European Commission v Ireland.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Writing for the Court: Cunha Rodrigues
• ECLI: ECLI:EU:C:2010:46
• Date: 28 January 2010
• Docket Number: C-456/08
• Procedure Type: Recours en constatation de manquement - fondé

Case C-456/08

European Commission

v

Ireland

(Failure of a Member State to fulfil obligations – Directive 93/37/EEC – Public works contracts – Notification to candidates and tenderers of decisions awarding contracts – Directive 89/665/EEC – Procedures for review of the award of public contracts – Period within which actions for review must be brought – Date from which the period for bringing an action 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 – Directives 89/665 and 93/37

(Council Directives 89/665, Art. 1(1), and 93/37, Art. 8(2))

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))

1. A Member State fails to fulfil its obligations under 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, and also Article 8(2) of Directive 93/37 concerning the coordination of procedures for the award of public works contracts, as amended by Directive 97/52, when a contracting authority does not inform the unsuccessful tenderer of its decision to award the contract for the design, construction, financing and operation of a bypass.

Article 8(2) of Directive 93/37 requires contracting authorities to inform candidates and tenderers promptly of the decisions taken on contract awards. Notification to unsuccessful candidates and tenderers of the public contract award decision is mandatory under that provision. That same obligation also arises under Article 1(1) of Directive 89/665, inasmuch as the possibility of bringing an effective action against award decisions can be ensured only if all candidates or tenderers are informed in good time of those decisions.

The announcement of the contracting authority’s award on the Internet and the publication thereof in the Official Journal of the European Union after the signature of the contract by the contracting authority and the successful tenderer cannot adequately rectify the failure to inform the unsuccessful tenderer. In order to make effective legal protection possible for the candidates or tenderers, they should be informed of the award decision in good time before the contract is concluded.

(see paras 29-30, 32-33, 83, operative part)

2. A Member State which maintains in force a provision under which an application for the review of a decision to award or of the award of a public contract must be made at the earliest opportunity and in any event within three months from the date when grounds for the application first arose unless the competent court considers that there is good reason for extending such period fails to fulfil its obligations under 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, as it gives rise to uncertainty as to which decision must be challenged through legal proceedings and as to how periods within which proceedings must be brought are to be determined.

National limitation periods, including the detailed rules for their application, should not in themselves be such as to render virtually impossible or excessively difficult the exercise of any rights which the person concerned derives from Community law.

Inasmuch as such a provision allows national courts to apply, by analogy, the limitation period which it provides for challenges to public contract award decisions to challenges to interim decisions taken by contracting authorities in the course of those procurement procedures, in respect of which no express provision was made by the legislature for that limitation period to apply, the resulting legal situation is not sufficiently clear and precise to exclude the risk that concerned candidates and tenderers may be deprived of their right to challenge decisions in public procurement matters handed down by a national court on the basis of its own interpretation of that provision.

The extension of the limitation period to interim decisions taken by contracting authorities in public procurement procedures in a manner which deprives the parties concerned of their right of review satisfies neither the requirements of legal certainty nor the objective of effective review. Interested parties must be informed of the application of limitation periods to interim decisions with sufficient clarity to enable them effectively to bring proceedings within the periods laid down. The failure to provide such information cannot be justified on grounds of procedural rapidity.

Wording which provides that all relevant applications ‘shall be made at the earliest opportunity 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 ‘at the earliest opportunity’ within the terms of that provision. A limitation period the duration of which is left to the discretion of the competent court is not predictable as to its duration. It follows that a national provision providing for such a period does not ensure effective transposition of Directive 89/665.

The possibility for national courts to extend periods for bringing actions is not such as to compensate for the shortcomings in such a provision, having regard to the clarity and precision which Directive 89/665 requires in respect of the system of limitation periods. Even if the candidate or tenderer concerned takes into account the possibility that periods may be extended, it will still not be able to predict with certainty which period will be accorded to it for the purpose of bringing proceedings, in view of the reference to the obligation to bring an action at the earliest opportunity.

(see paras 53, 63, 66, 74-75, 81, 83, operative part)

JUDGMENT OF THE COURT (Third Chamber)

28 January 2010 (*)

(Failure of a Member State to fulfil obligations – Directive 93/37/EEC – Public works contracts – Notification to candidates and tenderers of decisions awarding contracts – Directive 89/665/EEC – Procedures for review of the award of public contracts – Period within which actions for review must be brought – Date from which the period for bringing an action starts to run)

In Case C‑456/08,

ACTION under Article 226 EC for failure to fulfil obligations, brought on 20 October 2008,

European Commission, represented by G. Zavvos, M. Konstantinidis and E. White, acting as Agents, with an address for service in Luxembourg,

applicant,

v

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

defendant,

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

gives the following

Judgment

1 By its application, the Commission of the European Communities asks the Court to declare that, by reason of the rules on time-limits in the national legislation regulating the exercise of the right of tenderers to judicial review in public procurement procedures and by failing to notify the award decision to the complainant in the procurement procedure in question, Ireland has failed to fulfil its obligations, concerning the applicable time-limits, under Article 1(1) 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’), as interpreted by the Court, and, concerning the lack of notification, under Article 1(1) of Directive 89/665, as interpreted by the Court, and Article 8(2) of Council Directive 93/37/EEC of 14 June 1993 concerning the coordination of procedures for the award of public works contracts (OJ 1993 L 199, p. 54), as amended by European Parliament and Council Directive 97/52/EC of 13 October 1997 (OJ 1997 L 328, p. 1) (‘Directive 93/37’).

Legal context

Community legislation

2 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.’

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

‘The Member States shall ensure that the measures taken concerning...