Comisión de las Comunidades Europeas contra Reino de Bélgica.

• Jurisdiction: European Union
• Celex Number: 61994CJ0087
• ECLI: ECLI:EU:C:1996:161
• Date: 25 April 1996
• Docket Number: C-87/94
• Procedure Type: Recurso por incumplimiento – fundado
• Court: Court of Justice (European Union)

Avis juridique important

|

61994J0087

Judgment of the Court (Fifth Chamber) of 25 April 1996. - Commission of the European Communities v Kingdom of Belgium. - Public contracts - Transport sector - Directive 90/531/EEC. - Case C-87/94.

European Court reports 1996 Page I-02043

Summary
Parties
Grounds
Decision on costs
Operative part

Keywords

++++

1. Approximation of laws ° Procurement procedures of entities operating in the water, energy, transport and telecommunications sectors ° Directive 90/531 ° Scope ° Absence of a condition concerning the nationality or seat of tenderers ° Obligation on contracting entities to apply the rules applicable to the type of procedure chosen

(Council Directive 90/531, Art. 4(1) and 15(1))

2. Approximation of laws ° Procurement procedures of entities operating in the water, energy, transport and telecommunications sectors ° Directive 90/531 ° Award of contracts ° Principle of equal treatment of tenderers and principle of transparency ° Taking into account, after the opening of tenders, amendments made to one of them ° Contract awarded on the basis of figures not corresponding to the prescriptive requirements of the contract documents ° Taking into account variants of the award criteria not mentioned either in the contract documents or in the tender notice ° Breach

(Council Directive 90/531)

Summary

1. The procedure laid down by Directive 90/531 on the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors must be observed irrespective of the nationality or seat of the tenderers. The obligation, imposed on contracting entities by Article 4(1) of the directive, to apply procedures which are adapted to the provisions of the directive is not subject to any such condition and it is always possible that undertakings established in other Member States may be concerned directly or indirectly by the award of a contract.

Although under Article 15(1) of the directive contracting entities obliged to apply the procedures in the directive do indeed have a degree of choice regarding the procedure to be applied to a contract, once they have issued an invitation to tender under one particular procedure they are required to observe the rules applicable to it, until the contract has been finally awarded.

2. It follows from the terms of Directive 90/531 on the procurement procedures of entitites operating in the water, energy, transport and telecommunications sectors that the contracting entity' s procedure for comparing tenders has to comply at every stage with both the principle of the equal treatment of tenderers and the principle of transparency.

A Member State which, in the procedure for the award of a public contract by a public undertaking operating a bus service,

° takes into account fuel consumption figures submitted by a tenderer after the opening of tenders, where those figures exceed a limit which the tenderer himself stipulated in his initial tender in regard to any change in fuel consumption figures,

° awards the contract to the same tenderer on the basis of figures which do not correspond to the prescriptive requirements of the contract documents for calculating the notional penalty of the tenderer in question for maintenance costs in respect of engine and gear box replacement,

° takes into account, when comparing tenders for certain lots, the cost-saving features suggested by the same tenderer, without having referred to them in the contract documents or in the tender notice, uses them to offset the financial differences between the tenders in first place and those of the tenderer in question and accepts some of the same tenderer' s tenders as a result of taking those features into account,

fails to fulfil that obligation.

Parties

In Case C-87/94,

Commission of the European Communities, represented by Hendrik van Lier, Legal Adviser, acting as Agent, with an address for service in Luxembourg at the office of Carlos Gómez de la Cruz, of its Legal Service, Wagner Centre, Kirchberg,

applicant,

v

Kingdom of Belgium, represented by Jan Devadder, Director at the Ministry of Foreign Affairs, Foreign Trade and Cooperation for Development, acting as Agent, and by Michel Waelbroeck and Denis Waelbroeck, of the Brussels Bar, with an address for service in Luxembourg at the Belgian Embassy, 4 Rue des Girondins,

defendant,

APPLICATION for a declaration that, by taking into account, in the procedure for the award of a public contract by the Société Régionale Wallonne du Transport, amendments made to one of the tenders after the opening of those tenders, by admitting to the procedure for the award of the contract a tenderer who did not meet the selection criteria laid down in the contract documents and by accepting a tender which did not meet the criteria for the award of the contract laid down in the contract documents, the Kingdom of Belgium has failed to fulfil its obligations under Council Directive 90/531/EEC of 17 September 1990 on the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors (OJ 1990 L 297, p. 1) and to comply with the principle of equal treatment, which underlies all the rules on procedures for the award of public contracts,

