C_2009032EN.01001201.xml

7.2.2009

Official Journal of the European Union

C 32/12

Action brought on 17 October 2008 — Commission of the European Communities v Ireland

(Case C-455/08)

(2009/C 32/20)

Language of the case: English

Parties

Applicant: Commission of the European Communities (represented by: G. Zavvos, M. Konstantinidis and D. Kukovec, Agents)

Defendant: Ireland

The applicant claims that the Court should:

—

declare that, by way of Article 49 of S.I. No. 329 of 2006, the Irish transposition measure for Directive 2004/18/EC (1), and Article 51 of S.I. No 50 of 2007, the Irish transposition measure for Directive 2004/17/EC (2), Ireland has established the rules governing the notification of contracting authorities' and entities' award decisions and their reasoning to tenderers in such a way, which in practice may imply that by the time tenderers are fully informed of the reasons for the rejection of their offer, the standstill period for the conclusion of the contract has already expired;

—

thereby, Ireland has failed to fulfil its obligations under Articles 1(1) and 2(1) of Directive 89/665/EEC (3) and Articles 1(1) and 2(1) of Directive 92/13/EEC (4) as interpreted by the European Court of Justice in its judgments handed down in case C-81/98 (5) (the ‘Alcatel judgment’) and in case C-212/02 (6) (‘Commission v Austria’).

—	order Ireland to pay the costs of this action.

Pleas in law and main arguments

Irish S.I. No 329

Article 49 of the Irish S.I. No 329, which is the Irish transposition measure of Directive 2004/18/EC, requires that tenderers be informed of the award decision by the most rapid means of communication as soon as practicable after the contracting authority took the decision. Calculated from the date on which tenderers were informed of the award decision, the standstill period which needs to elapse before the conclusion of the contract must be at least 14 days.

However, under the Irish law, the contracting authority is required to give the reasons for the rejection of a tender only when it receives such a request. The contracting authority must provide the reasons ‘as soon as possible and in any event no later than 15 days’. In the Commission's view, this means that the standstill period may have already lapsed by the time an unsuccessful tenderer is fully informed of the reasons for the rejection of his offer.

In order to comply with the requirements that derive from the case law of the Court of Justice in its Alcatel judgement and in Commission vs Austria it is essential to ensure that the award decision is reasoned in due time to allow it to be the subject of an effective appeal, undertaken within the standstill period. The Commission submits that the Irish rules are not in line with this requirement as they do not guarantee that tenderers are informed of the reasons for the rejection of their offer in due time and well before the expiry of the standstill period. This impedes the tenderers' right to effective legal remedies, as required by Directive 89/665/EEC.

Irish S.I. No 50 of 2007

According to article 51 of S.I. No 50 of 2007, which is the Irish transposition measure of directive 2004/17/EC, when contracting entities notify tenderers of the award decision they must indicate to the unsuccessful tenderers the ‘principal reason, or reasons, why the tender is not the selected tender’. The ‘characteristics and the relative advantages of the selected tender’ shall be communicated by the contracting entity to the unsuccessful tenderers ‘as soon as practicable, and in any case within 15 days’ after receiving a request to do so. The standstill period is 14 days, calculated from the notification of the award decision. In the Commission's view this means that the standstill period might already have lapsed by the time an unsuccessful tenderer is fully informed of the reasons for the rejection of his offer.

The Commission submits that, regarding award procedures covered by directives 2004/17/EC and 92/13/EEC, the Irish legislation establishes the rules for the notification of tenderers in a manner that restricts the unsuccessful tenderers' right to effective legal remedies and is not in conformity with the remedies directives in force, directives 89/665/EEC and 92/13/EEC, as interpreted by the Court of Justice.

(1) Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public work contracts, public supply contracts and public service contracts (OJ L 134, p. 114).

(2) Directive 2004/17/EC of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors (OJ L 134, p. 1).

(3) Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts (OJ L 395, p. 33).

(4) Council Directive 92/13/EEC of 25 February 1992 coordinating the laws, regulations and administrative provisions relating to the application of Community rules on the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors (OJ L 76, p. 14).

(5) C-81/98 — Alcatel Austria AG and others, Siemens AG Österreich, Sag-Schrack Anlagentechnik AK v. Bundesministerium für Wissenschaft und Verkehr — judgment of 28 October 1999.

(6) C-212/02 — Commission v Republic of Austria — judgment of 24 June 2004.