Keywords

Summary



Keywords

1. Actions for failure to fulfil obligations – Examination of 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)

2. Approximation of laws – Procedures for the award of public services, supply and works contracts – Directives 92/50, 93/36 and 93/37 – Determination according to the main purpose of the contract – Mixed works, supply and service contracts – Supply or service contracts including ancillary works

(Council Directives 92/50, 93/36 and 93/37)

3. Approximation of laws – Procedures for the award of public works contracts – Directive 93/37 – Award of contracts

(Arts 43 EC and 49 EC; Council Directive 93/37)

4. Approximation of laws – Procedures for the award of public works contracts – Directive 93/37 – Scope

(Council Directive 93/37, Art. 6(1) and (3))

5. Approximation of laws – Procedures for the award of public service contracts and contracts in the water, energy, transport and telecommunications sectors – Directives 92/50 and 93/38 – Award of contracts

(Council Directives 92/50 and 93/38)

6. Procedure – Application initiating proceedings – Formal requirements

(Rules of Procedure of the Court of Justice, Art. 38(1)(c))

Summary

1. The question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation obtaining in the Member State at the end of the period laid down in the reasoned opinion. In that connection, the adoption of laws, regulations or administrative provisions after the date on which that period expired cannot be taken into account.

(see paras 42-43)

2. A Member State which makes mixed works, supply and service contracts and supply or service contracts which include ancillary works if the works represent more than 50% of the total value of the relevant contract subject to the national rules on public works contracts fails to fulfil its obligations under Directive 92/50 coordinating procedures for the award of public service contracts, Directive 93/36 coordinating the procedures for the award of public supply contracts and Directive 93/37 coordinating the procedures for the award of public works contracts, as amended by Directive 97/52.

Where a contract contains both elements relating to a public works contract and elements relating to another type of contract, it is the main purpose of the contract that determines which Community directive on public procurement is to be applied in principle. In particular, therefore, the scope of Directive 93/37 is linked to the main purpose of the contract, which must be determined in an objective examination of the entire transaction to which the contract relates. The assessment must be made in the light of the essential obligations which predominate and which, as such, characterise the transaction, as opposed to those which are only ancillary or supplementary in nature and are required by the very purpose of the contract; the value of the various matters covered by the contract is, in that regard, just one criterion among others to be taken into account for the purposes of the assessment. Therefore, the value of the works cannot constitute the sole criterion capable of resulting in the application of the rules on public works contracts to a mixed contract, where those works are only ancillary, without infringing the requirements of Directive 93/97.

Furthermore, such national rules also fail to comply with the requirements of Directives 92/50 and 93/36, in so far as its application may result in certain mixed contracts falling outside the procedures provided for in those directives, namely those contracts where the works, although ancillary, represent more than 50% of the total value and the total value is below the threshold set by Directive 93/37 even though it reaches the thresholds adopted in Directives 92/50 and 93/36.

(see paras 47-49, 50-51, operative part 1)

3. The Community legislature expressly made a policy choice to exclude contracts under a certain threshold from the advertising regime which it introduced and therefore did not impose any specific obligation with respect to them. Where it is established that such a contract is of certain cross-border interest, the award, in the absence of any transparency, of that contract to an undertaking located in the same Member State as the contracting authority amounts to a difference in treatment to the detriment of undertakings which might be interested in the contract but which are located in other Member States. Unless it is justified by objective circumstances, such a difference in treatment, which, by excluding all undertakings located in another Member State, operates mainly to the detriment of the latter undertakings, amounts to indirect discrimination on the basis of nationality, prohibited under Articles 43 EC and 49 EC.

Since, under Article 249 EC, directives are binding as to the result to be achieved upon each Member State to which they are addressed and since the Community legislature excluded certain contracts from the scope of Directive 93/37, in particular by laying down thresholds, the Member States are not required to adopt, in the legislation transposing that directive, provisions recalling the obligation to comply with Articles 43 EC and 49 EC, which is applicable only in the circumstances cited above. The fact that the national legislature did not adopt such provisions with respect to public contracts for infrastructure works executed by the holder of a building permit or an approved estate plan the value of which is below the threshold for application of Directive 93/37, for cases where the existence of a certain cross-border interest is established, does not call into question the applicability of Articles 43 EC and 49 EC to those contracts.

