CELEX: 62003CJ0021
Language: en
Date: 2005-03-03
Title: Judgment of the Court (Second Chamber) of 3 March 2005.#Fabricom SA v Belgian State.#Reference for a preliminary ruling: Conseil d'État - Belgium.#Public procurement - Works, supplies and services - Water, energy, transport and telecommunications sectors - Prohibition on participation in a procedure of submission of a tender by a person who has contributed to the development of the works, supplies or services concerned.#Joined cases C-21/03 and C-34/03.

Joined Cases C-21/03 and C-34/03
      Fabricom SA
      v
      État belge
      (Reference for a preliminary ruling from the Council d’État (Belgium))
      (Public procurement – Works, supplies and services – Water, energy, transport and telecommunications sectors – Prohibition on participation in a procedure of submission of a tender by a person who has contributed to the development
         of the works, supplies or services concerned)
      
      Opinion of Advocate General Léger delivered on 11 November 2004  
      Judgment of the Court (Second Chamber), 3 March 2005  
      Summary of the Judgment
      1.     Approximation of laws – Procedures for the award of public service, public supply and public works contracts and procurement
            contracts in the water, energy, transport and telecommunications sectors – Directives 92/50, 93/36, 93/37 and 93/38 – Principle
            of non‑discrimination between tenderers – National rules precluding from participation in a contract any person who has contributed
            to the development of the works, supplies or services concerned without the possibility to prove the absence of any adverse
            effect on competition – Not permissible
      (Council Directives 92/50, Art. 3(2), 93/36, Art. 5(7), 93/37, Art. 6(6), and 93/38, Art. 4(2))
      2.     Approximation of laws – Procedures for the award of public service, public supply and public works contracts and procurement
            contracts in the water, energy, transport and telecommunications sectors – Directives 89/665 and 92/13 – National rules allowing
            the contracting authority to preclude from participation in the contract, until the end of the procedure for the examination
            of tenders, an undertaking connected with any person who has contributed to the development of the works, supplies or services
            concerned without taking into consideration the undertaking’s assertion that there is no adverse effect on competition – Not
            permissible
      (Council Directives 89/665, Arts 2(1)(a) and 5, and 92/13, Arts 1 and 2)
      1.     Directives 92/50, 93/36 and 93/37, as amended by Directive 97/52, and Directive 93/38, as amended by Directive 98/4, relating
         to the coordination of procedures for the award of, respectively, public service contracts, public supply contracts and public
         works contracts and procurement contracts in the water, energy, transport and telecommunications sectors, and, more particularly,
         the provision in each of those directives that the contracting authorities are to ensure equal treatment of tenderers, preclude
         national rules whereby a person who has been instructed to carry out research, experiments, studies or development in connection
         with public works, supplies or services is not permitted to apply to participate in or to submit a tender for those works,
         supplies or services and where that person is not given the opportunity to prove that, in the circumstances of the case, the
         experience which he as acquired was not capable of distorting competition.
      
      Taking account of the favourable situation in which a person who has carried out such preparatory work may find himself, it
         cannot be maintained that the principle of equal treatment requires that that person be treated in the same way as any other
         tenderer. However, a rule which provides that person with no possibility to demonstrate that in his particular case that situation
         is not apt to distort competition goes beyond what is necessary to attain the objective of equal treatment for all tenderers.
      
      (see paras 31, 33-34, 36, operative part 1)
      2.     Directive 89/665 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 and, more particularly, Articles 2(1)(a) and 5
         thereof, and Directive 92/13 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 and, more particularly, Articles 1 and 2 thereof, preclude the contracting entity from refusing, until the end of
         the procedure for the examination of tenders, to allow an undertaking connected with any person who has been instructed to
         carry out research, experiments, studies or development in connection with works, supplies or services to participate in the
         procedure or to submit a tender, even though, when questioned on that point by the awarding authority, that undertaking states
         that it has not thereby obtained an unfair advantage capable of distorting the normal conditions of competition.
      
      The possibility that the contracting authority might delay, until the procedure has reached a very advanced stage, taking
         a decision as to whether such an undertaking may participate in the procedure or submit a tender, when that authority has
         before it all the information which it needs in order to take that decision, deprives that undertaking of the opportunity
         to rely on the Community rules on the award of public contracts as against the awarding authority for a period which is solely
         within that authority’s discretion and which, where necessary, may be extended until a time when the infringements can no
         longer be usefully rectified.
      
