| | ECT-2Task    
| ECT (2003) | Article 2 | | The Community shall have as its task, by establishing a common market and an economic and monetary union and by implementing common policies or activities referred to in Articles 3 and 4, to promote throughout the Community a harmonious, balanced and sustainable development of economic activities, a high level of employment and of social protection, equality between men and women, sustainable and non-inflationary growth, a high degree of competitiveness and convergence of economic performance, a high level of protection and improvement of the quality of the environment, the raising of the standard of living and quality of life, and economic and social cohesion and solidarity among Member States. |
| Case | Pte | Ref | Text | C-340/04
Carbotermo | 58 | G2-na [C3-1.8.1]
ECT-2-impl | 58. It should be borne in mind that the principal objective of the Community rules in the field of public procurement is the free movement of services and the opening-up to undistorted competition in all the Member States (see, to that effect, Case C26/03 Stadt Halle and RPL Lochau [2005] ECR I-1, paragraph 44). | C-26/03
Stadt Halle | 44 | ECT-2 | 44. On this point, the principal objective of the Community rules in the field of public procurement, as stated in connection with the answer to Question 1, should be recalled, namely the free movement of services and the opening-up to undistorted competition in all the Member States. That involves an obligation on all contracting authorities to apply the relevant Community rules where the conditions for such application are satisfied. | C-97/00
France | 2
7-10 | C2A1-4.1
ECT-10
ECT-249 | 2 As provided by the first subparagraph of Article 4(1) of the Directive, the Member States were to bring into force the laws, regulations and administrative provisions necessary to comply with the Directive by 13 October 1998 and forthwith to inform the Commission thereof.
.....
7 In its defence the French Government does not deny the infringement alleged against it. However, it asks the Court to find that the process for transposition of the Directive is in the course of being completed.
8 In this connection, the French Government points out, first, that the Directive has already been partly transposed by the Order of 22 April 1998 referred to in paragraph 5 of this judgment. Second, it states that a draft decree is undergoing interdepartmental examination and will be submitted to the Conseil d'Etat very shortly.
9 It should be remembered that, under the first paragraph of Article 10 EC, the Member States are to take all appropriate measures, whether general or particular, to ensure fulfilment of the obligations arising out of the EC Treaty or resulting from action taken by the institutions of the Community. Such action includes directives which, pursuant to the third paragraph of Article 249 EC, are binding as to the result to be achieved upon each Member State to which they are addressed. That obligation involves, for each Member State to which a directive is addressed, the adoption, within the framework of its national legal system, of all the measures necessary to ensure that the directive is fully effective, in accordance with the objective which it pursues (see Case C-336/97 Commission v Italy [1999] ECR I-3771, paragraph 19).
10 In the present case, since the Directive was not fully transposed within the period set by it, the Commission's action must be considered well founded. | C-59/00
Mousten | 19-21 | ECT-10-impl | 19 To rule on the questions, it should be noted, to begin with, that the Community directives coordinating public procurement procedures apply only to contracts whose value exceeds a threshold laid down expressly in each directive. However, the mere fact that the Community legislature considered that the strict special procedures laid down in those directives are not appropriate in the case of public contracts of small value does not mean that those contracts are excluded from the scope of Community law.
20 Although certain contracts are excluded from the scope of the Community directives in the field of public procurement, the contracting authorities which conclude them are nevertheless bound to comply with the fundamental rules of the Treaty (see, to that effect, Case C-324/98 Telaustria and Telefonadress [2000] ECR I-10745, paragraph 60).
21 Consequently, notwithstanding the fact that a works contract is below the threshold laid down in Directive 93/37 and thus not within the scope of that directive, the lawfulness of a clause in the contract documents for that contract must be assessed by reference to the fundamental rules of the Treaty, which include the free movement of goods set out in Article 30 of the Treaty. | T-139/99
Alsace | 41-46 | ECT-10-impl | 41 Nevertheless, in accordance with the principles of sound administration and solidarity as between the Community institutions and the Member States, the institutions are required to ensure that the conditions laid down in an invitation to tender do not induce potential tenderers to infringe the national legislation applicable to their business.
