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Language of document : ECLI:EU:T:2010:214

Case T-258/06

Federal Republic of Germany

European Commission

(Provisions applicable to public procurement – Contract awards not subject, or not subject in full, to the public procurement directives – Interpretative communication of the Commission – Actionable measure – Measure intended to produce legal effects)

Summary of the Judgment

1. Actions for annulment – Actionable measures – Meaning – Measures producing binding legal effects – Interpretative communication of the Commission concerning Community law applicable to contract awards not subject, or not subject in full, to the public procurement directives

(Art. 230 EC; Commission Communication 2006/C 179/02)

2. European Communities’ public procurement – Contract awards not subject, or not subject in full, to the public procurement directives – Obligation of contracting authority to respect the rules and principles of the Treaty

(European Parliament and Council Directives 2004/17, recital 9, and 2004/18, recital 2; Commission Communication 2006/C 179/02)

3. European Communities’ public procurement – Contract awards not subject, or not subject in full, to the public procurement directives – Obligation of contracting authority to respect the rules and principles of the Treaty

(Commission Communication 2006/C 179/02)

4. European Communities’ public procurement – Contract awards not subject, or not subject in full, to the public procurement directives – Obligation of contracting authority to respect the rules and principles of the Treaty

(Arts 12 EC, 43 EC, 47 EC and 49 EC; Commission Communication 2006/C 179/02)

5. European Communities’ public procurement – Contract awards not subject, or not subject in full, to the public procurement directives – Obligation of contracting authority to respect the rules and principles of the Treaty

(Commission Communication 2006/C 179/02)

1. An action for annulment is available in the case of all measures adopted by the institutions, whatever their nature or form, which are intended to have legal effects. To assess whether a Commission communication, published in the C Series of the Official Journal with the aim of making known the Commission’s general approach as regards the application of all the fundamental rules concerning public procurement, which flow directly from the rules and principles of the Treaty on contract awards not subject, or not subject in full, to the public procurement directives is designed to produce legal effects which are new as compared with those entailed by the application of the fundamental principles of the Treaty, it is necessary to consider its content. The interpretative communication of the Commission concerning Community law applicable to contract awards not subject, or not subject in full, to the public procurement directives merely fleshes out the provisions applicable to the free movement of goods, the freedom of establishment, the freedom to provide services, the principles of non-discrimination and equal treatment, the principle of proportionality and the rules on transparency and mutual recognition applicable to contracts that are not subject, or not subject in full, to the public procurement directives and does not lay down obligations which are specific or new as compared with those provisions, principles and rules as interpreted by the Court’s case-law. In those circumstances it cannot be found that that communication produces binding legal effects liable to affect the legal situation of the Member States.

(see paras 25-28, 162)

2. The strict special procedures prescribed by the Community directives coordinating public procurement procedures apply only to contracts whose value exceeds the threshold expressly laid down in each of those directives. Accordingly, the rules laid down in those directives do not apply to contracts with a value below the threshold set. That does not mean, however, that below-threshold contracts are excluded from the scope of Community law. As regards the award of those contracts, the contracting authorities are nonetheless under a duty to comply with the fundamental rules of the Treaty in general and the principle of non-discrimination on grounds of nationality, in particular.

The principles of equal treatment and non-discrimination on grounds of nationality, as interpreted by the case-law of the Court, imply, in particular, a duty of transparency which enables the awarding authority to ensure that those principles are complied with. That obligation is attested to by recital 9 of Directive 2004/17, coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors and recital 2 of Directive 2004/18, on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts. It follows that the Member States and their contracting authorities must comply with that obligation of transparency in relation to the award of all public contracts, which entails guaranteeing, in favour of all potential tenderers, adequate advertising allowing the opening of the contract to competition and the unbiased supervision of award procedures. That obligation presupposes a form of advertising that takes place before the award of the public contract in question: in other words, prior publication of an advertisement. Indeed, ex post advertising cannot ensure adequate advertising.

(see paras 73-74, 76-77, 79-80)

3. Given that the basic rules of the Treaty are applicable to all public contracts, even if they are not covered by the public procurement directives, it cannot be presumed, just because the value of a public contract is below the threshold for application of the public procurement directives, that the effects of that contract on the internal market are of almost no significance. Indeed, such contracts are not excluded from the scope of Community law. If any impact of those contracts on the internal market could be ruled out by definition, Community law would not apply.