      Such a situation is capable of depriving Directives 89/665  and 92/13 of all practical effect as they are susceptible of giving
         rise to an unjustified postponement of the possibility for those concerned to exercise the rights conferred on them by Community
         law. It is also contrary to the objectives of Directives 89/665 and 92/13, which seek to protect tenderers vis-à-vis the awarding
         authority.
      
      (see paras 44-46, operative part 2)

      
      
      
      
      
      
      
      
      
      
      
      
      
      
      
            
            JUDGMENT OF THE COURT (Second Chamber)3 March 2005(1)
         
         
               (Public procurement  –  Works, supplies and services  –  Water, energy, transport and telecommunications sectors  –  Prohibition on participation in a procedure of submission of a tender by a person who has contributed to the development
                  of the works, supplies or services concerned)
               
               
             In Joined Cases C-21/03 and C-34/03,REFERENCES for a preliminary ruling under Article 234 EC from the Conseil d’État (Belgium), made by decisions of 27 December 2002, received at the Court on 29 and 22 January 2003, respectively, in the proceedings
            
            
            Fabricom SA
            
            v
            
            État belge,
            
            
            
            THE COURT (Second Chamber),,
            
             composed of C.W.A. Timmermans, President of the Chamber (Rapporteur), C. Gulmann, J.-P. Puissochet, N. Colneric and J.N. Cunha
            Rodrigues, Judges,
            
             Advocate General: P. Léger,Registrar: R. Grass,
             having regard to the written procedure,after considering the observations submitted on behalf of:
            
            –
             Fabricom SA, by J. Vanden Eynde and J.-M. Wolter, avocats,
            
            –
             the Austrian Government, by M. Fruhmann, acting as Agent,
            
            –
             the Finnish Government, by T. Pynnä, acting as Agent,
            
            –
             the Commission of the European Communities, by K. Wiedner and B. Stromsky, acting as Agents,
            
            
            
            after hearing the Opinion of the Advocate General at the sitting on 11 November 2004,
         gives the following
         
         
         Judgment
         1
            
          The references for a preliminary ruling concern the interpretation of 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), as amended by European
         Parliament and Council Directive 97/52/EC of 13 October 1997 (OJ 1997 L 328, p. 1) (‘Directive 92/50’), and, more particularly,
         of Article 3(2) thereof, of Council Directive 93/36/EEC of 14 June 1993 coordinating procedures for the award of public supply
         contracts (OJ 1993 L 199, p. 1), as amended by Directive 97/52 (‘Directive 93/36’), and, more particularly, of Article 5(7)
         thereof, of Council Directive 93/37/EEC of 14 June 1993 concerning the coordination of procedures for the award of public
         works contracts (OJ 1993 L 199, p. 54), as amended by Directive 97/52 (‘Directive 93/37’), and, more particularly, of Article
         6(6) thereof, and also of Council Directive 93/38/EEC of 14 June 1993 coordinating the procurement procedures of entities
         operating in the water, energy, transport and telecommunications sectors (OJ 1993 L 199, p. 84), as amended by European Parliament
         and Council Directive 98/4/EC of 16 February 1998 (OJ 1998 L 101, p. 1) (‘Directive 93/38’), and, more particularly, of Article
         4(2) thereof, in conjunction with the principle of proportionality, freedom of trade and industry and the right to property.
         The references also concern the interpretation of 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) and, more particularly, of Articles 2(1)(a) and 5 thereof, and also
         of 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) and, more particularly, of Articles 1 and 2 thereof.
         
         
         
         2
            
          The references were made in proceedings between Fabricom SA (‘Fabricom’) and the Belgian State concerning the lawfulness of
         national provisions which, on certain conditions, preclude a person who has been instructed to carry out preparatory work
         in connection with a public contract or an undertaking connected to such a person from participating in that contract.
         