42 In the present case, the Parliament stated that the French legislation did not ban the provision in unmarked taxis of the transport services forming the subject-matter of the invitation to tender, provided that those services were covered by an entry in the register of undertakings engaged in public passenger transport by road. It must be observed that the applicant has failed to demonstrate that that assertion by the Parliament was manifestly erroneous. The applicant merely invoked the French legislation concerning the taxi business; it has not established that the legislation on non-urban private passenger transport services by road could not apply to taxis operating unofficially, where the latter provide the services provided for in the invitation to tender. Moreover, it is not contested that Coopérative Taxi 13 provided a certificate establishing that it is entered in the register of undertakings engaged in public passenger transport by road. The Parliament has shown that that registration was required by the abovementioned French legislation on private transport services, which lends credence to its arguments.
43 In those circumstances, the applicant has not demonstrated that the Parliament manifestly misdirected itself in its interpretation of the French legislation.
44 Nor, moreover, is the applicant entitled in law to rely on the clause in the draft framework contract under which the services must be provided in conformity with the legislation in force. That clause cannot be interpreted as imposing a requirement on the Parliament to check, not only that the person to whom the contract is awarded is entered in the register, as mentioned above, but also that that person is performing the contract in accordance with French legislation. As the Parliament has clearly stated, under that clause, the person to whom the contract is awarded must ensure that he is acting in conformity with the French legislation and, consequently, must suffer the consequences of a failure to do so.
45 It should be added that the Parliament stated at the hearing that, should it be wrong in its interpretation of the French legislation, it would be compelled to rescind the contract under that clause.
46 It follows from the foregoing that the first plea based on an infringement of the French legislation applicable to the taxi business and of the description of services to be provided must be rejected. | C-337/98
France | 38-42 | U2-45.1
ECT-10 [implicit] | 38 It is true that, in the present case, the decision to use a negotiated procedure without a prior call for competition forms part of an award procedure which did not end until November 1996, that is to say more than two years after the expiry of the period prescribed for transposition of Directive 93/38. However, according to the case-law on public procurement, Community law does not require an awarding authority in a Member State to intervene, at the request of an individual, in existing legal relations established for an indefinite period or for several years where those relations came into being before expiry of the period prescribed for transposition of the directive (see, to that effect, Case C-76/97 Tögel [1998] ECR I-5357, paragraph 54).
39 Whilst the judgment in Tögel, cited above, concerned a contract already concluded before the expiry of the period prescribed for the transposition of Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts (OJ 1992 L 209, p. 1), the general principle set out in it can none the less be applied to all the stages of a procedure for the award of a contract which are completed before the expiry of the period prescribed for transposition of a directive but form part of a procedure which ended after that date.
40 As regards the Commission's argument that the date to be taken for the purpose of determining the applicability of Directive 93/38 ratione temporis is that of the award of the contract, it need merely be observed that it would be contrary to the principle of legal certainty to determine the applicable law by reference to the date of the award of the contract since that date marks the end of the procedure, while the decision of the contracting entity to proceed with or without a prior call for competition is normally taken at the initial stage of that procedure.
41 In the present case, even though it is not clear from the documents before the Court that there was a formal decision by the contracting entity to proceed by way of negotiated procedure without a prior call for competition to award the contract at issue, it is important to bear in mind that, in its resolution of 19 July 1990, the Committee of Sitcar voted to record that the design and execution of the "system and equipment linked to the system" will be the subject of a turnkey contract with Matra-Transport. It is clear from that sentence that, by the date of that resolution at the latest, and thus well before the expiry of the period prescribed for transposition of Directive 93/38, the decision of the contracting entity to proceed by way of negotiated procedure without a prior call for competition had already been adopted.
42 Accordingly, it must be concluded that Directive 93/38 is not applicable to the choice made by the contracting entity to use a negotiated procedure without a prior call for competition to award the contract for the Rennes urban district light railway project. | C-337/98
France | 43-46+56 | U2-45.1
ECT-10 [implicit] | 43 However, it must be observed that, by two separate resolutions of 22 September 1995, the contracting entity, first, withdrew the resolution of 30 March 1993 awarding the contract to Matra and, second, asked Semtcar to continue negotiations with that company.
44 Accordingly, it must be considered whether the negotiations opened after 22 September 1995 were substantially different in character from those already conducted and were, therefore, such as to demonstrate the intention of the parties to renegotiate the essential terms of the contract, so that the application of the provisions of Directive 93/38 might be justified.
