Az Európai Ombudsman
Dear Ms S.,
On 13 July 2005, you submitted a complaint to the European Ombudsman against the Court of Justice of the European Communities concerning a tender procedure for the conclusion of framework contracts for the translation of legal texts from certain official languages of the European Union into Hungarian (tender reference number: 2005/S 31-029437).
On 12 September 2005, I forwarded the complaint to the President of the Court. On 14 September 2005, you sent an e-mail in which you stated that, if the translation of the Ombudsman's decision into Hungarian were to take time, you would accept a German or English translation of it as well. The Court sent its opinion on 5 December 2005. I forwarded it to you with an invitation to make observations, which you sent on 16 February 2006.
On 15 March 2006, I sent a letter of further inquiries to the Court and informed you in a letter of the same day. On 21 March 2006, you sent an e-mail in which you stated that you would accept the Court's additional opinion without its Hungarian translation. The Court sent the French version of its additional opinion on 4 July 2006, and its Hungarian translation on 11 July 2006. I forwarded the translation of the additional opinion to you with an invitation to make additional observations, if you so wished, by 30 September 2006. No additional observations have been received from you.
On 20 December 2006, I sent another letter of further inquiries to the Court and informed you in a letter of the same day. The Court sent the French version of its second additional opinion on 13 February 2007, and its Hungarian translation on 27 February 2007. I forwarded the translation of the second additional opinion to you with an invitation to make additional observations, if you so wished, by 30 April 2007. No additional observations have been received from you.
I am writing now to let you know the results of the inquiries that have been made.
According to the complainant, the relevant facts are, in summary, as follows:
The complainant participated in a tender procedure for the conclusion of framework contracts for the translation of legal texts from certain official languages of the European Union into Hungarian (tender reference number: 2005/S 31-029437), organised by the Court of Justice of the European Communities. The documentation for the first round of the tender was published in Hungarian and the complainant duly submitted her application. However, the documentation for the second round was published only in English. The complainant, who applied for the post of German-Hungarian translator, could not fully understand the instructions in English on how to proceed with the application after the first round. She made a procedural mistake and was excluded from the tender. The invitation to submit a tender required that the "tender must be submitted in a sealed envelope itself enclosed within a second sealed envelope". The complainant's application was rejected by the Court on the basis of the fact that she did not comply with this requirement.
On 2 July 2005, after having been excluded from the tender, the complainant turned to the Hungarian-language Translation Division of the Court in order to contest the decision to exclude her from the tender. In her reply of 4 July 2005, the Head of the Hungarian-language Translation Division stated that the complainant's application had been rejected since it did not comply with the instructions given in the invitation to submit a tender. The Head of Division also explained that, in the Court's formal correspondence, English and French are used as official languages.
On 13 July 2005, the complainant submitted the present complaint to the Ombudsman.
In her complaint, the complainant alleged that the Court had violated the principle of equal treatment of candidates because it had failed to inform her in Hungarian about the requirements of the second round of the tender.
The complainant claimed that:
In its opinion, the Court made, in summary, the following comments:
The complainant's tender was rejected on the basis of the fact that the formal tender requirement, provided for in Article 143(3) of the Commission Regulation (EC, Euratom) No 2342/2002 of 23 December 2002 laying down detailed rules for the implementation of Council Regulation (EC, Euratom) No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities(1) ("Regulation 2342/2002"), that "tenders must be submitted in a sealed envelope itself enclosed within a second sealed envelope", had not been met. A copy of the complainant's tender was found on opening the first envelope and, therefore, the secrecy of the tender was not maintained. The second sealed envelope, which also contained documents, probably another copy of the tender, had not been opened.
Regulation 2342/2002, to which the invitation to submit a tender referred in a number of instances, has been published in all official languages of the European Community, notably in Hungarian, and is accessible on the Internet. The formal tender requirements applying to all public procurement procedures were thus accessible to the complainant in all official languages.
However, for financial and administrative reasons, the invitations to tender, containing the tender specifications and all formal requirements, were available only in English and French. Since the complainant had stated in her curriculum vitae that her knowledge of English was of an intermediate level, these documents were sent to her in English.
