Order of the President of the Court of 16 February 1987. - Commission of the European Communities v Ireland. - Public works contract - Community tender procedure. - Case 45/87 R.



European Court reports 1987 Page 00783



Parties

Grounds

Operative part



Keywords

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APPLICATION FOR INTERIM MEASURES - INTERIM MEASURES - POWERS OF THE PRESIDENT UNDER ARTICLE 84 ( 2 ) OF THE RULES OF PROCEDURE

( EEC TREATY, ART . 186; RULES OF PROCEDURE, ART . 84 ( 2 )*)

Parties

IN CASE 45/87 R,

COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS AGENT, ERIC L . WHITE, MEMBER OF ITS LEGAL SERVICE, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF G . KREMLIS, JEAN MONNET BUILDING, KIRCHBERG,

APPLICANT,

V

IRELAND, REPRESENTED BY J . L . DOCKERY, CHIEF STATE SOLICITOR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE IRISH EMBASSY, 28, ROUTE D' ARLON,

DEFENDANT,

APPLICATION FOR INTERIM MEASURES TO PREVENT THE AWARD OF A CONTRACT RELATING TO THE DUNDALK WATER SUPPLY UNTIL THE FINAL JUDGMENT IN THE MAIN ACTION IN THE PRESENT CASE,

THE PRESIDENT OF THE COURT OF JUSTICE

OF THE EUROPEAN COMMUNITIES

MAKES THE FOLLOWING

ORDER

Grounds

1 DUNDALK URBAN DISTRICT COUNCIL IS THE PROMOTER OF A PROJECT KNOWN AS THE DUNDALK WATER SUPPLY AUGMENTATION SCHEME . CONTRACT NO*4 OF THIS SCHEME CONCERNS THE CONSTRUCTION OF A WATER MAIN TO TRANSPORT WATER FROM THE RIVER FANE SOURCE TO A TREATMENT PLANT AT CAVAN HILL AND THENCE INTO THE EXISTING TOWN SUPPLY SYSTEM . THE INVITATION TO TENDER FOR THIS CONTRACT BY OPEN PROCEDURE WAS PUBLISHED IN SUPPLEMENT 50 OF THE OFFICIAL JOURNAL OF THE EUROPEAN COMMUNITIES OF 13 MARCH 1986, P . 13 . AT POINT 13 OF THE PUBLISHED NOTICE IT WAS STATED THAT :

"THE CONTRACT WILL BE AWARDED, SUBJECT TO THE DUNDALK URBAN DISTRICT COUNCIL BEING SATISFIED AS TO THE ABILITY OF THE CONTRACTOR TO CARRY OUT THE WORK, TO THE CONTRACTOR WHO SUBMITS A TENDER, IN ACCORDANCE WITH THE TENDER DOCUMENTS, WHICH IS ADJUDGED TO BE THE MOST ECONOMICALLY ADVANTAGEOUS TO THE COUNCIL IN RESPECT OF PRICE, PERIOD OF COMPLETION, TECHNICAL MERIT AND RUNNING COSTS .

THE LOWEST OR ANY TENDER NEED NOT NECESSARILY BE ACCEPTED ."

2 THE COMMISSION RECEIVED COMPLAINTS THAT ONE OF THE TENDERS SUBMITTED WAS BEING UNFAIRLY EXCLUDED FROM CONSIDERATION . ONE OF THE COMPLAINANTS IS AN IRISH CONTRACTOR TENDERING FOR THE CONTRACT, P . J . WALLS ( CIVIL ) LTD (" WALLS "), AND THE OTHER IS THE SPANISH COMPANY OFFERING TO SUPPLY ASBESTOS CEMENT PIPES FOR THE CONTRACT, URALITA SA (" URALITA ").

3 WALLS SUBMITTED THREE OFFERS IN RESPONSE TO THE TENDER INVITATION, ONE OF WHICH BASED ON THE USE OF PIPES SUPPLIED BY "URALITA" OF SPAIN, WAS THE LOWEST TENDER OFFERED . THE CONSULTING ENGINEERS TO THE PROJECT HAVE, HOWEVER, STATED THAT THIS TENDER IS NOT IN ACCORDANCE WITH CLAUSE 4.29 OF THE SPECIFICATION TO THE CONTRACT WHICH PROVIDES THAT :

"ASBESTOS CEMENT PRESSURE PIPES SHALL BE CERTIFIED AS COMPLYING WITH IRISH STANDARD SPECIFICATION 188-1975 IN ACCORDANCE WITH THE IRISH STANDARD MARK LICENSING SCHEME OF THE INSTITUTE FOR INDUSTRIAL RESEARCH AND STANDARDS . ALL ASBESTOS CEMENT WATERMAINS ARE TO HAVE A BITUMINOUS COATING INTERNALLY AND EXTERNALLY . SUCH COATINGS SHALL BE APPLIED AT THE FACTORY BY DIPPING ".

ONLY PIPES MADE BY TEGRAL PIPES LTD OF DROGHEDA, IRELAND, ARE CURRENTLY CERTIFIED TO THIS STANDARD .