         
            
               Legal background
            Community rules
         
         3
            
          Article VI(4) of the agreement on government procurement annexed to Council Decision 94/800/EC of 22 December 1994 concerning
         the conclusion on behalf of the European Community, as regards matters within its competence, of the agreements reached in
         the Uruguay Round multilateral negotiations (1986-1994) (OJ 1994 L 336, p. 1) (‘the public contracts agreement’), provides:
         ‘Entities shall not seek or accept, in a manner which would have the effect of precluding competition, advice which may be
         used in the preparation of specifications for a specific procurement from a firm that may have a commercial interest in the
         procurement.’
         
         
         
         4
            
          Under Article 3(2) of Directive 92/50:
         ‘Contracting authorities shall ensure that there is no discrimination between different service providers.’
         
         
         
         5
            
          Article 5(7) of Directive 93/36 provides:
         ‘Contracting authorities shall ensure that there is no discrimination between the various suppliers.’
         
         
         
         6
            
          Article 6(6) of Directive 93/37 provides:
         ‘Contracting authorities shall ensure that there is no discrimination between the various contractors.’
         
         
         
         7
            
          Under Article 4(2) of Directive 93/38:
         ‘Contracting authorities shall ensure that there is no discrimination between different suppliers, contractors or service
         providers.’
         
         
         
         8
            
          The 10th recital in the preamble to Directive 97/52, the terms of which are substantially reproduced in the 13th recital in
         the preamble to Directive 98/4, states:
         ‘… contracting authorities may seek or accept advice which may be used in the preparation of specifications for a specific
         procurement, provided that such advice does not have the effect of precluding competition’. 
         
         
         
         9
            
          Article 2 of Directive 89/665 provides:
         ‘1. The Member States shall ensure that the measures taken concerning the review procedures specified in Article 1 include
         provision for the powers to: 
         
         (a)
            take, at the earliest opportunity and by way of interlocutory procedures, interim measures with the aim of correcting the
               alleged infringement or preventing further damage to the interests concerned, including measures to suspend or to ensure the
               suspension of the procedure for the award of a public contract or the implementation of any decision taken by the contracting
               authority; 
            
         
         
         …’
         
         
         
         
         10
            
          Under Article 1 of Directive 92/13:
         ‘1.     The Member States shall take the measures necessary to ensure that decisions taken by contracting entities may be reviewed
         effectively and, in particular, as rapidly as possible in accordance with the conditions set out in the following Articles
         and, in particular, Article 2(8), on the grounds that such decisions have infringed Community law in the field [of] procurement
         or national rules implementing that law as regards:
         
         (a)
            contract award procedures falling within the scope of Council Directive 90/531/EEC;
         
         
         and 
         
         
         (b)
            compliance with Article 3(2)(a) of that Directive in the case of the contracting entities to which that provision applies.
         
          2.       Member States shall ensure that there is no discrimination between undertakings likely to make a claim for injury in the context
         of a procedure for the award of a contract as a result of the distinction made by this Directive between national rules implementing
         Community law and other national rules.
          3.       The Member States shall ensure that the review procedures are available, under detailed rules which the Member States may
         establish, at least to any person having or having had an interest in obtaining a particular contract and who has been or
         risks being harmed by an alleged infringement. In particular, the Member States may require that the person seeking the review
         must have previously notified the contracting entity of the alleged infringement and of his intention to seek review.’
         
         
         
         11
            
          Article 2 of Directive 92/13 provides:
         ‘1.     The Member States shall ensure that the measures taken concerning the review procedures specified in Article 1 include provision
         for the powers:
          either
         
         (a)
            to take, at the earliest opportunity and by way of interlocutory procedure, interim measures with the aim of correcting the
               alleged infringement or preventing further injury to the interests concerned, including measures to suspend or to ensure the
               suspension of the procedure for the award of a contract or the implementation of any decision taken by the contracting entity;
            
         
         
         and
         
         
         (b)
            to set aside or ensure the setting aside of decisions taken unlawfully, including the removal of discriminatory technical,
               economic or financial specifications in the notice of contract, the periodic indicative notice, the notice on the existence
               of a system of qualification, the invitation to tender, the contract documents or in any other document relating to the contract
               award procedure in question;
            
         
         
         or
         
         
         (c)
            to take, at the earliest opportunity, if possible by way of interlocutory procedures and if necessary by a final procedure
               on the substance, measures other than those provided for in points (a) and (b) with the aim of correcting any identified infringement
               and preventing injury to the interests concerned; in particular, making an order for the payment of a particular sum, in cases
               where the infringement has not been corrected or prevented.
            
