JUDGMENT OF THE COURT OF FIRST INSTANCE (Fifth Chamber)
11 June 2002 (1) (Public contracts for the provision of services - Transport of persons using vehicles with drivers during sessions of the Parliament in Strasbourg - Conformity with French law)
In Case T-365/00,
Alsace International Car Service SARL (AICS), established in Strasbourg (France), represented by J.C. Fourgoux and J.L. Fourgoux, lawyers, with an address for service in Luxembourg,
applicant,
v
European Parliament, represented by O. Caisou-Rousseau and D. Peterheim, acting as Agents, with an address for service in Luxembourg,
defendant,
APPLICATION for annulment of the European Parliament's decision of 4 October 2000 rejecting the applicant's request of 5 September 2000 concerning the validity of the contract entered into between the Parliament and Coopérative Taxi 13 and, secondly, for damages for the loss allegedly suffered by the applicant as a result of that decision,
THE COURT OF FIRST INSTANCE
OF THE EUROPEAN COMMUNITIES (Fifth Chamber),
composed of: J.D. Cooke, President, R. García-Valdecasas and P. Lindh, Judges,
Registrar: D. Christensen, Administrator,
having regard to the written procedure and further to the hearing on 5 February 2002
gives the following
Judgment
1.
The applicant is a company established in Strasbourg which hires out vehicles with drivers.
2.
On 23 March 1995 the Parliament entered into a contract with Association centrale des autos taxis de la communauté urbaine de Strasbourg (Central Taxi Association for the municipality of Strasbourg - ACATS Taxi 13) for the conveyance of persons in unmarked vehicles with drivers during sessions of the Parliament in Strasbourg.
3.
That activity led to a criminal prosecution brought by the Public Prosecutor attached to the Tribunal de grande instance de Strasbourg (Regional Court, Strasbourg) against several directors and members of ACATS Taxi 13 for breach of faith, clandestine work and the unlawful exercise of the business of conveying persons by road.
4.
On 13 November 1998 the Parliament and ACATS Taxi 13 decided to terminate their contract with effect from 23 March 1999. A new entity known as Coopérative Taxi 13, which was formed on 12 October 1998, took over from ACATS Taxi 13 performance of that contract until its expiry.
5.
On 27 January 1999 the Parliament initiated a procedure (invitation to tender 99/S 18-8765/FR) for the award of a contract on flat-rate price terms for the transport of persons (members, officials or guests) in unmarked vehicles with drivers during sessions of the Parliament in Strasbourg. It is not disputed that those services are identical to those which ACATS Taxi 13 previously provided to the Parliament.
6.
The applicant submitted a bid to the Parliament on 10 February 1999, whilst at the same time challenging the terms of the invitation to tender. It maintained that those terms were capable of being met only by a bidder associated with private drivers of taxis operating in contravention of French legislation. In particular, it claimed that only an undertaking operating a limousine service would be in a position to meet the requirements of the Parliament whilst observing the legislation applicable to the conveyance of persons for valuable consideration.
7.
The Parliament finally awarded the contract in question to the Coopérative Taxi 13 with which it entered into a contract on 31 March 1999 (hereinafter the contract of 31 March 1999).
8.
On 7 April 1999 the Parliament informed the applicant that its bid had been rejected. On 8 June 1999 the applicant brought an action (hereinafter Case T-139/99) against that decision. It claimed essentially that its bid had been rejected in favour of persons belonging to an occupational category - taxi drivers - which was governed by rules and specific legislation precluding those persons from tendering for and performing the transport services in question in unmarked taxis.
9.
The Court of First Instance dismissed that action by a judgment of 6 July 2000 (Case T-139/99 AICS v Parliament [2000] ECR II-2849, hereinafter the judgment of 6 July 2000).
10.
By order of 21 June 2001 (Case C-300/00 P AICS v Parliament [2001] ECR I-4809) the Court dismissed the action brought by the applicant against that judgment.
11.
