Opinion of the Advocate General — ECLI:EU:C:2008:734
Date: 2008-12-17
Language of the case: Greek
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;Action for failure to fulfil obligations - unfounded
Origin: Greece

Summary of the Judgment 1. Approximation of laws – Procedure for awarding public contracts in the water, energy, transport and telecommunications sectors – Directive 93/38 – Derogations from common rules (Council Directive 93/38, Art. 20(2)(a), (c) and (d)) 2. Approximation of laws – Procedure for awarding public contracts in the water, energy, transport and telecommunications sectors – Directive 93/38 – Derogations from common rules (Council Directive 93/38, Art. 20(2)(a)) 3. Approximation of laws – Procedure for awarding public contracts in the water, energy, transport and telecommunications sectors – Directive 93/38 – Derogations from common rules (Council Directive 93/38, Art. 20(2)(a)) 4. Approximation of laws – Procedure for awarding public contracts in the water, energy, transport and telecommunications sectors – Directive 93/38 – Period for communicating the reasons for the rejection of a tender (Council Directive 93/38, Art. 41(4)) 1. As derogations from the rules relating to procedures for the award of public procurement contracts, the provisions of Article 20(2)(c) and (d) of Directive 93/38 coordinating the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors, as amended by Directive 2001/78 must be interpreted strictly and the burden of proof lies on the party seeking to rely on them. Since it is clear from Article 20(1) of Directive 93/38, read in conjunction with Article 20(2) of that directive, that Article 20(2) constitutes a derogation from Article 20(1), in that it sets out the situations in which a contracting entity may use a procedure for the award of a contract without a prior call for competition, it must be concluded that not only points (c) and (d) of Article 20(2) of Directive 93/38 must be interpreted strictly, but so must all the other provisions of Article 20(2). (see paras 34-35) 2. Tenders that do not comply with the technical specifications fixed by the contracting entity which stem from the national and Community legislative requirements on protection of the environment must be classified as ‘unsuitable’ for the purposes of Article 20(2)(a) of Directive 93/38 coordinating the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors, as amended by Directive 2001/78. Such specifications must be regarded as essential if the installations – the supply and bringing into operation of which is the aim of the contract – are to enable the contracting entity to meet the objectives imposed upon it by legislation. Since the proper completion of the project for which the call for tenders was issued is not possible for the contracting entity if the tenders are not in conformity with those specifications, that non-conformity does not constitute a mere inaccuracy or a mere detail: on the contrary, it must be regarded as precluding those tenders from meeting the needs of the contracting entity. (see paras 42-44) 3. The amendment of an initial contract condition can be regarded as substantial for the purposes of Article 20(2)(a) of Directive 93/38 coordinating the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors, as amended by Directive 2001/78 inter alia, where the amended condition, had it been part of the initial award procedure, would have allowed tenders submitted in the procedure with a prior call for competition to be considered suitable or would have allowed tenderers other than those who participated in the initial procedure to submit a tender. In that regard, a new obligation cannot arise by reason of the fact that, under a new procedure for the award of a contract without a prior call for competition, the tenderers have themselves to bear the costs of correcting the technical discrepancies in relation to the technical specifications set by the contracting entity when, under the previous award procedure with a prior call for competition, some discrepancies with the technical specifications imposed by the contracting entity were acceptable and that the costs entailed in correcting those discrepancies could be left to the tenderers to bear. (see paras 52,56) 4. In so far as Directive 93/38 coordinating the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors as amended by Directive 2001/78, does not prescribe a specific period within which the candidate or tenderer whose application or tender has been rejected must be informed of the grounds for the rejection, but merely provides, in Article 41(4) thereof, that that communication must be made promptly, it is not possible to adopt an interpretation of that provision to the effect that the contracting entity must communicate that information within 15 days of receiving the tenderer’s written request. However, by requiring the contracting entity to communicate the required information promptly, the Community legislature placed that entity under a duty of diligence, which falls to be categorised more as an obligation as to means than an obligation as to results. Thus, it is necessary to consider on a case-by-case basis and in the light of the specific characteristics of the procurement contract at issue, in particular its complexity, whether or not the contracting entity concerned communicated that information with the requisite diligence. The fact that a communication may have been sent before the expiry of the period within which the decision to eliminate the application or the tender may be challenged is only one of a bundle of factors which must be taken into account in order to determine whether a contracting entity has complied with its obligation of diligence. It is for the Member State to adduce evidence of objective factors capable of justifying the delay in the communication of the grounds for rejecting the tender and making it plausible that such a period should have elapsed between the receipt of the tenderer’s request and the reply from the contracting entity. Consequently, a Member State which is unjustifiably late in replying to a tenderer’s request for information concerning the reasons for the rejection of its tender fails to fulfil its obligations under Article 41(4) of Directive 93/38. (see paras 67-69, 72 and operative part)