45 In that regard, it must be observed, as a preliminary point, that, according to settled case-law, in proceedings under Article 169 of the Treaty for failure to fulfil an obligation, it is incumbent on the Commission to prove that the obligation has not been fulfilled and to place before the Court the evidence necessary to enable it to determine whether that is the case (see, inter alia, Case C-96/98 Commission v France [1999] ECR I-8531, paragraph 36).
46 It follows that, in the present case, it is for the Commission to adduce all such evidence as is necessary to prove that fresh negotiations were commenced after 22 September 1995 and were such as to demonstrate the intention of the parties to renegotiate the essential terms of the contract, which would justify the application of the provisions of Directive 93/98.
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56 Accordingly, it must be held that the Commission has not adduced evidence capable of proving that fresh negotiations demonstrating the intention of the parties to renegotiate the essential terms of the contract were opened following the withdrawal of the resolution of 30 March 1993 and, therefore, after the expiry of the period prescribed for the transposition of Directive 93/38. | C-324/89
Telaustria | 59-63 | ECT-10 [implicit] | 59 However, the fact that such a contract does not fall within the scope of Directive 93/38 does not preclude the Court from helping the national court which has sent it a series of questions for a preliminary ruling. To that end, the Court may take into consideration other factors in making an interpretation which may assist the determination of the main proceedings.
60 In that regard, it should be borne in mind that, notwithstanding the fact that, as Community law stands at present, such contracts are excluded from the scope of Directive 93/38, the contracting entities concluding them are, none the less, bound to comply with the fundamental rules of the Treaty, in general, and the principle of non-discrimination on the ground of nationality, in particular.
61 As the Court held in Case C-275/98 Unitron Scandinavia and 3-S [1999] ECR I-8291, paragraph 31, that principle implies, in particular, an obligation of transparency in order to enable the contracting authority to satisfy itself that the principle has been complied with.
62 That obligation of transparency which is imposed on the contracting authority consists in ensuring, for the benefit of any potential tenderer, a degree of advertising sufficient to enable the services market to be opened up to competition and the impartiality of procurement procedures to be reviewed.
63 It is for the national court to rule on the question whether that obligation was complied with in the case in the main proceedings and also to assess the materiality of the evidence produced to that effect. | C-275/98
Unitron | 29-31 | ECT-10 [implicit] | 29 On the contrary, under Article 2(2) of Directive 93/36, where a contracting authority grants to a body which is not a contracting authority special or exclusive rights to engage in a public service activity, the only requirement is that the measure whereby that right is granted must stipulate that, in relation to the public supply contracts which it awards to third parties in the context of that activity, the body in question must comply with the principle of non-discrimination on grounds of nationality.
30 A systematic interpretation of that provision therefore shows that the contracting authority is not required to demand that the body in question comply with the tendering procedures laid down by Directive 93/36.
31 It should be noted, however, that the principle of non-discrimination on grounds of nationality cannot be interpreted restrictively. It implies, in particular, an obligation of transparency in order to enable the contracting authority to satisfy itself that it has been complied with. | C-81/98
Alcatel Austria | 49 | ECT-10 [ex 5] | 49 In such circumstances, where it is doubtful that the national court is in a position to give effect to the right of individuals to obtain review in matters concerning public procurement under the conditions set out in Directive 89/665, in particular Article 2(1)(a) and (b), it is useful to recall that, if national provisions cannot be interpreted in a manner consistent with Directive 89/665, those concerned may seek compensation, under the appropriate procedures in national law, for the damage suffered by reason of the failure to transpose a directive within the prescribed period (see, in particular, Joined Cases C-178/94, C-179/94 and C-188/94 to C-190/94 Dillenkofer and Others [1996] ECR I-4845). | C-258/97
Hospital Ingenieure Hospital Ingenieure | 24-25 + 27-28 | ECT-10 [ex 5] | 24 It is nevertheless undisputed that, on the date on which the plaintiff instituted proceedings before the UVK, Directive 92/50 had not yet been transposed into domestic law in Carinthia. The Law transposing it did not enter into force until 1 July 1997.
