely adopted a temporary position and therefore did not constitute an act adversely affecting the CdT. According to EUIPO, alternatives to issuing the contract notice remained open.
57 The CdT maintains that the letter of 26 April 2018 did produce legal effects in its regard. EUIPO’s decision that it could unilaterally take the necessary measures was, it argues, unlawful in that it infringed Regulation No 2965/94 and Regulation 2017/1001, and also Article 11 of the 2016 arrangement. The replacement measure, which consisted in EUIPO using in-house translation services, provided justification for the creation of a corresponding number of jobs internally and rendered meaningless all of the provisions stipulating that the CdT has the role of a unique specialised centre catering for all of EUIPO’s translation requirements. According to the CdT, EUIPO terminated their relationship twice over, firstly by way of the letter of 26 April 2018 and, secondly, by pursuing the tendering procedure. By the letter of 26 April 2018, in breach of the principles set out in Regulation No 2965/94 and in Regulation 2017/1001, EUIPO initiated a procedure involving several further decisions, which led to the launch of the call for tenders.
58 In that regard, the CdT cannot maintain that the letter of 26 April 2018 produced binding legal effects capable of affecting its interests by bringing about a distinct change in its legal position, given that that letter stated that EUIPO ‘reserved its right’, should negotiations not be finalised by the end of 2018, to put in place any precautionary measures necessary to ensure continuity in the provision of translation services beyond 31 December 2018.
59 In fact, as EUIPO acknowledged at the hearing, no concrete decision had been taken on this question at the time when the letter of 26 April 2018 was sent. The wording of that letter is imprecise with regard to the precautionary measures which EUIPO reserved the right to adopt. Moreover, it is clear from EUIPO’s answer to the Court’s questions that, by reason of the adoption of the new 2018 arrangement, the implementation of specific measures to ensure provision of the translation services required by EUIPO, in the absence of continuity of translation services provided by the CdT, turned out to be unnecessary.
60 Finally, on the assumption that the CdT interpreted the publication by EUIPO of the contract notice, including the call for tenders, as being one of the specific measures taken to ensure provision of the translation services required by EUIPO, reference must be made to the analysis set out below.
The admissibility of the action brought against EUIPO’s decision to launch the call for tenders
61 EUIPO argues that the contract notice does not bring about a distinct change in the legal situation of the CdT, with the result that it cannot be the subject of an action for annulment under Article 263 TFEU. According to EUIPO, the CdT’s interest is not, in that regard, vested and current.
62 The CdT maintains that its action is not directed against the contract notice, but against the decision to launch the call for tenders, which, it claims, was taken in breach of Regulation No 2965/94 and Regulation 2017/1001. Its interest in bringing proceedings is direct and specific, since the CdT is expressly mentioned in those regulations as being the exclusive provider of EUIPO’s translation services. The connection between the two bodies is also explained in paragraphs 38, 39 and 50 of the order of 20 July 2018, CdT v EUIPO (T‑417/18 R, not published, EU:T:2018:502). Furthermore, according to the CdT, the decision to issue the call for tenders occasioned serious damage to its reputation, in particular since the other EU agencies, which are its clients, were aware of the applicable regulatory framework.
63 Finally, the CdT claims that its interest in bringing proceedings was vested and current, since the infringement of Regulation No 2965/94 and of Regulation 2017/1001 by EUIPO was significant once the call for tenders had been issued. While EUIPO’s intention was clearly to change provider, its assertion that it was simply following ‘market trends’ is evidence of its bad faith. The direct and immediate interest of the CdT can be established from the fact that, unless the call for tenders were to be cancelled it would no longer be viable with effect from 1 January 2019, and, in the event that EUIPO were to sign contracts as a result of the call for tenders, the CdT’s existence would be jeopardised. The CdT claims that each of the parties should be placed in the same legal position as that which it occupied prior to the allegedly unlawful issue of the call for tenders.
64 First of all, it must be borne in mind that, as a general rule, the publication of a contract notice does not constitute a decision against which an action for annulment can be brought or an act having adverse effects, for the purposes of Article 263 TFEU, since it does no more than give to interested parties the possibility of taking part in the procedure and submitting a tender (see, to that effect, judgments of 8 October 2008, Sogelma v EAR, T‑411/06, EU:T:2008:419, paragraph 86, and of 29 October 2015, Direct Way and Direct Way Worldwide v Parliament, T‑126/13, EU:T:2015:819, paragraph 27).
