C-225/98

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are identical to those of Directive 93/37. 3. For each contract awarded, the contract- Since Directive 93/37 did not enter into ing authorities shall draw up a written force until 14 January 1993, but the Com- report which shall include at least the mission objects to certain infringements following: which were committed in part before that time, both directives apply in this case. Moreover, Article 36 of Directive 93/37, by which Directive 71/305 is repealed, states that references to the repealed Directive are — the name and address of the contract- to be construed as references to the new ing authority, the subject and value of Directive. the contract,

— the names of the candidates or tender- ers admitted and the reasons for their selection, The articles cited below without reference to a specific directive are those of Directive 93/37. — the names of the candidates or tender- ers rejected and the reasons for their rejection,

(a) Award procedure — the name of the successful tenderer and the reasons for his tender having been selected and, if known, any share of the contract the successful tenderer may intend to subcontract to a third party,

3. Article 8 — which corresponds to Arti- — for negotiated procedures, the circum- cle 5a of Directive 71/305 — states: stances referred to in Article 7 which justify the use of these procedures.

5. Article 12 — which corresponds to Arti- cle 13 of Directive 71/305 — states:

'1. In open procedures the time-limit for the receipt of tenders fixed by the contracting authorities shall be not less than 52 days 5. Contracting authorities who have awar- from the date of dispatch of the notice. ded a contract shall make known the result by means of a notice....

2. The time-limit for the receipt of tenders laid down in paragraph 1 may be reduced to 36 days where the contracting autho- rities have published the notice [provided] for in Article 11(1), drafted in accordance with the specimen in Annex IV A, in the Official Journal of the European Commu- nities. 7. The contracting authorities shall send the notices referred to in paragraphs 1 to 5 as rapidly as possible and by the most

...' 4 — The threshold referred to in Article 6(1) is ECU 5 million.

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8. Article 27 — which corresponds to Arti- (d) a statement of the firm's average cle 26 of Directive 71/305 — states: annual manpower and the number of managerial staff for the last three years;

' 1 . Evidence of the contractor's technical (e) a statement of the technicians or tech- capability may be furnished by: nical bodies which the contractor can call upon for carrying out the work, whether or not they belong to the firm.

(a) the contractor's educational and pro- fessional qualifications and/or those of 2. The contracting authorities shall specify the firm's managerial staff and, in [in the notice or] in the invitation to tender particular, those of the person or per- which of these references are to be pro- sons responsible for carrying out the duced.' works;

(f) Criteria for the award of contracts (b) a list of the works carried out over the past five years, accompanied by certi- ficates of satisfactory execution for the most important works. These certifi- cates shall indicate the value, date and 9. Article 30 — which corresponds to Arti- site of the works and shall specify cle 29 of Directive 71/305 — provides as whether they were carried out accord- follows: ing to the rules of the trade and properly completed. Where necessary, the competent authority shall submit these certificates to the contracting authority direct; ' 1 . The criteria on which the contracting authorities shall base the award of con- tracts shall be:

(c) a statement of the tools, plant and technical equipment available to the contractor for carrying out the work; (a) either the lowest price only;

III — Pre-litigation procedure and facts

10. The subject-matter of the present infringement proceedings is the result of two separate pre-litigation procedures. 12. In the second case, meanwhile, the Nord-Pas-de-Calais Region published 14 contract notices in the Official Journal of 18 February 1995 as part of the 'Plan Lycées' programme. The aggregate value 11. In the first case, at the beginning of of the contracts amounted to approxi- 1993, an unsuccessful tenderer drew the mately FRF 1.4 thousand million. It was a Commission's attention to the tendering restricted procedure relating to modernisa- procedure for a public works contract tion and maintenance works over a period issued by open procedure. That procedure of 10 years. The notices set out the award

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criteria. In that respect an 'additional was registered at the Court of Justice on criterion' relating to the promotion of 22 June 1998. employment was laid down. That was based on a ministerial circular of 29 December 1993.

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17. The French Republic contends that the A — Infringement of Article 12 of Direc- Court should dismiss the action. tive 71/305 or Article 11 of Directive 93/37 by failing to observe the prior information procedure (see points 4 to 6 above for the wording of the article)

18. I will return to the arguments of the parties and the further details of the case in Arguments of the parties my consideration of the individual com- plaints.

