European Commission v Ireland.
Date: 2010-11-18
29. However, even though contracting authorities which conclude contracts listed in Annex II B to the Directive are not subject to the rules laid down in the Directive relating to the requirements to put contracts out to competition by means of prior advertising, they nevertheless remain subject to the fundamental rules of the European Union, in particular to the principles laid down by the Treaty on the Functioning of the European Union (TFEU) on the right of establishment and the freedom to provide services (Case C‑507/03 Commission v Ireland  [2007] ECR I‑9777, paragraph 26).
30. According to settled case‑law, the purpose of coordinating at European Union level the procedures for the award of public contracts is to eliminate barriers to the freedom to provide services and goods and therefore to protect the interests of traders established in another Member State ( Commission  v Ireland , paragraph 27 and the case‑law cited).
31. It follows that the system established by the European Union legislature for contracts relating to services falling within the ambit of Annex II B to the Directive cannot be interpreted as precluding application of the principles deriving from Articles 49 TFEU and 56 TFEU, in the event that such contracts are nevertheless of certain cross-border interest (see, to that effect, Commission  v Ireland , paragraph 29) or, therefore, of the requirements designed to ensure transparency of procedures and equal treatment of tenderers (see, to that effect, Case C‑91/08 Wall  [2010] ECR I‑0000, paragraph 37).
32. The obligation of transparency applies where the contract for the provision of services in question may be of interest to an undertaking located in a Member State other than that in which the contract is to be awarded (see, to that effect, Commission  v Ireland , paragraph 29).
33. That the contract at issue in the present case may have been of interest to undertakings located in a Member State other than Ireland is apparent both from the publication of a notice for that contract in the Official Journal of the European Union  and from the fact that three of the tenderers were undertakings established in a Member State other than Ireland (see, to that effect, Wall , paragraph 35).
40. First, the fact that Ireland requested the publication of the relevant notice in the Official Journal of the European Union , as permitted under Article 36 of the Directive, does not mean that that Member State is under any obligation to award that contract in accordance with the provisions of the Directive which are applicable to public contracts falling within the ambit of Annex II A thereto (see, by analogy, concerning a public contract outside the scope of a directive, Case 45/87 Commission  v Ireland  [1988] ECR I‑4929, paragraphs 9 and 10).
42. It is true that, according to the Court’s case‑law relating to public contracts awarded in accordance with all the provisions of the various public procurement directives which preceded the adoption of the Directive, the purpose of the requirement to inform tenderers in advance of the award criteria and, where possible, of their relative weighting, is to ensure that the principles of equal treatment and transparency are complied with (see, inter alia, Case C‑470/99 Universale‑Bau and Others  [2002] ECR I‑11617, paragraph 98, and Case C‑331/04 ATI EAC and Viaggi di Maio and Others  [2005] ECR I‑10109, paragraphs 22 to 24).
59. Next, it should be noted that, in such a factual context, as the Court has already held, the principles of equal treatment and transparency of tender procedures imply an obligation on the part of contracting authorities to interpret the award criteria in the same way throughout the procedure (see, by analogy, Case C‑448/01 EVN and Wienstrom  [2003] ECR I‑14527, paragraph 92).
60. As far as the award criteria themselves are concerned, it is a fortiori  clear that they must not be amended in any way during the tender procedure (see, by analogy, EVN and Wienstrom , paragraph 93).
64. Second, as the finding of a failure by a Member State to fulfil its obligations is not bound up with a finding as to the damage flowing therefrom (Case C‑263//96 Commission  v Belgium  [1997] ECR I‑7453, paragraph 30), Ireland cannot rely on the fact that no tenderer suffered damage, arguing that, even if the initial weighting of the award criteria had been used, the contract at issue would not have been awarded to a contractor other than the one who was chosen at the conclusion of the procedure.