# C_2008272EN.01000701.xml

| 25.10.2008 | EN | Official Journal of the European Union | C 272/7 |
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25.10.2008

EN

Official Journal of the European Union

C 272/7

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Action brought on 4 July 2008 — Commission of the European Communities v French Republic

(Case C-299/08)

(2008/C 272/08)

Language of the case: French

Parties

Applicant: Commission of the European Communities (represented by: G. Rozet and D. Kukovec, acting as Agents)

Applicant:

Defendant: French Republic

Defendant:

Form of order sought

| — | Declare that, by adopting and keeping in force Articles 73 and 74-IV of the Code des marchés publics (Public Procurement Code) adopted by Decree No 2006-975 of 1 August 2006, inasmuch as those provisions lay down a procedure for the award of marchés de definition (public contracts for designing the parameters, including the purpose, of a public works, supply or service contract) under which it is possible for the awarding authority to award a public works, supply or service contract to one of the holders of the initial marchés de definition without opening it afresh to competition or, at most, by opening it to competition limited to those holders, the French Republic has failed to fulfil its obligations under Articles 2, 28 and 31 of Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (1); |
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Declare that, by adopting and keeping in force Articles 73 and 74-IV of the Code des marchés publics (Public Procurement Code) adopted by Decree No 2006-975 of 1 August 2006, inasmuch as those provisions lay down a procedure for the award of marchés de definition (public contracts for designing the parameters, including the purpose, of a public works, supply or service contract) under which it is possible for the awarding authority to award a public works, supply or service contract to one of the holders of the initial marchés de definition without opening it afresh to competition or, at most, by opening it to competition limited to those holders, the French Republic has failed to fulfil its obligations under Articles 2, 28 and 31 of Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (1);

marchés de definition

marchés de definition

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| — | order the French Republic to pay the costs. |
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order the French Republic to pay the costs.

Pleas in law and main arguments

By its action, the Commission alleges that the defendant permits the award of contracts on the basis of mutual agreement — or with limited competition — in situations not provided for by Directive 2004/18/EC. By drawing a distinction between marchés de definition and public works, supply or service contracts and by allowing, in certain circumstances, the award of the latter contracts to one of the holders of the initial marchés de definition without again opening them to competition or, at the very least, by opening them to competition limited only to those holders, the French legislation disregards the fundamental principles of equality and transparency inherent to Directive 2004/18/EC. In the Commission's view, it is impossible by definition for the subject-matter and criteria for the award of a public procurement contract to be known precisely before the project itself has been defined. The marché de definition and the public works, supply or service contract are two entirely distinct types of public procurement contract, each having its own subject-matter and criteria for award and, on those grounds, they must both comply with the stipulations of Directive 2004/18/EC.

marchés de definition

marché de definition

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(1)  OJ L 134, p. 114.

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