Joined Cases C-21/03 and C-34/03

Fabricom SA

v

État belge

(Reference for a preliminary ruling from the Council d’État (Belgium))

(Public procurement – Works, supplies and services – Water, energy, transport and telecommunications sectors – Prohibition on participation in a procedure of submission of a tender by a person who has contributed to the development of the works, supplies or services concerned)

Opinion of Advocate General Léger delivered on 11 November 2004

Judgment of the Court (Second Chamber), 3 March 2005

Summary of the Judgment

1. Approximation of laws – Procedures for the award of public service, public supply and public works contracts and procurement contracts in the water, energy, transport and telecommunications sectors – Directives 92/50, 93/36, 93/37 and 93/38 – Principle of non‑discrimination between tenderers – National rules precluding from participation in a contract any person who has contributed to the development of the works, supplies or services concerned without the possibility to prove the absence of any adverse effect on competition – Not permissible

(Council Directives 92/50, Art. 3(2), 93/36, Art. 5(7), 93/37, Art. 6(6), and 93/38, Art. 4(2))

2. Approximation of laws – Procedures for the award of public service, public supply and public works contracts and procurement contracts in the water, energy, transport and telecommunications sectors – Directives 89/665 and 92/13 – National rules allowing the contracting authority to preclude from participation in the contract, until the end of the procedure for the examination of tenders, an undertaking connected with any person who has contributed to the development of the works, supplies or services concerned without taking into consideration the undertaking’s assertion that there is no adverse effect on competition – Not permissible

(Council Directives 89/665, Arts 2(1)(a) and 5, and 92/13, Arts 1 and 2)

1. Directives 92/50, 93/36 and 93/37, as amended by Directive 97/52, and Directive 93/38, as amended by Directive 98/4, relating to the coordination of procedures for the award of, respectively, public service contracts, public supply contracts and public works contracts and procurement contracts in the water, energy, transport and telecommunications sectors, and, more particularly, the provision in each of those directives that the contracting authorities are to ensure equal treatment of tenderers, preclude national rules whereby a person who has been instructed to carry out research, experiments, studies or development in connection with public works, supplies or services is not permitted to apply to participate in or to submit a tender for those works, supplies or services and where that person is not given the opportunity to prove that, in the circumstances of the case, the experience which he as acquired was not capable of distorting competition.

Taking account of the favourable situation in which a person who has carried out such preparatory work may find himself, it cannot be maintained that the principle of equal treatment requires that that person be treated in the same way as any other tenderer. However, a rule which provides that person with no possibility to demonstrate that in his particular case that situation is not apt to distort competition goes beyond what is necessary to attain the objective of equal treatment for all tenderers.

(see paras 31, 33-34, 36, operative part 1)

2. Directive 89/665 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts and, more particularly, Articles 2(1)(a) and 5 thereof, and Directive 92/13 coordinating the laws, regulations and administrative provisions relating to the application of Community rules on the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors and, more particularly, Articles 1 and 2 thereof, preclude the contracting entity from refusing, until the end of the procedure for the examination of tenders, to allow an undertaking connected with any person who has been instructed to carry out research, experiments, studies or development in connection with works, supplies or services to participate in the procedure or to submit a tender, even though, when questioned on that point by the awarding authority, that undertaking states that it has not thereby obtained an unfair advantage capable of distorting the normal conditions of competition.

The possibility that the contracting authority might delay, until the procedure has reached a very advanced stage, taking a decision as to whether such an undertaking may participate in the procedure or submit a tender, when that authority has before it all the information which it needs in order to take that decision, deprives that undertaking of the opportunity to rely on the Community rules on the award of public contracts as against the awarding authority for a period which is solely within that authority’s discretion and which, where necessary, may be extended until a time when the infringements can no longer be usefully rectified.

Such a situation is capable of depriving Directives 89/665 and 92/13 of all practical effect as they are susceptible of giving rise to an unjustified postponement of the possibility for those concerned to exercise the rights conferred on them by Community law. It is also contrary to the objectives of Directives 89/665 and 92/13, which seek to protect tenderers vis-à-vis the awarding authority.

(see paras 44-46, operative part 2)

JUDGMENT OF THE COURT (Second Chamber) 3 March 2005 (1)

(Public procurement – Works, supplies and services – Water, energy, transport and telecommunications sectors – Prohibition on participation in a procedure of submission of a tender by a person who has contributed to the development of the works, supplies or services concerned)

In Joined Cases C-21/03 and C-34/03,REFERENCES for a preliminary ruling under Article 234 EC from the Conseil d’État (Belgium), made by decisions of 27 December 2002, received at the Court on 29 and 22 January 2003, respectively, in the proceedings

v

THE COURT (Second Chamber),,

composed of C.W.A. Timmermans, President of the Chamber (Rapporteur), C. Gulmann, J.-P. Puissochet, N. Colneric and J.N. Cunha Rodrigues, Judges,

Advocate General: P. Léger,

having regard to the written procedure,after considering the observations submitted on behalf of:

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

gives the following

‘Entities shall not seek or accept, in a manner which would have the effect of precluding competition, advice which may be used in the preparation of specifications for a specific procurement from a firm that may have a commercial interest in the procurement.’

‘Contracting authorities shall ensure that there is no discrimination between different service providers.’

‘Contracting authorities shall ensure that there is no discrimination between the various suppliers.’

‘Contracting authorities shall ensure that there is no discrimination between the various contractors.’

‘Contracting authorities shall ensure that there is no discrimination between different suppliers, contractors or service providers.’

‘… contracting authorities may seek or accept advice which may be used in the preparation of specifications for a specific procurement, provided that such advice does not have the effect of precluding competition’.

‘1. The Member States shall ensure that the measures taken concerning the review procedures specified in Article 1 include provision for the powers to:

…’

‘1.

and

2.

3.‘1.

either

and

or

Member States may take this choice either for all contracting entities or for categories or entities defined on the basis of objective criteria, in any event preserving the effectiveness of the measures laid down in order to prevent injury being caused to the interests concerned;

…’

‘…

1.

2.For the purposes of this article, “undertaking connected” means any undertaking over which a person referred to in paragraph 1 may, directly or indirectly, exercise a dominant influence or any undertaking which may exercise a dominant influence over that person or which, like that person, is subject to the dominant influence of another undertaking by virtue of its ownership, financial participation or the rules which govern it. Dominant influence shall be presumed where an undertaking, directly or indirectly, with respect to another undertaking:

(1)

(2)

(3)

Before excluding any undertaking on the ground that it is presumed to have obtained an unfair advantage, the contracting authority shall, by registered letter, invite that undertaking to provide within 12 calendar days, unless in a particular case the invitation allows a longer period, evidence of, for example, its connections, its degree of independence or any circumstances showing that dominant influence has not been established or has not affected the relevant contract.

3.(1)

(2)

On those grounds, the Court (Second Chamber) rules as follows:

[Signatures]