Strasbourg, 14 December 2004

Dear Mr F.,

On 17 October 2003, you made a complaint to the European Ombudsman, on behalf of a company called "Coopérative Taxi Treize". The complaint is against the European Parliament and concerns a call for tender launched by the Parliament to ensure a chauffeur-driven car service for Members of the European Parliament during part sessions in Strasbourg (PE VOIT-2002/20).

On 20 November 2003, I forwarded the complaint to the President of the European Parliament. Parliament sent its opinion on 5 February 2004. I forwarded it to you with an invitation to make observations, which you sent on 15 April 2004.

On 20 October 2004, I wrote to you concerning the handling of your complaint and you replied on 31 October 2004.

I am writing now to let you know the results of the inquiries that have been made.

THE COMPLAINT

According to the complainant, the facts can be summarised as follows:

The complainant, who is the liquidator of a taxicab company called "Coopérative Taxi Treize", lodges a complaint on behalf of this company. The company took part in a tender launched by the European Parliament to ensure a chauffeur-driven car service for Members of the European Parliament during sessions in Strasbourg (PE VOIT-2002/20). However, the bid was not selected and the contract was awarded to a company of hired limousines with a chauffeur.

According to the complainant:

- Article 4 of the Special Technical Terms and Conditions of the tender, which states that the bid had to state the hourly lump sum fare, does not take into account a provision of French law.

- The successful tenderer does not comply with the relevant provisions of French law, notably Decree No 55-961:

* the conveyance ensured by the limousine service is not linked to tourism, business, official or formal trips;

* MEPs are transported in groups and do not pay the driver themselves;

* the drivers of the selected company did not attend an adequate training course to drive limousines;

* the selected company does not possess appropriate cars;

* Article 1 of Decree 85-891 which concerns public urban and non-urban transport excludes limousines, just as it excludes taxis.

- The successful tenderer does not comply with a decision of a magistrates' court (the Tribunal correctionnel de Strasbourg), which held on 7 April 2000 that "the activity distinct from that of private taxi driver carried on by the accused in rendering transport services for persons under contract entered into with the European Parliament on 1 September 1988 and 27 July 1991 and then on 23 March 1995 cannot be held to constitute private non-urban transport of persons by road within the meaning of Article 29 of the law of 30 December 1982 and Decree 87-242 of 7 April 1987, since the European Parliament clearly does not come within one of the categories of organising entity mentioned therein liable to make a prior declaration to the Prefect for the Lower Rhine; moreover, under Article 1 of Decree 85-891 implementing Law 82-1153 of 16 August 1985, the taxi business is excluded from the scope of Law 82-1153." Moreover, the French court stated that French law precludes the business of public passenger transportation from being effected with taxis.

- The selected company subcontracts the contract to another company.

The complainant also recalls the judgement of the Court of First Instance of 11 June 2002 in case T-365/00(1), which stated that "inasmuch as the passenger transport services at issue are provided by taxis, they are being performed under conditions which contravene the applicable national legislation, as interpreted by the magistrates' court. It follows from the foregoing that the Parliament committed a manifest error of assessment in taking the view, in light of the judgement of the Tribunal correctionnel de Strasbourg of 7 April 2000, that performance of the contract of 31 March 1999 complied with the French legislation applicable to taxis. Since the plea is well founded the contested decision must be annulled". This led to the annulment of the contract between Parliament and "Coopérative Taxi Treize" for the conveyance of persons in unmarked vehicles with drivers during sessions of Parliament in Strasbourg, entered into on 31 March 1999.

On 26 February 2003, the complainant contacted the European Parliament to question the award of the tender (PE VOIT-2002/20) to a company providing a limousine service.

On 20 March 2003, Parliament rejected the complainant's requests.

The complainant alleges that the successful tenderer does not comply with French law. He claims that the contract between Parliament and the successful tenderer should be cancelled (as soon as possible and before 31 December 2003) because of administrative irregularities and non-compliance by the European Parliament with judgements of European courts. He also claims that the transportation of MEPs should be organised in such a way that it is compliant with French law and does not damage any category of passenger transportation companies.

THE INQUIRY

The European Parliament's opinion

Parliament's opinion can be summarised as follows:

According to a contract signed on 31 March 1999, the complainant was in charge of the chauffeur-driven car service of the MEPs in Strasbourg and used taxis that were not marked as such.