In her observations, the complainant maintained her complaint and made, in summary, the following observations:
Although she had found the text of Regulation 2342/2002 after a lengthy search on the Internet, she could not understand why the formal requirements for a freelance tender are governed by the Financial Regulation applicable to the general budget of the European Communities. Furthermore, the two-and-a-half-page "Invitation to submit a tender in the context of a negotiated public procurement procedure", which the Court sent her on 10 May 2005, did not refer to Regulation 2342/2002 at all. Although the "Invitation to tender", which the Court also sent her on 10 May 2005, contained references to the Regulation, the references under point 3.3.2 (Test translation) and under point 5.5 (Personal data) referred to Article 133 and Article 146 respectively. However, point 3.4 (Submission) did not refer to Regulation 2342/2002.
The complainant expressed the opinion that, in order to prevent confusion among candidates, the Hungarian-language Translation Division of the Court should have translated into Hungarian the "Invitation to submit a tender in the context of a negotiated public procurement procedure", which was only two-and-a-half pages in length.
After careful consideration of the Court's opinion, it appeared that the Court had not addressed one of the complainant's claims. The Ombudsman, therefore, wrote to the Court on 15 March 2006, asking it to provide an opinion on the complainant's first claim, namely, that, in its tender procedures, the Court should publish the formal tender requirements either in the native languages of all applicants or in the languages for which translators are being recruited.
In light of the Court's opinion and the complainant's observations, it also appeared that further information was necessary in order to enable the Ombudsman to deal with the complaint. The Ombudsman therefore further asked the Court to:
In its reply of 5 July 2006, the Court made, in summary, the following comments:
As regards the complainant's first claim, the Court pointed out that the documents of the invitation to submit a tender are never published, but are sent directly to the selected applicants. The same practice was followed in the complainant's case.
As regards the required languages, the Court noted, as a preliminary point, that the targeted public was not translators in general, but lawyer-linguists with knowledge of several languages and a thorough knowledge of Community law, and emphasised that these elements were particularly pertinent in the present case.
The Court stated that prior knowledge of English or French was not required from the applicants. Following the selection of the best candidates, the documents relating to the invitation to submit a tender were sent to each applicant in the language that had been indicated by him or her. In the present case, the complainant indicated her knowledge of English. Furthermore, Article 2(1) of the model framework contract, which formed part of the invitation to submit a tender, provided that the correspondence between the Court and the contractors would be in English or in French.
As regard the "financial and administrative" reasons, the Court explained that, in view of the available resources to it and of the need to use them in the most appropriate fashion, its decisions concerning translations of (a) invitations to submit a tender, (b) the framework contracts, and (c) the correspondence and other documents relating to the tender had to be based on actual needs, while also taking into consideration the circumstances and the knowledge of the candidates. In this context, the Court pointed out that it had launched at least one tender procedure for the conclusion of framework contracts for the translation of legal texts for each one of the twenty language divisions. Co-ordination was, therefore, necessary, since the Court does not dispose of sufficient personnel to translate into all the official languages of the European Union at this central level. Therefore, whenever possible, the Court restricts the number of languages so that the responsible personnel can deal with inquiries relating to the tender procedures, and can understand the content of any potential correspondence. That was also the reason why Article 2(1) of the model framework contract foresaw communication in English or in French.
The Court stated that it had never encountered a situation in which a multilingual lawyer-linguist who submitted a tender would not master either English or French. This was, therefore, a hypothetical question that the Court had never faced before.
The Court also stated that the lack of a specific reference to Article 143(3) of Regulation 2342/2002 could be explained by referring to the targeted public. The tender in question had been open only for lawyers. In addition to the fact that the documents relating to the invitation to submit a tender repeated verbatim the text of Article 143 and the requirements specified in it, they also explicitly cited the Regulation on several occasions. In the Court's view, it could reasonably expect the targeted freelance lawyers to verify, in case of doubts as regards the interpretation of the requirements specified, the applicable legislation, and in particular, the legislation cited in the documents relating to the invitation to submit a tender. In this regard, the Court pointed out that, in this type of tender procedures, less than 6% of the persons invited to submit a tender presented an incorrect offer, which consequently had to be rejected on the basis of Article 143(3). In most of the cases, the incorrectness of the offers resulted from the failure to meet deadlines.
No additional observations were received from the complainant.