(see paras 65-68)

4. A Member State which authorises the direct award of works or a work to the holder of a building permit or an approved estate plan by providing for an award procedure which complies with the requirements of Directive 93/37 only, where the works are divided into several lots, if the estimated value of each of those lots, taken individually, exceeds the threshold for the application of the directive fails to fulfil its obligations under Directive 93/37 concerning the coordination of procedures for the award of public words contracts, as amended by Directive 97/52.

The fact that a provision of national law allowing direct execution by the holder of a building permit or an approved estate plan of infrastructure works which offset the whole or part of the contribution payable in respect of the permit forms part of a set of urban development regulations which are of a special nature and pursue a specific aim that is separate from Directive 93/37 is not sufficient to exclude the direct execution of works from the scope of the directive when the elements needed to bring it within the scope of the directive are present. Such execution must therefore be subject to the procedures provided for in Directive 93/37 where it satisfies the conditions contained therein for classification of a public works contract and, in particular, where the contractual element required in Article 1(a) thereof is present and the value of the work is equal to or higher than the threshold laid down in Article 6(1).

Furthermore, it is clear from Article 6(3) of Directive 93/37 that, where a work is subdivided into several lots, each one the subject of a contract, the value of each lot must be taken into account for the purpose of calculating the amount referred to in Article 6(1), which determines whether or not the directive is applicable to all the lots. In addition, under Article 6(4), no work or contract may be split up with the intention of avoiding the application of the directive. Therefore, if the agreement concluded between a private person who is the owner of development land and the municipal authority satisfies the criteria for the definition of a ‘public works contract’ within the meaning of Article 1(a) of Directive 93/37, the estimated value which must in principle be taken into account in order to ascertain whether the threshold set by the directive is attained and whether, therefore, the award of the contract must comply with the rules on advertising laid down therein, may be calculated solely by reference to the total value of the various works, by adding together the value of the various lots.

(see paras 70-74, operative part 1)

5. A Member State which allows, first, the supervision of works which is as a rule the responsibility of the technical departments of the contracting authorities, to the project designer and, second, the award of testing and of inspection tasks in respect of public works, to third parties featured on lists drawn up for that purpose by the Ministry of Public Works, without using the procedures relating to the opening of contracts up to competition fails to fulfil its obligations under Directive 92/50 on public service contracts and Directive 93/38 coordinating the procurement procedures for entities operating in the water, energy, transport and telecommunications sectors.

The only permitted exceptions to the application of Directives 92/50 and 93/38 are those which are exhaustively and expressly mentioned therein. Supervision and the inspection of works are included in Category No 12 of both Annex I A to Directive 92/50 and Annex XVI A to Directive 93/38. It is clear, first, from Article 8 of Directive 92/50 that contracts which have as their object services listed in Annex I A are to be awarded in particular in accordance with the provisions of Title III of that directive which concerns the choice of award procedures and, second, from Article 15 of Directive 93/38 that supply and works contracts and contracts which have as their object services listed in Annex XVI A are to be awarded in accordance with, inter alia, the provisions of Title IV of Directive 93/38, relating to award procedures. Therefore, in so far as contracts for the supervision of works must be awarded in accordance with the rules laid down by Directives 92/50 and 93/38, the direct award to the project designer infringes those directives as regards contracts which, having regard to their value, fall within the scope of the directives. Likewise, in so far as contracts for inspection works must be awarded in accordance with the rules laid down by Directives 92/50 and 93/38, the award to third parties infringes those directives as regards the contracts included in their scope.

(see paras 84-85, 89-93, operative part 1)

6. It is clear from Article 38(1)(c) of the Rules of Procedure of the Court of Justice and from the case-law relating to that provision, that an application must state the subject-matter of the proceedings and a summary of the pleas in law on which the application is based, and that that statement must be sufficiently clear and precise to enable the defendant to prepare his defence and the Court to rule on the application. It is therefore necessary for the essential points of law and of fact on which a case is based to be indicated coherently and intelligibly in the application itself and for the heads of claim to be set out unambiguously so that the Court does not rule ultra petita or indeed fail to rule on an objection.

(see para. 103)