Opinion of the Advocate General — ECLI:EU:C:2010:380
Date: 2010-06-29
Language of the case: English
Subject matter: Right of establishment;Approximation of laws;Freedom to provide services
Procedure: Action for failure to fulfil obligations - successful;Action for failure to fulfil obligations - unfounded
Origin: Ireland

Summary of the Judgment 1. Approximation of laws – Procedures for the award of public works contracts, public supply contracts and public service contracts – Services falling within Annex II B of Directive 2004/18 (Arts. 49 TFEU and 56 TFEU; European Council and Parliament Directive 2004/18, Arts. 21, 23 and 35(4), and Annex II B) 2. Approximation of laws – Procedures for the award of public works contracts, public supply contracts and public service contracts – Services falling within Annex II B of Directive 2004/18 (European Council and Parliament Directive 2004/18, Art. 53) 3. Approximation of laws – Procedures for the award of public works contracts, public supply contracts and public service contracts – Services falling within Annex II B of Directive 2004/18 (European Council and Parliament Directive 2004/18, Arts. 21, 23 and 35(4), and Annex II B) 1. Even though contracting authorities which conclude contracts listed in Annex II B to Directive 2004/18 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts are not subject to the rules laid down in the Directive relating to the requirements to put contracts out to competition by means of prior advertising, they nevertheless remain subject to the fundamental rules of the European Union, in particular to the principles laid down by the Treaty on the Functioning of the European Union on the right of establishment and the freedom to provide services. Accordingly, the system established by the Union legislature for contracts relating to services falling within the ambit of Annex II B to the Directive may not be interpreted as precluding application of the principles deriving from Articles 49 TFEU and 56 TFEU or, therefore, of the requirements designed to ensure transparency of procedures and equal treatment of tenderers, if such contracts are nevertheless of certain cross-border interest. (see paras 29, 31) 2. While the requirement to state the relative weighting for each of the award criteria at the stage of publication of the contract notice, as provided for under Article 53(2) of Directive 2004/18 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts, meets the requirement of ensuring observance of the principle of equal treatment and compliance with the consequent obligation of transparency, it cannot legitimately be argued that the scope of that principle and that obligation extends, in the absence of a specific provision to that effect in the Directive, to requiring, in the context of contracts not subject to a provision such as Article 53 of the Directive, the relative weighting of criteria used by the contracting authority to be determined in advance and notified to potential tenderers when they are invited to submit their bids. Indeed, the reference to the weighting of the award criteria in the case of a contract that is not subject to a provision such as Article 53(2) of the Directive does not constitute an obligation for the contracting authority. (see para. 43) 3. The principles of equal treatment and transparency of tender procedures imply an obligation on the part of contracting authorities to interpret the award criteria in the same way throughout the procedure. As far as the award criteria themselves are concerned, it is a fortiori clear that they must not be amended in any way during the tender procedure. Consequently, a Member State that alters the weighting of the award criteria for a contract for the provision of interpretation and translation services falling within Annex II B to Directive 2004/18 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts following an initial review of the tenders submitted fails to fulfil its obligations under the principle of equal treatment and the consequent obligation of transparency. (see paras 59-60, 66)