         
         
         Member States may take this choice either for all contracting entities or for categories or entities defined on the basis
            of objective criteria, in any event preserving the effectiveness of the measures laid down in order to prevent injury being
            caused to the interests concerned;
         
         
         
         …’
         
         
         National rules
         
         12
            
          Article 32 of the Royal Decree of 25 March 1999 amending the Royal Decree of 8 January 1996 on the public procurement of works,
         supplies and services and on public works concessions (Moniteur belge, 9 April 1999, p. 11690; ‘Article 32 of the Royal Decree of 25 March 1999 amending the Royal Decree of 8 January 1996’),
         provides:
         ‘…
          1.       No person who has been instructed to carry out research, experiments, studies or development in connection with public works,
         supplies or services shall be permitted to apply to participate in or to submit a tender for a contract for those works, supplies
         or services.
          2.       An undertaking connected to any person referred to in paragraph 1 shall be permitted to apply to participate in or to submit
         a tender only where it establishes that it has not thereby obtained an unfair advantage capable of distorting the normal conditions
         of competition.
          For the purposes of this article, “undertaking connected” means any undertaking over which a person referred to in paragraph
         1 may, directly or indirectly, exercise a dominant influence or any undertaking which may exercise a dominant influence over
         that person or which, like that person, is subject to the dominant influence of another undertaking by virtue of its ownership,
         financial participation or the rules which govern it. Dominant influence shall be presumed where an undertaking, directly
         or indirectly, with respect to another undertaking:
         (1)     holds a majority of the subscribed capital of the undertaking; or
         (2)     is entitled to a majority of the votes attached to the shares issued by the undertaking; or
         (3)     may nominate more than half the members of the body responsible for the administration, management or supervision of the undertaking.
          Before excluding any undertaking on the ground that it is presumed to have obtained an unfair advantage, the contracting authority
         shall, by registered letter, invite that undertaking to provide within 12 calendar days, unless in a particular case the invitation
         allows a longer period, evidence of, for example, its connections, its degree of independence or any circumstances showing
         that dominant influence has not been established or has not affected the relevant contract.
          3.       Paragraphs 1 and 2 shall not apply:
         (1)     to public contracts covering both the setting-up and the implementation of a project;
         (2)     to public contracts awarded by negotiated procedure without publication at the time of the commencement of the procedure for
         the purposes of Article 17(2) of the Law.’
         
         
         
         13
            
          Article 26 of the Royal Decree of 25 March 1999 amending the Royal Decree of 10 January 1996 on public works, supplies and
         services contracts in the water, energy, transport and telecommunications sectors (Moniteur belge, 28 April 1999, p. 14144; ‘the Royal Decree of 15 March 1999 amending the Royal Decree of 10 January 1996’), is essentially
         worded in the same terms as Article 32 of the Royal Decree of 25 March 1999 amending the Royal Decree of 8 January 1996.
         
         Main proceedings and questions referred to the Court
         
         14
            
          Fabricom is a contractor which is regularly required to submit tenders for public contracts, particularly in the water, energy,
         transport and telecommunications sectors.
         
         Case C-21/03
         
         15
            
          By application lodged before the Conseil d’État on 25 June 1999, Fabricom seeks annulment of Article 26 of the Royal Decree
         of 25 March 1999 amending the Royal Decree of 10 January 1996.
         
         
         
         16
            
          It claims that that provision is, inter alia, contrary to the principle of equal treatment of all tenderers, to the principle
         of the effectiveness of judicial review as guaranteed by Directive 92/13, to the principle of proportionality, to freedom
         of trade and industry and also to the right to property as laid down in Article 1 of Protocol No 1 to the European Convention
         for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950.
         
         
         
         17
            
          The Belgian State disputes the pleas put forward by Fabricom.
         
         
         
         18
            
          As regards Article 26 of the Royal Decree of 25 March 1999 amending the Royal Decree of 10 January 1996, the Conseil d’État
         states that, according to the terms of the preamble to the Royal Decree of 25 March 1999 and to the terms of the Report to
         the King which precedes it, Article 26 is designed to prevent a person desiring to be awarded a public contract from deriving
         an advantage, contrary to free competition, from research, experiments, studies or development carried out in connection with
         works, supplies or services relating to such a contract.
         
