# C_2004300EN.01003103.xml

| 4.12.2004 | EN | Official Journal of the European Union | C 300/31 |
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4.12.2004

EN

Official Journal of the European Union

C 300/31

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Action brought on 4 October 2004 by the Commission of the European Communities against the French Republic

(Case C-424/04)

(2004/C 300/59)

An action against the French Republic was brought before the Court of Justice of the European Communities on 4 October 2004 by the Commission of the European Communities, represented by K. Wiedner and B. Stromsky, acting as Agents, with an address for service in Luxembourg.

The Commission claims that the Court should:

| 1. | declare that, by failing to provide for an obligation on contracting authorities to ensure genuine competition by the presence of a minimum of five tenderers in restricted procedures, even where no range is prescribed, the French Republic has failed to fulfil its obligations under Article 19(2) of Council Directive 93/36/EEC of 14 June 1993, (1) Article 27(2) of Council Directive 92/50/EEC of 18 June 1992 (2) and Article 22(2) of Council Directive 93/37/EEC of 14 June 1993; (3) |
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1.

declare that, by failing to provide for an obligation on contracting authorities to ensure genuine competition by the presence of a minimum of five tenderers in restricted procedures, even where no range is prescribed, the French Republic has failed to fulfil its obligations under Article 19(2) of Council Directive 93/36/EEC of 14 June 1993, (1) Article 27(2) of Council Directive 92/50/EEC of 18 June 1992 (2) and Article 22(2) of Council Directive 93/37/EEC of 14 June 1993; (3)

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| 2. | declare that, by excluding from the scope of the French Code of Public Procurement contracts concerning loans or financial undertakings, whether intended to cover financing or liquidity requirements, not connected with real property transactions, the French Republic has failed to fulfil its obligations under Article 1(a)(vii) of Council Directive 92/50/EEC of 18 June 1992 and Article 1(4)(c)(iv) of Council Directive 93/38/EEC of 14 June 1993; (4) |
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2.

declare that, by excluding from the scope of the French Code of Public Procurement contracts concerning loans or financial undertakings, whether intended to cover financing or liquidity requirements, not connected with real property transactions, the French Republic has failed to fulfil its obligations under Article 1(a)(vii) of Council Directive 92/50/EEC of 18 June 1992 and Article 1(4)(c)(iv) of Council Directive 93/38/EEC of 14 June 1993; (4)

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| 3. | declare that, by providing that public contracts concerning






  — | legal services, |
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3.

declare that, by providing that public contracts concerning

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legal services,

| — | social and health services, |
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social and health services,

| — | recreational, cultural and sports services, |
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recreational, cultural and sports services,

| — | educational services and occupational qualification and integration services |
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educational services and occupational qualification and integration services

are to be subject, as regards their award, only to the obligations relating to the definition of services by reference to standards where they exist, and to the sending of an award notice, without expressly specifying that the rules and principles of the Treaty are to be complied with, the French Republic has failed to fulfil its obligations flowing from compliance with the principles and rules of the Treaty (Article 49), and in particular the principle of equal treatment and the principle of transparency of which adequate publicity is the corollary;

| 4. | order the French Republic to pay the costs. |
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4.

order the French Republic to pay the costs.

Pleas in law and main arguments

The French Code of Public Procurement is incompatible in certain respects with the rules and principles of the EC Treaty and the Community directives relating to public procurement.

First, by failing to provide for an obligation on the contracting authority to ensure the presence of a minimum of five tenderers where no range is prescribed, the French Republic is in breach of the obligation in the Community directives to ensure genuine competition in certain restricted procedures for the award of public contracts.

The French Republic is also in breach of its obligations by excluding from the scope of the French Code of Public Procurement contracts concerning loans or financial undertakings, whether intended to cover financing or liquidity requirements, not connected with real property transactions. Those contracts relate to the provision of services and thus fall within the scope of the directives. Nor may they be regarded as covered by the exception concerning securities and other financial instruments.

Finally, the exclusion of certain service contracts from the scope of the obligation to ensure an adequate degree of publicity constitutes a breach of the principle of non-discrimination as laid down in Article 49 EC and of the principle of transparency.

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(1)  Council Directive 93/36/EEC coordinating procedures for the award of public supply contracts (OJ L 199 of 9.8.1993, p. 1).

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(2)  Council Directive 92/50/EEC relating to the coordination of procedures for the award of public service contracts (OJ L 209 of 24.7.1992, p. 1).

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(3)  Council Directive 93/37/EEC concerning the coordination of procedures for the award of public works contracts (OJ L 199 of 9.8.1993, p. 54).

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(4)  Council Directive 93/38/EEC coordinating the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors (OJ L 199 of 9.8.1993, p. 84).

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