Case C-340/02

Commission of the European Communities

v

French Republic

(Failure of a Member State to fulfil obligations – Directive 92/50/EEC – Procedure for the award of public service contracts – Assistance to the maître d’ouvrage for a sewage treatment plant – Award to the successful candidate in an earlier design contest without prior publication of a contract notice in the OJEC)

Summary of the Judgment

1. Actions for failure to fulfil obligations – Pre‑litigation procedure – Purpose – Reasoned opinion – Content – Delimitation of the subject‑matter of the dispute

(Art. 226 EC)

2. Approximation of laws – Procedures for the award of public service contracts – Directive 92/50 – Award of contracts – Principles of the equal treatment of tenderers and of transparency – Clear definition of the subject‑matter of the contract and the award criteria

(Council Directive 92/50, Art. 3(2))

3. Approximation of laws – Procedures for the award of public service contracts – Directive 92/50 – Award of contracts – Negotiated procedure without prior publication of a contract notice – Conditions of admissibility – Contract following a design contest – Limits – Project in several phases – Contest relating to a first phase – Award of the contract relating to a second phase to the successful candidate in that contest – Not permissible

(Council Directive 92/50, Art. 11(3)(c))

1. In an action for annulment the purpose of the pre-litigation procedure is to give the Member State concerned an opportunity, on the one hand, to comply with its obligations under Community law and, on the other, to avail itself of its right to defend itself against the charges formulated by the Commission.

The subject-matter of proceedings under Article 226 EC is therefore delimited by the pre-litigation procedure governed by that provision. Accordingly, the application must be founded on the same grounds and pleas as the reasoned opinion, which must contain a cogent and detailed exposition of the reasons which led the Commission to the conclusion that the Member State concerned had failed to fulfil one of its obligations under the Treaty.

(see paras 25-27)

2. The principle of equal treatment of service providers, laid down in Article 3(2) of Directive 92/50 relating to the coordination of procedures for the award of public service contracts, and the principle of transparency which flows from it require the subject-matter of each contract and the criteria governing its award to be clearly defined.

That obligation exists where the subject-matter of a contract and the criteria selected for its award must be regarded as decisive for the purposes of determining which of the procedures provided for in the directive is to be implemented and assessing whether the requirements related to that procedure have been observed.

(see paras 34-35)

3. Article 11(3)(c) of Directive 92/50 relating to the coordination of procedures for the award of public service contracts, which authorises contracting authorities using a negotiated procedure to derogate from the obligation of prior publication where the contract concerned follows a design contest and must be awarded to the successful candidate or to one of the successful candidates, must be interpreted strictly; the burden of proving the existence of exceptional circumstances justifying a derogation lies on the person seeking to rely on those circumstances.

In particular, the expression’ follows a design contest’ as used in that provision implies that there must be a direct functional link between the contest and the contract concerned.

Such a link does not exist, in a project in several phases, between the design contest relating to a first phase and organised for the purpose of awarding the contract envisaged in that phase and the contract relating to a subsequent phase, which the contracting authority has reserved the option merely to award to the successful candidate in that design contest.

(see paras 37-38, 40-41)

JUDGMENT OF THE COURT (First Chamber) 14 October 2004 (1)

(Failure of a Member State to fulfil obligations – Directive 92/50/EEC – Procedure for the award of public service contracts – Assistance to the maître d'ouvrage for a sewage treatment plant – Award to the successful candidate in an earlier design contest without prior publication of a contract notice in the OJEC)

In Case C-340/02,ACTION under Article 226 EC for failure to fulfil obligations,brought on 24 September 2002,

applicant,

v

defendant,

THE COURT (First Chamber),,

composed of: P. Jann, President of the Chamber, S. von Bahr and K. Schiemann (Rapporteur), Judges,

Advocate General: L.A. Geelhoed,

having regard to the Report of the Judge-Rapporteur,after considering the observations submitted on behalf of the parties,

after hearing the Opinion of the Advocate General at the sitting on 11 March 2004,

gives the following

‘This directive shall apply to public service contracts, the estimated value of which, net of VAT, is not less than ECU 200 000.’

‘Contracting authorities who wish to award a public service contract by open, restricted or, under the conditions laid down in Article 11, negotiated procedure, shall make known their intention by means of a notice.’

‘Contracting authorities may award public service contracts by negotiated procedure without prior publication of a contract notice in the following cases:

…

(c)

…’

‘[For the purposes of the Directive] design contests shall mean those national procedures which enable the contracting authority to acquire, mainly in the fields of area planning, town planning, architecture and civil engineering, or data processing, a plan or design selected by a jury after being put out to competition with or without the award of prizes’.

–

–

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Admissibility

Substance

On those grounds, the Court (First Chamber) hereby:

Signatures.