European Commission v Kingdom of Spain.
Date: 2010-04-22
56. That advertising obligation, because it makes it possible to compare the offers which it contains, ensures a level of competition considered satisfactory by the European Union legislature in the field of public works concessions.
58. By the clear formulation of the terms of the notice, the opportunity must be offered objectively to all potential tenderers, which are informed, experienced and reasonably aware, of forming a concrete idea of the works to be carried out and of their location, and in consequence of drafting their tenders.
64. It must be noted that, for the purposes of clarification of the requirements of a concession, it is sometimes inevitable that the notice or tender specifications refer to the national rules concerning the technical specifications on safety, health, environmental and other requirements. The fact that such a reference is possible cannot, however, enable the concession-granting authority to escape the advertising obligations laid down in Directive 93/37, pursuant to which the object of the concession must be defined in the notice and the tender specifications, which must contain the information referred to in paragraph 55 of the present judgment. Nor can it be accepted that it was necessary to interpret the notice or the tender specifications in the light of such rules in order to discern the true object of a concession.
65. That requirement must be interpreted strictly. Thus, the Court, in the context of a public works contract, has declared unlawful a reference from tender specifications to national legislation concerning the possibility that tenderers may submit variants of their tenders, in accordance with the first and second paragraphs of Article 19 of Directive 93/37, having regard to the fact that the minimum conditions which those variants were to meet were not specified in the tender specifications (see Case C‑421/01 Traunfellner  [2003] ECR I‑11941, paragraphs 27 to 29). With regard to an obligation of transparency designed to ensure observance of the principle of equal treatment of tenderers, which must be observed in any procurement procedure governed by Directive 93/37, that finding of the Court is also valid as regards works concessions.
78. It is clear from settled case-law that it is for the Commission to determine whether it is expedient to take action against a Member State and what provisions, in its view, the Member State has infringed, and to choose the time at which it will bring an action for failure to fulfil obligations; the considerations which determine its choice cannot affect the admissibility of the action. In that regard, while the bringing and continuation of infringement proceedings is a matter for the Commission in its entire discretion, it is for the Court to consider whether there has been a failure to fulfil obligations as alleged, without its being part of its role to take a view on the Commission’s exercise of its discretion (see, to that effect, Case C‑33/04 Commission  v Luxembourg  [2005] ECR I‑10629, paragraphs 65 to 67 and the case-law cited). Furthermore, the fact that other competing tenderers did not contest the procedure to award the disputed concession cannot have any effect on the assessment of the legality of that procedure or on whether the present action is well founded.
80. It should be borne in mind that the fact that proceedings have been brought before a national court to challenge the decision of a competent authority which is the subject of an action for failure to fulfil obligations and the decision of that court cannot affect the admissibility of the action for failure to fulfil obligations brought by the Commission. The existence of the remedies available through the national courts cannot prejudice the bringing of an action under Article 226 EC, since the two procedures have different objectives and effects (see, to that effect, Case 31/69 Commission  v Italy  [1970] ECR 25, paragraph 9; Case 85/85 Commission  v Belgium  [1986] ECR 1149, paragraph 24; Case C‑87/02 Commission  v Italy  [2004] ECR I‑5975, paragraph 39; and Case C‑508/03 Commission  v United Kingdom  [2006] ECR I‑3969, paragraph 71).