A competing company, "Société Alsace International Car Service SARL" took the matter to the French courts and to the European Court of First Instance. It argued that the contract signed with the complainant was not compliant with French law.

Following the judgement of the Court of First Instance of 11 June 2002(2), Parliament was obliged to end the contract with the complainant. Parliament was allowed, following the opinion of the Consultative Committee on Purchases and Contracts, to find a provisional solution for a period of six months to ensure the transport of the MEPs and to launch a negotiated procedure. This period of six months had to be used to launch a new call for tender.

In the framework of this new call for tender, Parliament contacted the Legal Service of Parliament as well as the competent French authority, i.e. the Prefecture for the Lower Rhine. The Legal Service stated that chauffeur-driven transportation of MEPs comes under the regulation concerning transportation in hired limousines with a chauffeur, i.e. essentially Decree 55-961 of 15 July 1995. It also recognised that taxi companies could submit a bid if the tender relates to public transportation in taxis and if the relevant regulation is complied with. In accordance with the opinion of the Legal Service of the European Parliament and with the agreement of the Prefecture for the Lower Rhine, the terms of reference were drafted so that all types of transportation companies (taxi companies and car rental companies) could apply. The bid had to be compliant with applicable French legal and regulatory provisions. On 20 November 2002, this solution was adopted by the College of the Quaestors.

Consequently, the complainant is wrong when it states that Parliament did not comply with French legal and regulatory provisions, as each bidder had to show that his bid was compliant with the applicable rules (Article 2 of the Special Technical Terms and Conditions).

As regards Article 4 of the Special Technical Terms and Conditions, the French authority confirmed that lump sum invoicing was legal for taxis under certain conditions.

As regards the complainant's other allegations, these are just guesses discrediting the selected company. Parliament already replied to these allegations in its letters to the complainant of 20 and 26 March 2003. Each step of the procedure was checked and it received a favourable opinion from the Consultative Committee on Purchases and Contracts on 5 December 2002.

The successful company was selected because it complied with all the selection and award criteria and had submitted the most economically advantageous and the best qualified bid. This company has all the required authorisations and carries out its work in compliance with the various applicable rules.

The complainant's observations

The complainant's observations can be summarised as follows:

As regards the lump sum tariffs, Parliament obliged the bidders to choose a common provision, which is not included in the regulation applying to them and which can only apply to public transportation of persons.

As regards the regulation applying to public transportation of persons, the complainant notes that cars used to drive MEPs are not used in compliance with their purpose. The successful tenderer is not registered in the category "transportation of persons". Finally, using limousines for the European Parliament is excluded by the regulation.

As regards the regulation applying to hired limousines, the successful tenderer’s drivers do not have a licence to drive hired limousines. Moreover, they do not have any prior hire order with the date, time, names, the number of persons and the destination of the persons.

The complainant maintains that the successful tenderer subcontracts the market to another company.

According to the complainant, Parliament finds itself in the same situation as it faced with the previous contract that it had signed with the complainant and which was annulled.

THE DECISION

1 Preliminary remarks

1.1 The complainant is the liquidator of a taxicab company called "Coopérative Taxi Treize", which took part in a tender launched by the European Parliament to ensure a chauffeur-driven car service for Members of the European Parliament during sessions in Strasbourg (PE VOIT-2002/20). The complainant alleges that the successful tenderer does not comply with French law. He claims that the contract between Parliament and the successful tenderer should be cancelled.

1.2 At an advanced stage of the inquiry, the Ombudsman became aware that the successful tenderer also provides transport services to the Ombudsman on an ad hoc basis. The Ombudsman informed the complainant accordingly and invited him to indicate whether he wished the Ombudsman to complete his inquiry, or to terminate the inquiry without a decision on the substance. The complainant replied that he wished the Ombudsman to complete his inquiry and give a reasoned decision.

1.3 According to Article 195 of the EC Treaty, the European Ombudsman is empowered to receive complaints "concerning instances of maladministration in the activities of the Community institutions or bodies". The Ombudsman considers that maladministration occurs when a public body fails to act in accordance with a rule or principle binding upon it. Maladministration may thus also be found when the fulfilment of obligations arising from contracts concluded by the institutions or bodies of the Communities is concerned.

