European Commission v Ireland.
Date: 2009-12-23
26. As is clear from the Court’s case-law, the provisions of Directives 89/665 and 92/13, which are intended to protect tenderers against arbitrary decisions by the contracting authority, seek to reinforce existing arrangements for ensuring effective application of the Community rules on the award of public contracts, in particular where infringements can still be rectified (see, particularly, Commission  v Austria , paragraph 20). The objective of those directives is to ensure that unlawful decisions taken by the contracting authorities may be reviewed effectively and as rapidly as possible (see, particularly, Case C‑444/06 Commission  v Spain  [2008] ECR I‑2045, paragraph 44).
27. The Court has held, in particular, that the Member States are required to ensure that the contracting authority’s decision, prior to the conclusion of the contract in a tender procedure, as to the bidder with which it will conclude the contract is in all cases open to review in a procedure whereby an applicant may have that decision set aside if the relevant conditions are met, notwithstanding the possibility, once the contract has been concluded, of obtaining an award of damages (see, particularly, Alcatel Austria and Others , paragraph 43).
28. The complete legal protection which must be ensured before the conclusion of the contract presupposes, in particular, the duty to inform the tenderers of the award decision before such conclusion so that they may have a real possibility of initiating review proceedings. That same protection requires provision to be made for the unsuccessful tenderer to examine in sufficient time the question of whether the award decision is valid, which means that a reasonable period must pass between the moment when the contract award decision is notified to the unsuccessful tenderers and the conclusion of the contract, in order to allow them, in particular, to bring an application for interim measures until the conclusion of the contract (see to that effect, particularly, Commission  v Austria , paragraphs 21 and 23; Commission  v Spain , paragraphs 38 and 39; and the judgment of 11 June 2009 in Case C‑327/08 Commission  v France , paragraphs 41 and 56). Therefore, the fact that there is the option of bringing proceedings for the annulment of the contract itself is not such as to compensate for the impossibility of challenging the mere act of awarding the contract concerned, before the contract is concluded ( Commission  v Spain , paragraph 45).
38. As regards the argument based on the steps undertaken by Ireland so that the requirements under Directives 89/665 and 92/13 are carried out in practice, it need merely be recalled that, according to established case-law, the provisions of directives must be implemented with unquestionable binding force, and the specificity, precision and clarity necessary to satisfy the requirements of legal certainty (see, particularly, Case C‑225/97 Commission  v France  [1999] ECR I‑3011, paragraph 37), that the incompatibility of national legislation with Community provisions can be remedied for good only by means of binding national provisions having the same legal force as those which must be amended (see, particularly, Case C‑160/99 Commission  v France  [2000] ECR I‑6137, paragraph 23), and that mere administrative practices, which by their nature are alterable at will by the authorities and are not given the appropriate publicity, cannot be regarded as constituting fulfilment of the obligations owed by the Member States in the context of transposition of a directive (see, particularly, Case C‑508/04 Commission  v Austria  [2007] ECR I‑3787, paragraph 80).
39. As for the argument that the relevant Community legislation lacked clarity before delivery of the judgment in Alcatel Austria and Others , it is appropriate to point out that, according to settled case-law, the interpretation which the Court gives to a rule of Community law clarifies and defines, where necessary, the meaning and scope of that rule as it must be or ought to have been understood and applied from the time of its coming into force (see, particularly, Case C-453/00 Kühne & Heitz  [2004] ECR I‑837, paragraph 21). In other words, a preliminary ruling does not create or alter the law, but is purely declaratory, with the consequence that in principle it takes effect from the date on which the rule interpreted entered into force (see, particularly, Case C‑2/06 Kempter  [2008] ECR I‑411, paragraph 35).
40. Furthermore, the objective of the pre-litigation procedure provided for in Article 226 EC is precisely to give the Member State concerned an opportunity to comply, as appropriate, with its obligations under Community law (see, particularly, Case C‑490/04 Commission  v Germany  [2007] ECR I‑6095, paragraph 25).