21. The Commission considers that the French authorities infringed Article 12 of 19. The same applies to the questions Directive 71/305 or Article 11 of Directive which the Court of Justice referred to the 93/37 in that they only rarely adhered to Commission as regards the legal conse- the prior information procedure. It follows quences of a failure to publish a prior from those articles that the prior informa- information notice and the practice of the tion procedure constitutes a compulsory contracting authorities in the Community preliminary for any tendering procedure to in publishing prior information notices, be organised pursuant to the Directive. In and in respect of the French Government's essence, the French authorities have not observations on the Commission's replies. denied that allegation.

22. However, on 18 February 1995, the Nord-Pas-de-Calais Region published 14 IV — The individual complaints contract notices without having recourse to a preliminary prior information procedure within the meaning of the provision. Fur- thermore, the prior information procedure was only rarely followed between 1993 and 1995. As regards the Departement du 20. The Commission bases its action on Nord, no prior information notices were several complaints which can be grouped as published in the Official journal of the follows. The order corresponds to that used European Communities during the period in the application. under investigation. A prior information

23. The French Government does not deny that Article 11(1) of the Directive imposes 25. Since the Nord-Pas-de-Calais Region an obligation. However, it claims that the responded to the Commission's criticisms duty to publish prior information notices in the formal notice within the period laid must be qualified in the light of Articles 12 down in the reasoned opinion — albeit and 13 of that directive. Articles 12(1) and without informing the Commission 13(3) of the Directive provide that the time- thereof — the action could have become limit for the receipt of tenders is, in inadmissible on that point. principle, 52 or 40 days. The contracting authority may, under Articles 12(2) and 13(4), reduce that time-limit where it has published in the Official Journal of the European Communities the notice provi- 26. The aim of infringement proceedings is ded for in Article 11(1). According to the to establish whether the State concerned French Government, if the publication of a has failed to fulfil its obligations and has prior information notice were always com- not rectified that failure within the time- pulsory, the precondition for reducing the limit laid down in the reasoned opinion. As time-limit would be satisfied in every the Court of Justice has consistently held, award procedure. As a result, Article 11 is in infringement proceedings the question incompatible with Articles 12 and 13. whether a Member State has failed to fulfil Consequently, several interpretations are its obligations must be determined by possible depending on whether the prior reference to the situation in the Member information procedure is regarded as com- State as it stood at the end of the period laid pulsory, in accordance with Article 11(1), down in the reasoned opinion. By that time or as optional, in accordance with Arti- the French authorities had retrospectively cles 12 and 13. The French authorities have published prior information notices in so opted for the second interpretation. Fur- far as that was still possible. Thus, the thermore, the Nord-Pas-de-Calais Region French authorities complied with the Com- republished the contract notices in ques- mission's demands within the time-limit tion, this time complying with the prior laid down in the reasoned opinion. An information requirement. essential precondition for the admissibility

28. In the context of a substantive analysis, the parties agree that Article 11(1), viewed in isolation, requires a contracting author- ity to publish beforehand the essential characteristics of works contracts. How- ever, it is uncertain whether that interpre- tation must be qualified in the light of 30. The French Government's argument Articles 12(2) and 13(4). The expression that that interpretation regularly results in 'where the contracting authorities have the time-limits' being reduced from 52 to published the notice' contained in Arti- 36 or from 37 to 26 days respectively cles 12(2) and 13(4) may indicate that it cannot be accepted. Even though there is a does. However, the opposite is indicated general duty to publish a prior information firstly by the fact that Article 11, on the notice, the rules in Articles 12(1) and (2) one hand, and Articles 12 and 13, on the and 13(1) and (4) are not deprived of their other, govern two fundamentally different purpose. The time-limit may be reduced matters. Article 11 requires a contracting only where a prior information notice has authority to make known its works con- been duly published. Consequently, the tracts, whereas Articles 12 and 13 lay facility to reduce the time-limit is merely down the time-limits for the receipt of an optional provision which the contract-

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B — Infringement of Article 30 of Direc- 32. At the hearing the Commission pointed tive 93/97 — which corresponds to Arti- out that that problem was identified when cle 29 of Directive 71/305 — by using an Article 12 of Directive 71/305 was amen- inadmissible award criterion (see point 9 ded. At the time it was proposed that a above for the wording of the article) qualification along the lines of 'except where that is not possible' be incorporated into the text of the legislation. However, neither that nor any similar expression was incorporated into the text of the Directive. 35. As is evidenced by the annexes attached to the documents before the Court, in their contract notices the French contracting authorities specifically referred at several junctures in the section entitled 'Criteria for award of contracts' to the employment 33. Therefore, as a rule, a prior informa- criterion as an 'additional criterion' over tion notice is compulsory. Where no such and above the price, time-limit for comple- prior information notice is published, the tion, and so on.

