Opinion of the Advocate General — ECLI:EU:C:2009:679
Date: 2009-10-29
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
Origin: Ireland

Summary of the Judgment 1. Approximation of laws – Review procedures in respect of the award of public supply and public works contracts – Directives 89/665 and 93/37 (Council Directives 89/665, Art. 1(1), and 93/37, Art. 8(2)) 2. Approximation of laws – Review procedures in respect of the award of public supply and public works contracts – Directive 89/665 – Time-limit for instituting proceedings (Council Directive 89/665, Art. 1(1)) 1. A Member State fails to fulfil its obligations under Article 1(1) of Directive 89/665 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts, as amended by Directive 92/50, and also Article 8(2) of Directive 93/37 concerning the coordination of procedures for the award of public works contracts, as amended by Directive 97/52, when a contracting authority does not inform the unsuccessful tenderer of its decision to award the contract for the design, construction, financing and operation of a bypass. Article 8(2) of Directive 93/37 requires contracting authorities to inform candidates and tenderers promptly of the decisions taken on contract awards. Notification to unsuccessful candidates and tenderers of the public contract award decision is mandatory under that provision. That same obligation also arises under Article 1(1) of Directive 89/665, inasmuch as the possibility of bringing an effective action against award decisions can be ensured only if all candidates or tenderers are informed in good time of those decisions. The announcement of the contracting authority’s award on the Internet and the publication thereof in the Official Journal of the European Union after the signature of the contract by the contracting authority and the successful tenderer cannot adequately rectify the failure to inform the unsuccessful tenderer. In order to make effective legal protection possible for the candidates or tenderers, they should be informed of the award decision in good time before the contract is concluded. (see paras 29-30, 32-33, 83, operative part) 2. A Member State which maintains in force a provision under which an application for the review of a decision to award or of the award of a public contract must be made at the earliest opportunity and in any event within three months from the date when grounds for the application first arose unless the competent court considers that there is good reason for extending such period fails to fulfil its obligations under Article 1(1) of Directive 89/665 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts, as amended by Directive 92/50, as it gives rise to uncertainty as to which decision must be challenged through legal proceedings and as to how periods within which proceedings must be brought are to be determined. National limitation periods, including the detailed rules for their application, should not in themselves be such as to render virtually impossible or excessively difficult the exercise of any rights which the person concerned derives from Community law. Inasmuch as such a provision allows national courts to apply, by analogy, the limitation period which it provides for challenges to public contract award decisions to challenges to interim decisions taken by contracting authorities in the course of those procurement procedures, in respect of which no express provision was made by the legislature for that limitation period to apply, the resulting legal situation is not sufficiently clear and precise to exclude the risk that concerned candidates and tenderers may be deprived of their right to challenge decisions in public procurement matters handed down by a national court on the basis of its own interpretation of that provision. The extension of the limitation period to interim decisions taken by contracting authorities in public procurement procedures in a manner which deprives the parties concerned of their right of review satisfies neither the requirements of legal certainty nor the objective of effective review. Interested parties must be informed of the application of limitation periods to interim decisions with sufficient clarity to enable them effectively to bring proceedings within the periods laid down. The failure to provide such information cannot be justified on grounds of procedural rapidity. Wording which provides that all relevant applications ‘shall be made at the earliest opportunity and in any event within three months’ gives rise to uncertainty. The possibility cannot be ruled out that such a provision empowers national courts to dismiss an action as being out of time even before the expiry of the three-month period if those courts take the view that the application was not made ‘at the earliest opportunity’ within the terms of that provision. A limitation period the duration of which is left to the discretion of the competent court is not predictable as to its duration. It follows that a national provision providing for such a period does not ensure effective transposition of Directive 89/665. The possibility for national courts to extend periods for bringing actions is not such as to compensate for the shortcomings in such a provision, having regard to the clarity and precision which Directive 89/665 requires in respect of the system of limitation periods. Even if the candidate or tenderer concerned takes into account the possibility that periods may be extended, it will still not be able to predict with certainty which period will be accorded to it for the purpose of bringing proceedings, in view of the reference to the obligation to bring an action at the earliest opportunity. (see paras 53, 63, 66, 74-75, 81, 83, operative part)