         
         
         19
            
          The Conseil d’État considers that that provision, generally and without distinction, precludes a person who has been instructed
         to carry out such research, experiments, studies or development and, consequently, an undertaking deemed to be connected to
         that person, from participating in or submitting tenders for a contract. Nor, unlike the position of the connected undertaking,
         does that provision allow the person concerned to prove that, in the circumstances of the case, he has been unable to obtain,
         by means of one of those operations, an advantage capable of upsetting the equality between tenderers. It does not expressly
         require that the awarding authority reach a decision within a specific period on the evidence which the connected undertaking
         provides in order to show that the dominant influence is not established or has no effect on the market concerned.
         
         
         
         20
            
          Being of the view that the outcome of the dispute before it requires an interpretation of certain provisions of the public
         procurement directives, the Conseil d’État decided to stay proceedings and to refer the following questions to the Court for
         a preliminary ruling:
         
         ‘1.
            Do … Directive 98/38 …, and in particular Article 4(2) thereof, and Directive 98/4 …, in conjunction with the principle of
               proportionality, freedom of trade and industry and respect for the right to property guaranteed in particular by Protocol
               No 1 of 20 March 1952 to the Convention for the Protection of Human Rights and Fundamental Freedoms, preclude any person who
               has been instructed to carry out research, experiments, studies or development in connection with a public contract for works,
               supplies or services from being permitted to apply to participate in or to submit a tender for that contract where that person
               has not been given an opportunity to prove that, in the circumstances of the case, the experience which he has acquired was
               not capable of distorting competition?
            
         
         
         2.
            Would the answer to the preceding question be different if those directives, considered in conjunction with that principle,
               freedom and right, were interpreted as referring only to private undertakings or to undertakings which have provided services
               for valuable consideration?
            
         
         
         3.
            May … Directive 92/13 …, and in particular Articles 1 and 2 thereof, be interpreted as meaning that a contracting entity may
               refuse, up to the end of the procedure for the examination of tenders, to allow an undertaking connected to any person who
               has been instructed to carry out research, experiments, studies or development in connection with supplies or services to
               participate in the procedure or to submit a tender, even though, when questioned on that point by the awarding authority,
               the undertaking states that it has not thereby obtained an unfair advantage capable of distorting the normal conditions of
               competition?’
            
         
         
         Case C-34/03
         
         21
            
          By application lodged before the Conseil d’État on 8 June 1999, Fabricom seeks annulment of Article 32 of the Royal Decree
         of 25 March 1999 amending the Royal Decree of 8 January 1996.
         
         
         
         22
            
          The pleas put forward by Fabricom are essentially the same as those put forward in Case C-21/03. The information provided
         by the Conseil d’État in respect of Article 32 is identical to that set out in Case C-21/03 in respect of Article 26 of the
         Royal Decree of 25 March 1999 amending the Royal Decree of 10 January 1996.
         
         
         
         23
            
          In those circumstances, the Conseil d’État decided to stay proceedings and to refer the following questions to the Court for
         a preliminary ruling:
         
         ‘(1)
            Do … Directive 92/50 …, and in particular Article 3(2) thereof, … Directive 93/36 …, and in particular Article 5(7) thereof,
               … Directive 93/37 …, and in particular Article 6(6) thereof, and Directive 97/52 …, and in particular Articles 2(1)(b) and
               3(1)(b) thereof, in conjunction with the principle of proportionality, freedom of trade and industry and respect for the right
               to property guaranteed in particular by Protocol No 1 of 20 March 1952 to the Convention for the Protection of Human Rights
               and Fundamental Freedoms, preclude any person who has been instructed to carry out research, experiments, studies or development
               in connection with a public contract for works, supplies or services from being permitted to apply to participate in or to
               submit a tender for that contract where that person has not been given an opportunity to prove that, in the circumstances
               of the case, the experience which he has acquired was not capable of distorting competition?
            
         
         
         (2)
            Would the answer to the preceding question be different if those directives, considered in conjunction with that principle,
               freedom and right, were interpreted as referring only to private undertakings or to undertakings which have provided services
               for valuable consideration?
            
