Opinion of the Advocate General — ECLI:EU:C:2000:121
Date: 2000-03-14
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: France

summary of the complaints. There is nothing therefore to prevent the Commission from setting out in detail in the reasoned opinion the complaints which it has already made more generally in its letter of formal notice (see Case 274/83, paragraph 21). 71. In this respect, it is clear from the documents before the Court that, in the supplementary letter of formal notice of 8 May 1996, the Commission made a general criticism of the award criteria in the disputed contract notices. It drew the French authorities' attention to the fact that the contract notices must enable undertakings to determine whether the information they contain enables them to assess whether the proposed contracts are of interest to them. It also referred to the case-law of the Court according to which a general reference to a provision of national legislation cannot satisfy the requirements as to advertising in respect of contract notices. 72. It follows that the formal notice, even if its wording was not very explicit as regards the method known as 'award by reference to the Code des Marchés Publics‘, none the less enabled the French Government to be aware of the complaint made against it. Therefore, the criticism of the award criteria subsequently made by the Commission in its reasoned opinion is a lawful detailed specification of the complaints raised in the letter of formal notice. The Commission's complaint is therefore admissible. 73. As regards the substance of the complaint, where the authorities awarding the contract do not take the lowest price as the sole criterion for awarding the contract but have regard to various criteria with a view to awarding the contract to the most economically advantageous tender, they are required to state these criteria in the contract notice or the contract documents. Consequently, a general reference to a provision of national legislation cannot satisfy the publicity requirement (Beentjes, paragraph 35). 74. The French Government does indeed contend that, in this case, the award criteria are expressly included in the contract documents. However, it did not supply the Court with any evidence which might prove that assertion. 75. It must therefore be concluded that the Commission's complaint relating to the method known as an 'award by reference to the Code des Marchés Publics‘ is well founded and that the French Republic has failed to fulfil its obligations under Articles 29(2) of Directive 71/305 and 30(2) of Directive 93/37. The complaint relating to the mode of designating the lots 76. The Commission claims that many of the contract notices examined refer, under the heading 'Works. Designation of lots and qualifications‘, to the classifications of French professional organisations, in particular the OPQCB and Qualibat - Qualifélec. As an example, the Commission gives the qualification 'Qualibat Chauffage 5312‘, which corresponds to a design office of approved technical expertise in environmental engineering with at least four years' practical experience and at Level 6 in the 'Convention Collective ETAM des Bâtiment et Travaux Publics‘ (collective agreement for the construction and civil engineering industry). 77. Admittedly, the French authorities pointed out, in their reply to the letter of formal notice, that 'those notices do not state that the certificates which may be taken into account are exclusively certificates issued by Qualibat or Qualifélec‘. The Commission claims, none the less, that the technical specifications selected by the contracting authorities in question may have the effect of giving advantage to French undertakings, which are familiar with that system of quality certification and are accustomed to submitting documents or services in conformity with the references required in the contract notice. 78. The French Government contends that such references are purely indicative and, that being so, cannot be discriminatory. The addition of a classification number is quite superfluous since it features alongside the description of each lot in everyday language (electricity, plumbing, and so on). 79. Furthermore, the reference, under heading 3 of the contract notices, to classifications defined by professional organisations does not of itself have a discriminatory effect since it does not give to French candidates as opposed to candidates who are nationals of other Member States any additional information about the services to be provided. It is not a question of specifying, under that heading, information relating to the selection criteria or the criteria for the award of the contract, but of giving guidance about the nature of the lots which is explained in greater detail in the contract documents. 80. According to the Court's case-law the principle of equal treatment, of which Article 59 of the Treaty is a specific expression, prohibits not only overt discrimination by reason of nationality but also all covert forms of discrimination which, by the application of other criteria of differentiation, lead in fact to the same result (see, to that effect, Case 3/88 Commission v Italy [1989] ECR 4035, paragraph 8). 81. In this case, although the reference to classifications of French professional organisations does not imply that the certificates which may be taken into account are exclusively those issued by those bodies, it remains the case that the technical specifications selected are so specific and abstruse that, as a rule, only French candidates are able immediately to discern their relevance. Consequently, the use of those references to designate the lots has the effect of supplying more information to French undertakings about the nature of the lots, thereby makingit easier for those undertakings to submit tenders which comply with the coded references appearing in the contract notice. 82. On the other hand, it is more difficult for tenderers from other Member States to submit tenders within the brief time-limit set since they must first find out from the contracting authorities in question the purpose and content of those references. 83. Therefore, to the extent that the designation of the lots by reference to classifications of French professional organisations is likely to have a dissuasive effect on tenderers who are not French, it thereby constitutes indirect discrimination and, therefore, a restriction on the freedom to provide services, within the meaning of Article 59 of the Treaty. 