Judgment — ECLI:EU:C:2008:190
Date: 2008-04-03
Language of the case: Spanish
Court formation: Second Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Right of establishment;Approximation of laws;Freedom to provide services
Concepts: Time-limits;Standstill obligation
Procedure: Action for failure to fulfil obligations - successful;Action for failure to fulfil obligations - unfounded
Origin: Spain

Summary of the Judgment Approximation of laws – Review procedures in respect of the award of public supply and public works contracts – Directive 89/665 – Member States under an obligation to provide for review procedures in respect of decisions awarding contracts (Council Directive 89/665, Arts 2(1)(a) and (b), and 6, second para.) A Member State fails to fulfil its obligations under Article 2(1)(a) and (b) of Council 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, as amended by Directive 92/50, where its legislation fails to provide for a mandatory period for the contracting authority to notify the decision on the award of a contract to all the tenderers or to provide for a mandatory waiting period between the award of the contract and its conclusion. The combined provisions of Article 2(1)(a) and (b) and the second subparagraph of Article 2(6) of Directive 89/665 are to be interpreted as meaning that the Member States are required to ensure that the contracting authority’s decision prior to the conclusion of the contract as to the bidder in a tender procedure with which it will conclude the contract is in all cases open to review in a procedure whereby an applicant may have that decision set aside if the relevant conditions are met, notwithstanding the possibility, once the contract has been concluded, of obtaining an award of damages. Moreover, the complete legal protection which must accordingly be ensured before the conclusion of the contract pursuant to Article 2(1) of the directive presupposes, in particular, the duty to inform the tenderers of the award decision before the conclusion of the contract so that they may have a real possibility of initiating review proceedings. That same protection requires provision to be made for the unsuccessful tenderer to examine in sufficient time the question of whether the decision to award is valid. In the light of the need to guarantee the effectiveness of Directive 89/665, the objective of which is to ensure that unlawful decisions taken by the contracting authorities may be reviewed effectively and as rapidly as possible, it follows that a reasonable period must pass between the moment when the award decision is communicated to the unsuccessful tenderers and the conclusion of the contract in order to allow them, inter alia, to bring an application for interim measures until the conclusion of the contract. (see paras 37‑39, 44, 58, operative part 1)