European Commission v Ireland.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Writing for the Court: Bay Larsen
• ECLI: ECLI:EU:C:2010:697
• Docket Number: C-226/09
• Date: 18 November 2010
• Procedure Type: Recours en constatation de manquement - non fondé

Case C-226/09

European Commission

v

Ireland

(Failure of a Member State to fulfil obligations – Directive 2004/18/EC – Public procurement procedures – Award of a contract for interpretation and translation services – Services falling within the ambit of Annex II B of the Directive – Services not subject to all the requirements of the Directive – Weighting of the award criteria determined after tenders have been submitted – Weighting altered following an initial review of the tenders submitted – Observance of the principle of equal treatment and the obligation of transparency)

Summary of the Judgment

1. Approximation of laws – Procedures for the award of public works contracts, public supply contracts and public service contracts – Services falling within Annex II B of Directive 2004/18

(Arts. 49 TFEU and 56 TFEU; European Council and Parliament Directive 2004/18, Arts. 21, 23 and 35(4), and Annex II B)

2. Approximation of laws – Procedures for the award of public works contracts, public supply contracts and public service contracts – Services falling within Annex II B of Directive 2004/18

(European Council and Parliament Directive 2004/18, Art. 53)

3. Approximation of laws – Procedures for the award of public works contracts, public supply contracts and public service contracts – Services falling within Annex II B of Directive 2004/18

(European Council and Parliament Directive 2004/18, Arts. 21, 23 and 35(4), and Annex II B)

1. Even though contracting authorities which conclude contracts listed in Annex II B to Directive 2004/18 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts 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 on the right of establishment and the freedom to provide services.

Accordingly, the system established by the Union legislature for contracts relating to services falling within the ambit of Annex II B to the Directive may not be interpreted as precluding application of the principles deriving from Articles 49 TFEU and 56 TFEU or, therefore, of the requirements designed to ensure transparency of procedures and equal treatment of tenderers, if such contracts are nevertheless of certain cross-border interest.

(see paras 29, 31)

2. While the requirement to state the relative weighting for each of the award criteria at the stage of publication of the contract notice, as provided for under Article 53(2) of Directive 2004/18 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts, meets the requirement of ensuring observance of the principle of equal treatment and compliance with the consequent obligation of transparency, it cannot legitimately be argued that the scope of that principle and that obligation extends, in the absence of a specific provision to that effect in the Directive, to requiring, in the context of contracts not subject to a provision such as Article 53 of the Directive, the relative weighting of criteria used by the contracting authority to be determined in advance and notified to potential tenderers when they are invited to submit their bids. Indeed, the reference to the weighting of the award criteria in the case of a contract that is not subject to a provision such as Article 53(2) of the Directive does not constitute an obligation for the contracting authority.

(see para. 43)

3. 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. 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.

Consequently, a Member State that alters the weighting of the award criteria for a contract for the provision of interpretation and translation services falling within Annex II B to Directive 2004/18 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts following an initial review of the tenders submitted fails to fulfil its obligations under the principle of equal treatment and the consequent obligation of transparency.

(see paras 59-60, 66)

JUDGMENT OF THE COURT (Fourth Chamber)

18 November 2010 (*)

(Failure of a Member State to fulfil obligations – Directive 2004/18/EC – Public procurement procedures – Award of a contract for interpretation and translation services – Services falling within the ambit of Annex II B of the Directive – Services not subject to all the requirements of the Directive – Weighting of the award criteria determined after tenders have been submitted – Weighting altered following an initial review of the tenders submitted – Compliance with the principle of equal treatment and the obligation of transparency)

In Case C‑226/09,

ACTION under Article 226 EC for failure to fulfil obligations, brought on 19 June 2009,

European Commission, represented by M. Konstantinidis and A.-A. Gilly, acting as Agents, with an address for service in Luxembourg,

applicant,

v

Ireland, represented by D. O’Hagan, acting as Agent, and A.M. Collins, SC, with an address for service in Luxembourg,

defendant,

THE COURT (Fourth Chamber),

composed of J.-C. Bonichot, President of the Chamber, K. Schiemann, L. Bay Larsen (Rapporteur), C. Toader and A. Prechal, Judges,

Advocate General: P. Mengozzi,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after hearing the Opinion of the Advocate General at the sitting on 29 June 2010,

gives the following

Judgment

1 By its application, the Commission of the European Communities seeks a declaration from the Court that, by attributing weightings to the criteria for the award of a contract for the provision of interpretation and translation services after the closing date for the submission of tenders and by altering those weightings following an initial review of the tenders submitted, Ireland has failed to fulfil its obligations under the principles of equal treatment and transparency, as interpreted by the Court of Justice of the European Union.

Legal context

2 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) (‘the Directive’) provides, in Chapter III of Title II thereof, for a ‘two‑tier’ approach to public service contracts.

3 Article 20 of the Directive provides that contracts which have as their object services listed in Annex II A to the Directive are to be awarded in accordance with the provisions laid down in Articles 23 to 55 of the Directive.

4 Those articles set out the specific rules governing specifications and contract documents (Articles 23 to 27), procedures (Articles 28 to 34), advertising and transparency (Articles 35 to 43) and the conduct of the procedure (Articles 44 to 55).

5 Article 21 of the Directive, on the other hand, provides that ‘[c]ontracts which have as their object services listed in Annex II B shall be subject solely to Article 23 and Article 35(4)’.

6 Since interpretation and translation services are not listed in Annex II A to the Directive, they fall within Category 27, entitled ‘Other services’, of Annex II B.

7 Article...