84. Consequently, the Commission's complaint relating to the mode of designating the lots is well founded and the French Republic has failed to fulfil its obligations under Article 59 of the Treaty. The complaint relating to the minimum standards for participation 85. The Commission claims that the minimum standards for participation specified under heading 10 in a certain number of contract notices published by the Département du Nord require from the designer proof of registration with the Ordre des Architectes (French association for architects). It states that, notwithstanding the distinction drawn by the French authorities between, on the one hand, the scheme of registration and, on the other, the scheme of permission to pursue the profession of architect in France, in the majority of cases heading 10 of the contract notices states unambiguously 'for the designer: proof of registration with the Ordre des Architectes‘. Consequently, the Département du Nord has failed to fulfil its obligations under Article 59 of the Treaty by imposing restrictions on Community architects' freedom to provide services. 86. The Commission also points out that, as regards the Wingles secondary school, the minimum standards referred to in the contract notice required the provision of a 'certificate of OPQCB, Qualifélec, FNTP professional qualification‘. First, Articles 23 to 28 of Directive 71/305 lay down the qualitative criteria for selection of candidate undertakings and, more specifically, Article 26 defines the means of furnishing proof of technical knowledge or ability. Second, it is clear from Case 76/81 Transporoute v Ministère des Travaux Publics [1982] ECR 417 that evidence of an undertaking's professional qualification cannot be furnished by a means of proof which falls outside the closed category of those authorised by Article 26 of Directive 71/305. Therefore, the contracting authority concerned has failed to fulfil its obligation under that provision. 87. In this respect, the Court finds, first, that the requirement of proof that the designer is registered with the Ordre des Architectes can only give advantage to the provision of services by French architects, which constitutes discrimination againstCommunity architects and, accordingly, a restriction on their freedom to provide services. 88. Second, according to the case-law, Directive 71/305 precludes a Member State from requiring a tenderer established in another Member State to furnish proof by any means other than those prescribed in Articles 23 to 26 of that directive, that he satisfies the criteria laid down in those provisions and relating to his qualifications (see, to that effect, Transporoute, paragraph 15). 89. In any event, the French Government itself recognises that those criticisms by the Commission are well founded but submits that the infringements committed are essentially the result of the inexperience of the contracting authorities in question in applying the Community rules on the award of public contracts. 90. Consequently, it must be concluded that the Commission's complaint relating to the minimum standards for participation is well founded and that the French Republic has failed in its obligations under Articles 59 of the Treaty and 26 of Directive 71/305. The complaints relating to the procedure of information on contract awards and the failure to communicate the written reports 91. The Commission claims that, during the period from 1993 to 1995, the Nord-Pas-de-Calais Region failed to fulfil the obligation to publish information on contract awards, as provided for in Articles 12(5) of Directive 71/305 and 11(5) of Directive 93/37. The award notices seem to have been published only by the Département du Nord, which constitutes an additional failure to fulfil its obligations on the part of the Nord-Pas-de-Calais Region. 92. Furthermore, the Commission states that the French authorities did not send it the information required by its supplementary letter of formal notice of 8 May 1996, in particular the written reports on all the procedures criticised. Consequently, the French authorities have failed to fulfil their obligations under the second subparagraph of Article 8(3) of Directive 93/37. 93. The French Government admits, first, that the Nord-Pas-de-Calais Region did not publish award notices in accordance with Articles 11(5) of Directive 93/37 and 12(5) of Directive 71/305 and, second, that the written reports on the procedures in question were not sent to the Commission in accordance with Article 8(3) of Directive 93/37. It adds that that failure can only be explained by the inexperience of those contracting authorities in applying the Community rules on the award of public contracts. 94. Therefore, it must be concluded that the complaints relating to the procedure of information on contract awards and the failure to communicate the written reportsare well founded and that the French Republic has failed in its obligations under Article 12(5) of Directive 71/305 and Articles 8(3) and 11(5) of Directive 93/37. 95. In the light of all the foregoing, the Court finds that, in the course of the various procedures for the award of public works contracts for the construction and maintenance of school buildings conducted by the Nord-Pas-de-Calais Region and the Département du Nord over a period of three years, the French Republic has failed to fulfil its obligations under Article 59 of the Treaty as well as under Articles 12(5), 26 and 29(2) of Directive 71/305 and under Articles 8(3), 11(5), 22(2) and 30(2) of Directive 93/37. Costs 96. Under Article 69(3) of the Rules of Procedure, where each party succeeds on some and fails on other heads, the Court may order that the costs be shared or that the parties bear their own costs. Since the Commission has failed on two heads and the French Republic on the others, each party must be ordered to bear its own costs. On those grounds, THE COURT, hereby: 1. Declares that, in the course of the various procedures for the award of public works contracts for the construction and maintenance of school buildings conducted by the Nord-Pas-de-Calais Region and the Département du Nord over a period of three years, the French Republic has failed to fulfil its obligations under Article 59 of the EC Treaty (now, after amendment, Article 49 EC) as well as under Articles 12(5), 26 and 29(2) of Council Directive 71/305/EEC of 26 July 1971 concerning the coordination of procedures for the award of public works contracts, as amended by Council Directive 89/440/EEC of 18 July 1989, and under Articles 8(3), 11(5), 22(2) and 30(2) of Council Directive 93/37/EEC of 14 June 1993 concerning the coordination of procedures for the award of public works contracts; 2. Dismisses the application as to the remainder; 3. Orders the French Republic and the Commission of the European Communities to bear their own costs. Rodríguez Iglesias Moitinho de Almeida Edward Sevón Schintgen Puissochet Jann Ragnemalm Skouris Delivered in open court in Luxembourg on 26 September 2000. R. Grass G.C. Rodríguez Iglesias Registrar President 1: Language of the case: French.