OPINION OF ADVOCATE GENERAL
KOKOTT
delivered on 29 October 2009 1(1)
Case C‑456/08
Commission of the European Communities
v
Ireland
(Failure of a Member State to fulfil obligations – Public works contracts – Directives 93/37/EEC and 89/665/EEC – Obligation of the contracting authority to inform an unsuccessful tenderer of the award decision – Review procedures under national law – Effective legal protection – Decisions open to challenge – Limitation periods – Length of the period – Requirement to bring proceedings ‘at the earliest opportunity’)
I – Introduction
1. This action for failure to fulfil obligations gives the Court an opportunity to develop its case-law on the remedies available to unsuccessful tenderers in public procurement procedures.
2. First, the Commission criticises Ireland on the ground that in a specific individual case an Irish authority, awarding a road construction project, did not inform the unsuccessful consortium of tenderers of the final award decision.
3. Second, the Commission and Ireland dispute whether the time-limits laid down in Irish procedural law are formulated sufficiently clearly, precisely and predictably to enable effective review of the decisions of contracting authorities.
4. As regards the second issue, the present case has points of contact with Case C‑406/08 Uniplex (UK), in which I also deliver my Opinion today.
II – Legal context
A – Community law
5. The Community law context of the present case is defined by Directives 93/37/EEC (2) and 89/665/EEC. (3)
6. Article 8(2) of Directive 93/37, as amended by Directive 97/52/EC, (4) contains the following provision:
‘Contracting authorities shall promptly inform candidates and tenderers of the decisions taken on contract awards, including the reasons why they have decided not to award a contract for which there has been an invitation to tender or to start the procedure again, and shall do so in writing if requested. They shall also inform the Office for Official Publications of the European Communities of such decisions.’
7. Article 1 of Directive 89/665, as amended by Directive 92/50/EEC, (5) (6) provides:
‘1. The Member States shall take the measures necessary to ensure that, as regards contract award procedures falling within the scope of Directives 71/305/EEC, 77/62/EEC, and 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 nation[al] rules implementing that law.
2. Member States shall ensure that there is no discrimination between undertakings claiming injury in the context of a procedure for the award of a contract as a result of the distinction made by this Directive between national rules implementing Community law and other national rules.
3. The Member States shall ensure that the review procedures are available, under detailed rules which the Member States may establish, at least to any person having or having had an interest in obtaining a particular public supply or public works contract and who has been or risks being harmed by an alleged infringement. In particular, the Member States may require that the person seeking the review must have previously notified the contracting authority of the alleged infringement and of his intention to seek review.’ (7)
B – National law
8. As regards national law, first the Irish European Communities (Award of Public Authorities’ Contracts) Regulations 2006 (8) (‘the APAC Regulations’) and second the Irish Rules of the Superior Courts (9) (‘the RSC’) are relevant to the present case.
9. Regulation 49 of the APAC Regulations reads, in extract, as follows:
‘(1) As soon as practicable after reaching a decision about entering into a public contract or framework agreement or admission to a dynamic purchasing system, a contracting authority shall inform candidates and tenderers of the decision by the most rapid means of communication possible (such as by electronic mail or by telefax). …
…
(5) A contracting authority shall not enter into a public contract with a successful tenderer unless at least 14 days have elapsed since the date on which tenderers were informed of the contract award decision in accordance with paragraph (1).
…’
10. Order 84A(4) of the RSC (10) provides as follows:
‘An application for the review of a decision to award or the award of a public contract shall 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 Court considers that there is good reason for extending such period.’
III – Facts and pre-litigation procedure
11. The Irish National Roads Authority (‘NRA’) is an authority responsible for the construction and maintenance of roads in Ireland.
12. On 10 July 2001 the NRA published in the Official Journal of the European Communities a call for interest in the design, building, financing and operation of the Dundalk Western Bypass motorway. The contractor was to establish a public-private partnership (11) with the NRA and operate the motorway for a period expected to be 30 years.
13. In December 2001 the NRA invited four interested parties to proceed to negotiations. In April 2003 the NRA selected two of them to proceed to more intensive negotiations, namely the EuroLink consortium and the Celtic Roads Group consortium. On 8 August 2003 the NRA invited those consortia to submit a ‘best and final offer’.