After careful consideration of the Court's additional opinion, it appeared that additional information was necessary in order to enable the Ombudsman to deal with the complaint. In its additional opinion, the Court stated that prior knowledge of English or French was not required from the applicants, and it appeared that there was no reference in the Contract notice (the first round of the tender) that would have indicated that the documents of the second round of the tender would only be available in English or in French. I n his letter of 20 December 2006, the Ombudsman, therefore, asked the Court to
In its reply of 13 February 2007, the Court made, in summary, the following comments:
The Court first referred to the statements made in its previous opinions, in particular to the nature of the tender procedure in question, which consisted of two stages, and to the targeted public, which was lawyer-linguists with knowledge of several languages. The Court explained that the tender procedures of the Community institutions must follow two fundamental principles: (i) the principle of sound financial management, as provided for in Article 274 of the EC Treaty, and in Articles 3 and 27 of Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities(2); and (ii) the principle of equal treatment and non-discrimination. The Court added that several other principles and rules derive from these two fundamental principles, in particular, the principles of competition, transparency and proportionality. In the application of these principles and rules, a fair equilibrium should be found.
As regards the legal basis for its decision to make the documents of the second round of the tender available only in English or French, the Court argued the following. The contract notice has the aim of notifying the potentially interested economic operators about the intention of the contracting authorities to launch a tender (Article 118 of Regulation 2342/2002). In the present case, the pertinent service contract fell under paragraph 1 of Article 119 of Commission Regulation EC 2342/2002. This Article does not require the publication of a contract notice, but of an appropriate public notice which ensures the competitive tendering and impartiality of the procurement procedure. Neither the contract notice nor the appropriate public notice has the aim of notifying the potentially interested economic operators about the characteristics of the invitation to submit a tender.
The pertinent contract notice, made available in all official languages, allowed every economic operator, in a non-discriminatory way, to identify the object of the tender and the target public, namely, lawyer-linguists with knowledge of several languages. In view of the above, and after having examined the curricula vitae of the selected candidates, on the basis of which it appeared that all candidates mastered either English or French, the contracting authority decided, in accordance with the principles of sound financial management and proportionality, to restrict the linguistic versions of the documents of the second round to English and French. Nevertheless, in case an economic operator could not understand the documents in these two languages, the applicable negotiated procedure made it possible for the contracting authority to produce, upon a simple request and by respecting the principles of tender procedures, a supplementary language version. This procedure respects both the interests of the interested economic operators and of the European taxpayers.
As regards the restriction of the number of languages used in the second round of the tender, the Court argued the following. As stated above, in the first stage of a tender procedure, publication of the tender documents in all official languages is important in order to guarantee, to the widest possible extent, access to the market, in a non-discriminatory and fully transparent way. These tender documents are the contract notice, drafted on the basis of the model contract available on the website of OPOCE(3), or an equivalent document and some letters. In the first stage of a tender procedure, the principle of sound financial management and the principle of proportionality cannot justify the restriction of the languages used.
However, in the second stage of a tender procedure, the tender documents are much more voluminous. They contain the invitation to submit a tender, the tender specifications and the model contract. In this stage, the principle of sound financial management and the principle of proportionality could reasonably justify the restriction of the number of languages used. In the present case, given the fact that every selected candidate indicated knowledge of either English or French, administrative and financial considerations reasonably justified the restriction of the languages used to these two languages, while reserving the possibility for candidates to request other language versions.
1.1 The complainant participated in a tender procedure, organised by the Court of Justice, for the conclusion of framework contracts for the translation of legal texts from certain official languages of the European Union into Hungarian (tender reference number: 2005/S 31-029437). After passing the first stage of the procedure, the complainant received the documents of the second stage, written in English, inviting her to submit a tender. She consequently submitted a tender which was rejected by the Court because the requirement that the "tender must be submitted in a sealed envelope itself enclosed within a second sealed envelope" had not been complied with. This requirement was contained in the invitation to submit a tender which had been sent to her. In her complaint to the European Ombudsman, the complainant alleged that the Court had violated the principle of equal treatment of candidates because it had failed to inform her in Hungarian about the requirements of the second round of the tender. In its opinions, the Court rejected this allegation.
1.2 After taking into consideration the arguments put forward by the complainant and by the Court in the context of the present inquiry, and the documents in the file of the case, the Ombudsman notes the following.
The pertinent Contract Notice for the conclusion of framework contracts for the translation of legal texts from certain official languages of the European Union into Hungarian (reference number: 2005/S 31-029437) (hereafter the "Contract Notice") was published on 2 February 2005 on the Court's website. It formed part of a series of contract notices relating to the conclusion of framework contracts for the translation of legal texts for certain language combinations. Each such contract notice referred to an electronic link on the website Tenders Electronic Daily(4), which contained the full text of the particular contract notice and was available in all 21 official languages of the European Union, including Hungarian for the case under consideration. The Court's website indicated that applicants had to send to the address specified in the Contract Notice a mandatory registration form (a "request to participate"), which was available for download on the Court's website, together with other documents and evidence. The registration form had to be filled out in the candidate's target language, which, in the complainant's case, was Hungarian.
