MARTI AG, CELLERE AG, GEBR. BRUN AG and STUAG AG v. SWITZERLAND
Inadmissible
Georg Ress
The applicants are four companies involved in building and construction works and registered in Switzerland. Before the Court they are represented by Mr E. Rüegg, a layer practising in Baden (Switzerland). A. The Official Journal (Kantonsblatt) of the Canton of Lucerne published on 24 February 1996 an invitation for tenders by the Building Department (Baudepartement) of the Canton of Lucerne in respect of “preparatory work on the N2/6 [motorway] extension constructions for the north feeder”. In the same issue, a further invitation for tenders was published by the Kriens municipality in respect of “canalisation and water construction works to be constructed in connection with the N2 extension works for the north feeder”. The date for submitting the tenders was fixed for 25 March 1996. Offers had to state any construction works to be outsourced to other companies. The applicants submitted three tenders, i.e. for the construction of the north feeder, the canalisation and the water construction works. On 27 March 1996 the tenders were examined by the authorities. The applicants were not awarded any construction works. According to notes prepared by representatives of the applicants present upon the occasion, the tenders had been as follows: in respect of the north feeder: of the three tenders made, A. AG had offered a lower and L. AG a higher price than the applicants; in respect of the canalisation and water construction works: of the two tenders made, A. AG had offered a lower price than the applicants. Shortly afterwards a meeting was held between the administration and the applicants at which it apparently transpired that A. AG was not in fact in a position to undertake the entire construction works itself and that L. AG eventually rose to the second position of bidders in view of an alleged calculation error of 400,000 Swiss Francs in their tender. As a result, the applicants, pursuant to Section 6 of the Tenders Act (Submissionsgesetz, see below, Relevant domestic law) filed a complaint with the Government (Regierungsrat) of the Canton of Lucerne. They maintained that there had been procedural defects and breaches of the Tenders Act, inter alia, in that A. AG, in its tender, had omitted to specify which constructions would be outsourced to other companies; and that the tender of L. AG contained elements of unfair competition. The Government of the Canton of Lucerne dismissed the complaint on 14 June 1996, pointing out that the award had found that A. AG would be in a position to undertake substantial parts of the construction works itself, and that the tender of L. AG had contained an error in that one particular price had been multiplied by 100. The applicants filed an administrative law appeal (Verwaltungsgerichtsbeschwerde) with the Administrative Court (Verwaltungsgericht) of the Canton of Lucerne in which they complained that they had not had access to a court within the meaning of Article 6 § 1 of the Convention. They further complained that they had not been able to consult the case-file and that the law had been incorrectly applied. On 16 July 1996 the Court found that it had no jurisdiction to entertain the appeal. In particular, Article 6 of the Convention was inapplicable as the applicants had not demonstrated the existence of a “right” within the meaning of that Article. The applicants’ further administrative law appeal was dismissed by the Federal Court (Bundesgericht) on 12 November 1996, the decision being served on 22 November. In its decision, that court found that the applicants had no standing in view of its constant case-law according to which decisions on tenders did not concern legally protected rights, as would be required when filing an administrative law appeal. In respect of the applicants’ complaint about lack of access to a court within the meaning of Article 6 § 1 of the Convention, the court considered that this provision did not itself grant new substantive rights but was applicable only if a “right” arose under domestic law. No such right existed if it could not be claimed before a court. The court then referred to Sections 18 and 19 of the Ordinance (Verordnung) completing the Tenders Act (see below, Relevant domestic law). These provisions envisaged, in principle, that tenders with lower prices would prevail, though, according to Section 18 § 2 of the Ordinance, the lowest offer is not always the cheapest. As a result, domestic law did not grant a “right” to be awarded a particular offer upon tender, for which reason Article 6 § 1 of the Convention was not applicable. B. Relevant domestic law The 1973 Tenders Act (Submissionsgesetz) of the Canton of Lucerne deals with invitations for tenders and with the award of construction works by the Canton of Lucerne and its municipalities. Section 3 determines that construction works shall as a rule be awarded following a competitive invitation for tenders. Section 6 provides for an appeal to the Government (Regierungsrat) for those applicants whose personal interests worthy of protection are at issue (in ihren persönlichen schützenswerten Interessen beeinträchtigt). The Ordinance (Verordnung) completing the Tenders Act provides, insofar as relevant: “Section 18 Principles governing award. (a) General 1. Construction works and supplies are to be awarded, based on the principle of economy, to the candidate who has made the cheapest offer (günstigstes Angebot). 2. The cheapest offer will be the one with the lowest price (tiefster Preis) as long as the implementation of the construction works or supplies corresponds to the substantive requirements and the time-limit. The lowest tender (niedrigstes Angebot) will not, therefore, always be the cheapest. Section 19 (b) In case of equal or similar tenders 1. In case of equal or similar tenders, the following criteria shall be considered: (a) proof of good performance; (b) variety among the candidates; (c) degree of employment when implementing the construction works; (d) tax domicile in the Canton of Lucerne or in the municipality concerned; (e) payment of taxes in the Canton of Lucerne or in the municipality concerned; (f) use of local construction materials and products; (g) professional qualifications of the head of enterprise (e.g. master craftsman) and of the employees; (h) training of apprentices; (i) securing and maintaining employment in the Canton of Lucerne or the municipalities concerned. 2. The order of relevance when employing the criteria mentioned in § 1 shall be determined by the awarding authority individually and according to the situation concerned, in particular in the light of the economic situation.” According to Section 22 of the Ordinance, the authority concerned is not obliged to give reasons to candidates whose tender has not been considered. Meanwhile, Section 9 of the Federal Act on a Common Market (Binnenmarktgesetz) provides for an appeal to a court in case of alleged restricted access to the common market, but this provision entered into force only on 1 July 1998.