EN Official Journal of the European Union C 285/15

Action brought on 17 July 2008 — Commission of the European Communities v French Republic

(Case C-327/08)

(2008/C 285/26)

Language of the case: French

Parties

Applicant: Commission of the European Communities (represented by: G. Rozet and D. Kukovec, Agents)

Defendant: French Republic

Form of order sought

— Declare that: by adopting and maintaining in force Article 44-1 of Decree No 2005-1308 of 20 October 2005, Article 46-1 of Decree No 2005-1742 of 30 December 2005 and Article 80-1-1 of Decree No 2006-975 of 1 August 2006, in so far as those provisions provide for the possibility for contracting authorities and/or contracting entities to reduce the reasonable time-limit to be complied with between the notice of tender and the signature of the contract without any limit in time and without any objective condition laid down previously in the national legislation, and by adopting and maintaining in force Article 144-1 of the new Code of Civil Procedure, as amended by Decree No 2005-1308 of 20 October 2005, in so far as that provision provides for a time-limit of 10 days for the response from the contracting authority and/or the contracting entity concerned prohibiting any precontractual interim measures before that response and without that time period having any suspensory effect on the time-limit to be complied with between the notice of tender and the signature of the contract, the French Republic has failed to fulfil its obligations under Directive 89/665/EEC (1) and Directive 92/13/EEC (2), as interpreted by the Court of Justice in Case C-81/98 Alcatel and Case C-212/02 Commission v Austria and, more specifically, Article 2(1) of Directive 89/665/EEC and Article 2(1) of Directive 92/13/EEC.

— order the French Republic to pay the costs.

Pleas in law and main arguments

The Commission puts forward two pleas in law in support of its action.

By its first plea, the Commission criticises the defendant for having allowed contracting authorities, in urgent cases, to reduce to under 10 days the minimum time-limit to be complied with between the notice of award of tender to all tenderers and the signature of the relevant contract. The urgency referred to in the French legislation is left to the discretion of the contracting authority, without any objective condition being required. However, that same legislation contains no guarantee that the number of days by which the time-limit is reduced will be brought to the attention of the tenderers, which could lead to those tenderers bringing precontractual proceedings against a decision to award a contract at a stage when the relevant contract has already been signed. Such a situation is clearly contrary to the objective pursued by Directives 89/665/EEC and 92/13/EEC, supported by the Court's case-law, consisting in putting in place effective and rapid remedies targeting unlawful decisions by contracting authorities at a stage when there is still time to correct violations.

By its second plea, the Commission also criticises the defendant for having disregarded the practical effectiveness of those directives by providing in the French legislation for a compulsory preliminary phase of formal notice to the contracting authority, which does not have a suspensory effect on the time-limit to be complied with between the notice of award of contract and the signature of the relevant contract. Since an unsuccessful tenderer may not bring an action during the time for responding to the formal notice, equivalent to 10 days, a response given by the contracting authority upon expiry of that time-limit deprives the unsuccessful tenderer of all effective legal remedies, because by that time the contract will have already been signed.

(1) 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 of 18 June 1992 relating to the coordination of procedures for the award of public service contracts (OJ 1992 L 209, p. 1).

(2) 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).