Opinion of the Advocate General — ECLI:EU:C:2004:144
Date: 2004-03-11
Language of the case: French
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Right of establishment;Approximation of laws;Freedom to provide services
Procedure: Action for failure to fulfil obligations - successful
Origin: France

Summary of the Judgment 1. Actions for failure to fulfil obligations – Pre‑litigation procedure – Purpose – Reasoned opinion – Content – Delimitation of the subject‑matter of the dispute (Art. 226 EC) 2. Approximation of laws – Procedures for the award of public service contracts – Directive 92/50 – Award of contracts – Principles of the equal treatment of tenderers and of transparency – Clear definition of the subject‑matter of the contract and the award criteria (Council Directive 92/50, Art. 3(2)) 3. Approximation of laws – Procedures for the award of public service contracts – Directive 92/50 – Award of contracts – Negotiated procedure without prior publication of a contract notice – Conditions of admissibility – Contract following a design contest – Limits – Project in several phases – Contest relating to a first phase – Award of the contract relating to a second phase to the successful candidate in that contest – Not permissible (Council Directive 92/50, Art. 11(3)(c)) 1. In an action for annulment the purpose of the pre-litigation procedure is to give the Member State concerned an opportunity, on the one hand, to comply with its obligations under Community law and, on the other, to avail itself of its right to defend itself against the charges formulated by the Commission. The subject-matter of proceedings under Article 226 EC is therefore delimited by the pre-litigation procedure governed by that provision. Accordingly, the application must be founded on the same grounds and pleas as the reasoned opinion, which must contain a cogent and detailed exposition of the reasons which led the Commission to the conclusion that the Member State concerned had failed to fulfil one of its obligations under the Treaty. (see paras 25-27) 2. The principle of equal treatment of service providers, laid down in Article 3(2) of Directive 92/50 relating to the coordination of procedures for the award of public service contracts, and the principle of transparency which flows from it require the subject-matter of each contract and the criteria governing its award to be clearly defined. That obligation exists where the subject-matter of a contract and the criteria selected for its award must be regarded as decisive for the purposes of determining which of the procedures provided for in the directive is to be implemented and assessing whether the requirements related to that procedure have been observed. (see paras 34-35) 3. Article 11(3)(c) of Directive 92/50 relating to the coordination of procedures for the award of public service contracts, which authorises contracting authorities using a negotiated procedure to derogate from the obligation of prior publication where the contract concerned follows a design contest and must be awarded to the successful candidate or to one of the successful candidates, must be interpreted strictly; the burden of proving the existence of exceptional circumstances justifying a derogation lies on the person seeking to rely on those circumstances. In particular, the expression’ follows a design contest’ as used in that provision implies that there must be a direct functional link between the contest and the contract concerned. Such a link does not exist, in a project in several phases, between the design contest relating to a first phase and organised for the purpose of awarding the contract envisaged in that phase and the contract relating to a subsequent phase, which the contracting authority has reserved the option merely to award to the successful candidate in that design contest. (see paras 37-38, 40-41)