14. By letter of 14 October 2003, EuroLink was informed by the NRA that it had decided to select Celtic Roads Group as the preferred tenderer. The letter pointed out, however, that EuroLink’s offer had not been rejected. If the further discussions with Celtic Roads Group did not lead to the award of a contract, the NRA reserved the right to invite EuroLink to enter into discussions with it in place of Celtic Roads Group.
15. On 9 December 2003 the NRA decided to award the contract to Celtic Roads Group. The contract was signed on 5 February 2004. From 9 February 2004 a notice to that effect was displayed on the NRA website, and a notice of the award was also published in the Official Journal of the European Union on 3 April 2004.
16. On 8 April 2004 SIAC Construction Limited (‘SIAC’), an undertaking which belonged to the unsuccessful EuroLink consortium, brought an action for compensation in the High Court of Ireland, based on various alleged defects in the award procedure.
17. By judgment of 16 July 2004, (12) the High Court dismissed the action as out of time. Contrary to the view taken by SIAC, the High Court considered that SIAC must have known the grounds for its claim at the latest by 14 October 2003, when EuroLink was informed by the NRA of the identity of its preferred tenderer. In accordance with Order 84A(4) of the RSC, SIAC should have brought its action at the latest three months from that date.
18. SIAC thereupon complained to the Commission. In its complaint it alleged inter alia that it had not been informed at any time by the NRA of its award decision.
19. Following that complaint, the Commission first sent the Irish authorities an administrative letter on 15 November 2004, asking for further information on the facts. Ireland’s answer of 25 April 2005 was not capable of dispelling the Commission’s doubts. A letter of formal notice was thereupon sent by the Commission to Ireland on 10 April 2006, and a supplementary letter of formal notice on 15 December 2006, to which Ireland replied by letters of 30 May 2006 and 21 February 2007 respectively.
20. Since, however, Ireland’s explanations still failed to satisfy the Commission, it issued a reasoned opinion within the meaning of the first paragraph of Article 226 EC on 1 February 2008, and required Ireland to take the necessary steps to comply with the reasoned opinion within two months. On 25 June 2008 Ireland replied to the reasoned opinion, stating inter alia that an amendment to the national laws, regulations and administrative provisions was being considered in the course of the transposition of Directive 2007/66. However, that answer too did not appear to the Commission to be adequate.
IV – Forms of order sought by the parties and procedure before the Court
21. By a pleading of 14 October 2008, received at the Court on 20 October 2008, the Commission brought the present action against Ireland under the second paragraph of Article 226 EC.
22. The Commission asks the Court to:
– declare that, by way 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 against that award decision, Ireland has failed to fulfil its obligations, concerning the applicable time-limits, under Article 1(1) of 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 Directive 93/37; and
– order Ireland to pay the costs.
23. Ireland contends for its part that the Court should:
– dismiss the action; and
– order the Commission to pay the costs.
24. The Court received written submissions on the Commission’s action, followed by oral argument, on 24 September 2009. (13)
V – Assessment
25. The Commission’s action will be well founded if Ireland has failed to fulfil one of its obligations under the EC Treaty. Those obligations include, in accordance with the third paragraph of Article 249 EC and Article 10 EC, the duty to achieve the results aimed at by Community directives.
26. In the present case the Commission bases its action on two pleas. The first plea concerns an individual case: it relates to the alleged failure to inform the unsuccessful consortium of tenderers of the award decision for the Dundalk Western Bypass motorway construction project. The second plea goes beyond that individual case: it denounces as contrary to Community law the provision of Irish law on the time-limits for seeking remedies, as laid down in Order 84A(4) of the RSC.
A – First plea: failure to notify the award decision
27. By its first plea, the Commission accuses Ireland of a failure to fulfil its obligations under Article 1(1) of Directive 89/665 and Article 8(2) of Directive 93/37, consisting in the fact that the NRA did not inform the unsuccessful tenderer, in accordance with those provisions, of its award decision concerning the Dundalk Western Bypass motorway construction project.