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Arguments of the parties 39. The French Government, on the other hand, considers that Beentjes specifically allows an additional award criterion. In that respect it cites paragraphs 28 and 37(iii) of the judgment which read as follows:

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no evidence to support that in the model Analysis contract notices in Annex IV to Directive 93/37. They contain no heading relating to such indications. 6

43. In Beentjes the Court ruled that an employment criterion (in that case a con- dition relating to the employment of long- term unemployed persons) had no relation to the criteria for the award of contracts referred to in Article 29 of Directive 71/305. 7 41. Moreover, even if the employment criterion were regarded as a performance criterion, it would be on the basis of national legislation, not the Directive. In that case Article 30 of the Directive would not be relevant and the Commission's 44. Therefore, it is necessary to clarify allegation would be incorrect. Finally, the whether criteria relating to the promotion French Government points out that it of employment are precluded not only as instructed the contracting authorities to award criteria for the purpose of Arti- act in accordance with the circular of cle 30(1)(b) of Directive 93/37, but also as 29 December 1993. The circular states secondary criteria. quite clearly that the additional criterion relating to employment must not be treated in the same way as the criteria referred to specifically in Article 30 of the Directive. Instead, it is a secondary criterion for the award of contracts. 45. In the view of the French Government employment is admissible as a secondary criterion where several tenders of equal value have been submitted. However, in such cases that would result in the employ- ment criterion ultimately being granted the status of the sole, decisive award criterion, a possibility which is specifically ruled out in the light of Beentjes. The employment criterion does not serve directly to deter- mine the most economically advantageous 42. However, even if the Court concurs tender. Otherwise, in certain circumstances, with the Commission's view, the French it would have even greater importance than Government considers that its actions the criteria referred to in Article 30(1)(b) of comply with the Directive also in that the Directive, since the employment aspect respect. alone could be decisive.

48. The Directive would not be infringed if the requirement to promote employment were expressed as a condition — as in Beentjes — and in that respect assumed the character of a performance criterion, as Arguments of the parties was stated by the Commission.

52. The Commission takes the view that that indication gives the impression that the 49. However, since the French authorities number of tenderers might also be less than regarded the employment criterion as a five. That would constitute an infringement separate award criterion, Article 30 of the of the fourth sentence of Article 22(2) of Directive was infringed. the Directive.

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53. The French Government does not share that view is incompatible with the require- that view. It contends that limiting the ments of the Directive which expressly lays number of tenderers to five fulfils the down a minimum number of five tenderers. preconditions laid down in the fourth Therefore the objective wording of that sentence of Article 22(2) of the Directive. indication, in conjunction with the inter- There is nothing in Article 22 to indicate pretation placed on it in the contract that the number of tenderers may not be notices, renders it incompatible with Arti- limited to five. Effective competition is cle 22(2) of the Directive. ensured. The Commission has been unable to adduce any evidence to the contrary.

Analysis D — Infringement of Article 29(2) of Directive 71/305 or of Article 30(2) of Directive 93/37 as a result of the method known as award by reference to the legislation of a Member State (see point 9 above for the wording of the article) 54. The indication chosen by the French contracting authorities poses problems in two respects. Firstly, Article 22(2) refers to a 'range'. N o range is clear from the wording of the notice in question. There could be such a range at most if the number five implied a range of one to five, but that Arguments of the parties would be incompatible with Article 22(2).

60. As regards the admissibility of the abovementioned complaint, the Commis- sion contends that the letter of formal 58. However, the French Government notice of 8 May 1996 has drawn attention claims first of all that the Commission's to the problem in a sufficiently precise complaint was made too late and is thus manner. In that letter the Commission had inadmissible. The Commission made that pointed out that, under the 10th recital in complaint for the first time in the reasoned the preamble to Directive 93/37, the infor- opinion. As the Court has held, 8enlarge- mation contained in contract notices must ment, in the reasoned opinion, of the scope enable contractors to determine whether of the complaint made in the initial letter the proposed contracts are of interest to constitutes an irregularity which cannot be them. For this purpose, it is appropriate to cured. give them adequate information on the works to be undertaken and the conditions attached thereto. Furthermore, in the letter of formal notice the Commission had already referred to the case-law of the Court, in particular Beentjes.