25 Having regard to similar circumstances, in paragraphs 43 and 25 respectively of Dorsch Consult and Tögel, cited above, the Court stated that the Member States' obligation arising from a directive to achieve the result prescribed by the directive and their duty under Article 5 of the EC Treaty to take all appropriate measures, whether general or particular, to ensure fulfilment of that obligation is binding on all the authorities of Member States, including, for matters within their jurisdiction, the courts. It followed that, when applying national law, whether adopted before or after the directive, the national court having to interpret that law must do so, as far as possible, in the light of the wording and purpose of the directive so as to achieve the result it has in view and thereby comply with the third paragraph of Article 189 of the EC Treaty (see the judgments in Case C-106/89 Marleasing [1990] ECR I-4135, paragraph 8; Case C-334/92 Wagner Miret [1993] ECR I-6911, paragraph 20; and in Case C-91/92 Faccini Dori [1994] ECR I-3325, paragraph 26).
27 Finally, in paragraphs 45 and 27 respectively of the same judgments, the Court reiterated that, if the relevant domestic provisions cannot be interpreted in conformity with Directive 92/50, the persons concerned, using the appropriate domestic law procedures, may claim compensation for the damage incurred owing to the failure to transpose the directive within the time prescribed (see, in particular, the judgment in Joined Cases C-178/94, C-179/94, C-188/94, C-189/94 and C-190/94 Dillenkofer and Others [1996] ECR I-4845).
28 The answer to the second and third questions must therefore be that neither Article 2(8) nor any other provisions of Directive 89/665 may be interpreted as meaning that, if Directive 92/50 has not been transposed by the end of the period prescribed for that purpose, the review bodies in the Member States with jurisdiction to review procedures for the award of public supply contracts and public works contracts, established under Article 2(8) of Directive 89/665, may also hear appeals concerning procedures for the award of public service contracts. However, in order to observe the requirement that domestic law must be interpreted in conformity with Directive 92/50 and the requirement that the rights of individuals must be protected effectively, the national court must determine whether the relevant provisions of its domestic law allow recognition of a right for individuals to bring an appeal in relation to awards of public service contracts. In circumstances such as those arising in the case in the main proceedings, the national court must determine in particular whether such a right of appeal may be exercised before the same bodies as those established to hear appeals concerning the award of public supply contracts and public works contracts. | C-111/97
EvoBus | 17-21 | ECT-10 [ex 5] | 17 It is common ground that, at the time when EvoBus made its application for review before the Bundesvergabeamt, namely 18 July 1996, Directive 92/13 had not been transposed into Austrian law.
18 In regard to such circumstances, the Court pointed out at paragraph 43 of the Dorsch Consult judgment, cited above, that Member States' obligation arising from a directive to achieve the result envisaged by the directive and their duty under Article 5 of the EC Treaty to take all appropriate measures, whether general or particular, to ensure fulfilment of that obligation, is binding on all the authorities of Member States, including, for matters within their jurisdiction, the courts. It follows that, when applying national law, whether adopted before or after the directive, the national court called upon to interpret that law must do so, as far as possible, in the light of the wording and the purpose of the directive so as to achieve the result which it has in view and thereby comply with the third paragraph of Article 189 of the EC Treaty (see Case C-106/89 Marleasing [1990] ECR I-4135, paragraph 8; Case C-334/92 Wagner Miret [1993] ECR I-6911, paragraph 20; and Case C-91/92 Faccini Dori [1994] ECR I-3325, paragraph 26).
19 That obligation requires the national court to determine whether the relevant provisions of domestic law allow recognition of a right for individuals to review in relation to awards of public service contracts in the water, energy, transport and telecommunications sectors. In circumstances such as those in point in the main proceedings, the national court is required in particular to determine whether that right to review may be exercised before the same bodies as those established to hear applications for review concerning the award of public supply contracts and public works contracts (see the judgment in Dorsch Consult, cited above, end of paragraph 46).
20 In the main proceedings, it is, however, common ground that, pursuant to Paragraphs 7(2) and 67(1) of the BVergG, the awarding authorities under Paragraph 67(2) are expressly excluded from the system of review established by that Law pursuant to Directive 89/665.