28. Both the Commission and Ireland tacitly assume that the Dundalk Western Bypass motorway construction project put out to tender by the NRA was a public works contract for the purposes of Directive 93/37.
29. The NRA as the contracting authority was therefore obliged under Article 8(2) of Directive 93/37 to inform tenderers or candidates promptly of its decision on the award of that contract.
30. The same obligation also arises under Article 1(1) of Directive 89/665, because effective legal protection against award decisions can only be ensured if all candidates or tenderers are informed in good time and in detail of precisely those decisions. (14)
31. It is not disputed, however, that in the present case the NRA never formally informed EuroLink, the unsuccessful consortium of tenderers to which SIAC belonged, of its decision to award the road construction project in question to the competing consortium Celtic Roads Group.
32. Nor could the announcement of 9 February 2004 on the NRA’s website and the notice of 3 April 2004 in the Official Journal of the European Union provide an adequate substitute. They merely informed the public of the final conclusion of the contract between the NRA and Celtic Roads Group. But in order to make effective legal protection possible for the unsuccessful candidates or tenderers, they should have been informed in good time before the contract was concluded – instead of being informed only after the creation of a fait accompli – about the NRA’s award decision. (15)
33. The NRA thus failed to comply with its obligations to provide information under Article 8(2) of Directive 93/37 and Article 1(1) of Directive 89/665 with respect to the Dundalk Western Bypass motorway construction project.
34. Ireland objects that in the present case SIAC none the less suffered no injustice. In view of the circumstances of the particular case, at no time was there any uncertainty for SIAC as to the tenderer to which the NRA would award the contract. Ireland refers here to the NRA’s letter of 14 October 2003, in which the EuroLink consortium was informed of the selection of Celtic Roads Group as the preferred tenderer. From that time at the latest, SIAC must in Ireland’s view have been aware that – ‘except in very exceptional circumstances’ (16) – an award decision would be made in favour of Celtic Roads Group. On this point, Ireland expressly adopts the reasoning of the High Court of Ireland in the national review proceedings. (17)
35. This objection fails, however. In its letter of 14 October 2003 the NRA did not notify any final award decision; it even expressly informed EuroLink that its offer had not been rejected. The selection of a ‘preferred tenderer’ by NRA may already have been an important decision as to the direction to take, but it did not involve a definitive determination of a tenderer. The NRA expressly reserved the right to invite EuroLink to enter into discussions in the place of Celtic Roads Group at a later date if appropriate. EuroLink could therefore assume for the time being that it was not yet completely out of the running.
36. Apart from that, in an action under Article 226 EC for failure to fulfil obligations, which is objective in nature, it is in any case irrelevant whether actual damage or other adverse effects have occurred as a result of the conduct of official bodies of a Member State. (18)
37. Ireland stresses, finally, that its national law is in harmony with the obligations under Community law to provide information; these are correctly transposed in Article 49(1) of the APAC Regulations. In those circumstances, an individual case in which no information was given on the award decision cannot be stigmatised as a breach of Community law.
38. This argument of Ireland is also unconvincing, however. First, it is by no means undisputed whether Article 49(1) of the APAC Regulations in fact correctly transposes the obligations under Community law to provide information; separate proceedings for failure to fulfil obligations are pending against Ireland on this point. (19) Second, it is settled case-law that, in an action for failure to fulfil obligations, not only can the compatibility of a Member State’s laws, regulations and administrative provisions with Community law be examined, an infringement of Community law by the national bodies in a specific individual case can also be ascertained. (20)
39. Altogether, I therefore conclude that the Commission’s first plea is well founded.
B – Second plea: rules on time-limits for legal remedies in Irish procedural law that are contrary to Community law
40. By its second plea, the Commission accuses Ireland of an infringement of Article 1(1) of Directive 89/665, consisting in the fact that Order 84A(4) of the RSC regulates the limitation period for applications in review procedures in a way which conflicts with the requirements of Community law.