65 In the present case, more specifically, it falls to be assessed whether it is permissible for the CdT to bring an action against the decision taken by EUIPO to launch the call for tenders, allegedly in breach of Regulation No 2965/94 and Regulation 2017/1001, in view of the fact, first, that the CdT claims that it was referred to in those regulations as being the ‘exclusive’ provider of EUIPO’s translation services and, secondly, that it is seeking the annulment of the contract notice in its capacity as a specialised EU agency rather than as a tenderer.
66 In this regard, it must be held, without there being any need to rule on the supposedly exclusive nature of the relationship between the CdT and EUIPO concerning the translation work necessary for EUIPO to function, that there was nothing to indicate that the publication of the contract notice, including the call for tenders, precluded the conduct of negotiations in parallel with the tendering procedure, as envisaged in the letter of 26 April 2018 from EUIPO to the CdT. Furthermore, as EUIPO confirmed in response to a question from the Court at the hearing, the tendering procedure had not yet ended at the date on which the 2018 arrangement was concluded.
67 In those circumstances, without it being necessary for the Court to rule on the explanation given by EUIPO, according to which the purpose of the contract notice in question was to enable it to obtain more specific information about the market price of the supplies in question so that it could negotiate with the CdT in full knowledge of the facts, it must be noted that an applicant’s interest in bringing proceedings may not concern a future and hypothetical situation (judgment of 17 September 2015, Mory and Others v Commission, C‑33/14 P, EU:C:2015:609, paragraph 56), in other words, the potential award of the contract in question to a specific tenderer. In the present case, the mere fact that the CdT is seeking the annulment of the call for tenders in its capacity as a specialised EU agency rather than as a tenderer does not alter this analysis in any way and the CdT must still show that it fulfilled the requirements set out in the fourth paragraph of Article 263 TFEU.
68 Moreover, EUIPO is correct in arguing that publication of the contract notice, including the call for tenders, did not oblige it to award the contract in question.
69 It must be held that the call for tenders makes it clear that it was not binding on EUIPO at the date of its publication. It was expressly stated that EUIPO’s contractual obligations would commence only once a contract had been signed with the chosen tenderer. It was also stipulated that, until a contract was signed, EUIPO could abandon the call for tenders or cancel the award procedure. In addition, EUIPO confirmed at the hearing that it was not certain that a contract would be signed following the call for tenders. EUIPO explained that that depended on the effects of the implementation of the new 2018 arrangement and on the changes arising as a result.
70 In those circumstances, the fact that EUIPO and the CdT signed a new arrangement for 2019 and 2020, even though the CdT was aware of the tender procedure, only confirms, in the absence of any evidence or a numerical estimate allowing a definitive calculation to be made of the effect on the reputation of the CdT of publication of the contract notice, including the call for tenders, that the CdT was not adversely affected by that publication. Nor can the CdT profit from its assertion that EUIPO ‘had not taken the trouble to cancel the tendering procedure that it had initiated’. The claim that the CdT would no longer be viable after 1 January 2019 must therefore be rejected.
71 With regard to the allegation made by the CdT in its answer to the written questions of the Court, in which it compared the reduction in the number of EU trade mark files sent to it by EUIPO for translation in the period from October 2018 to January 2019 with statistics published by EUIPO showing an increase in the number of applications for EU trade mark registrations lodged during that same period, it must be stated that that allegation does not, in any event, affect the issue of admissibility. Moreover, it is not accompanied by any figures and does not relate to the period covered by the new arrangement applicable from 1 January 2019.
72 Finally, notwithstanding the CdT’s claims to the contrary, the call for tenders cannot be perceived as meaning that the CdT would no longer be viable from 1 January 2019 onwards and that ‘any arrangement which happened to be concluded would then be rendered devoid of most of its substance since the translation work would be carried out by the tenderers selected by EUIPO’. In that regard, it should be noted that, at the hearing, the CdT confirmed that, as a result of the signing of the 2018 arrangement, its situation ‘was no longer so catastrophic’. The conclusion of the 2018 arrangement and the content thereof therefore invalidate the CdT’s claims.
73 In those circumstances, the CdT has failed to show that it would be affected by an alleged decision by EUIPO to terminate unilaterally the relationship between the parties and to issue the call for tenders.
The admissibility of the CdT’s claim that EUIPO should be prohibited from signing contracts pursuant to the call for tenders
74 EUIPO maintains that the CdT does not put forward any plea in support of its claim that EUIPO should be excluded from signing any contracts concluded as a result of a decision to award the contract to a potential successful tenderer in the context of the procedure following publication of the contract notice, including the call for tenders.