The Ombudsman further notes, as also pointed out by the Court in its opinions, that the Contract Notice contained certain references to Regulation 2342/2002. However, the Ombudsman wishes to point out that these references related only to the means of proof required concerning "the legal position", the "economic and financial capacity" and the "technical capacity" of candidates(5). There was no specific reference to Article 143 of Regulation 2342/2002(6), which provided for the submission of tenders in sealed envelopes. And there was no general reference to the admissibility conditions laid down by this Regulation. Furthermore there was no provision concerning the language(s) in which the invitations to tender were to be drafted and sent to the candidates in the context of the second round of the tender procedure.
The complainant submitted (in Hungarian) her application for the conclusion of framework contracts for the translation of legal texts, from German into Hungarian (Lot No.3). Her application passed the first stage of the tender procedure and then, on 10 May 2005, she received (i) an "Invitation to submit a tender in the context of a negotiated public procurement procedure"; (ii) an "Invitation to tender"; (iii) a "Model framework contract". The Ombudsman notes that these documents were sent to all applicants in either English or French, and in the complainant's case in English. On 1 July 2005, the Court rejected the complainant's application because the requirement that the "tender must be submitted in a sealed envelope itself enclosed within a second sealed envelope" had not been complied with. The Ombudsman also notes that the complainant's allegation of the violation of the principle of equal treatment relates to this second round of the tender procedure.
1.3 The Ombudsman also notes that the principle of equal treatment of tenderers is a general principle of Community law(7). According to this principle, tenderers must be in a position of equality when they formulate their tenders(8). This might not be the case when the invitation to specific persons for the submission of bids is written in a language which is not mastered to the same degree by all of them. However, the principle of non-discrimination would not be violated if the same treatment of competing (potential) tenderers, found in a substantially different situation because of the extent to which they command the language of the invitation, were objectively justified. In this context, information made available by the contracting authority to potential tenderers with regard to the interpretation and application of (i) the admissibility criteria, and (ii) rules of Community law which may reasonably be considered as having a bearing on the application of these criteria, is particularly important. Such information is likely to affect the preparation and formulation of the tenders(9) and is substantively relevant to the significant Community interest of affording potential tenderers the opportunity to compete on an equal footing.
1.4 The Ombudsman notes that the Court provided the following explanations in support of its practice to send to the candidates the invitations to tender either in English or in French. The tender procedures of the Community institutions are subjected to (i) the principle of sound financial management; and (ii) to the principle of equal treatment and non-discrimination. In the application of these principles and rules, a fair equilibrium should be found. The pertinent contract notice, made available in all official languages, allowed every economic operator, in a non-discriminatory way, to identify the object of the tender and the target public, namely, lawyer-linguists with knowledge of several languages. In the first stage of the tender procedure, publication of the tender documents in all official languages was aimed at guaranteeing, to the widest possible extent, access to the market, in a non-discriminatory and fully transparent way. At this stage, the principle of sound financial management and the principle of proportionality could not justify the restriction of the languages used. However, in the second stage, the tender documents were much more voluminous. They contained the invitation to submit a tender, the tender specifications and the model contract. At this stage, the principle of sound financial management and the principle of proportionality could reasonably justify the restriction of the number of languages used. The Court, after having examined the curricula vitae of the selected candidates, on the basis of which it appeared that all candidates mastered either English or French(10), decided, in accordance with the above principles, to restrict the linguistic versions of the documents of the second round to English and French. Moreover, in case an economic operator could not understand the documents in these two languages, the applicable negotiated procedure made it possible for the contracting authority to produce, upon a simple request and by respecting the principles of tender procedures, a supplementary language version.
1.5 Taking into account the above, the Ombudsman considers that the Court provided reasonable, objective justifications for its above-mentioned decision. As regards the Court's argument that a candidate could request a translation into another language of the tender documents concerned, the Ombudsman will make a further remark below.
1.6 In the context of the present inquiry and as regards the level of knowledge of English in which the documents of the second round of the tender were written, the Ombudsman further notes the following. The complainant has neither argued in a specific way nor shown that she was placed in a substantially different (less favourable) situation in comparison to the other tenderers, who applied for the same linguistic combination of German and Hungarian, and with whom she competed. Neither has she made specific, duly substantiated arguments that such a different situation would have been the reason why her tender was not compliant with the admissibility requirement mentioned in point 1.1 of the present decision, while the tenders of the competing tenderers met this condition.
