Strong Segurança SA v Município de Sintra and Securitas-Serviços e Tecnologia de Segurança.
Date: 2011-03-17
33. Thus, the Court has held that the classification of the services in Annexes I A and I B to Directive 92/50 (which correspond, respectively, to Annexes II A and II B to Directive 2004/18) is in accordance with the system laid down by that directive, which envisages the application of the provisions of that directive on two levels (see, to that effect, Case C‑411/00 Felix Swoboda  [2002] ECR I‑10567, paragraph 55).
34. The Court has also held, in the context of Directive 92/50, that, where the 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 OPOCE (Office for Official Publications of the European Communities) (see Case C-507/03 Commission  v Ireland  [2007] ECR I-9777, paragraph 24).
35. The Court has stated that the European Union legislature based itself on the assumption that contracts for the services referred to in Annex I B to Directive 92/50 are, in principle, in the light of their specific nature, not of sufficient cross-border interest 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 (see, to that effect, Commission  v Ireland , paragraph 25). However, the Court has held that even such contracts, where they have a certain cross-border interest, are subject to the general principles of transparency and equal treatment resulting from Articles 49 TFEU and 56 TFEU (see, to that effect, Commission  v Ireland , paragraphs 26 and 29 to 31).
42. It should be noted that such a broad approach to the applicability of the principle of equal treatment could lead to the application, to the service contracts referred to in Annex II B to Directive 2004/18, of other essential provisions of that directive, for example, as the national court observes, provisions which establish the qualitative criteria for the selection of candidates (Articles 45 to 52) as well as the contract award criteria (Articles 53 to 55). That would involve the risk of rendering entirely ineffective the distinction drawn by Directive 2004/18 between the services of Annexes II A and II B, as well as the application of that directive on two levels, under the terms used by the case-law of the Court.
43. Furthermore, according to the case-law of the Court, the contracts relating to the services listed in Annex II B to Directive 2004/18 are specific in nature ( Commission  v Ireland , paragraph 25). Thus, at least some of those services have particular characteristics that would justify the contracting authority taking into account, on a personalised and specific basis, the individual bid presented by the candidates. This is the case, for example, for ‘legal services’, ‘personnel placement and supply services’, ‘education and vocational education services’ or ‘investigation and security services’.