| | 32004L0018: c3-31.4.bRepetition    
| 32004L0018 - Classic (3rd generation) | Article 31.4.b | (b) for new works or services consisting in the repetition of similar works or services entrusted to the economic operator to whom the same contracting authorities awarded an original contract, provided that such works or services are in conformity with a basic project for which the original contract was awarded according to the open or restricted procedure.
As soon as the first project is put up for tender, the possible use of this procedure shall be disclosed and the total estimated cost of subsequent works or services shall be taken into consideration by the contracting authorities when they apply the provisions of Article 7.
This procedure may be used only during the three years following the conclusion of the original contract. | | 32004L0017 - Utilities (3rd generation) | Article 40.3.g | | (g) in the case of works contracts, for new works consisting in the repetition of similar works assigned to the contractor to which the same contracting entities awarded an earlier contract, provided that such works conform to a basic project for which a first contract was awarded after a call for competition; as soon as the first project is put up for tender, notice shall be given that this procedure might be adopted and the total estimated cost of subsequent works shall be taken into consideration by the contracting entities when they apply the provisions of Articles 16 and 17; | | 31993L0037 - Works (2nd generation) | Article 7.3.e | (e) for new works consisting of the repetition of similar works entrusted to the undertaking to which the same contracting authorities awarded an earlier contact, provided that such works conform to a basic project for which a first contract was awarded according to the procedures referred to in paragraph 4.
As soon as the first project is put up for tender, notice must be given that this procedure might be adopted and the total estimated cost of subsequent works shall be taken into consideration by the contracting authorities when they apply the provisions of Article 6. This procedure may only be adopted during the three years following the conclusion of the original contract. | | 31992L0050 - Services (2nd generation) | Article 11.3.f | (f) for new services consisting in the repetition of similar services entrusted to the service provider to which the same contracting authorities awarded an earlier contract, provided that such services conform to a basic project for which a first contract was awarded according to the procedures referred to in paragraph 4.
As soon as the first project is put up for tender, notice must be given that the negotiated procedure might be adopted and the total estimated cost of subsequent services shall be taken into consideration by the contracting authorities when they apply the provisions of Article 7. This procedure may be applied solely during the three years following the conclusion of the original contract. | | 31993L0038 - Utilities (2nd generation) | Article 20.2.g | | (g) in the case of works contracts, for new works consisting of the repetition of similar works entrusted to the contractor to which the same contracting entities awarded an earlier contract, provided that such works conform to a basic project for which a first contract was awarded after a call for competition. As soon as the first project is put up for tender, notice must be given that this procedure might be adopted and the total estimated cost of subsequent works shall be taken into consideration by the contracting entities when they apply the provisions of Article 14; | | 31971L0305 - Works (1st generation) | Article 9.1.g | (g) for new works consisting of the repetition of similar works entrusted to the undertaking to which the same authorities awarding contracts awarded an earlier contract, provided that such works conform to a basic project for which a first contract was awarded according to the procedures referred to in article 5;
As soon as the first project is put up for tender, notice must be given that this procedure might be adopted and the total estimated cost of subsequent works shall be taken into consideration by the authorities awarding contracts when they apply the provisions of article 5. This procedure may only be applied during the three years following the conclusion of the original contract; | | 31989L0440 - Fourth amendment of Works (1st generation) | Article 1.7=W1-5.3.e & 1.9=W1.9. | (e) for new works consisting of the repetition of similar works entrusted to the undertaking to which the same contracting authorities awarded an earlier contract, provided that such works conform to a basic project for which a first contract was awarded according to the procedures referred to in paragraph 4.
As soon as the first project is put up for tender, notice must be given that this procedure might be adopted and the total estimated cost of subsequent works shall be taken into consideration by the contracting authorities when they apply the provisions of Article 4a. This procedure may only be applied during the three years following the conclusion of the original contract.
