# C_2005106EN.01000501.xml

| 30.4.2005 | EN | Official Journal of the European Union | C 106/5 |
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30.4.2005

EN

Official Journal of the European Union

C 106/5

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JUDGMENT OF THE COURT

JUDGMENT OF THE COURT

(Second Chamber)

of 3 March 2005

in Joined Cases C-21/03 and C-34/03 (reference for a preliminary ruling from the Conseil d'État): Fabricom SA v État belge (1)

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)

(2005/C 106/08)

Language of the case: French

In Joined Cases C-21/03 and C-34/03: reference for a preliminary ruling under Article 234 EC from the Conseil d'État (Belgium), made by decision of 27 December 2002, received at the Court on 29 and 22 January 2003, respectively, in the proceedings pending before that court between Fabricom SA and État belge — 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; P. Léger, Advocate General; R. Grass, Registrar, gave a judgment on 3 March 2005, the operative part of which is as follows:

| 1. | Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts, as amended by European Parliament and Council Directive 97/52/EC of 13 October 1997, and, more particularly, Article 3(2) thereof, Council Directive 93/36/EEC of 14 June 1993 coordinating procedures for the award of public supply contracts, as amended by Directive 97/52, and, more particularly, Article 5(7) thereof, Council Directive 93/37/EEC of 14 June 1993 concerning the coordination of procedures for the award of public works contracts, as amended by Directive 97/52, and, more particularly, Article 6(6) thereof, and also Council Directive 93/38/EEC of 14 June 1993 coordinating the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors, as amended by European Parliament and Council Directive 98/4/EC of 16 February 1998, and, more particularly, Article 4(2) thereof, preclude a rule such as that laid down in Article 25 of the Royal Decree of 25 March 1999 amending the Royal Decree of 10 January 1996 on public works, supply and service contracts in the water, energy, transport and telecommunications sectors, and Article 32 of the Royal Decree of 25 March 1999 amending the Royal Decree of 8 January 1996 on public works, supply and service contracts and on the award of public contracts, whereby a person who has been instructed to carry out research, experiments, studies or development in connection with a public works, supplies or services contract 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 has acquired was not capable of distorting competition. |
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1.

Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts, as amended by European Parliament and Council Directive 97/52/EC of 13 October 1997, and, more particularly, Article 3(2) thereof, Council Directive 93/36/EEC of 14 June 1993 coordinating procedures for the award of public supply contracts, as amended by Directive 97/52, and, more particularly, Article 5(7) thereof, Council Directive 93/37/EEC of 14 June 1993 concerning the coordination of procedures for the award of public works contracts, as amended by Directive 97/52, and, more particularly, Article 6(6) thereof, and also Council Directive 93/38/EEC of 14 June 1993 coordinating the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors, as amended by European Parliament and Council Directive 98/4/EC of 16 February 1998, and, more particularly, Article 4(2) thereof, preclude a rule such as that laid down in Article 25 of the Royal Decree of 25 March 1999 amending the Royal Decree of 10 January 1996 on public works, supply and service contracts in the water, energy, transport and telecommunications sectors, and Article 32 of the Royal Decree of 25 March 1999 amending the Royal Decree of 8 January 1996 on public works, supply and service contracts and on the award of public contracts, whereby a person who has been instructed to carry out research, experiments, studies or development in connection with a public works, supplies or services contract 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 has acquired was not capable of distorting competition.

| 2. | Council Directive 89/665/EEC of 21 December 1989 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 Council Directive 92/13/EEC of 25 February 1992 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. |
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2.

Council Directive 89/665/EEC of 21 December 1989 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 Council Directive 92/13/EEC of 25 February 1992 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.

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(1)  OJ C 55 of 08.03.2003.

1

OJ C 70 of 22.03.2003.

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