European Commission v Ireland.
Date: 2010-01-28
30. That same obligation also arises under Article 1(1) of Directive 89/665, inasmuch as the possibility of bringing an effective action against award decisions can be ensured only if all candidates or tenderers are informed in good time of those decisions (see, to that effect, judgment of 24 June 2004 in Case C‑212/02 Commission  v Austria , paragraph 21, and Case C‑444/06 Commission  v Spain  [2008] ECR I‑2045, paragraph 38).
33. That information was released into the public domain after the signature of the contract on 5 February 2004. In order to make effective legal protection possible for the candidates or tenderers, however, they ought to have been informed of the NRA’s award decision in good time before the contract was concluded (see, to that effect, Commission  v Austria , paragraph 21, and Commission  v Spain , paragraph 38).
38. Secondly, and in any event, the finding that a Member State has failed to fulfil its obligations is not bound up with a finding as to the damage flowing from that failure (Case C‑263/96 Commission  v Belgium  [1997] ECR I‑7453, paragraph 30, and Joined Cases C‑20/01 and C‑28/01 Commission  v Germany  [2003] ECR I‑3609, paragraph 42).
41. Without its being necessary to rule on the assertion that the national legislation at issue transposes adequately the relevant requirements of Community law, suffice it to recall that, according to settled case-law, an action for failure to fulfil obligations makes possible not only an examination of the compatibility of a Member State’s laws, regulations and administrative provisions with Community law but also a determination that there has been an infringement of Community law by the national bodies in a specific individual case (see, concerning the award of public contracts, Joined Cases C‑20/01 and C‑28/01 Commission  v Germany , paragraph 30, and judgment of 15 October 2009 in Case C‑275/08 Commission  v Germany , paragraph 27).
51. The Court has already held that Directive 89/665 does not preclude national legislation which provides that any application for review of a contracting authority’s decision must be commenced within a period laid down to that effect and that any irregularity in the award procedure relied upon in support of such application must be raised within the same period, if it is not to be out of time, with the result that, when that period has passed, it is no longer possible to challenge such a decision or to raise such an irregularity, provided that the period in question is reasonable (Case C‑241/06 Lämmerzahl [2007] ECR I‑8415, paragraph 50 and case-law cited).
52. That case-law is based on the consideration that the full implementation of the objective sought by Directive 89/665 would be undermined if candidates and tenderers were allowed to invoke, at any stage of the award procedure, infringements of the rules of public procurement, thereby obliging the contracting authority to restart the entire procedure in order to correct such infringements ( Lämmerzahl , paragraph 51).
53. On the other hand, national limitation periods, including the detailed rules for their application, should not in themselves be such as to render virtually impossible or excessively difficult the exercise of any rights which the person concerned derives from Community law ( Lämmerzahl , paragraph 52).
56. According to the Court’s settled case-law, the application of a national limitation period must not lead to the exercise of the right to review of decisions to award public contracts being deprived of its practical effectiveness (see, to that effect, Case C‑470/99 Universale-Bau and Others  [2002] ECR I‑11617, paragraph 72; Case C‑327/00 Santex  [2003] ECR I‑1877, paragraphs 51 and 57; and Lämmerzahl , paragraph 52).
60. It is true that Article 1(1) of Directive 89/665 requires Member States to ensure that decisions taken by contracting authorities may be reviewed effectively and as rapidly as possible. In order to attain the objective of rapidity pursued by that directive, Member States may impose limitation periods for actions in order to require traders to challenge promptly preliminary measures or interim decisions taken in public procurement procedures (see, to that effect, Universale-Bau and Others , paragraphs 75 to 79; Case C‑230/02 Grossmann Air Service  [2004] ECR I‑1829, paragraphs 30 and 36 to 39; and Lämmerzahl , paragraphs 50 and 51).
61. However, the objective of rapidity pursued by Directive 89/665 must be achieved in national law in compliance with the requirements of legal certainty. To that end, Member States have an obligation to create a legal situation that is sufficiently precise, clear and foreseeable to enable individuals to ascertain their rights and obligations (see, to that effect, Case C‑361/88 Commission  v Germany  [1991] ECR I‑2567, paragraph 24, and Case C‑221/94 Commission  v Luxembourg  [1996] ECR I‑5669, paragraph 22).
65. It should be noted in this regard that, according to the Court’s settled case-law, although the transposition of a directive into domestic law does not necessarily require the provisions of the directive to be reproduced in precisely the same words in a specific, express provision of national law and a general legal context may be sufficient, it is nevertheless necessary that that legal context be sufficiently clear and precise as to enable the parties concerned to be fully informed of their rights and, if necessary, avail themselves of those rights before the national courts (judgment of 29 October 2009 in Case C‑474/08 Commission  v Belgium , paragraph 19 and case-law cited).
77. Suffice it to point out in this regard that, in order to determine whether a directive has been adequately transposed, it is not always necessary to establish the actual effects of the legislation transposing it into national law; the situation is different if the legislation itself harbours the insufficiencies of transposition (see, to that effect, Case C‑392/96 Commission  v Ireland  [1999] ECR I‑5901, paragraph 60).