Case C-455/08: Action brought on 17 October 2008 — Commission of the European Communities v Ireland
Date: 2008-10-17
Institutions: Court of Justice
Subjects: European Commission, Ireland, action for failure to fulfil an obligation, exchange of information, invitation to tender, public contract

C 32/12

EN

Official Journal of the European Union

7.2.2009

Action brought on 17 October 2008 — Commission of the
European Communities v Ireland

the standstill period may have already lapsed by the time an
unsuccessful tenderer is fully informed of the reasons for the
rejection of his offer.

(Case C-455/08)

(2009/C 32/20)

Language of the case: English

Parties

In order to comply with the requirements that derive from the
case law of the Court of Justice in its Alcatel judgement and in
Commission vs Austria it is essential to ensure that the award
decision is reasoned in due time to allow it to be the subject of
an effective appeal, undertaken within the standstill period. The
Commission submits that the Irish rules are not in line with this
requirement as
tenderers are
they do not guarantee that
informed of the reasons for the rejection of their offer in due
time and well before the expiry of the standstill period. This
impedes the tenderers' right
to effective legal remedies, as
required by Directive 89/665/EEC.

Applicant: Commission of the European Communities (repre-
sented by: G. Zavvos, M. Konstantinidis and D. Kukovec,
Agents)

Defendant: Ireland

Irish S.I. No 50 of 2007

The applicant claims that the Court should:

— declare that, by way of Article 49 of S.I. No. 329 of 2006,
the Irish transposition measure for Directive 2004/18/EC (1),
and Article 51 of S.I. No 50 of 2007, the Irish transposition
measure for Directive 2004/17/EC (2), Ireland has established
the rules governing the notification of contracting authori-
ties' and entities' award decisions and their reasoning to
tenderers in such a way, which in practice may imply that by
the time tenderers are fully informed of the reasons for the
rejection of their offer, the standstill period for the conclu-
sion of the contract has already expired;

and 2(1) of Directive 89/665/EEC (3)

— thereby, Ireland has failed to fulfil its obligations under Arti-
cles 1(1)
and
Articles 1(1) and 2(1) of Directive 92/13/EEC (4) as inter-
preted by the European Court of Justice in its judgments
handed down in case C-81/98 (5)
judgment’)
and in case C-212/02 (6) (‘Commission v Austria’).

(the ‘Alcatel

— order Ireland to pay the costs of this action.

Pleas in law and main arguments

Irish S.I. No 329

Article 49 of the Irish S.I. No 329, which is the Irish transposi-
tion measure of Directive 2004/18/EC, requires that tenderers
be informed of the award decision by the most rapid means of
communication as soon as practicable after the contracting
authority took the decision. Calculated from the date on which
tenderers were informed of the award decision, the standstill
the
period which needs to elapse before the conclusion of
contract must be at least 14 days.

the Irish law,

However, under
the contracting authority is
required to give the reasons for the rejection of a tender only
when it receives such a request. The contracting authority must
provide the reasons ‘as soon as possible and in any event no
later than 15 days’. In the Commission's view, this means that

of

directive

According to article 51 of S.I. No 50 of 2007, which is the Irish
transposition measure
2004/17/EC, when
contracting entities notify tenderers of the award decision they
must indicate to the unsuccessful tenderers the ‘principal reason,
or reasons, why the tender is not the selected tender’. The ‘char-
acteristics and the relative advantages of the selected tender’
shall be communicated by the contracting entity to the unsuc-
cessful tenderers ‘as soon as practicable, and in any case within
15 days’ after receiving a request to do so. The standstill period
is 14 days, calculated from the notification of the award deci-
sion. In the Commission's view this means that the standstill
period might already have lapsed by the time an unsuccessful
tenderer is fully informed of the reasons for the rejection of his
offer.

regarding award procedures
The Commission submits that,
covered by directives 2004/17/EC and 92/13/EEC,
the Irish
legislation establishes the rules for the notification of tenderers
in a manner that restricts the unsuccessful tenderers' right to
effective legal remedies and is not in conformity with the reme-
dies directives in force, directives 89/665/EEC and 92/13/EEC,
as interpreted by the Court of Justice.

(1) Directive 2004/18/EC of

the
Council of 31 March 2004 on the coordination of procedures for
the award of public work contracts, public supply contracts and
public service contracts (OJ L 134, p. 114).

the European Parliament and of

(2) Directive 2004/17/EC of

the
Council of 31 March 2004 coordinating the procurement procedures
of entities operating in the water, energy,
transport and postal
services sectors (OJ L 134, p. 1).

the European Parliament and of

(3) Council Directive 89/665/EEC of 21 December 1989 on the coordi-
nation 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 L 395, p. 33).

(4) Council Directive 92/13/EEC of 25 February 1992 coordinating the
laws, regulations and administrative provisions relating to the appli-
cation of Community rules on the procurement procedures of enti-
ties operating in the water, energy, transport and telecommunications
sectors (OJ L 76, p. 14).

(5) C-81/98 — Alcatel Austria AG and others, Siemens AG Österreich,
Bundesministerium für

Sag-Schrack Anlagentechnik AK
Wissenschaft und Verkehr — judgment of 28 October 1999.

v.

(6) C-212/02 — Commission v Republic of Austria — judgment of

24 June 2004.