9. Article 7, 8 and 9 are hereby repealed. | | 31990L0531 - Utilities (1st generation) | Article 15.2.g | | (g) in the case of works contracts, for new works consisting of the repetition of similar works entrusted to the contractor to which the same contracting entities awarded an earlier contract, provided that such works conform to a basic project for which a first contract was awarded after a call for competition. As soon as the first project is put up for tender, notice must be given that this procedure might be adopted and the total estimated cost of subsequent works shall be taken into consideration by the contracting entities when they apply the provisions of Article 12; |
| Case | Pte | Ref | Text | C-454/06
Pressetext Nachrichtenagentur | 29-38 | S2-1.a.p1-imp
S2-11.3.e
S2-11.3.f | 29 By its first three questions, the Bundesvergabeamt asks, essentially, in which circumstances amendments to an existing agreement between a contracting authority and a service provider may be regarded as constituting a new award of a public services contract within the meaning of Directive 92/50.
30 Directive 92/50 does not provide a specific answer to those questions, but it does contain a number of pertinent indications which should be placed in the overall framework of Community rules governing public procurement.
31 It is clear from the case-law that the principal objective of the Community rules in the field of public procurement is to ensure the free movement of services and the opening-up to undistorted competition in all the Member States (see Case 26/03 Stadt Halle and RPL Lochau [2005] ECR I-1, paragraph 44). That two-fold objective is expressly set out in the second, sixth and twentieth recitals in the preamble to Directive 92/50.
32 In order to pursue that two-fold objective, Community law applies inter alia the principle of nondiscrimination on grounds of nationality, the principle of equal treatment of tenderers and the obligation of transparency resulting therefrom (see, to that effect, Case C-275/98 Unitron Scandinavia and 3-S [1999] ECR I-8291, paragraph 31; Case C-324/98 Telaustria and Telefonadress [2000] ECR I-10745, paragraphs 60 and 61; and Case C-496/99 P Commission v CAS Succhi di Frutta [2004] ECR I-3801, paragraphs 108 and 109).
33 Directive 92/50 implements those principles and that obligation of transparency in respect of contracts coming within its ambit and concerning, either solely or for the most part, services listed in Annex I A thereto, by requiring inter alia certain award procedures. For contracts coming within its ambit and concerning, either solely or for the most part, services listed in Annex I B thereto, the directive does not impose the same rules for the award procedures, but that category of public contracts nevertheless remains subject to the fundamental rules of Community law and the obligation of transparency resulting therefrom (see, to that effect, Case C-507/03 Commission v Ireland [2007] ECR I-0000, paragraphs 26, 30 and 31).
34 In order to ensure transparency of procedures and equal treatment of tenderers, amendments to the provisions of a public contract during the currency of the contract constitute a new award of a contract within the meaning of Directive 92/50 when they are materially different in character from the original contract and, therefore, such as to demonstrate the intention of the parties to renegotiate the essential terms of that contract (see, to that effect, Case C-337/98 Commission v France [2000] ECR I-8377, paragraphs 44 and 46).
35 An amendment to a public contract during its currency may be regarded as being material when it introduces conditions which, had they been part of the initial award procedure, would have allowed for the admission of tenderers other than those initially admitted or would have allowed for the acceptance of a tender other than the one initially accepted.
36 Likewise, an amendment to the initial contract may be regarded as being material when it extends the scope of the contract considerably to encompass services not initially covered. This latter interpretation is confirmed in Article 11(3)(e) and (f) of Directive 92/50, which imposes, in respect of contracts concerning, either solely or for the most part, services listed in Annex I A thereto, restrictions on the extent to which contracting authorities may use the negotiated procedure for awarding services in addition to those covered by an initial contract.
37 An amendment may also be regarded as being material when it changes the economic balance of the contract in favour of the contractor in a manner which was not provided for in the terms of the initial contract.
38 It is in the light of the aforegoing considerations that the questions referred to the Court are to be answered. | C-385/02
Italy | 33-41 | W2-7.3.e | 33. In that respect, it must be pointed out that Article 7(3)(e) of the Directive authorises the use of the negotiated procedure without prior publication of a contract notice for new works consisting in the repetition of similar works entrusted to the undertaking to which an earlier contract was awarded. The last sentence of that provision states however that the procedure may only be adopted during the three years following the conclusion of the original contract'.
34. In the light of a comparison of the language versions of that provision, the expression conclusion of the original contract' must be understood as meaning the time when the original contract was entered into and not as referring to the completion of the works to which the contract relates.
35. In particular, the Danish version indgaaelsen af den orprindelige kontrakt', the English version the conclusion of the original contract', the Spanish version formalizacion del contrato inicial' and the Portuguese version celebraçao do contrato inicial' refer unambiguously to the contract and cannot be understood as meaning the works which are its subject-matter.