59. However, in the event that the Court considers that the complaint is admissible, the French Government points out that Article 30(2) of Directive 93/37 does not require the contracting authority to state the award criteria in the contract notice but 61. Consequently, the action taken is in gives it the choice of including them in the conformity with the case-law of the Court, contract documents or in the contract as is evident from the judgment in Case notice. The French Government concludes 274/83 Commission v Italy. 9Moreover, at that the Commission was wrong to make no time have the French authorities

64. Consequently, the complaint made by the Commission must be regarded as admissible.

63. In the present case the Commission initially complained generally in the letter of formal notice about the contract notices in question. It also made specific com-

10 — Judgment cited in footnote 8, paragraphs 6 and 7. 65. The wording of Article 30(2) of Direc- 11 — Judgment cited in footnote 9, paragraph 21. tive 93/37 states that 'the contracting

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authority shall state in the contract docu- E — Infringement of Article 59 of the ments or in the contract notice all the Treaty by using discriminatory technical criteria it intends to apply to the award'. 12 specifications in the mode of designating In addition, in Beentjes the Court expressly the lots and the evidence requested as to the held in respect of the award criteria that a undertakings' capability general reference to a provision of national legislation cannot satisfy the publicity requirement. 13 Therefore, the possibility can be ruled out that certain award criteria can be laid down in national legislation to which the contract notice refers.

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technical qualifications were in conformity Analysis with those national references does not alter that assessment in any way.

72. It is first necessary to consider the admissibility of this complaint. Since the French authorities discontinued use of the 69. The French Government, on the other contested specifications in contract notices hand, takes the view that the technical published after the expiry of the time-limit specifications of the French professional laid down in the reasoned opinion, the organisations adopted by the contracting infringement could be regarded as remedied authorities are merely indications and have and there might be no interest in ruling on no discriminatory effect. It is not a question the matter. of specifying, in the notice, information relating to the selection criteria or the criteria for the award of contracts, since that is done in the contract documents. Instead, only indications as to the nature of the lots have to be provided. 73. However, in the proceedings before the Court the French Government still claims that the contested specifications are not liable to have a discriminatory effect.

70. Furthermore, the French Government points out that the new notices in respect of the award of public works contracts pub- lished in January 1996 and January 1997 no longer contain any references to the 74. Therefore, there is still a need for legal technical specifications of the French pro- clarification. fessional organisations.

75. Furthermore, the present complaint could be inadmissible from a different point 71. As regards this final objection, the of view. In respect of this complaint the Commission points out that when the Commission relies solely on Article 59 of time-limit laid down in the reasoned opi- the Treaty, whereas Article 26 of Directive nion expired there was nothing to indicate 71/305 contains specific rules on proof of that the grounds for the complaint had undertaking's technical capability. There- ceased to exist. fore, the question arises as to the extent to

'The authorities awarding contracts shall specify in the notice or in the invitation to tender which of these references are to be produced.' 78. In that context the French Govern- ment's objection that the technical specifi- cations adopted are merely indications, even though in practice only French candi- dates are able to understand the specifica- The way in which certain technical cap- tions without outside help, is irrelevant. To abilities are to be indicated is governed at candidates from other Member States they most indirectly by Article 26 of Directive are not indications, but a dissuasive 71/305 which, moreover, must be inter- description of the necessary preconditions preted in the light of the Treaty, like any for qualification. If the contracting autho- provision of a directive. Therefore, there is rities wish merely to provide indications, certainly scope for Article 59 of the Treaty they can do so in a non-discriminatory to be applied to technical specifications manner. having discriminatory effect.

77. In substantive terms it must be con- cluded that the technical specifications adopted are so specific and abstruse that, 79. It must be noted that the Commission's as a rule, only French candidates are able to complaint that the French Government has detect their significance immediately. Con- infringed Article 59 of the Treaty is, in sequently, it is easier for French undertak- substantive terms, well founded.

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F — Infringement of Article 59 of the The Commission's application must be Treaty by requiring registration with the allowed also in respect of this complaint. French Ordre des Architectes as one of the 'minimum standards for participation'

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VI — Conclusion

85. In the light of the foregoing I propose that the Court should:

(1) declare that, in the course of the various procedures for the award of public works contracts for the construction and maintenance of school buildings conducted by the Nord-Pas-de-Calais Region and the Departement du Nord over a period of three years, the French Republic has failed to fulfil its obligations under Article 59 of the EC Treaty (now, after amendment, Article 49 EC) as well as under Directive 71/305/EEC, as amended by Directive 89/440/EEC, in particular Articles 12, 26 and 29 thereof, and under Directive 93/37/EEC, in particular Articles 8, 11, 22 and 30 thereof;

(2) order the French Republic to pay the costs.