         
         
         (3)
            May … Directive 89/665 …, and in particular Articles 2(1)(a) and 5 thereof, be interpreted as meaning that a contracting authority
               may refuse, up to the end of the procedure for the examination of tenders, to allow an undertaking connected to any person
               who has been instructed to carry out research, experiments, studies or development in connection with supplies or services
               to participate in the procedure or to submit a tender, even though, when questioned on that point by the awarding authority,
               the undertaking states that it has not thereby obtained an unfair advantage capable of distorting the normal conditions of
               competition?’
            
         
         
         
         
         24
            
          By order of the President of the Court of 4 March 2003, Cases C-21/03 and C-34/03 were joined for the purposes of the written
         and oral procedures and also of the judgment.
         
         The questions referred to the CourtFirst question referred in Cases C-21/03 and C-34/03
         
         25
            
          By the first question referred in Cases C-21/03 and C-34/03, the national court is seeking essentially to ascertain whether
         the provisions of Community law to which it refers preclude a rule, such as that laid down in Article 26 of the Royal Decree
         of 25 March 1999 amending the Royal Decree of 10 January 1996 and Article 32 of the Royal Decree of 25 March 1999 amending
         the Royal Decree of 8 January 1996, which states that any person who has been instructed to carry out research, experiments,
         studies or development in connection with public works, supplies or services is not allowed to participate in or to submit
         a tender for a public contract for those works, supplies or services where that person is not permitted to prove that, in
         the circumstances of the case, the experience which he has acquired was not capable of distorting competition (‘the rule at
         issue in the main proceedings’).
         
         
         
         26
            
          In that regard, it must be borne in mind that the duty to observe the principle of equal treatment lies at the very heart
         of the public procurement directives, which are intended in particular to promote the development of effective competition
         in the fields to which they apply and which lay down criteria for the award of contracts which are intended to ensure such
         competition (Case C-513/99 Concordia Bus Finland [2002] ECR I-7213, paragraph 81 and the case-law cited there).
         
         
         
         27
            
          Furthermore, it is settled case-law that the principle of equal treatment requires that comparable situations must not be
         treated differently and that different situations must not be treated in the same way unless such treatment is objectively
         justified (Case C-434/02 Arnold André [2004] ECR I-0000, paragraph 68 and the case-law cited there, and Case C-210/03 Swedish Match [2004] ECR I-0000, paragraph 70 and the case-law cited there).
         
         
         
         28
            
          A person who has been instructed to carry out research, experiments, studies or development in connection with works, supplies
         or services relating to a public contract (hereinafter ‘a person who has carried out certain preparatory work’) is not necessarily
         in the same situation as regards participation in the procedure for the award of that contract as a person who has not carried
         out such works.
         
         
         
         29
            
          Indeed, a person who has participated in certain preparatory works may be at an advantage when formulating his tender on account
         of the information concerning the public contract in question which he has received when carrying out that work. However,
         all tenderers must have equality of opportunity when formulating their tenders (see, to that effect, Case C-87/94 Commission v Belgium [1996] ECR I‑2043, paragraph 54).
         
         
         
         30
            
          Furthermore, that person may be in a situation which may give rise to a conflict of interests in the sense that, as the Commission
         correctly submits, he may, without even intending to do so, where he himself is a tenderer for the public contract in question,
         influence the conditions of the contract in a manner favourable to himself. Such a situation would be capable of distorting
         competition between tenderers.
         
         
         
         31
            
          Taking account of the situation in which a person who has carried out certain preparatory work may find himself, therefore,
         it cannot be maintained that the principle of equal treatment requires that that person be treated in the same way as any
         other tenderer.
         
         
         
         32
            
          Fabricom, and also the Austrian and Finnish Governments, submit, essentially, that the difference in treatment established
         by a rule such as that at issue in the main proceedings and which consists in prohibiting, in all circumstances, a person
         who has carried out certain preparatory works from participating in a procedure for the award of the public contract in question
         is not objectively justified. They claim that such a prohibition is disproportionate. Equal treatment for all tenderers is
         also ensured where there is a procedure whereby an assessment is made, in each specific case, of whether the fact of carrying
         out certain preparatory works has conferred on the person who carried out that work a competitive advantage over other tenderers.
         Such a measure is less restrictive for a person who has carried out certain preparatory work.
         
