CELEX: 62002CJ0340
Language: en
Date: 2004-10-14 00:00:00
Title: Judgment of the Court (First Chamber) of 14 October 2004.#Commission of the European Communities v French Republic.#Failure of a Member State to fulfil obligations - Directive 92/50/EEC - Procedure for the award of public service contracts - Assistance to the maître d'ouvrage for a sewage treatment plant - Award to the successful candidate in an earlier design contest without prior publication of a contract notice in the OJEC.#Case C-340/02.

Case C-340/02
      Commission of the European Communities
      v
      French Republic
      (Failure of a Member State to fulfil obligations – Directive 92/50/EEC – Procedure for the award of public service contracts – Assistance to the maître d’ouvrage for a sewage treatment plant – Award to the successful candidate in an earlier design contest without prior publication of a contract notice in the OJEC)
      Summary of the Judgment
      1.        Actions for failure to fulfil obligations – Pre‑litigation procedure – Purpose – Reasoned opinion – Content – Delimitation
            of the subject‑matter of the dispute 
      (Art. 226 EC)
      2.        Approximation of laws – Procedures for the award of public service contracts – Directive 92/50 – Award of contracts – Principles
            of the equal treatment of tenderers and of transparency – Clear definition of the subject‑matter of the contract and the award
            criteria 
      (Council Directive 92/50, Art. 3(2))
      3.        Approximation of laws – Procedures for the award of public service contracts – Directive 92/50 – Award of contracts – Negotiated
            procedure without prior publication of a contract notice – Conditions of admissibility – Contract following a design contest
            – Limits – Project in several phases – Contest relating to a first phase – Award of the contract relating to a second phase
            to the successful candidate in that contest – Not permissible 
      (Council Directive 92/50, Art. 11(3)(c))
      1.        In an action for annulment the purpose of the pre-litigation procedure is to give the Member State concerned an opportunity,
         on the one hand, to comply with its obligations under Community law and, on the other, to avail itself of its right to defend
         itself against the charges formulated by the Commission.
      
      The subject-matter of proceedings under Article 226 EC is therefore delimited by the pre-litigation procedure governed by
         that provision. Accordingly, the application must be founded on the same grounds and pleas as the reasoned opinion, which
         must contain a cogent and detailed exposition of the reasons which led the Commission to the conclusion that the Member State
         concerned had failed to fulfil one of its obligations under the Treaty. 
      
      (see paras 25-27)
      2.        The principle of equal treatment of service providers, laid down in Article 3(2) of Directive 92/50 relating to the coordination
         of procedures for the award of public service contracts, and the principle of transparency which flows from it require the
         subject-matter of each contract and the criteria governing its award to be clearly defined. 
      
      That obligation exists where the subject-matter of a contract and the criteria selected for its award must be regarded as
         decisive for the purposes of determining which of the procedures provided for in the directive is to be implemented and assessing
         whether the requirements related to that procedure have been observed.
      
      (see paras 34-35)
      3.        Article 11(3)(c) of Directive 92/50 relating to the coordination of procedures for the award of public service contracts,
         which authorises contracting authorities using a negotiated procedure to derogate from the obligation of prior publication
         where the contract concerned follows a design contest and must be awarded to the successful candidate or to one of the successful
         candidates, must be interpreted strictly; the burden of proving the existence of exceptional circumstances justifying a derogation
         lies on the person seeking to rely on those circumstances. 
      
      In particular, the expression’ follows a design contest’ as used in that provision implies that there must be a direct functional
         link between the contest and the contract concerned. 
      
      Such a link does not exist, in a project in several phases, between the design contest relating to a first phase and organised
         for the purpose of awarding the contract envisaged in that phase and the contract relating to a subsequent phase, which the
         contracting authority has reserved the option merely to award to the successful candidate in that design contest. 
      