THE COURT (Fifth Chamber),

composed of: D.A.O. Edward (Rapporteur), President of the Chamber, J.C. Moitinho de Almeida, C. Gulmann, P. Jann and L. Sevón, Judges,

Advocate General: C.O. Lenz,

Registrar: H.A. Ruehl, Principal Administrator,

having regard to the Report for the Hearing,

after hearing oral argument from the parties at the hearing on 13 July 1995,

after hearing the Opinion of the Advocate General at the sitting on 12 September 1995,

gives the following

Judgment

Grounds

1 By application lodged at the Court Registry on 11 March 1994, the Commission of the European Communities brought an action under Article 169 of the EC Treaty for a declaration that, by taking into account, in the procedure for the award of a public contract by the Société Régionale Wallonne du Transport (SRWT), amendments made to one of the tenders after the opening of those tenders, by admitting to the procedure for the award of the contract a tenderer who did not meet the selection criteria laid down in the contract documents and by accepting a tender which did not meet the criteria for the award of the contract laid down in the contract documents, the Kingdom of Belgium has failed to fulfil its obligations under Council Directive 90/531/EEC of 17 September 1990 on the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors (OJ 1990 L 297, p. 1, hereinafter "the Directive") and to comply with the principle of equal treatment, which underlies all the rules on procedures for the award of public contracts.

The Directive

2 The 32nd and 33rd recitals in the preamble to the Directive state that the rules to be applied by the entities concerned should establish a framework for sound commercial practice and leave a maximum of flexibility and that, as a counterpart for such flexibility and in the interest of mutual confidence, a minimum level of transparency must be ensured.

3 Article 2 of the Directive mentions, as one of the contracting entities to which the Directive applies, public undertakings operating a network providing a public bus service. Under the second subparagraph of Article 2(2)(c) such a network exists where the service is provided under operating conditions laid down by a competent authority of a Member State, such as conditions on the routes to be served, the capacity to be made available or the frequency of the service.

4 Article 4(1) provides that, when awarding supply contracts, the contracting entities are to apply procedures which are adapted to the provisions of the Directive.

5 Article 4(2) states that contracting entities are to ensure that there is no discrimination between different suppliers or contractors.

6 Article 27(2) provides that where the contract is to be awarded to the most economically advantageous tender "... contracting entities shall state in the contract documents or in the tender notice all the criteria they intend to apply to the award, where possible in descending order of importance".

7 Finally, Article 27(3) states:

"Where the criterion for the award of the contract is that of the most economically advantageous tender, contracting entities may take account of variants which are submitted by a tenderer and meet the minimum specifications required by the contracting entities. Contracting entities shall state in the contract documents the minimum specifications to be respected by the variants and any specific requirements for their presentation. Where variants are not permitted, they shall so indicate in the contract documents."

8 A joint statement by the Council and the Commission concerning Article 15 of the Directive (OJ 1990 L 297, p. 48) provides:

"The Council and the Commission state that in open and restricted procedures all negotiation with candidates or tenderers on fundamental aspects of contracts, variations in which are likely to distort competition, and in particular on prices, shall be ruled out; however, discussions with candidates or tenderers may be held but only for the purpose of clarifying or supplementing the content of their tenders or the requirements of the contracting entities and provided this does not involve discrimination."

The facts

9 By a tender notice published in the supplement to the Official Journal of the European Communities of 22 April 1993 (OJ 1993 S 78, p. 76), the SRWT, which is based in Namur (Belgium), issued an invitation to tender for the award, under an open procedure, of a public contract for the supply of 307 standard vehicles. That contract, for an estimated sum of over BFR 2 000 000 000 (excluding VAT) and divided into eight lots, was to...