         
         
         33
            
          In that regard, it must be held that a rule such as that at issue in the main proceedings does not afford a person who has
         carried out certain preparatory work any possibility to demonstrate that in his particular case the problems referred to in
         paragraphs 29 and 30 of the present judgment do not arise. 
         
         
         
         34
            
          Such a rule goes beyond what is necessary to attain the objective of equal treatment for all tenderers.
         
         
         
         35
            
          Indeed, the application of that rule may have the consequence that persons who have carried out certain preparatory works
         are precluded from the award procedure even though their participation in the procedure entails no risk whatsoever for competition
         between tenderers.
         
         
         
         36
            
          In those circumstances, the answer to the first question referred in Cases C-21/03 and C-34/03 must be that Directive 92/50
         and, more particularly, Article 3(2) thereof, Directive 93/36 and, more particularly, Article 5(7) thereof, Directive 93/37
         and, more particularly, Article 6(6) thereof, and also Directive 93/38 and, more particularly, Article 4(2) thereof, preclude
         a rule, such as that laid down in Article 26 of the Royal Decree of 25 March 1999 amending the Royal Decree of 10 January
         1996 and Article 32 of the Royal Decree of 25 March 1999 amending the Royal Decree of 8 January 1996, whereby a person who
         has been instructed to carry out research, experiments, studies or development in connection with public works, supplies or
         services is not permitted to apply to participate in or to submit a tender for those works, supplies or services and where
         that person is not given the opportunity to prove that, in the circumstances of the case, the experience which he has acquired
         was not capable of distorting competition. 
         
         Second question referred in Cases C-21/03 and C-34/03
         
         37
            
          By the second question referred in Cases C-21/03 and C-34/03, the national court asks whether the answer to the first question
         is different where Directives 92/50, 93/36, 93/37 and 93/38, considered in conjunction with the principle of proportionality,
         freedom of trade and industry and the right to property, are interpreted as referring only to private undertakings or to undertakings
         which have provided services for valuable consideration.
         
         
         
         38
            
          That question is based on a hypothesis which cannot be accepted.
         
         
         
         39
            
          There is nothing in those directives to indicate that they may be interpreted as referring, as regards their applicability
         to undertakings which are participating or intend to participate in a public contract procedure, only to private undertakings
         or to undertakings which have provided services for valuable consideration. Furthermore, the principle of equal treatment
         precludes the application of a rule such as that at issue in the main proceedings solely to private undertakings or to undertakings
         which have provided services for valuable consideration and which have carried out certain preparatory works where it would
         not apply to undertakings not having one of those qualities which have also carried out such preparatory work.
         
         
         
         40
            
          Accordingly, there is no need to answer the second question referred in Cases C‑21/03 and C-34/03.
         
         Third question referred in Cases C-21/03 and C-34/03
         
         41
            
          By the third question referred in Cases C-21/03 and C-34/03, the national court is seeking essentially to ascertain whether
         Directive 89/665 and, more particularly, Articles 2(1)(a) and 5 thereof, and also Directive 92/13 and, more particularly,
         Articles 1 and 2 thereof, preclude the contracting entity from being able to refuse, until the end of the procedure for the
         examination of tenders, to allow an undertaking connected with any person who has carried out certain preparatory works from
         participating in the procedure or from submitting a tender, even though, when questioned on that point by the awarding authority,
         the undertaking states that it has not thereby obtained an unfair advantage capable of distorting the normal conditions of
         competition.
         
         
         
         42
            
          In that regard, it should be borne in mind that, since the issue in the case relates to detailed procedural rules governing
         the remedies intended to protect rights conferred by Community law on candidates and tenderers harmed by decisions of contracting
         authorities, those rules must not compromise the effectiveness of Directive 89/665 (Case C-470/99 Universale-Bau and Others [2002] ECR I‑11617, paragraph 72). 
         
         
         
         43
            
          Furthermore, the provisions of Directives 89/665 and 92/13, which are intended to protect tenderers against arbitrary decisions
         by the contracting authority, seek to reinforce existing arrangements for ensuring effective application of Community directives
         on the award of public contracts, in particular where infringements can still be rectified. Such protection cannot be effected
         if the tenderer is not able to rely on those rules against the contracting authority (Case C-212/02 Commission v Austria, not published in the European Court Reports, paragraph 20 and the case-law cited there).
         
