Uniplex (UK) Ltd v NHS Business Services Authority.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Writing for the Court: Cunha Rodrigues
• ECLI: ECLI:EU:C:2010:45
• Docket Number: C-406/08
• Date: 28 January 2010
• Procedure Type: Reference for a preliminary ruling

Case C-406/08

Uniplex (UK) Ltd

v

NHS Business Services Authority

(Reference for a preliminary ruling from the High Court of Justice (England and Wales), Queen’s Bench Division)

(Directive 89/665/EEC – Procedures for review of the award of public contracts – Period within which proceedings must be brought – Date from which the period for bringing proceedings starts to run)

Summary of the Judgment

1. Approximation of laws – Review procedures in respect of the award of public supply and public works contracts – Directive 89/665 – Time-limit for instituting proceedings

(Council Directive 89/665, Art. 1(1))

2. Approximation of laws – Review procedures in respect of the award of public supply and public works contracts – Directive 89/665 – Time-limit for instituting proceedings

(Council Directive 89/665, Art. 1(1))

3. Approximation of laws – Review procedures in respect of the award of public supply and public works contracts – Directive 89/665 – Time-limit for instituting proceedings

(Council Directive 89/665, Art. 1(1))

1. Article 1(1) of Directive 89/665 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, as amended by Directive 92/50, requires the period for bringing proceedings for a declaration of infringement of the public procurement rules or for damages for the infringement of those rules to start to run from the date on which the claimant knew, or ought to have known, of that infringement.

The objective laid down in Article 1(1) of Directive 89/665 of guaranteeing effective procedures for review of infringements of the provisions applicable in the field of public procurement can be realised only if the periods laid down for bringing such proceedings start to run only from the date on which the claimant knew, or ought to have known, of the alleged infringement of those provisions.

However, the fact that a candidate or tenderer learns that its application or tender has been rejected does not place it in a position effectively to bring proceedings. It is only once a concerned candidate or tenderer has been informed of the reasons for its elimination from the public procurement procedure that it may come to an informed view as to whether there has been an infringement of the applicable provisions and as to the appropriateness of bringing proceedings.

(see paras 30-32, 35, operative part)

2. Article 1(1) of Directive 89/665 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, as amended by Directive 92/50 precludes a national provision which allows a national court to dismiss, as being out of time, proceedings seeking to have an infringement of the public procurement rules established or to obtain damages for the infringement of those rules on the basis of the criterion, appraised in a discretionary manner, that such proceedings must be brought promptly.

A national provision under which proceedings must not be brought ‘unless … those proceedings are brought promptly and in any event within three months’, gives rise to uncertainty. The possibility cannot be ruled out that such a provision empowers national courts to dismiss an action as being out of time even before the expiry of the three-month period if those courts take the view that the application was not made ‘promptly’ within the terms of that provision. A limitation period, the duration of which is placed at the discretion of the competent court, is not predictable in its effects. Consequently, a national provision providing for such a period does not ensure effective transposition of Directive 89/665.

(see paras 41-43, operative part)

3. In order to ensure compliance with the requirements of Article 1(1) of Directive 89/665 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, as amended by Directive 92/50, a national court dealing with a case under that provision must, as far as is at all possible, interpret the national provisions governing the limitation period in such a way as to ensure that that period begins to run only from the date on which the claimant knew, or ought to have known, of the infringement of the rules applicable to the public procurement procedure in question.

If the national provisions do not lend themselves to such an interpretation, that court is bound, as appropriate, in exercise of the discretion conferred on it, to extend the period for bringing proceedings in such a manner as to ensure that the claimant has a period equivalent to that which it would have had if the period provided for by the applicable national legislation had run from the date on which the claimant knew, or ought to have known, of the infringement of the public procurement rules.

In any event, if the national provisions do not lend themselves to an interpretation which accords with Directive 89/665, the national court must refrain from applying those provisions, in order to apply Community law fully and to protect the rights conferred thereby on individuals.

