Commission of the European Communities v French Republic.
Date: 2000-09-26
34 The prior information procedure is one of the rules on advertising laid down in Directive 93/37. As is clear in particular from the 10th recital in the preamble to that directive, the purpose of those rules is to ensure development, at the Community level, of effective competition in the field of public works contracts, by ensuring that potential tenderers from other Member States are in a position to respond to the various invitations in circumstances comparable to those prevailing for national tenderers.
42 As regards, finally, the Commission's argument that the compulsory nature of the prior information notice was clearly acknowledged by the Court of Justice in Case C-272/91 Commission v Italy [1994] ECR I-1409, it is clear that that case concerned the indicative notice provided for under Article 9(1) of Council Directive 77/62/EEC of 21 December 1976 coordinating procedures for the award of public supply contracts (OJ 1977 L 13, p. 1), as amended by Council Directive 88/295/EEC of 22 March 1988 amending Directive 77/62 and repealing certain provisions of Directive 80/767/EEC (OJ 1988 L 127, p. 1; Directive 77/62).
43 The indicative notice provided for under Article 9(1) of Directive 77/62 does not, unlike the notice provided for under Article 11(1) of Directive 93/37, introduce any possibility of reducing the time-limits for the receipt of tenders. The problem of interpretation at issue in Commission v Italy, cited above, did not therefore arise in terms analogous to those in the present case.
46 The Commission claims that, in expressly setting forth as an award criterion in a number of contract notices a condition relating to employment linked to a local project to combat unemployment, the French authorities have infringed Article 30 of Directive 93/37. The Commission acknowledges that the taking into account of employment-related projects may be regarded as a condition of performance for the purpose of the rule in Beentjes (Case 31/87 Beentjes v Netherlands State [1988] ECR 4635, paragraphs 28 and 37), but it points out that, in the present case, that possibility was characterised as an award criterion in the contract notices in question. Under Article 30 of Directive 93/37, award criteria must be based either on the lowest price or on the most economically advantageous tender.
47 Relying on paragraphs 28 and 37 of Beentjes, the French Government contends that an additional award criterion of that kind has been permitted by the Court of Justice. It states, furthermore, that the award criterion in question in this case does not constitute a primary criterion, such as those referred to in Article 29 of Directive 71/305, the purpose of which is to make it possible to determine which is the most advantageous tender, but a secondary criterion which is not decisive.
50 None the less, that provision does not preclude all possibility for the contracting authorities to use as a criterion a condition linked to the campaign against unemployment provided that that condition is consistent with all the fundamental principles of Community law, in particular the principle of non-discrimination flowing from the provisions of the Treaty on the right of establishment and the freedom to provide services (see, to that effect, Beentjes, paragraph 29).
51 Furthermore, even if such a criterion is not in itself incompatible with Directive 93/37, it must be applied in conformity with all the procedural rules laid down in that directive, in particular the rules on advertising (see, to that effect, on Directive 71/305, Beentjes, paragraph 31). It follows that an award criterion linked to the campaign against unemployment must be expressly mentioned in the contract notice so that contractors may become aware of its existence (see, to that effect, Beentjes, paragraph 36).
52 As regards the Commission's argument that Beentjes concerned a condition of performance of the contract and not a criterion for the award of the contract, it need merely be observed that, as is clear from paragraph 14 of Beentjes, the condition relating to the employment of long-term unemployed persons, which was at issue in that case, had been used as the basis for rejecting a tender and therefore necessarily constituted a criterion for the award of the contract.
68 As regards the admissibility of this complaint of the Commission, it should be borne in mind, first, that it follows from the purpose assigned to the pre-litigation stage of the Treaty infringement procedure that the letter of formal notice is intended to define the subject-matter of the dispute and to indicate to the Member State, which is invited to submit its observations, the factors enabling it to prepare its defence (Case 274/83 Commission v Italy [1985] ECR 1077, paragraph 19).
69 Second, according to consistent case-law, the opportunity for the Member State concerned to submit its observations constitutes an essential guarantee required by the Treaty and, even if the Member State does not consider it necessary to avail itself thereof, observance of that guarantee is an essential formal requirement of the Treaty infringement procedure (see, in particular, Case 51/83, paragraph 5; and Case 274/83, paragraph 20).
70 Although it follows that the reasoned opinion provided for in Article 169 of the Treaty must contain a coherent and detailed statement of the reasons which led the Commission to conclude that the State in question has failed to fulfil one of its obligations under the Treaty, the Court cannot impose such strict requirements as regards the letter of formal notice, which of necessity will contain only an initial brief summary of the complaints. There is nothing therefore to prevent the Commission from setting out in detail in the reasoned opinion the complaints which it has already made more generally in its letter of formal notice (see Case 274/83, paragraph 21).
73 As regards the substance of the complaint, where the authorities awarding the contract do not take the lowest price as the sole criterion for awarding the contract but have regard to various criteria with a view to awarding the contract to the most economically advantageous tender, they are required to state these criteria in the contract notice or the contract documents. Consequently, a general reference to a provision of national legislation cannot satisfy the publicity requirement (Beentjes, paragraph 35).
80 According to the Court's case-law the principle of equal treatment, of which Article 59 of the Treaty is a specific expression, prohibits not only overt discrimination by reason of nationality but also all covert forms of discrimination which, by the application of other criteria of differentiation, lead in fact to the same result (see, to that effect, Case 3/88 Commission v Italy [1989] ECR 4035, paragraph 8).
86 The Commission also points out that, as regards the Wingles secondary school, the minimum standards referred to in the contract notice required the provision of a certificate of OPQCB, Qualifélec, FNTP professional qualification. First, Articles 23 to 28 of Directive 71/305 lay down the qualitative criteria for selection of candidate undertakings and, more specifically, Article 26 defines the means of furnishing proof of technical knowledge or ability. Second, it is clear from Case 76/81 Transporoute v Ministère des Travaux Publics [1982] ECR 417 that evidence of an undertaking's professional qualification cannot be furnished by a means of proof which falls outside the closed category of those authorised by Article 26 of Directive 71/305. Therefore, the contracting authority concerned has failed to fulfil its obligation under that provision.
88 Second, according to the case-law, Directive 71/305 precludes a Member State from requiring a tenderer established in another Member State to furnish proof by any means other than those prescribed in Articles 23 to 26 of that directive, that he satisfies the criteria laid down in those provisions and relating to his qualifications (see, to that effect, Transporoute, paragraph 15).