         
         
         44
            
          The possibility that the contracting authority might delay, until the procedure has reached a very advanced stage, taking
         a decision as to whether an undertaking connected with a person who has carried out certain preparatory works may participate
         in the procedure or submit a tender, when that authority has before it all the information which it needs in order to take
         that decision, deprives that undertaking of the opportunity to rely on the Community rules on the award of public contracts
         as against the awarding authority for a period which is solely within that authority’s discretion and which, where necessary,
         may be extended until a time when the infringements can no longer be usefully rectified.
         
         
         
         45
            
          Such a situation is capable of depriving Directives 89/665 and 92/13 of all practical effect as they are susceptible of giving
         rise to an unjustified postponement of the possibility for those concerned to exercise the rights conferred on them by Community
         law. It is also contrary to the objectives of Directives 89/665 and 92/13, which seek to protect tenderers vis-à-vis the awarding
         authority.
         
         
         
         46
            
          The answer to the third question referred in Cases C-21/03 and C-34/03 must therefore be that Directive 89/665 and, more particularly,
         Articles 2(1)(a) and 5 thereof, and also Directive 92/13 and, more particularly, Articles 1 and 2 thereof, preclude the contracting
         authority from being able to refuse, up to the end of the procedure for the examination of tenders, to allow an undertaking
         connected with any person who has been instructed to carry out research, experiments, studies or development in connection
         with works, supplies or services from participating in the procedure or submitting an offer, even though, when questioned
         on that point by the awarding authority, that undertaking states that it has not thereby obtained an unfair advantage capable
         of distorting the normal conditions of competition.
         
         
         Costs
         47
            
          Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court,
         the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs
         of those parties, are not recoverable.
         
         
         
         
         
         
            
            
         
         
          On those grounds, the Court (Second Chamber) rules as follows:
         
            
            
             
               1.
                  Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts,
                     as amended by European Parliament and Council Directive 97/52/EC of 13 October 1997, and, more particularly, Article 3(2)
                     thereof, Council Directive 93/36/EEC of 14 June 1993 coordinating procedures for the award of public supply contracts, as
                     amended by Directive 97/52, and, more particularly, Article 5(7) thereof, Council Directive 93/37/EEC of 14 June 1993 concerning
                     the coordination of procedures for the award of public works contracts, as amended by Directive 97/52, and, more particularly,
                     Article 6(6) thereof, and also Council Directive 93/38/EEC of 14 June 1993 coordinating the procurement procedures of entities
                     operating in the water, energy, transport and telecommunications sectors, as amended by European Parliament and Council Directive
                     98/4/EC of 16 February 1998, and, more particularly, Article 4(2) thereof, preclude a rule such as that laid down in Article
                     25 of the Royal Decree of 25 March 1999 amending the Royal Decree of 10 January 1996 on public works, supply and service contracts
                     in the water, energy, transport and telecommunications sectors, and Article 32 of the Royal Decree of 25 March 1999 amending
                     the Royal Decree of 8 January 1996 on public works, supply and service contracts and on the award of public contracts, whereby
                     a person who has been instructed to carry out research, experiments, studies or development in connection with a public works,
                     supplies or services contract is not permitted to apply to participate in or to submit a tender for those works, supplies
                     or services and where that person is not given the opportunity to prove that, in the circumstances of the case, the experience
                     which he has acquired was not capable of distorting competition.
                  
               
            
            
            
             
               2.
                  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 and, more particularly,
                     Articles 2(1)(a) and 5 thereof, and 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 and, more particularly, Articles 1 and 2 thereof, preclude
                     the contracting entity from refusing, until the end of the procedure for the examination of tenders, to allow an undertaking
                     connected with any person who has been instructed to carry out research, experiments, studies or development in connection
                     with works, supplies or services to participate in the procedure or to submit a tender, even though, when questioned on that
                     point by the awarding authority, that undertaking states that it has not thereby obtained an unfair advantage capable of distorting
                     the normal conditions of competition.
                  
               
            
            [Signatures]
      
      
          1 –
            
            Language of the case: French.