      (see paras 37-38, 40-41)

      
      
      
      
      
      
      
      
      
      
      
      
      
      
      
            
            JUDGMENT OF THE COURT (First Chamber)14 October 2004(1)
         
         
            
         
               (Failure of a Member State to fulfil obligations  –  Directive 92/50/EEC  –  Procedure for the award of public service contracts  –  Assistance to the maître d'ouvrage for a sewage treatment plant  –  Award to the successful candidate in an earlier design contest without prior publication of a contract notice in the OJEC)
               
             In Case C-340/02,ACTION under Article 226 EC for failure to fulfil obligations,brought on 24 September 2002,
            
            
            Commission of the European Communities, represented by M. Nolin, acting as Agent, with an address for service in Luxembourg,
            
            
            applicant,
            
            v
            French Republic, represented by G. de Bergues, S. Pailler and D. Petrausch, acting as Agents, 
            
            defendant,
            
            
            THE COURT (First Chamber),,
            
             composed of: P. Jann, President of the Chamber, S. von Bahr and K. Schiemann (Rapporteur), Judges, 
            
             Advocate General: L.A. Geelhoed, Registrar: R. Grass,
             having regard to the Report of the Judge-Rapporteur,after considering the observations submitted on behalf of the parties,
            
            after hearing the Opinion of the Advocate General at the sitting on 11 March 2004,
         gives the following
         
         
         Judgment
         1
            
          By its application, the Commission of the European Communities seeks a declaration that by virtue of the award by the Communauté
         urbaine du Mans (the municipal community of Le Mans; ‘the MCLM’) of a study contract for, inter alia, assistance to the maître d’ouvrage (responsible contracting authority) in respect of the Chauvinière sewage treatment plant, without publication of a contract
         notice in the Official Journal of the European Communities, the French Republic has failed to fulfil its obligations under 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; ‘the Directive’), and in particular
         Article 15(2) thereof. 
         
         
            
               Legal background
            
         
         2
            
          Article 7(1) of the Directive states:
         ‘This directive shall apply to public service contracts, the estimated value of which, net of VAT, is not less than ECU 200
         000.’ 
         
         
         
         3
            
          Pursuant to Article 8 of the Directive, contracts which have as their object services listed in Annex I.A thereto must be
         awarded in accordance with the provisions of Titles III to VI of that directive.
         
         
         
         4
            
          Article 15(2), which appears in Title V of the Directive, entitled ‘Common advertising rules’, states:
         ‘Contracting authorities who wish to award a public service contract by open, restricted or, under the conditions laid down
         in Article 11, negotiated procedure, shall make known their intention by means of a notice.’
         
         
         
         5
            
          Article 11(3), which appears in Title III of the Directive, entitled ‘Choice of award procedures and rules governing design
         contests’, provides for derogation from the obligation of prior publication of a contract notice as follows: 
         ‘Contracting authorities may award public service contracts by negotiated procedure without prior publication of a contract
         notice in the following cases:
         …
         (c)     where the contract concerned follows a design contest and must, under the rules applying, be awarded to the successful candidate
         or to one of the successful candidates. In the latter case, all successful candidates shall be invited to participate in the
         negotiations;
         …’
         
         
         
         6
            
          Article 1(g) of the Directive states:
         ‘[For the purposes of the Directive] design contests shall mean those national procedures which enable the contracting authority
         to acquire, mainly in the fields of area planning, town planning, architecture and civil engineering, or data processing,
         a plan or design selected by a jury after being put out to competition with or without the award of prizes’.
         
         Facts 
         
         7
            
          The MCLM issued a number of calls for tenders for the provision of services connected with improvements to the Chauvinière
         sewage treatment plant. 
         
         
         
         8
            
          To that end, a scheme of works was drawn up, consisting of the following three phases:
         –         First phase: feasibility study for a water treatment network with a view to bringing the Chauvinière sewage treatment plant
         into compliance with European environmental laws;
         –         Second phase: study contract to (1) assist the maître d’ouvrage in drawing up detailed technical specifications on the basis of the solution chosen in the first phase, (2) draw up an impact
         assessment analysing all the effects of the works on the environment, and (3) assist the maître d’ouvrage in appraising offers submitted in relation to the procedure comprising the third phase;
         –         Third phase: planning of the works and their execution.
         
         
         
         9
            
          Two contract notices were published, one in the Official Journal of 30 November 1996, Series S, No 233, and the other in the
         Official Journal of 10 December 1998, Series S, No 239. 
         
         
         
         10
            
          The notice published on 30 November 1996 concerned a call under the restricted procedure, for tenders in respect of a design
         contest for the feasibility study required in the first phase. That design contest carried a prize of FRF 200 000 for each
         of the three selected participants, amounting to a total sum of FRF 600 000.
         