41. Directive 89/665 makes no express provision on the time-limits that apply to review procedures under Article 1 of the directive. (21) However, the Court has consistently held that the Member States may in the exercise of their procedural autonomy introduce reasonable limitation periods for bringing proceedings, provided that they comply with the principles of equivalence and effectiveness. (22) Those two principles are also reflected in Article 1 of Directive 89/665, the principle of equivalence in Article 1(2) and the principle of effectiveness in Article 1(1). (23)
42. In the present case it is the principle of effectiveness that is the focus of interest. That Ireland can lay down limitation periods for applications for the review of decisions of contracting authorities is not in dispute. (24) The dispute between the parties concerns merely certain details of the national rules on limitation. The essential issue is whether those rules are sufficiently clear to make effective review within the meaning of Article 1(1) of Directive 89/665 possible. The Commission denies this. It refers to lack of clarity in connection with determining the kinds of decisions against which challenges must be brought within the period laid down by Order 84A(4) of the RSC, and to lack of clarity as regards the duration of that period.
1. Determination of the kinds of decisions to which the limitation period applies (first part of the second plea)
43. By the first part of its second plea, the Commission complains that there is legal uncertainty as to the kind of procurement law decisions against which challenges must be brought within the period laid down by Order 84A(4) of the RSC. According to its wording, Order 84A(4) of the RSC applies only to the review of ‘a decision to award or the award of a public contract’. In practice, however, according to the Commission, the scope of that provision is extended also to interim decisions, so that applications for their review can likewise be brought only within the period laid down by Order 84A(4) of the RSC.
44. The facts relied on by the Commission in this respect are not in dispute. Both the submissions of Ireland in the present proceedings for failure to fulfil obligations and the judgment of the High Court of Ireland on the Dundalk Western Bypass motorway construction project (25) confirm that the period laid down in Order 84A(4) of the RSC is in practice applied by the competent Irish authorities not only to challenges to final decisions (‘a decision to award or the award of a public contract’) but also to challenges to interim decisions taken by contracting authorities. (26)
45. It is very much in dispute between the parties, however, whether Order 84A(4) of the RSC, as interpreted and applied by the national authorities, complies with the requirements of Article 1(1) of Directive 89/665.
46. Article 1(1) of Directive 89/665 requires that decisions of contracting authorities may be reviewed ‘effectively and, in particular, as rapidly as possible’ for breaches of procurement law.
47. To achieve that objective of the directive, the Member States must, in accordance with the third paragraph of Article 249 EC in conjunction with Article 10 EC, take all appropriate measures, both general and particular. According to settled case-law, they must establish a specific legal framework in the area in question. (27) They must make the situation in national law sufficiently precise, clear and transparent for individuals to be able to ascertain their rights and obligations. (28)
48. Moreover, the same follows from the principle of legal certainty, which is a general legal principle forming part of the Community legal order, and must be observed by the Member States when they exercise their powers within the scope of Community law. (29) According to settled case-law, one of the requirements of legal certainty is that rules of law must be clear, precise and predictable in their effects, especially where they may have negative consequences for individuals and undertakings. (30)
49. For a limitation rule such as that in Order 84A(4) of the RSC, the requirements of clarity, precision and predictability apply especially. An unclear limitation provision is liable to entail substantial negative consequences for individuals and undertakings. If a tenderer or candidate misses a deadline for bringing proceedings under Order 84A(4) of the RSC, he is barred from complaining of possible breaches of procurement law and loses the possibility of subjecting the award decision in question to a review. He is no longer entitled to go to court to obtain the public contract as such or at least compensation for the public contract he has lost. (31)
50. Yet the application of a limitation period must precisely not lead to the exercise of the right to review of award decisions being deprived of its practical effectiveness. (32)
51. Only if it is clear beyond doubt that even preparatory acts of contracting authorities or the interim decisions at issue in the present case start the limitation period under Order 84A(4) of the RSC running can tenderers and candidates take the necessary precautions to have possible breaches of procurement law reviewed effectively within the meaning of Article 1(1) of Directive 89/665 and to avoid their challenges being statute-barred.
52. In this context, I regard it as incompatible with the requirements of Article 1(1) of Directive 89/665 for the scope of the limitation period under Order 84A(4) of the RSC to be extended in Ireland to the review of interim decisions, without that being clearly expressed in the wording of the provision. This is because the effects of the limitation rule, in particular the extent of its preclusive effect, cannot be predicted with sufficient certainty by tenderers and candidates in award procedures. The objective of effective review of decisions taken by contracting authorities, prescribed by Article 1(1) of Directive 89/665, is thereby undermined.
