Commission of the European Communities v French Republic.
Date: 2000-10-05
36 It must be borne in mind, second, that the decision by a contracting entity concerning the type of procedure to be followed and whether it is necessary for a prior call for competition to be issued for the award of a public contract constitutes a distinct stage in the procedure, a stage during which the essential characteristics of the execution of the procedure are defined and which may, as a rule, take place only at the point when that procedure is initiated.
37 Accordingly, in determining whether Directive 93/38 is applicable to such a decision and, therefore, what were the obligations of the contracting entity under Community law in that regard, account must be taken, as a rule, of the point in time at which that decision was adopted.
38 It is true that, in the present case, the decision to use a negotiated procedure without a prior call for competition forms part of an award procedure which did not end until November 1996, that is to say more than two years after the expiry of the period prescribed for transposition of Directive 93/38. However, according to the case-law on public procurement, Community law does not require an awarding authority in a Member State to intervene, at the request of an individual, in existing legal relations established for an indefinite period or for several years where those relations came into being before expiry of the period prescribed for transposition of the directive (see, to that effect, Case C-76/97 Tögel [1998] ECR I-5357, paragraph 54).
39 Whilst the judgment in Tögel, cited above, concerned a contract already concluded before the expiry of the period prescribed for the transposition 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), the general principle set out in it can none the less be applied to all the stages of a procedure for the award of a contract which are completed before the expiry of the period prescribed for transposition of a directive but form part of a procedure which ended after that date.
40 As regards the Commission's argument that the date to be taken for the purpose of determining the applicability of Directive 93/38 ratione temporis is that of the award of the contract, it need merely be observed that it would be contrary to the principle of legal certainty to determine the applicable law by reference to the date of the award of the contract since that date marks the end of the procedure, while the decision of the contracting entity to proceed with or without a prior call for competition is normally taken at the initial stage of that procedure.
41 In the present case, even though it is not clear from the documents before the Court that there was a formal decision by the contracting entity to proceed by way of negotiated procedure without a prior call for competition to award the contract at issue, it is important to bear in mind that, in its resolution of 19 July 1990, the Committee of Sitcar voted to record that the design and execution of the "system and equipment linked to the system" will be the subject of a turnkey contract with Matra-Transport. It is clear from that sentence that, by the date of that resolution at the latest, and thus well before the expiry of the period prescribed for transposition of Directive 93/38, the decision of the contracting entity to proceed by way of negotiated procedure without a prior call for competition had already been adopted.
42 Accordingly, it must be concluded that Directive 93/38 is not applicable to the choice made by the contracting entity to use a negotiated procedure without a prior call for competition to award the contract for the Rennes urban district light railway project.
44 Accordingly, it must be considered whether the negotiations opened after 22 September 1995 were substantially different in character from those already conducted and were, therefore, such as to demonstrate the intention of the parties to renegotiate the essential terms of the contract, so that the application of the provisions of Directive 93/38 might be justified.
45 In that regard, it must be observed, as a preliminary point, that, according to settled case-law, in proceedings under Article 169 of the Treaty for failure to fulfil an obligation, it is incumbent on the Commission to prove that the obligation has not been fulfilled and to place before the Court the evidence necessary to enable it to determine whether that is the case (see, inter alia, Case C-96/98 Commission v France [1999] ECR I-8531, paragraph 36).
46 It follows that, in the present case, it is for the Commission to adduce all such evidence as is necessary to prove that fresh negotiations were commenced after 22 September 1995 and were such as to demonstrate the intention of the parties to renegotiate the essential terms of the contract, which would justify the application of the provisions of Directive 93/98.