         
         
         11
            
          Point 2 of that notice also provided that the candidate whose solution was successful in the design contest relating to the
         first phase ‘may be invited to cooperate in the execution of his idea, under a study contract for [inter alia] the provision
         of assistance to the maître d’ouvrage’ envisaged in the first and third parts of the second phase. 
         
         
         
         12
            
          The notice published on 10 December 1998 related to the third phase. 
         
         The pre-litigation procedure 
         
         13
            
          By letter of 7 October 1999, the Commission called upon the French authorities to submit to it their observations on the circumstances
         and arrangements under which the calls for tenders referred to above had been conducted. 
         
         
         
         14
            
          Since the French authorities failed to give any official response to that letter, on 3 August 2000 the Commission sent them
         a letter of formal notice in which it raised three complaints, alleging infringement of Article 27(2), Article 15(2) and Article
         36(1) of the Directive. 
         
         
         
         15
            
          By letter of 21 November 2000, the French authorities disputed all the complaints raised by the Commission. Finding that response
         unsatisfactory, the Commission delivered a reasoned opinion, by letter of 26 July 2001, in which it reiterated its complaints.
         
         
         
         16
            
          The French authorities replied to the reasoned opinion by letter of 4 February 2002. In that letter, they conceded that the
         first and third of the Commission’s complaints were well founded.
         
         
         
         17
            
          In those circumstances, the Commission decided to bring the present action which concerns only the second complaint raised
         in the reasoned opinion.
         
         The actionArguments of the parties
         
         18
            
          In its application, the Commission asserts that the contract for assistance to the maître d’ouvrage, which was the subject-matter of the second phase and the value of which was FRF 4 502 137.90, concerned services different
         from those relating to the design contest initiated by the notice of 30 November 1996. Therefore, that contract should have
         been advertised and put out to competition in accordance with the common rules on advertising and participation laid down
         in Titles V and VI of the Directive. In fact, that contract was awarded to the successful candidate in the design contest
         organised for the carrying out of the feasibility study provided for in the first phase, without any further advertising or
         putting out to competition at Community level.
         
         
         
         19
            
          The Commission submits that the statement in the contract notice published in 1996 that the successful candidate in the contest
         might be invited to cooperate in assisting the maître d’ouvrage within the framework of the second phase is of no relevance and that it in no way allowed the contracting authority to avoid
         its obligations under the Directive. 
         
         
         
         20
            
          The Commission adds that the principle of equal treatment of tenderers established by the Directive requires that the subject-matter
         of the contract be clearly defined and that it be not extended in the course of the procedure. That principle also requires
         that the award criteria be clearly identified. However, not only did the successful candidate have neither any certainty,
         nor any right as regards the provision of other services under a later contract for the provision of technical assistance
         to the maître d’ouvrage, but, in addition, no award criterion had been identified for that later contract.
         
         
         
         21
            
          In its defence, the French Government submits, first, that the relevant provisions of the contract notice of 30 November 1996
         and of the rules to which the notice refers for further information, left no room for doubt as to the intention of the MCLM
         to reserve the option of awarding the successful candidate in the design contest a study contract for the provision of assistance
         to the maître d’ouvrage. Consequently, the contract for assistance to the maître d’ouvrage could legitimately be awarded to the successful candidate in the design contest without prior publication of a new contract
         notice. 
         
         
         
         22
            
          Second, the French Government submits that, pursuant to Article 11(3)(c) of the Directive, the requirement of prior publication
         of a contract notice does not apply in the present case.
         
         
         
         23
            
          The French Government maintains that the Commission’s argument that, in breach of the principle of equal treatment of candidates,
         the award criteria for the contract for assistance to the maître d’ouvrage were not defined in the contract notice of 30 November 1996 must be regarded as inadmissible in so far as it was first advanced
         in the application and the French Government was thus not able to defend itself against that charge during the pre-litigation
         procedure.
         
         
         
         24
            
          On that last point, the Commission submits that that argument is not a new charge but an observation in support of its position,
         namely that the subject-matter of the contract related only to the design contest. 
         
