ECJ (Judgment) In an action for annulment the purpose of the pre-litigation procedure is to give the Member State concerned an opportunity, on the one hand, to comply with its obligations under Community law and, on the other, to avail itself of its right to defend itself against the charges formulated by the Commission.
The subject-matter of proceedings under Article 226 EC is therefore delimited by the pre-litigation procedure governed by that provision. Accordingly, the application must be founded on the same grounds and pleas as the reasoned opinion, which must contain a cogent and detailed exposition of the reasons which led the Commission to the conclusion that the Member State concerned had failed to fulfil one of its obligations under the Treaty. (see paras 25-27)
The principle of equal treatment of service providers, laid down in Article 3(2) of Directive 92/50 relating to the coordination of procedures for the award of public service contracts, and the principle of transparency which flows from it require the subject-matter of each contract and the criteria governing its award to be clearly defined.
That obligation exists where the subject-matter of a contract and the criteria selected for its award must be regarded as decisive for the purposes of determining which of the procedures provided for in the directive is to be implemented and assessing whether the requirements related to that procedure have been observed. (see paras 34-35)
Article 11(3)(c) of Directive 92/50 relating to the coordination of procedures for the award of public service contracts, which authorises contracting authorities using a negotiated procedure to derogate from the obligation of prior publication where the contract concerned follows a design contest and must be awarded to the successful candidate or to one of the successful candidates, must be interpreted strictly; the burden of proving the existence of exceptional circumstances justifying a derogation lies on the person seeking to rely on those circumstances.
In particular, the expression’ follows a design contest’ as used in that provision implies that there must be a direct functional link between the contest and the contract concerned.
Such a link does not exist, in a project in several phases, between the design contest relating to a first phase and organised for the purpose of awarding the contract envisaged in that phase and the contract relating to a subsequent phase, which the contracting authority has reserved the option merely to award to the successful candidate in that design contest.
[2004] EUECJ C-340/02, [2004] ECR I-9845
Bailii
European
Cited by:
Cited – The Law Society, Regina (on the Application of) v Legal Services Commission CA 29-Nov-2007
The Law Society challenged the new contract proposed for legal aid providers, saying that the Unified Contract reserved too great powers to alter its terms unilaterally, and was in breach of the European Directive on standards for public procurement . .
Lists of cited by and citing cases may be incomplete.
European
Updated: 11 December 2021; Ref: scu.216595
