Keywords

Summary



Keywords

1. 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))

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))

3. 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))

Summary

1. 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, requires the period for bringing proceedings for a declaration of infringement of the public procurement rules or for damages for the infringement of those rules to start to run from the date on which the claimant knew, or ought to have known, of that infringement.

The objective laid down in Article 1(1) of Directive 89/665 of guaranteeing effective procedures for review of infringements of the provisions applicable in the field of public procurement can be realised only if the periods laid down for bringing such proceedings start to run only from the date on which the claimant knew, or ought to have known, of the alleged infringement of those provisions.

However, the fact that a candidate or tenderer learns that its application or tender has been rejected does not place it in a position effectively to bring proceedings. It is only once a concerned candidate or tenderer has been informed of the reasons for its elimination from the public procurement procedure that it may come to an informed view as to whether there has been an infringement of the applicable provisions and as to the appropriateness of bringing proceedings.

(see paras 30-32, 35, operative part)

2. 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 precludes a national provision which allows a national court to dismiss, as being out of time, proceedings seeking to have an infringement of the public procurement rules established or to obtain damages for the infringement of those rules on the basis of the criterion, appraised in a discretionary manner, that such proceedings must be brought promptly.

A national provision under which proceedings must not be brought ‘unless … those proceedings are brought promptly 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 ‘promptly’ within the terms of that provision. A limitation period, the duration of which is placed at the discretion of the competent court, is not predictable in its effects. Consequently, a national provision providing for such a period does not ensure effective transposition of Directive 89/665.

(see paras 41-43, operative part)

3. In order to ensure compliance with the requirements of 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, a national court dealing with a case under that provision must, as far as is at all possible, interpret the national provisions governing the limitation period in such a way as to ensure that that period begins to run only from the date on which the claimant knew, or ought to have known, of the infringement of the rules applicable to the public procurement procedure in question.

If the national provisions do not lend themselves to such an interpretation, that court is bound, as appropriate, in exercise of the discretion conferred on it, to extend the period for bringing proceedings in such a manner as to ensure that the claimant has a period equivalent to that which it would have had if the period provided for by the applicable national legislation had run from the date on which the claimant knew, or ought to have known, of the infringement of the public procurement rules.

In any event, if the national provisions do not lend themselves to an interpretation which accords with Directive 89/665, the national court must refrain from applying those provisions, in order to apply Community law fully and to protect the rights conferred thereby on individuals.

(see paras 47-50, operative part)