Opinion of the Advocate General — ECLI:EU:C:2009:570
Date: 2009-09-22
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;Action for failure to fulfil obligations - unfounded
Origin: France

Summary of the Judgment Approximation of laws – Procedures for the award of contracts in the public works, public supply and public service sectors – Directive 2004/18 – Procedures for the award of public contracts – Application of a procedure not provided for in Article 28 of the Directive (European Parliament and Council Directive 2004/18, Arts 2 and 28 to 31) A Member State which adopts and keeps in force provisions which lay down a procedure for the award of marchés de definition (public contracts for designing the parameters, including the purpose, of a public works, supply or service contract) under which it is possible for the contracting authority to award a marché d’exécution (a public works, supply or service contract) to one of the holders of the initial marchés de définition by opening it to competition limited to those holders fails to fulfil its obligations under Articles 2 and 28 of Directive 2004/18 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts. Under Article 28, contracting authorities are required to award their public contracts by applying either the open or restricted procedure, or, in the specific circumstances expressly provided for in Article 29 of Directive 2004/18, the competitive dialogue or, in the further alternative, in the specific circumstances referred to expressly in Articles 30 and 31 thereof, a negotiated procedure. The award of public contracts by means of other procedures is not permitted by that directive. Moreover, that procedure for the award of marchés de définition is not consistent with Article 2 of Directive 2004/18. The purpose of that procedure is to award two types of contracts, namely marchés de définition and marchés d’exécution, the latter being awarded after being opened to competition limited to the holders of the former alone. Accordingly, economic operators who might be interested in participating in marchés d’exécution, but who are not holders of one of the marchés de définition, are discriminated against in comparison with those holders, contrary to the principle of equality, which is laid down as a principle for the award of contracts in Article 2 of Directive 2004/18. Moreover, both the principle of equal treatment and the obligation of transparency which flows from it require the subject-matter of each contract and the criteria governing its award to be clearly defined. In this respect, marchés de définition and marchés d’exécution appear by their nature to have different subject‑matters, namely, first, a study and design project in which the needs of the contracting authority are defined and, second, the actual provision of supplies, services or works defined in advance. In that procedure for the award of marchés de definition, there is no guarantee that, in all cases, the subject‑matter and award criteria of both marchés de définition and the marché d’exécution can be defined from the beginning of the procedure. (see paras 29, 40-41, 43-45, operative part)