         Findings of the Court Admissibility 
         
         
         25
            
          It is settled case-law that the purpose of the pre-litigation procedure is to give the Member State concerned an opportunity,
         on the one hand, to comply with its obligations under Community law and, on the other, to avail itself of its right to defend
         itself against the charges formulated by the Commission (see, in particular, Case C-152/98 Commission  v Netherlands [2001] ECR I-3463, paragraph 23, and Case C-439/99 Commission v Italy [2002] ECR I-305, paragraph 10). 
         
         
         
         26
            
          It follows that, first, the subject-matter of proceedings under Article 226 EC is delimited by the pre-litigation procedure
         governed by that provision. Accordingly, the application must be founded on the same grounds and pleas as the reasoned opinion.
         If a charge was not included in the reasoned opinion, it is inadmissible at the stage of proceedings before the Court (see,
         in particular, Commission v Italy, cited above, paragraph 11).
         
         
         
         27
            
          Second, the reasoned opinion must contain a cogent and detailed exposition of the reasons which led the Commission to the
         conclusion that the Member State concerned had failed to fulfil one of its obligations under the EC Treaty (see, in particular,
         Case C-207/96 Commission v Italy [1997] ECR I-6869, paragraph 18, and Case C‑439/99 Commission v Italy, cited above, paragraph 12).
         
         
         
         28
            
          In the present case, at paragraphs 20 and 21 of the reasoned opinion the Commission claims, in connection with the second
         complaint, that ‘the reference in the contract notice to the option for “the successful candidate to cooperate in the execution
         of the selected idea” … provided the successful candidate with no certainty, nor any right as regards the provision of other
         services under a later contract for the provision of technical assistance to the maître d’ouvrage’ and ‘… that the contracting authority unlawfully failed to apply an advertising and competition procedure to the various
         services to assist the maître d’ouvrage, planned for the second phase of the comprehensive scheme of works in question’. 
         
         
         
         29
            
          In those circumstances, it must be held that, by submitting that, in breach of the principle of equal treatment of candidates,
         the award criteria for the contract to provide assistance to the maître d’ouvrage  were not defined in the contract notice of 30 November 1996, the Commission merely expanded on the charge set out in paragraphs
         20 and 21 of the reasoned opinion and did not formulate a new charge. It follows that the defence of inadmissibility raised
         by the French Government must be rejected. 
         
          Substance
         
         
         30
            
          In this action, the Commission is essentially alleging that the French authorities awarded the contract for assistance to
         the maître d’ouvrage provided for in the second phase without implementing the tendering procedure laid down in the Directive. 
         
         
         
         31
            
          At the outset, it should be noted that the parties do not dispute that the conditions for application of the Directive are
         met in the present case. The studies and the assistance to the maître d’ouvrage which are the subject-matter of the second phase constitute services within the meaning of Article 8 of and Annex I.A to
         the Directive. Moreover, the minimum value of the contract laid down in Article 7(1) of the Directive was exceeded. 
         
         
         
         32
            
          Consequently, pursuant to Article 8 of the Directive, the contract for the provision of those services could be awarded only
         in accordance with the rules laid down in Title III of the Directive, in particular Articles 11 and 15(2) thereof. The latter
         provision required the contracting authorities to publish a contract notice.
         
         
         
         33
            
          The French Government submits, however, that the option, set out in the notice of 30 November 1996, of awarding the contract
         relating to the second phase to the successful candidate in the design contest releases the contracting authority from the
         obligation to publish another notice prior to the award of that contract. 
         
         
         
         34
            
          That argument cannot be accepted. The principle of equal treatment of service providers, laid down in Article 3(2) of the
         Directive, and the principle of transparency which flows from it (see, by analogy, Case C-87/94 Commission v Belgium [1996] ECR I-2043, paragraphs 51 to 53, and Case C-324/98 Telaustria and Telefonadress [2000] ECR I-10745, paragraph 61) require the subject-matter of each contract and the criteria governing its award to be
         clearly defined. 
         
         
         
         35
            
          That obligation exists where the subject-matter of a contract and the criteria selected for its award must be regarded as
         decisive for the purposes of determining which of the procedures provided for in the Directive is to be implemented and assessing
         whether the requirements related to that procedure have been observed. 
         
         
         
         36
            
          It follows that in the present case the mere option of awarding the contract relating to the second phase according to criteria
         laid down in respect of a different contract, that is the one related to the first phase, does not amount to awarding the
         contract in accordance with one of the procedures laid down in the Directive.
         