21 In those circumstances it must be pointed out that, if the relevant provisions of domestic law cannot be interpreted in conformity with Directive 92/13, the persons concerned may, in accordance with the appropriate procedures under domestic law, claim compensation for the damage incurred owing to the failure to transpose the directive within the time prescribed (Dorsch Consult, cited above, paragraph 45; on the question of Member States' liability in the event of non-transposition of a directive see, in particular, Joined Cases C-6/90 and C-9/90 Francovich and Others [1991] ECR I-5357 and Joined Cases C-178/94, C-179/94, C-188/94, C-189/94 and C-190/94 Dillenkofer and Others [1996] ECR I-4845). | C-76/97
Tögel | 24-25 + 27-28 | ECT-10 [ex 5] | 24 However, it is undisputed that on 22 August 1996, the date on which Mr Tögel brought his application before the Bundesvergabeamt, Directive 92/50 had not been transposed into Austrian law. In fact, the Law giving effect to the directive entered into force only on 1 January 1997.
25 In view of those circumstances, the Court reiterated, at paragraph 43 of its judgment in Dorsch Consult, that the Member States' obligation arising from a directive to achieve the result envisaged by the directive and their duty under Article 5 of the EC Treaty to take all appropriate measures, whether general or particular, to ensure fulfilment of that obligation is binding on all the authorities of Member States, including, for matters within their jurisdiction, the courts. It followed that, when applying national law, whether adopted before or after the directive, the national court having to interpret that law must do so, as far as possible, in the light of the wording and purpose of the directive so as to achieve the result it has in view and thereby comply with the third paragraph of Article 189 of the EC Treaty (see the judgments in Case C-106/89 Marleasing [1990] ECR I-4135, paragraph 8; Case C-334/92 Wagner Miret [1993] ECR I-6911, paragraph 20; and in Case C-91/92 Faccini Dori [1994] ECR I-3325, paragraph 26).
27 Finally, at paragraph 45 of the judgment in Dorsch Consult, the Court reiterated that, if the relevant domestic provisions cannot be interpreted in conformity with Directive 92/50, the persons concerned, using the appropriate domestic law procedures, may claim compensation for the damage incurred owing to the failure to transpose the directive within the time prescribed (see, in particular, the judgment in Joined Cases C-178/94, C-179/94, C-188/94, C-189/94 and C-190/94 Dillenkofer).
28 The reply to be given to the first and second questions must therefore be that neither Article 1(1) and (2), Article 2(1) nor any other provision of Directive 89/665 may be interpreted as meaning that, if Directive 92/50 has not been transposed by the end of the period laid down for that purpose, the review bodies in the Member States with jurisdiction to review procedures for the award of public supply contracts and public works contracts, established under Article 2(8) of Directive 89/665, may also hear appeals concerning procedures for the award of public service contracts. However, in order to observe the requirement that domestic law must be interpreted in conformity with Directive 92/50 and the requirement that the rights of individuals must be protected effectively, the national court must determine whether the relevant provisions of its domestic law allow recognition of a right for individuals to bring an appeal in relation to awards of public service contracts. In circumstances such as those arising in the present case, the national court must determine in particular whether such a right of appeal may be exercised before the same bodies as those established to hear appeals concerning the award of public supply contracts and public works contracts. | C-76/97
Tögel | 48-54 | P2A1-2.2.1
ECT-10 [ex 5] | 48 By its fourth question the national court asks whether a Member State is required, under Article 5 or any other provision of the EC Treaty or under Directive 92/50/EEC, to intervene in existing legal situations concluded for an indefinite period or for several years in a manner not in conformity with the abovementioned directive.
49 Since the directive had not yet been transposed into Austrian law at the time when the order for reference was made, that question cannot, in the present case, concern any obligation on the Austrian legislature to intervene in this area.
50 The fourth question must therefore be construed as seeking to ascertain whether Community law requires an awarding authority of a Member State to intervene at the request of an individual in existing legal situations concluded for an indefinite period or for several years in a manner not in conformity with Directive 92/50.
51 It should be recalled here that it is settled case-law that unconditional and sufficiently precise provisions of a directive may be relied on before a national court by the persons concerned against any public authority required to apply laws, regulations or administrative provisions of national law which are not in conformity with that directive, even if that directive has not yet been transposed into the domestic legal order of the State in question.
