Commission of the European Communities v Ireland.
Date: 2007-11-13
24. It is thus clear from a combined reading of Articles 9, 14 and 16 of Directive 92/50 that when, as in the present case, contracts concern services which fall under Annex I B, the contracting authorities are bound only by the obligations to define the technical specifications by reference to national standards implementing European standards which must be given in the general or contractual documents relating to each contract and to send a notice of the results of the award procedure to the Publications Office. The other procedural rules provided for by that directive, including those relating to the obligations to invite competing bids by means of prior advertising, are, by contrast, not applicable to those contracts.
25. For the services coming within the ambit of Annex I B to Directive 92/50, and subject to a subsequent evaluation as referred to in Article 43 of that directive, the Community legislature based itself on the assumption that contracts for such services are not, in the light of their specific nature, of cross-border interest such as to justify their award being subject to the conclusion of a tendering procedure intended to enable undertakings from other Member States to examine the contract notice and submit a tender. For that reason, Directive 92/50 merely imposes a requirement of publicity after the fact for that category of services.
26. It is common ground, however, that the award of public contracts is to remain subject to the fundamental rules of Community law, and in particular to the principles laid down by the Treaty on the right of establishment and the freedom to provide services (see, to that effect, HI , paragraph 42).
27. In this regard, according to settled case-law, the purpose of coordinating at Community level the procedures for the award of public contracts is to eliminate barriers to the freedom to provide services and goods and therefore to protect the interests of traders established in a Member State who wish to offer goods or services to contracting authorities established in another Member State (see, inter alia, Case C‑380/98 University of Cambridge  [2000] ECR I‑8035, paragraph 16; Case C‑19/00 SIAC Construction  [2001] ECR I-7725, paragraph 32; and HI , paragraph 43).
29. It follows that the advertising arrangement, introduced by the Community legislature for contracts relating to services coming within the ambit of Annex I B, cannot be interpreted as precluding application of the principles resulting from Articles 43 EC and 49 EC, in the event that such contracts nevertheless are of certain cross-border interest.
30. Also, in so far as a contract relating to services falling under Annex I B is of such interest, the award, in the absence of any transparency, of that contract to an undertaking located in the same Member State as the contracting authority amounts to a difference in treatment to the detriment of undertakings which might be interested in that contract but which are located in other Member States (see, to that effect, Telaustria and Telefonadress , paragraphs 60 and 61, and Case C‑231/03 Coname  [2005] ECR I-7287, paragraph 17).
31. Unless it is justified by objective circumstances, such a difference in treatment, which, by excluding all undertakings located in another Member State, operates mainly to the detriment of the latter undertakings, amounts to indirect discrimination on the basis of nationality, prohibited under Articles 43 EC and 49 EC ( Coname , paragraph 19 and case-law cited).
32. In those circumstances, it is for the Commission to establish that, notwithstanding the fact that the contract in question relates to services coming within the scope of Annex I B to Directive 92/50, that contract was of certain interest to an undertaking located in a different Member State to that of the relevant contracting authority, and that that undertaking was unable to express its interest in that contract because it did not have access to adequate information before the contract was awarded.
33. According to settled case-law, it is the Commisssion’s responsibility to provide the Court with the evidence necessary to enable it to establish that an obligation has not been fulfilled and, in so doing, the Commission may not rely on any presumption (see, to that effect, inter alia, Case C-434/01 Commission  v United Kingdom  [2003] ECR I‑13239, paragraph 21; Case C-117/02 Commission  v Portugal  [2004] ECR I-5517, paragraph 80; and Case C-135/05 Commission  v Italy  [2007] ECR I-0000, paragraph 26), in this case a presumption that a contract relating to services coming within the scope of Annex I B to Directive 92/50 and subject to the rules described in paragraph 24 of this judgment necessarily is of certain cross-border interest.