Judgment of the Court (Third Chamber) of 11 June 2009 – Commission v France

(Case C‑327/08)

Failure of a Member State to fulfil obligations – Directives 89/665/EEC and 92/13/EEC – Review procedures concerning the award of public contracts – Guarantee of effective review – Minimum period to be ensured between notification to the unsuccessful candidates and tenderers of the decision to award a contract and the signature of the contract concerned

1. Actions for failure to fulfil obligations – Examination of the merits by the Court – Situation to be taken into consideration – Situation on expiry of the period laid down in the reasoned opinion (Art. 226 EC) (see para. 22)

2. Actions for failure to fulfil obligations – Right of the Commission to bring judicial proceedings – Assessment of the expediency of taking action – To be exercised at its discretion (Art. 226 EC) (see para. 26)

3. Approximation of laws – Review procedures in respect of the award of public supply and public works contracts in the water, energy, transport and telecommunications sectors – Directives 89/665 and 92/13 – Member States under an obligation to provide for review procedures in respect of decisions awarding contracts (Council Directives 89/665 and 92/13) (see paras 39, 41, 43-44)

4. Approximation of laws – Review procedures in respect of the award of public supply and public works contracts in the water, energy, transport and telecommunications sectors – Directives 89/665 and 92/13 – Member States under an obligation to provide for review procedures in respect of decisions awarding contracts (Council Directives 89/665 and 92/13) (see paras 55-58, 60, operative part)

Re:

Failure of a Member State to fulfil obligations – Infringement of Article 2(1) of Council Directive 89/665/EEC of 21 December 1989 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 (OJ 1989 L 395, p. 33), as amended by Council Directive 92/50/EEC (OJ 1992 L 209, p. 1) and of Article 2(1) of Council Directive 92/13/EEC of 25 February 1992 coordinating the laws, regulations and administrative provisions relating to the application of Community rules on the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors (OJ 1992 L 76, p. 14) – Minimum time-limit to be complied with between the notice of award of contract to the candidates and tenderers and the signature of the relevant contract.

Operative part

The Court:

1. Declares that, by adopting and maintaining in force Article 1441-1 of the new Code of Civil Procedure, as amended by Article 48-1º of Decree No 2005-1308 of 20 October 2005 concerning contracts awarded by the contracting authorities referred to in Article 4 of Order No 2005-649 of 6 June 2005 on contracts awarded by certain public bodies or private persons not subject to the Public Procurement Code, in so far as that provision imposes on the contracting authority or entity a ten-day period within which to respond to a formal challenge – the bringing of any pre-contractual proceedings before that response being precluded – and where that period does not have the effect of suspending the period which must be ensured between the notification to the unsuccessful candidates and tenderers of the decision to award the contract and the signature of that contract, the French Republic has failed to fulfil its obligations under Council Directive 89/665/EEC of 21 December 1989 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 Council Directive 92/50/EEC of 18 June 1992, and Council Directive 92/13/EEC of 25 February 1992 coordinating the laws, regulations and administrative provisions relating to the application of Community rules on the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors;

2. Dismisses the action as to the remainder;