         
         
         37
            
          The French Government also relies on Article 11(3) of the Directive, which authorises contracting authorities using a negotiated
         procedure to derogate from the obligation of prior publication in certain cases which are exhaustively listed. In particular,
         derogation is permissible under Article 11(3)(c) of the Directive ‘where the contract concerned follows a design contest and
         must, under the rules applying, be awarded to the successful candidate or to one of the successful candidates.’
         
         
         
         38
            
          In that regard, it should be recalled that, as the Commission correctly points out, that provision, as a derogation from a
         fundamental rule of the Treaty, must be interpreted strictly and the burden of proving the existence of exceptional circumstances
         justifying a derogation lies on the person seeking to rely on those circumstances (see Joined Cases C-20/01 and C-28/01 Commission v Germany [2003] ECR I-3609, paragraph 58). 
         
         
         
         39
            
          In the present case, as the Advocate General observes in point 40 of his Opinion, some of the services which make up the second
         phase do not come within the definition of a design contest given in Article 1(g) of the Directive, which refers to ‘a plan
         or design’. While the first part of the second phase (assistance to the maître d’ouvrage in drawing up detailed technical specifications on the basis of the solution chosen in the first phase) could perhaps be
         regarded as a plan or design within the meaning of Article 1(g) of the Directive, the third part of the second phase could
         not. The provision of assistance to the maître d’ouvrage in appraising offers submitted in relation to the procedure planned for the third phase clearly does not constitute a plan
         or design within the meaning of Article 1(g) of the Directive.
         
         
         
         40
            
          In any event, the conditions for applying the derogation provided for in Article 11(3)(c) of the Directive are not met in
         the present case. It is clear from the wording of that provision that it is permissible to forgo publication of a notice only
         where the contract concerned follows a design contest and must be awarded to the successful candidate or to one of the successful
         candidates in that contest. 
         
         
         
         41
            
          As the Advocate General stated in point 45 of his Opinion, the expression ‘follows a design contest’ as used in Article 11(3)(c)
         of the Directive implies that there must be a direct functional link between the contest and the contract concerned. Since
         the contest in question related to the first phase and was organised for the purpose of awarding the contract envisaged in
         that phase, the contract in the second phase cannot be regarded as following that contest. 
         
         
         
         42
            
          Moreover, point 2 of the contract notice of 30 November 1996 simply provides for the option, but not the obligation, to entrust
         the second phase to the successful candidate in the contest relating to the first phase. Therefore, it cannot be asserted
         that the contract relating to the second phase must be awarded to the successful candidate or to one of the successful candidates
         in the contest. 
         
         
         
         43
            
          Accordingly, the derogation from the obligation to publish a contract notice, provided for in Article 11(3)(c) of the Directive,
         does not apply in this case. 
         
         
         
         44
            
          It follows from the foregoing considerations that, although the second phase came within the scope of the Directive, it was
         not the subject of a contract notice published in accordance with the rules of that directive. 
         
         
         
         45
            
          In the light of the foregoing, it must be held that, by virtue of the award by the MCLM of a study contract for assistance
         to the maître d’ouvrage in respect of the Chauvinière sewage treatment plant, without publication of a contract notice in the Official Journal, the
         French Republic has failed to fulfil its obligations under the Directive, and in particular Article 15(2) thereof.
         
         
         Costs
         46
            
          Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs, if they have been
         applied for in the successful party’s pleadings. Since the Commission has applied for costs and the French Republic has been
         unsuccessful, the latter must be ordered to pay the costs.
         
         
         
         
         
         
            
            
         
         
          On those grounds, the Court (First Chamber) hereby:
         
            
            
             
               1.
                  Declares that, by virtue of the award by the Communauté urbaine du Mans of a study contract for assistance to the maître d’ouvrage in respect of the Chauvinière sewage treatment plant, without publication of a contract notice in the Official Journal of the European Communities, the French Republic has failed to fulfil its obligations under Council Directive 92/50/EEC of 18 June 1992 relating to the
                     coordination of procedures for the award of public service contracts, and in particular Article 15(2) thereof;
                  
               
            
            
            
             
               2.
                  Orders the French Republic to pay the costs.
               
            
             Signatures.
      
      
          1 –
            
            Language of the case: French.