– Ireland’s objection that a time-limit for challenging interim decisions corresponds to the objectives of Directive 89/665, in particular the requirement to act rapidly
53. Ireland contends that under Directive 89/665 and the case-law on that directive all decisions taken by contracting authorities are open to challenge. The extension of the limitation rule in Order 84A(4) of the RSC to interim decisions is in harmony with the requirements of Community law. Moreover, Directive 89/665 is based on a requirement to act rapidly. Article 1(1) demands not only effective review but also review that is carried out as rapidly as possible of decisions of contracting authorities. The review of all decisions taken by contracting authorities must therefore be subject to the time-limit laid down by Order 84A(4) of the RSC. If it were permissible for unsuccessful tenderers to wait until the issue of the final award decision and make all their complaints then, there would be a risk of lengthy legal uncertainty and a considerable loss of time in connection with the award of public contracts. Furthermore, in Ireland’s view, it would become impossible to remedy possible infringements of procurement law while an award procedure was still under way.
54. In this connection, it must be observed that Ireland is of course free to provide for limitation periods for procurement law review of preparatory acts and interim decisions of contracting authorities, for example the drawing-up of a shortlist or the choice of a preferred tenderer. As already mentioned, (33) the determination of appropriate limitation periods is compatible with Community law, provided that the principles of equivalence and effectiveness are observed in so doing. Such limitation periods – even comparatively short ones – may in particular be legitimate and appropriate if Community law lays down a requirement of rapid action in a certain field, by insisting – as in the case of procurement law – on action being taken ‘as rapidly as possible’ (34) (Article 1(1) of Directive 89/665). (35)
55. It is therefore entirely correct that, by extending the limitation rule in Order 84A(4) of the RSC to interim decisions, Ireland is pursuing a legitimate aim in harmony with the directive. (36) That aim must, however, be achieved in national law in conformity with the requirements of legal certainty. The limitation rule must be clearly and precisely worded and predictable in its effects. The existence of a national practice which serves the aims of a directive does not release the Member State from the obligation to create a legal situation that is sufficiently precise, clear and transparent for individuals to be able to ascertain their rights and obligations. (37)
56. In the present case, moreover, it should be borne in mind that Directive 89/665 imposes on the Member States not only the aim of rapid review but also the aim of effective review of award decisions (see Article 1(1) of Directive 89/665). A national practice which achieves only one of those aims at the expense of the other is not in harmony with the directive. The extension of the limitation period under Order 84A(4) of the RSC to interim decisions may indeed serve the aim of rapid review; without this also being made clear in the wording of Order 84A(4) of the RSC, however, the practice of the Irish authorities operates at the expense of legal certainty, and thus ultimately jeopardises the achievement of the aim of effective review. (38)
57. There is moreover no fundamental contradiction between the requirement of legal certainty and the requirement of rapid action in procurement law. (39) On the contrary, reviewing the decisions of contracting authorities as rapidly as possible helps to create legal certainty, provided that the applicable procedure, including limitation periods, is regulated in national law as clearly, precisely and predictably as possible.
58. Ireland’s first objection must therefore be rejected.
– Ireland’s objection that its national law is a common law system
59. Ireland further objects that its national law is a common law system. It says that in such a system not only statutory provisions but also decisions of the courts are determinative. Tenderers and candidates should obtain legal advice if necessary.
60. On this point, it must be observed that a directive leaves it to the national authorities to choose the form and methods for achieving the desired result (third paragraph of Article 249 EC). The transposition of a directive into national law therefore does not necessarily require the adoption of express and specific legal provisions, and a general legal context may also suffice in this respect. What matters, however, is that with such a method of proceeding the full application of the directive actually is ensured with sufficient clarity and precision. (40)
61. If the position in national law derives from the interplay of statutory provisions and ‘judge-made’ law, that must not take place at the expense of the clarity and precision of the provisions and rules concerned. That applies all the more where a directive is intended to confer rights on the individual (41) and an unclear or complex legal position with respect to limitation periods could lead to the loss of rights – in the present case the loss of the right to review of decisions taken by contracting authorities. Foreign tenderers and candidates in particular could be deterred from seeking public contracts in Ireland by a complex and non-transparent legal situation.