(see paras 47-50, operative part)

JUDGMENT OF THE COURT (Third Chamber)

28 January 2010 (*)

(Directive 89/665/EEC – Procedures for review of the award of public contracts – Period within which proceedings must be brought – Date from which the period for bringing proceedings starts to run)

In Case C‑406/08,

REFERENCE for a preliminary ruling under Article 234 EC from the High Court of Justice (England and Wales), Queen’s Bench Division (United Kingdom), made by decision of 30 July 2008, received at the Court on 18 September 2008, in the proceedings

Uniplex (UK) Ltd

v

NHS Business Services Authority,

THE COURT (Third Chamber),

composed of J.N. Cunha Rodrigues (Rapporteur), President of the Second Chamber, acting for the President of the Third Chamber, P. Lindh, A. Rosas, U. Lõhmus and A. Ó Caoimh, Judges,

Advocate General: J. Kokott,

Registrar: R. Şereş, Administrator,

having regard to the written procedure and further to the hearing on 24 September 2009,

after considering the observations submitted on behalf of:

– Uniplex (UK) Ltd, by M. Sheridan, Barrister, and A. Stanic, Solicitor,

– NHS Business Services Authority, by R. Williams, Barrister,

– the United Kingdom Government, by I. Rao, acting as Agent, and K. Smith, Barrister,

– the German Government, by M. Lumma and J. Möller, acting as Agents,

– Ireland, by D. O’Hagan, acting as Agent, and A. Collins SC,

– the Commission of the European Communities, by E. White and M. Konstantinidis, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 29 October 2009,

gives the following

Judgment

1 This reference for a preliminary ruling concerns the interpretation of 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 1989 L 395, p. 33), as amended by Council Directive 92/50/EEC of 18 June 1992 (OJ 1992 L 209, p. 1) (‘Directive 89/665’), with regard to the date from which the period for bringing proceedings starts to run in public procurement cases.

2 The reference has been made in the context of a dispute between Uniplex (UK) Ltd (‘Uniplex’) and NHS Business Services Authority (‘NHS’) concerning the conclusion of a framework agreement.

Legal context

Community legislation

3 Article 1(1) of Directive 89/665 provides:

‘The Member States shall take the measures necessary to ensure that, as regards contract award procedures falling within the scope of [Council Directive 71/305/EEC of 26 July 1971 concerning the coordination of procedures for the award of public works contracts (OJ, English Special Edition 1971 (II), p. 682)], [Council Directive 77/62/EEC of 21 December 1976 coordinating procedures for the award of public supply contracts (OJ 1977 L 13, p. 1)], and [Directive] 92/50/EEC, decisions taken by the contracting authorities may be reviewed effectively and, in particular, as rapidly as possible in accordance with the conditions set out in the following Articles and, in particular, Article 2(7), on the grounds that such decisions have infringed Community law in the field of public procurement or national rules implementing that law.’

4 Under Article 2(1) of Directive 89/665:

‘The Member States shall ensure that the measures taken concerning the review procedures specified in Article 1 include provision for the powers to:

(a) take, at the earliest opportunity and by way of interlocutory procedures, interim measures with the aim of correcting the alleged infringement or preventing further damage to the interests concerned, including measures to suspend or to ensure the suspension of the procedure for the award of a public contract or the implementation of any decision taken by the contracting authority;

(b) either set aside or ensure the setting aside of decisions taken unlawfully, including the removal of discriminatory technical, economic or financial specifications in the invitation to tender, the contract documents or in any other document relating to the contract award procedure;

(c) award damages to persons harmed by an infringement.’

5 Article 41(1) and (2) of 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 works contracts, public supply contracts and public service contracts (OJ 2004 L 134, p. 114) provides:

‘1. Contracting authorities shall as soon as possible inform candidates and tenderers of decisions reached concerning the conclusion of a framework agreement...