75 The CdT claims that it has indeed put forward pleas in support of the application. It asserts that it stated that the decisions to terminate unilaterally the relationship between the parties and to issue the call for tenders were taken in breach of Regulation No 2965/94 and of Regulation 2017/1001. Therefore, any subsequent decisions, including the decision to award the tender and the conclusion of contracts on that basis, would also have been unlawful and devoid of any legal basis. The argument that, by prohibiting EUIPO from signing future contracts resulting from the call for tenders, the Court would be imposing a ‘negative’ obligation is, the CdT submits, ineffective. It is, it argues, simply the logical consequence of the annulment of the call for tenders.
76 In that regard, it must be borne in mind that, in an action for annulment founded on Article 263 TFEU, the jurisdiction of the EU Courts is limited to reviewing the legality of the contested measure and that, according to settled case-law, the Court may not, in the exercise of its jurisdiction, issue directions to the EU institutions (judgments of 8 July 1999, DSM v Commission, C‑5/93 P, EU:C:1999:364, paragraph 36, and of 24 February 2000, ADT Projekt v Commission, T‑145/98, EU:T:2000:54, paragraph 83). If the Court annuls the contested measure, it is then for the institution concerned to adopt, in accordance with Article 266 TFEU, the measures necessary to ensure compliance with the judgment annulling that measure (judgments of 27 January 1998, Ladbroke Racing v Commission, T‑67/94, EU:T:1998:7, paragraph 200, and of 10 September 2008, Evropaïki Dynamiki v Commission, T‑465/04, not published, EU:T:2008:324, paragraph 35). That same case-law is applicable, by analogy, to EU bodies.
77 In the present case, the Court notes, first, that, as was concluded in paragraph 73 above, the CdT has failed to show that it has a vested and current interest in challenging EUIPO’s decision to publish the contract notice, including the call for tenders. Secondly, it has already been found that EUIPO was under no obligation to award the tender at issue and, therefore, there was no certainty from the outset as to whether EUIPO would conclude a contract with a tenderer or what the potential volume of translations awarded might be.
78 Finally, and in any event, in relation to possible overlaps with the 2018 arrangement following the potential future award of a contract to a tenderer at the end of the tendering procedure, that is not a matter which comes within the scope of the present objection of inadmissibility.
79 Consequently, the CdT’s claim that EUIPO should be prohibited from signing contracts in connection with the call for tenders is inadmissible.
The admissibility of the CdT’s claim that the issue of a call for tenders for translation services by an agency or any other body or office of the European Union, the regulation establishing which stipulates that translation services are to be provided by the CdT, should be declared unlawful
80 EUIPO submits that it is settled case-law that the Court has no jurisdiction to issue declaratory judgments in the context of a review of legality based on Article 263 TFEU. Furthermore, there is no legal remedy allowing the EU Courts to deliver a judgment in order to ‘declare’ the publication of a contract notice unlawful.
81 The CdT states that it is not claiming that the Court should declare all publications of contract notices unlawful but only the publication of a call for tenders for translation services in the case of EU agencies and offices where the regulation establishing that agency or office stipulates that translation services are to be provided by the CdT.
82 It must be held that the present claim by the CdT must be interpreted as either seeking to obtain a declaratory judgment or as asking the Court to issue directions to EUIPO or other EU bodies, something which is contrary to the case-law referred to in paragraph 76 above.
83 The present claim by the CdT must therefore be rejected as inadmissible.
84 In the light of all of the foregoing, it is no longer necessary to rule on those heads of claim in the action that seeks annulment of the decision to terminate the 2016 arrangement. The action is inadmissible as to the remainder.
Costs
85 Under Article 135(2) of the Rules of Procedure, the Court may order a party, even if successful, to pay some or all of the costs, if this appears justified by the conduct of that party, including before the proceedings were brought, especially if that party has made the opposite party incur costs which the Court holds to be unreasonable or vexatious.
86 In the present case, EUIPO’s conduct during the negotiations with the CdT regarding their mutual cooperation in the area of translation services placed the CdT in an uncertain situation, which led it to bring this action as it could not be certain that its cooperation with EUIPO would continue beyond 1 January 2019. In those circumstances, the Court orders EUIPO, in addition to bearing its own costs, to pay half of the costs of the CdT, including those relating to the interim proceedings in Case T‑417/18 R.
On those grounds,
THE GENERAL COURT (Fourth Chamber)
hereby:
1. Declares that there is no longer any need to adjudicate on the application for annulment of the decision to terminate the arrangement concluded on 13 December 2016 between the Translation Centre for the Bodies of the European Union (CdT) and the European Union Intellectual Property Office (EUIPO);
2. Dismisses the action as to the remainder;
3. Orders EUIPO to bear its own costs and to pay half of the costs of the CdT, including those relating to the interim proceedings in Case T‑417/18 R.
Kanninen | Schwarcz | Iliopoulos |
Delivered in open court in Luxembourg on 24 October 2019.
[Signatures]