62. National courts are obliged to interpret and apply the provisions of national law consistently with directives. (42) Specifically with respect to procurement review procedures, they must interpret the national provisions laying down a limitation period, as far as is at all possible, in such a way as to ensure observance of the principle of effectiveness deriving from Directive 89/665. (43)
63. It is not compatible with those requirements for a national court to apply the limitation period laid down by law for the right to apply for review – in this case Order 84A(4) of the RSC – by going beyond its wording and applying it by analogy also to the review of decisions for which the legislature has not prescribed such a limitation period. The legal position is thereby made less transparent. The tenderers and candidates affected run the risk, in view of the preclusive effect of the limitation period, of losing their right to the review of certain decisions. The objective laid down in Article 1(1) of Directive 89/665 of effective review of the decisions of contracting authorities is thereby undermined. (44)
64. In this context, Ireland’s second objection must also be rejected.
– Interim conclusion
65. Altogether, therefore, I conclude that the first part of the Commission’s second plea should be upheld.
2. Length of the limitation period (second part of the second plea)
66. By the second part of its second plea, the Commission objects to the phraseology of Order 84A(4) of the RSC, according to which applications for review must be made ‘at the earliest opportunity and in any event within three months’. It says that this provision leaves the tenderers and candidates in question uncertain as to the precise length of the limitation period, and makes it disproportionately difficult for them to bring an application for review. Moreover, according to the Commission, there is no indication of when an application within three months suffices and when the application must be brought earlier, before the expiry of three months.
67. It should be noted, first, that there need not necessarily be two independent limitation periods if a provision combines an indication of time expressed in days, weeks, months or years with the words ‘at the earliest opportunity’ or a similar expression. Many provisions use such additions simply in order to emphasise the need for rapidity and to remind applicants of their responsibility, in their own interests, for taking the necessary steps as early as possible, in order best to protect their interests.
68. In the latter sense, for example, the Court itself formerly used the words ‘as soon as possible’ in relation to possible applications by the parties for an extension of speaking time at the hearing. (45) Members of the temporary staff of the Community who become unemployed must comply with certain formalities ‘as soon as possible and no later than [within certain defined time-limits]’. (46) Similar wording may also be found where the intention is to state that public authorities handling certain applications or procedures are subject to a duty to act expeditiously. (47) In procurement law too, the concept of a ‘duty of diligence, which falls to be categorised more as an obligation as to means than an obligation as to results’ is not unknown. (48)
69. In relation to the limitation rule in Order 84A(4) of the RSC at issue in this case, however, it cannot be presumed with certainty that the words ‘at the earliest opportunity’ are merely intended to express the principle of acting expeditiously. Rather, according to Ireland’s submissions in the procedure before the Court, it cannot be ruled out that the expression ‘at the earliest opportunity’ in Order 84A(4) of the RSC has a wider meaning, and is to be understood as an independent limitation period which may make applications for review inadmissible even before the expiry of the three-month period which exists ‘in any event’.
70. It is true that Ireland appears to assume that an application for review will normally be in time if it is made ‘in any event within three months from the date when grounds for the application first arose’. At the same time, however, Ireland emphasises, referring to a judgment of its Supreme Court, (49) that the ‘primary obligation’ (50) of an applicant in the context of Order 84A(4) of the RSC is to bring his action ‘at the earliest opportunity’. In certain circumstances this could lead to an application for review being dismissed as out of time even if it was made within the three-month period. (51) It is thus at least not excluded that the words ‘at the earliest opportunity’ in Order 84A(4) of the RSC are understood by the Irish courts as an independent limitation period. (52)
71. If it is the case that the expression ‘at the earliest opportunity’ in Order 84A(4) of the RSC really gives the Irish courts power, at their discretion, to dismiss applications for review as inadmissible even before expiry of the three-month period, then it does not satisfy the requirements of Community law. A limitation period whose duration is at the discretion of the competent court is not predictable in its effects. The tenderers and candidates concerned are uncertain as to how much time they have to prepare their applications for review properly, and they are scarcely able to estimate the prospects of success of such applications. The objective imposed by Article 1(1) of Directive 89/665 of effective review of decisions taken by the contracting authorities is thereby missed. (53)
72. Since it cannot be ruled out that the words ‘at the earliest opportunity’ in Order 84A(4) of the RSC are understood by the national courts as an independent limitation period, that provision is furthermore not sufficiently clear to ensure that it is applied in a manner consistent with Community law. (54) For this reason too, Order 84A(4) of the RSC is not an adequate transposition of Directive 89/665.
