Opinion of the Advocate General — ECLI:EU:C:2006:559
Date: 2006-09-14
Language of the case: English
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Right of establishment;Freedom to provide services
Procedure: Action for failure to fulfil obligations - unfounded
Origin: Ireland

Summary of the Judgment 1. Approximation of laws – Procedures for the award of public service contracts – Directive 92/50 – Award of contracts (Arts 43 EC and 49 EC; Council Directive 92/50) 2. Actions for failure to fulfil obligations – Proof of failure – Burden of proof on the Commission (Art. 226 EC) 1. For the services coming within the ambit of Annex I B to Directive 92/50 relating to the coordination of procedures for the award of public service contracts, and subject to a subsequent evaluation as referred to in Article 43 of that directive, the Community legislature based itself on the assumption that contracts for such services are not, in the light of their specific nature, of cross-border interest such as to justify their award being subject to the conclusion of a tendering procedure intended to enable undertakings from other Member States to examine the contract notice and submit a tender. For that reason, Directive 92/50 merely imposes a requirement of publicity after the fact for that category of services. However, the award of public contracts remains subject to the fundamental rules of Community law, and in particular to the principles laid down by the Treaty on the right of establishment and the freedom to provide services. It follows that the advertising arrangement introduced by the Community legislature for contracts relating to services coming within the ambit of Annex I B cannot be interpreted as precluding application of the principles resulting from Articles 43 EC and 49 EC, in the event that such contracts nevertheless are of certain cross-border interest. Also, in so far as a contract relating to services falling under Annex I B is of such interest, the award, in the absence of any transparency, of that contract to an undertaking located in the same Member State as the contracting authority amounts to a difference in treatment to the detriment of undertakings which might be interested in that contract but which are located in other Member States. Unless it is justified by objective circumstances, such a difference in treatment, which, by excluding all undertakings located in another Member State, operates mainly to the detriment of the latter undertakings, amounts to indirect discrimination on the basis of nationality, prohibited under Articles 43 EC and 49 EC. (see paras 25-26, 29-31) 2. In proceedings under Article 226 EC for failure to fulfil obligations, it is the Commission’s responsibility to provide the Court with the evidence necessary to enable it to establish that an obligation has not been fulfilled and, in so doing, the Commission may not rely on any presumption. Thus, in the case of alleged failure to fulfil obligations under the advertising arrangement for public contracts for services coming within the ambit of Annex I B to Directive 92/50 relating to the coordination of procedures for the award of public service contracts, where the Commission alleges infringement of Articles 43 EC and 49 EC, the onus is on it to establish that, notwithstanding the fact that the contract in question relates to services coming within the scope of Annex I B to that directive, the contract in question was of certain interest to an undertaking located in a different Member State to that of the relevant contracting authority, and that that undertaking was unable to express its interest in that contract because it did not have access to adequate information before the contract was awarded. A mere statement by the Commission that a complaint was made to it in relation to the contract in question is not sufficient to establish that the contract was of certain cross-border interest and that there was therefore a failure to fulfil obligations (see paras 32-34)