Admittedly, it is entirely possible that, because of special circumstances such as a very modest economic interest at stake it could reasonably be maintained that an undertaking located in a Member State other than that of the contracting authority for a particular public contract would have no interest in that contract and that, consequently, the effects on the fundamental freedoms concerned should be regarded as too uncertain and too indirect to warrant the conclusion that they may have been infringed. However, the conclusion that there cannot have been any breach of the fundamental freedoms can only be reached as a result of an evaluation of the individual circumstances of each case and cannot be based solely on the fact that the value of the contract in question does not exceed a certain threshold.

In that regard, in principle, it is for the contracting authority concerned to assess, before defining the terms and conditions of the contract notice, whether there may be cross-border interest in a contract whose estimated value is below the threshold laid down by the Community legislation, it being understood that that assessment is open to review by the courts. That does not rule out the possibility that legislation might establish, at national or local level, objective criteria indicating that there is certain cross-border interest, and it does not rule out that the administrative capacity of the contracting entity be taken into account.

(see paras 85, 87-88, 93-95)

4. The procedure for awarding a public contract must comply at every stage, including at the stage of selecting the candidates within the framework of a restricted procedure, both with the principle of the equal treatment of potential tenderers and with the obligation of transparency, so as to afford equality of opportunity for all in formulating the terms of their applications to take part or their tenders.

In the context of contract awards not subject, or not subject in full, to the public procurement directives, the means for achieving fair conditions of competition must help to ensure compliance both with those principles and with the principle of the freedom to provide services.

Among those means, the requirement of a non-discriminatory description of the subject-matter of the contract arises from the principle of equal treatment. The objective designed to ensure that traders, of whatever origin, have equal access to contracts put out to tender, derives from compliance with the principles of freedom of establishment, freedom to provide services and free competition and, in particular, with the principle of equal treatment as expressed in the prohibition of discrimination on grounds of nationality laid down in Article 12 EC. The principle of mutual recognition of diplomas, certificates and other evidence of formal qualifications is merely the legal expression of a principle that is inherent in the fundamental freedoms of the Treaty that does not lose any of its legal force because of the adoption of directives relating to mutual recognition of diplomas. The requirement of appropriate time periods for allowing businesses from other Member States to carry out a relevant evaluation and set out their offer is designed to prevent the risk that a preference is given to national tenderers or candidates, in breach of the principle of non-discrimination. The requirement of compliance with the principles of equal treatment of tenderers and transparency is intended precisely to inform all potential tenderers, before the preparation of their tenders, of the award criteria to be satisfied by these tenders and the relative importance of those criteria, in order to afford all tenderers equality of opportunity in formulating the terms of their applications to participate or of their tenders.

These means therefore facilitate the abovementioned principles and do not create new obligations.

(see paras 111, 113, 116, 120, 122, 124-125, 128)

5. Member States and their contracting authorities are under a duty to comply with the rules and principles laid down in the Treaty. Accordingly, in so far as those rules and those principles imply that there may be exceptions to the obligation of prior publication, such exceptions may, as a matter of law, be relied on by the Member States or by the contracting authorities in awarding a public contract not subject, or not subject in full, to the public procurement directives.

If the Member State or the contracting authority can rely on a provision of the Treaty providing for a general exemption from the application of primary law, such as Article 86(2) EC, or Articles 296 EC or 297 EC, or if one of the justificatory grounds expressly provided for in the Treaty applies (for example, public policy or public health, under Articles 46 EC and 55 EC, or official authority, under Articles 45 EC and 55 EC), or if the conditions for the application of a justificatory ground recognised by case-law are satisfied, the principles of the Treaty are not affected. Consequently, in such cases, the obligation of publication flowing from the principles of the Treaty does not apply to the award of a public contract where a derogation from the public procurement directives is expressly authorised, where the conditions of the derogation are fulfilled and where a negotiated procedure without prior publication of an award notice is therefore justified, there is no obligation to advertise. Accordingly, the principles which flow from the Treaty cannot impose a requirement of prior publicity concerning contracts not subject, or not subject in full, to the public procurement directives.

(see paras 139-141)