However, the Ombudsman considers that the scope of the review that he can carry out in such cases is necessarily limited. In particular, the Ombudsman is of the view that he should not seek to determine whether there has been a breach of contract by either party, if the matter is in dispute. This question could be dealt with effectively only by a court of competent jurisdiction, which would have the possibility to hear the arguments of the parties concerning the relevant national law and to evaluate conflicting evidence on any disputed issues of fact.

1.4 The Ombudsman considers that a similar approach is justified in the present case, in which the complainant alleges infringement of the relevant national law governing public contracts. The Ombudsman will therefore limit his inquiry to examining whether Parliament has provided a coherent account of the legal basis for its actions and why it believes that its view of the position under the relevant national law is justified.

2 Alleged non-compliance with French law

2.1 The complainant alleges that the successful tenderer does not comply with French law. He claims that the contract between Parliament and the successful tenderer should be cancelled because of administrative irregularities and non-compliance by the European Parliament with judgements of European courts. He also claims that the transportation of MEPs should be organised in such a way that it is compliant with French law and does not damage any category of passenger transportation companies.

2.2 According to Parliament, the complainant is wrong when he states that Parliament did not comply with French legal and regulatory provisions, as each bidder had to show that his bid was compliant with applicable rules. Moreover, the selected company has all the required authorisations and carries out its work in compliance with the various applicable rules. Parliament points out that, before launching the new tender, it requested the opinion of its Legal Service and of the competent French administration (the Prefecture for the Lower Rhine) in order to have information about the applicable French regulations and the appropriate content of the tender's terms of reference.

The European Parliament annexed the opinion of its Legal Service, as well as its correspondence with the Prefecture for the Lower Rhine, to its opinion on the complaint.

2.3 The Ombudsman first points out that it follows from the judgement of the Court of First Instance in Case T-365/00(3) that the European Parliament is not authorised to organise private non-urban passenger transport by road and that vehicles used for providing public transport of persons by taxis cannot be used for another type of passenger transport.

2.4 The Ombudsman has carefully studied the documentation provided by the complainant and the European Parliament. The Ombudsman notes that the European Parliament drafted the tender in question so that all types of transportation companies could apply and that the tender was awarded to the bidder who submitted what was considered to be the most economically advantageous offer, in accordance with Article 10 of the tender. This company hires limousines with a chauffeur.

The Ombudsman also notes from the documents submitted by the European Parliament that its position as regards the tender appears to be based on a legal analysis that the transportation of MEPs in Strasbourg comes under the French regulation concerning transportation in hired limousines with a chauffeur and that taxi companies could submit a bid provided that the tender relates to public transportation in taxis. The Ombudsman considers that this analysis appears reasonable. The Ombudsman also notes that Parliament obtained confirmation from a French authority (the Prefecture for the Lower Rhine) that lump sum tariffs for taxis could be lawful under certain conditions.

2.5 As regards the complainant’s allegation that the successful tenderer does not comply with the relevant provisions of French law, notably Decree No 55-961, the Ombudsman recalls that his mandate is limited to the Community Institutions and bodies and that he has no power to inquire into the activities of private entities. The Ombudsman notes that Article 2 of the Special Technical Terms and Conditions of the tender requires the tenderer to state that his services are carried out in compliance with French law and to prove, at any time, that his personnel complies with French law. The Ombudsman does not consider that the complainant has provided evidence to show any failure by the European Parliament as regards the tenderer’s compliance with Article 2.

2.6 In view of the above, the Ombudsman takes the view that Parliament has provided a reasonable account of the legal basis for its actions and why it believes that its view of the legal position is justified. The Ombudsman therefore finds no maladministration. The Ombudsman points out that this finding does not affect the right of the complainant to present his case to a court of competent jurisdiction.

3 Conclusion

On the basis of the Ombudsman's inquiries into this complaint, there appears to have been no maladministration by Parliament. The Ombudsman therefore closes the case.

The President of the European Parliament will also be informed of this decision.

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) Case T-365/00, Alsace International Car Service SARL (AICS) v. European Parliament, [2002] ECR II-02719.

(2) Case T-365/00 Alsace International Car Service SARL (AICS) v. European Parliament, [2002] ECR II-02719.

(3) Case T-365/00, Alsace International Car Service SARL (AICS) v. European Parliament, [2002] ECR II-02719.