Case C-456/08: Action brought on 20 October 2008 — Commission of the European Communities v Ireland
Date: 2008-10-20
Institutions: Court of Justice
Subjects: Ireland, action for failure to fulfil an obligation, award of contract, public contract

C 313/20

EN

Official Journal of the European Union

6.12.2008

Action brought on 20 October 2008 — Commission of the
European Communities v Ireland

(Case C-456/08)

(2008/C 313/29)

Language of the case: English

Order 84A requires that actions need to be brought ‘at the
earliest opportunity and in any event within three months’. The
Commission considers that this formulation leaves tenderers in
uncertainty regarding their position when they consider making
use of their Community law right to effective legal remedy
against a decision of a contracting authority. In the Commis-
sion's view it needs to be made clear for tenderers which dead-
line applies for bringing an action against
the contracting
authority's decisions and that, with a view to the obligation to
respect the fundamental principle of legal certainty, the applic-
able time limit needs to be a fixed one which can be interpreted
in a clear and foreseeable manner by all tenderers.

Parties

(1) OJ L 395, p. 33.
(2) OJ L 199, p. 42.

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

Defendant: Ireland

The applicant claims that the Court should:

— Declare that, by way of the rules on time limits in the
national
legislation regulating the exercise of the right of
tenderers to judicial review in public procurement proce-
dures and by failing to notify the award decision to the
complainant in the award decision in question, Ireland has
failed to fulfil its obligations under, concerning the applic-
able
limits, Article 1(1) of Council Directive
89/665/EEC (1) on the application of review procedures to
the award of public supply and public work contracts as
interpreted by the Court and, concerning the lack of notifi-
cation, under Article 1(1) of Directive 89/665/EEC as inter-
preted by the Court and Article 8(2) of council directive
93/37/EEC (2) on the coordination of procedures for the
award of public works contracts.

time

— order Ireland to pay the costs.

Pleas in law and main arguments

Ireland must

In the Commission's view Irish law does not appear to be in
line with the fundamental principle of legal certainty and the
requirement of effectiveness under directive 89/665/EEC which
is an application of this principle, since tenderers are left in
uncertainty as to their position if they intend to challenge an
award decision of a contracting authority in two-phase award
procedures where a preferred bidder is selected prior to the final
award decision.
take measures to ensure that
tenderers have clarity and certainty as to which decision of the
contracting authority they may challenge and from which date
It must be made clear to
time limits are to be considered.
tenderers if Order 84A applies not only to the award decisions
but also to interim decisions of a contracting authority taken
during the contract award procedure (e.g. regarding the selection
of the preferred bidder), with the effect that the circumstances
challenged
embodied in the
following the lapse of the time limit reckoned from that interim
decision nor may the award decision be challenged on the basis
of the circumstances already embodied in the interim decision.

interim decision cannot be

Action brought on 21 October 2008 — Commission of the
European Communities v United Kingdom of Great Britain
and Northern Ireland

(Case C-457/08)

(2008/C 313/30)

Language of the case: English

Parties

Applicant: Commission of the European Communities (repre-
sented by: N. Yerrell, Agent)

Defendant: United Kingdom of Great Britain and Northern
Ireland

The applicant claims that the Court should:

the European Parliament and of

— declare that, by failing to adopt all the laws, regulations and
administrative provisions necessary to comply with Directive
2005/14/EC (1) of
the
Council of 11 May 2005 amending Council Directives
72/166/EEC, 84/5/EEC and 90/232/EEC and Directive
2000/26/EC of the European Parliament and of the Council
relating to insurance against civil liability in respect of the
use of motor vehicles, or in any event by failing to notify
those provisions to the Commission, the United Kingdom
has failed to fulfil
its obligations under Article 6 of the
Directive.