52 It follows that an individual may rely before a national court on the provisions of Directive 92/50 if they are unconditional and sufficiently precise, when an awarding body of a Member State has awarded a public service contract in breach of those provisions, provided, however, that the award was made after expiry of the transposition period provided for by that directive.
53 In this instance, the file shows that the framework contracts at issue in the main proceedings were entered into in 1984, that is to say even before adoption of the directive.
54 The reply to be given to the fourth question must therefore be that Community law does not require an awarding authority in a Member State to intervene, at the request of an individual, in existing legal situations concluded for an indefinite period or for several years where those situations came into being before expiry of the period for transposition of Directive 92/50. | C-54/96
Dorsch Consult | 42-43 + 45-46 | ECT-10 [ex 5] | 42 It is, however, common ground that Paragraphs 57a to 57c of the HGrG were designed to transpose Directive 89/665 and that Paragraph 57a was to be the basis for the transposition of Directive 92/50 which the Federal Government has still not undertaken.
43 That being the case, it must be reiterated first of all that the Member States' obligation arising from a directive to achieve the result envisaged by the directive and their duty under Article 5 of the EC Treaty to take all appropriate measures, whether general or particular, to ensure fulfilment of that obligation is binding on all the authorities of Member States, including, for matters within their jurisdiction, the courts. It follows that, when applying national law, whether adopted before or after the directive, the national court having to interpret that law must do so, as far as possible, in the light of the wording and the purpose of the directive so as to achieve the result it has in view and thereby comply with the third paragraph of Article 189 of the EC Treaty (see the judgments in Case C-106/89 Marleasing [1990] ECR I-4135, paragraph 8; Case C-334/92 Wagner Miret [1993] ECR I-6911, paragraph 20; and in Case C-91/92 Faccini Dori [1994] ECR I-3325, paragraph 26).
45 If the relevant domestic provisions cannot be interpreted in conformity with Directive 92/50, the persons concerned, using the appropriate domestic law procedures, may claim compensation for the damage incurred owing to the failure to transpose the directive within the time prescribed (see, in particular, the judgment in Joined Cases C-178/94, C-179/94, C-188/94, C-189/94 and C-190/94 Dillenkofer and Others [1996] ECR I-4845).
46 The answer to be given to the question referred to the Court must accordingly be that it does not follow from Article 41 of Directive 92/50 that, where that directive has not been transposed by the end of the period laid down for that purpose, the appeal bodies of the Member States having competence in relation to procedures for the award of public works contracts and public supply contracts may also hear appeals relating to procedures for the award of public service contracts. However, in order to observe the requirement that domestic law must be interpreted in conformity with Directive 92/50 and the requirement that the rights of individuals must be protected effectively, the national court must determine whether the relevant provisions of its domestic law allow recognition of a right for individuals to bring an appeal in relation to awards of public service contracts. In circumstances such as those arising in the present case, the national court must determine in particular whether such a right of appeal may be exercised before the same bodies as those established to hear appeals concerning the award of public supply contracts and public works contracts. | C-236/95
Greece | 17 | ECT-10 [ex 5] | 17 Private persons and, in particular, undertakings receiving subsidies from public authorities may, in certain circumstances, be given the responsibilities of contracting authorities in connection with the award of contracts covered by the directive. To that extent, the obligation of bona fide cooperation and assistance to which the Member States are subject under Article 5 of the EC Treaty in order to facilitate the achievement of the Commission' s tasks is not sufficient to secure the implementation of Article 3 of the directive. The Member States should therefore implement that provision in order to ensure that it is also complied with by such private persons. | 31/87
Beentjes | 39 | ECT-10 [ex 5] | 39 As the Court held in its judgment of 10 April 1984 in Case 14/83 Von Colson and Kamann v Land Nordrhein-Westfalen (( 1984 )) ECR 1891, the Member States' obligation arising from a directive to achieve the result envisaged by the directive and their duty under Article 5 of the Treaty to take all appropriate measures, whether general or particular, to ensure fulfilment of that obligation are binding on all the authorities of the Member States, including, for matters within their jurisdiction, the courts. It follows that in applying national law, in particular the provisions of a national law specifically introduced in order to implement a directive, national courts are required to interpret their national law in the light of the wording and the purpose of the directive in order to achieve the result referred to in the third paragraph of Article 189 of the Treaty. |
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