As a result of the criminal prosecution brought in 1998 (see paragraph 3 above) the Tribunal correctionnel de Strasbourg (Criminal Court, Strasbourg), in its judgment of 7 April 2000, upheld two separate infringements by 30 private taxi drivers who were members of ACATS Taxi 13, which provided transport services to the Parliament, namely the offence of carrying out clandestine work, on the one hand, and, that of carrying on the business of conveying persons by road without being registered in that regard, on the other.
12.
The applicant sent a copy of that judgment to the President of the Parliament under cover of a letter dated 15 June 2000, drawing attention to the fact that, during the parliamentary session of June 2000, there had been a repetition of the practices found by the Tribunal correctionnel de Strasbourg to be unlawful, and adding that it wished these unlawful practices to be discontinued.
13.
The President of the Parliament replied to the applicant on 1 September 2000, stating that the Tribunal correctionnel de Strasbourg had given judgment against the private taxi drivers who were members de l'ACATS Taxi 13, a body legally separate from Coopérative Taxi 13 to which the Parliament had in the meantime awarded the contract in question. After reminding the applicant that its action had been dismissed in the judgment of 6 July 2000, the President of the Parliament added that:
The European Parliament considers that the contract currently in force does not contravene French legislation and I can assure you that my institution remains very vigilant in ensuring that performance of the contract continues to comply with the applicable legislation.
14.
By letter dated 5 September 2000, the applicant, having provided a detailed analysis of the relevant French legislation, requested the President of the Parliament henceforth to terminate the contract with Coopérative Taxi 13 and either to award the contract to it or to invite fresh bids, obviously excluding any bid by private taxi drivers or associations of such taxi drivers in such a way that only undertakings capable of performing those services lawfully might be allowed to compete for the contract.
15.
By letter dated 4 October 2000 (the contested decision), the President of the Parliament rejected that request in the following terms:
... I would point out that the Parliament has taken due note of the judgments delivered by the Court of First Instance of the European Communities and by the Tribunal de grande instance de Strasbourg.
In that connection I would confirm that, since the award of the new contract to Coopérative Taxi 13 was upheld by the Court of First Instance and the infringements established in the case of Association Taxi 13 no longer apply in the case of Coopérative Taxi 13, the European Parliament considers that performance of the contract is in conformity with French legislation.
...
The change which has occurred is clearly the registration of that new undertaking in the register of companies and in the register of carriers by road. As far as the use of unmarked vehicles is concerned, I have asked my departments to verify that when those vehicles are transporting members of the Parliament, they do not enjoy the various advantages which the legislation confers only on taxis.
Finally, I would state that it has been ascertained that the drivers of the Coopérative Taxi 13 are duly insured when they provide services to the European Parliament.
...
Procedure
16.
By an application lodged on 29 November 2000 the applicant brought the present application.
17.
By a document lodged at the Court Registry on 1 February 2001, the Parliament raised an objection to admissibility under Article 114 of the Rules of Procedure.
18.
By order of the Court of 8 May 2001 the issue of inadmissibility was directed to be tried together with the merits and costs were reserved.
19.
Upon hearing the report of the Judge-Rapporteur, the Court (Fifth Chamber) decided to open the oral procedure and to put certain written questions to the parties. The parties replied to them within the period prescribed.
20.
The parties presented oral argument and replied to the Court's questions at the hearing on 5 February 2002.
Forms of order sought by the parties
21.
The applicant claims that the Court should:
- annul the contested decision;
- order the Parliament to make good the damage occasioned by that decision;
- order the Parliament to pay the costs.
22.
The Parliament contends that the Court should:
- dismiss the application as inadmissible or, in the alternative, as unfounded;
- order the applicant to pay the costs.
Admissibility
Arguments of the parties
23.
In support of its objection of inadmissibility the Parliament raises two pleas.
24.
In the main, the Parliament considers that, under the guise of an application for annulment, the application is seeking in reality to obtain termination of the contract of 31 March 1999 or annulment of the award of the contract to Coopérative Taxi 13. The contested decision does not produce legal effects; far from constituting a fresh decision it merely constitutes an act confirmatory of previous decisions awarding the contract to Coopérative Taxi 13 rather than to the applicant.
25.
Moreover, whilst the applicant may bring an action before the Community judicature under Article 232 EC only against the failure by the Parliament to address to it a decision...