4 FOLLOWING VARIOUS DISCUSSIONS, THE COMMISSION INSTITUTED PROCEEDINGS UNDER ARTICLE 169 OF THE EEC TREATY ON 20 OCTOBER 1986, SETTING OUT ITS VIEW THAT THIS CLAUSE OF THE SPECIFICATION CONSTITUTED A BREACH OF ARTICLES 30 TO 36 OF THE EEC TREATY AND OF ARTICLE 10 OF COUNCIL DIRECTIVE OF 71/305/EEC OF 26 JULY 1971 COORDINATING PROCEDURES FOR THE AWARD OF PUBLIC WORKS CONTRACTS ( OFFICIAL JOURNAL L*185 OF 25 AUGUST 1971, P . 5 ( ENGLISH SPECIAL EDITION P . 682 )*). THE IRISH GOVERNMENT REPLIED ON 14 NOVEMBER 1986 . THE COMMISSION WAS NOT SATISFIED WITH THIS REPLY AND ADDRESSED A REASONED OPINION TO THE IRISH GOVERNMENT ON 13 JANUARY 1987 . THE IRISH GOVERNMENT REPLIED ON 3 FEBRUARY 1987 . THE IRISH GOVERNMENT AGREED TO UNDERTAKE NOT TO AWARD THE CONTRACT UNTIL 20 FEBRUARY 1987 .

5 BY AN APPLICATION LODGED AT THE COURT REGISTRY ON 13*FEBRUARY 1987, THE COMMISSION APPLIED FOR A DECLARATION THAT BY THE INCLUSION OF CLAUSE 4.29 IN THE CONTRACT AND BY THE REFUSAL TO ACCEPT THE USE OF ASBESTOS CEMENT PIPES MANUFACTURED TO AN EQUIVALENT STANDARD, IRELAND HAS FAILED TO FULFIL ITS OBLIGATIONS UNDER ARTICLE 30 OF THE EEC TREATY AND ARTICLE 10 OF COUNCIL DIRECTIVE 71/305/EEC .

6 BY AN APPLICATION LODGED AT THE COURT REGISTRY ON 13*FEBRUARY 1987, THE APPLICANT REQUESTED THE COURT, PURSUANT TO ARTICLE 186 OF THE EEC TREATY AND ARTICLE OF THE RULES OF PROCEDURE, TO ORDER IRELAND TO TAKE SUCH MEASURES AS MAY BE NECESSARY TO PREVENT, UNTIL SUCH TIME AS THE COURT HAS GIVEN FINAL JUDGMENT IN THIS CASE OR A SETTLEMENT HAS BEEN REACHED BETWEEN THE COMMISSION AND IRELAND, THE AWARD OF A CONTRACT FOR THE WORKS TO WHICH THIS CASE RELATES, OR IF SUCH A CONTRACT SHOULD ALREADY HAVE BEEN AWARDED, TO ORDER IRELAND TO TAKE SUCH MEASURES AS MAY BE NECESSARY TO CANCEL SUCH A CONTRACT .

7 ACCORDING TO ARTICLE 84 ( 2 ) OF THE RULES OF PROCEDURE, THE PRESIDENT MAY GRANT AN APPLICATION FOR INTERIM MEASURES EVEN BEFORE THE OBSERVATIONS OF THE OPPOSITE PARTY HAVE BEEN SUBMITTED . THAT DECISION MAY BE VARIED OR CANCELLED EVEN WITHOUT ANY APPLICATION BEING MADE BY ANY PARTY .

8 IT APPEARS NECESSARY TO MAKE USE OF THIS POWER IN THE PRESENT CASE SO AS TO ENSURE THAT THE APPLICATION FOR INTERIM MEASURES IS NOT PREJUDICED BY THE EXISTENCE OF A FAIT ACCOMPLI . IF THE CONTRACT IN QUESTION WERE AWARDED BEFORE THE APPLICATION FOR INTERIM MEASURES IS DECIDED, DIFFICULT QUESTIONS MIGHT ARISE AS TO THE POSSIBILITY OF SUBSEQUENTLY CANCELLING IT . MOREOVER, THE COMMISSION STATES THAT OTHER PHASES OF THE SCHEME ( FOR EXAMPLE, THE PUMPING STATION ) ARE STILL AT THE DESIGN STAGE AND THAT A DELAY IN THE AWARD IS THEREFORE UNLIKELY TO DELAY THE ULTIMATE OBJECTIVE OF INCREASING WATER SUPPLY IN THE DUNDALK AREA . THE INTERESTS OF JUSTICE AND OF THE PARTIES INVOLVED CAN THEREFORE BEST BE MAINTAINED BY AN ORDER MAINTAINING THE STATUS QUO UNTIL THERE HAS BEEN THE POSSIBILITY OF HEARING THE PARTIES AND DECIDING THE APPLICATION FOR INTERIM MEASURES WITH ALL DUE DELIBERATION .

Operative part

On those grounds,

THE PRESIDENT OF THE COURT,

by way of an interim decision,

hereby orders as follows :

( 1 ) Ireland shall take such measures as may be necessary to prevent, until such time as the application by the Commission for interim measures has been disposed of or until further order, the award by Dundalk Urban District Council of Contract No*4 of the Dundalk Water Supply Augmentation Scheme .

( 2 ) The costs are reserved .

Done at Luxembourg on 16 February 1987 .