36. That interpretation is confirmed by the objective of the provision in question and its place in the scheme of the Directive.
37. First, as it is a derogating provision which falls to be strictly interpreted, the interpretation which restricts the period during which the derogation applies must be preferred rather than that which extends it. That objective is met by the interpretation which takes the starting point as being the date on which the original contract is entered into rather than the, necessarily later, date on which the works which are its subject-matter are completed.
38. Secondly, legal certainty, which is desirable where procedures for the award of public procurement contracts are involved, requires that the date on which the period in question begins can be defined in a certain and objective manner. While the date on which a contract is entered into is certain, numerous dates may be treated as representing the completion of the works and thus give rise to a corresponding level of uncertainty. Moreover, while the date on which the contract is entered into is clearly established at the outset, the date of completion of the works, whatever definition is adopted, may be altered by accidental or voluntary factors for so long as the contract is being carried out.
39. It follows that in the present case the period of three years laid down in the final sentence of Article 7(3)(e) of the Directive ran from the date on which the original contracts were entered into in 1982 and 1988. As the relevant contracts were awarded in 1997, the derogation laid down by the provision concerned accordingly did not apply.
1393/2007.
40. With respect to the Italian Government's request that it be given the benefit of having made an excusable error, it must be pointed out that proceedings against a Member State for failure to fulfil obligations afford a means of determining the exact nature of the obligations of the Member States, particularly where there are differences of interpretation, and are based on the objective finding that a Member State has failed to fulfil its obligations under the Treaty or secondary legislation (see, to that effect, Case C-83/99 Commission v Spain [2001] ECR I-445, paragraph 23). Accordingly, the concept of excusable error cannot be relied on by a Member State to justify a failure to comply with the obligations imposed on it under a directive.
41. It follows from that that the third defence plea, based on Article 7(3)(a) of the Directive, must be rejected as unfounded. | C-71/92
Spain | 36 | W1-9.1.a
W1-9.1.b
W1-9.1.c
W1-9.1.d
W1-9.1.e
W1-9.1.f
W1-9.1.g
G1-6.1.a
G1-6.1.b
G1-6.1.c
G1-6.1.d
G1-6.1.e
G1-6.1.f
G1-6.1.g
G1-6.1.h | It should be stressed first of all that the provisions of Article 9 of Directive 71/305 and of Article 6 of Directive 77/62, which authorize derogations from the rules intended to ensure the effectiveness of the rights conferred by the Treaty in the field of public works and supply contracts, must be strictly interpreted (see, as regards Article 9 of Directive 71/305, the judgment in Case 199/85 Commission v Italy [1987] ECR 1039, paragraph 14). For the same reasons, the abovementioned provisions specifying the cases in which privately negotiated contracts may be concluded must be regarded as exhaustive. |
| Case | Pte | Ref | Text | N-990318
Seghers | 3-4 | U2-20.2.g
KNL1C1-5.1.s1.p4-impl
RU1-2.6.s2-impl | 5. Klagenævnet finder ikke grundlag for allerede på det foreliggende grundlag at fastslå, at indklagede er afskåret fra at indgå kontrakt om ombygning af de resterende ovnlinier (påstand nr. 5). For så vidt angår klagerens påstand om, at Klagenævnet skal fastslå, at indklagede er afskåret fra at indgå kontrakt med Ansaldo Vølund A/S om ombygning af ovnlinie 1–3 (påstand nr. 6) bemærkes, at dette spørgsmål ikke henhører under Klagenævnets kompetence.
6. Herefter, og da det af klageren i øvrigt anførte ikke kan føre til andet resultat, tages ingen del af klagen til følge.
[Påstandene: 5. Klagenævnet skal fastslå, at indklagede er afskåret fra at indgå kontrakt om ombygning af de resterende ovnlinier på indklagedes forbrændingsanlæg (ovnlinie 1–3) efter bestemmelsen i Forsyningsvirksomhedsdirektivets artikel 20, stk. 2 litra g (indgåelse af kontrakt uden forudgående udbud om udførelse af gentagelsesarbejder).
6. Klagenævnet skal fastslå, at indklagede er afskåret fra at indgå kontrakt med Ansaldo Vølund A/S om ombygning af ovnlinie 1–3.] |
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