– Ireland’s objection that the national courts could if necessary extend the limitation period at their discretion
73. Ireland contends that Order 84A(4) of the RSC gives the national courts a discretion to extend the period for bringing applications for review; as an example, Ireland cites a judgment of the High Court of Ireland of 2006. (55)
74. Such a possibility of extending time may indeed make it easier for the courts to do justice in the individual case. It is not capable, however, of curing the shortcomings described above of Order 84A(4) of the RSC with respect to the requirements of clarity, precision and predictability of the limitation rule. For the tenderers and candidates concerned, it is not predictable in advance, even taking into account this possibility of extending time, how much time they will have to prepare an application for review properly or whether such a remedy has a prospect of success. On the contrary, a limitation rule which is already unclear in any case is thereby endowed with a further element of uncertainty.
75. Article 1(1) in conjunction with Article 1(3) of Directive 89/665 gives any person who has or had an interest in obtaining a particular public contract and who has been or risks being harmed by an alleged infringement an individual right to review of the decisions of the contracting authority. (56) As I also explain in Case C‑406/08 Uniplex (UK), the effective assertion of such a claim cannot be made to depend on the absolute discretion of a national body, not even the discretion of an independent court. (57)
76. Ireland’s first objection must therefore be rejected.
– Ireland’s objection that no action has yet been dismissed as out of time on the ground of non-compliance with the ‘at the earliest opportunity’ rule
77. Ireland additionally argues that no Irish court has yet dismissed an application for review as out of time because it was brought within three months but not ‘at the earliest opportunity’.
78. This second objection also fails. To prove that a directive has not been adequately or properly transposed, it is not necessary to establish the actual effects of the national transposition measures. Whether the transposition is inadequate or defective appears rather from the wording of the relevant legislation itself. (58) An action seeking a declaration of a failure to fulfil obligations is objective in nature, and can be brought even before any actual damage has been incurred or other harmful effects produced. (59)
– Ireland’s objection that the national legal position is about to be altered
79. Finally, Ireland defended itself in the pre-litigation procedure with the argument that national law would in any case be amended in connection with the transposition of Directive 2007/66, which would make it possible to clarify Order 84A(4) of the RSC.
80. On this point, it suffices to point out that, according to settled case-law, the question whether there is a failure to fulfil obligations must be determined by reference to the situation obtaining in the relevant Member State at the end of the period laid down by the reasoned opinion; subsequent changes cannot be taken into account by the Court. (60) Still less can amendments to national law be taken into account if they are still in the planning or drafting stage.
– Interim conclusion
81. Altogether, I conclude that the second part of the second plea is also well founded, and that the Commission’s action must therefore succeed in its entirety.
VI – Costs
82. In accordance with Article 69(2) of the Rules of Procedure, the unsuccessful party must be ordered to pay the costs, if they have been applied for in the successful party’s pleadings. Since the Commission has made such an application and Ireland has been unsuccessful, Ireland must be ordered to pay the costs.
VII – Conclusion
83. On the above basis, I propose that the Court should:
(1) declare that Ireland has failed to fulfil its obligations under the EC Treaty, in that
(a) the Irish National Roads Authority did not inform the unsuccessful tenderer of its award decision concerning the Dundalk Western Bypass motorway construction project, contrary to the requirements of 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 and 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, and
(b) it is not sufficiently clear from Order 84A(4) of the Rules of the Superior Courts, contrary to the requirements of Article 1(1) of Directive 89/665/EEC, how long the limitation period is for an application for review of an award decision, and which decisions of the contracting authority are affected by that period;
(2) order Ireland to pay the costs of the proceedings.