The Ombudsman also notes that the complainant submitted her tender without any reservations or without complaining to the Court about the fact that she could not fully understand the invitation to tender she received in English. In fact, only after the Court had rejected her tender on the ground that it did not comply with the above-mentioned tender requirement did she address the Court about the language of the invitation to tender sent to her. In this regard, the Ombudsman considers that a diligent candidate, who has reasonable doubts about his/her ability to understand sufficiently the terms and conditions of the invitation to tender, written in a language that he/she does not fully command, and who thinks that, for this reason, the principle of fair and equal treatment of candidates is violated, would normally protest to the relevant Community institution about the matter before the submission of his/her tender. It appears that the complainant did not follow such a course of action.
1.7 In view of the above, the Ombudsman concludes that the complainant's allegation has not been substantiated. The Ombudsman therefore finds no corresponding instance of maladministration.
2.1 The complainant claims that, in its tender procedures, the Court should publish the formal tender requirements either in the native languages of all applicants or in the languages for which translators are being recruited.
2.2 In this regard, the Court pointed out that the tender documents, that is, the documents of the second stage of the tender, are never published, but are sent directly to the selected applicants. Since the Court does not dispose of sufficient personnel to translate into all the official languages of the European Union, the Court, whenever possible, in accordance with the principle of sound financial management, restricts the number of languages. By so doing, the responsible personnel can deal with inquiries relating to the tender procedures, and can understand the content of any potential correspondence. Due to these necessary restrictions, documents of the second stage were available in English and in French. The Court also added that it had never encountered a situation in which a multilingual lawyer-linguist who submitted a tender did not master either English or French. Furthermore, the above language restriction is also the reason why Article 2(1) of the model framework contract explicitly foresees that communication between the Court and contractors would be in English or in French.
2.3 Taking into account the above remarks made by the Court and his findings in points 1.4 - 1.7 above, the Ombudsman does not accept the complainant's claim.
3.1 The complainant claims that her tender should be evaluated or she should be given the opportunity to present a new tender. The Court has rejected this claim.
3.2 Following his conclusion in point 1.7 above, the Ombudsman does not accept this claim.
On the basis of the Ombudsman's inquiries into this complaint, there appears to have been no maladministration by the Court corresponding to the complainant's allegation. The Ombudsman therefore closes the case.
The President of the Court will also be informed of this decision.
The Court has stated that the applicable negotiated procedure made it possible for the contracting authority to produce, upon simple request and by respecting the principles of tender procedures, a supplementary language version of the invitations to tender sent to the candidates in the context of the second round of the tender procedure here concerned. However, it appears that there was no explicit reference to such a possibility either in the relevant contract notice or in the above-mentioned invitations to tender. The Ombudsman considers that it would be a good administrative practice for the Court to include such a reference in similar documents issued in the context of its tender procedures. The Court is thus invited to take appropriate action to that effect.
Yours sincerely,
P. Nikiforos DIAMANDOUROS
(1) OJ 2002 L 357, p. 41.
(2) OJ 248 L 48, p. 1.
(3) The Office for Official Publications of the European Communities.
(4) This is a supplement to the Official Journal (http://ted.europa.eu).
(5) More specifically, the contract notice (see points III.2.1.1); III.2.1.2) and III.2.1.3)) made reference to Articles 135, 136 and 137 of Regulation 2342/2002.
(6) Article 143(3) of the Regulation states that "[i]n order to maintain secrecy (...) the invitation to tender must include the following provision: 'Tenders must be submitted in a sealed envelope itself enclosed within a second sealed envelope. The inner envelope must bear, in addition to the name of the department to which it is addressed, as indicated in the invitation to tender, the words Invitation to tender - Not to be opened by the mail service. If self-adhesive envelopes are used, they must be sealed with adhesive tape and the sender must sign across that tape'."
(7) See Case C-57/01 Makedoniko Metro [2003] ECR I-1091, paragraph 69.
(8) See, for example, Case C-448/01 Evn and Wienstrom [2003] ECR I-14558, paragraph 47.
The principle of non-discrimination requires, inter alia, that different situations must not be treated in the same way unless such treatment is objectively justified See, for example, Case C-344/04 International Air Transport Association [2006] ECR I-403, paragraph 95.
(9) Cf. Case C-331/04 ATI EAC [2005] ECR I-10109, paragraphs 24, 28, and 29.
(10) The complainant indicated in her application an intermediate knowledge of English.
