Judgment — ECLI:EU:C:2009:627
Date: 2009-10-15
Language of the case: Hungarian
Court formation: Fourth Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Right of establishment;Approximation of laws;Freedom to provide services
Concepts: General;Procedures
Procedure: Reference for a preliminary ruling
Origin: Hungary

Summary of the Judgment 1. Approximation of laws – Procedures for the award of contracts in the public works, public supply and public service sectors – Directive 2004/18 (European Parliament and Council Directive 2004/18) 2. Approximation of laws – Procedures for the award of public works contracts – Directive 93/37 – Negotiated procedures with publication of a contract notice (Council Directive 93/37, Art. 22(3)) 3. Approximation of laws – Procedures for the award of public works contracts – Directive 93/37 – Negotiated procedures with publication of a contract notice (Council Directive 93/37, Arts 7(2) and 22(2), second para., and third para.) 1. Directive 2004/18 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts is not applicable to a decision taken by a contracting authority when awarding a public works contract before the period for transposition of that directive has expired. In that regard, in relation to a procedure for the award of a contract which was still in progress at the date on which the period for transposition expired, it would be contrary to the principle of legal certainty to determine the law applicable by reference to the date of the award of the contract, when the decision which is alleged to have infringed Community law was taken before that date. (see paras 29-30, operative part 1) 2. Article 22(3) of Directive 93/37 concerning the coordination of procedures for the award of public works contracts, as amended by Directive 97/52, must be interpreted as meaning that, when a contract is awarded by a negotiated procedure and the number of suitable candidates is below the lower limit prescribed for the procedure in question, the contracting authority may, nevertheless, continue with the procedure by inviting the suitable candidate or candidates to negotiate the terms of that contract. (see para. 44, operative part 2) 3. Directive 93/37 concerning the coordination of procedures for the award of public works contracts, as amended by Directive 97/52, must be interpreted as meaning that the obligation to ensure that there is genuine competition is satisfied if the contracting authority has recourse to the negotiated procedure on the conditions referred to in Article 7(2) of that directive. As regards the stage of negotiating for the contract, Article 22(3) of Directive 93/37 requires the contracting authority to invite a sufficient number of candidates to take part in that stage. Whether the number is sufficient to ensure genuine competition must be assessed on the basis of the characteristics and the nature of the contract in question. If, in such a procedure, the number of suitable candidates is below the lower limit prescribed for the procedure in question which, in accordance with Directive 93/37, cannot be less than three, it must be accepted that, in so far as the conditions of an economic and technical nature for that procedure have been correctly prescribed and applied, the contracting authority has, nevertheless, ensured that there is genuine competition. (see paras 52-54, operative part 3)