Judgment of the Court (Second Chamber) of 23 December 2009 – Commission v Ireland
(Case C-455/08)
Failure of a Member State to fulfil obligations – Directives 89/665/EEC and 92/13/EEC – Public supply and public works contracts – Review procedure against a contract award decision – Guarantee of effective review – Minimum period to be ensured between notification to the unsuccessful tenderers of the decision to award a contract and the signature of the contract concerned
1.Approximation of laws – Review procedures in respect of the award of public supply and public works contracts and of public contracts in the water, energy, transport and telecommunications sectors – Directives 89/665 and 92/13 – Member States under an obligation to provide for review procedures in respect of decisions awarding contracts (Council Directives 89/665, as amended by Directive 92/50, Arts 1(1) and 2(1), and 92/13, Arts 1(1) and 2(1)) (see paras 26-29, 42)
2.Member States – Obligations – Failure to fulfil obligations – Maintaining in force national legislation incompatible with Community law (see para. 38)
3.Preliminary rulings – Interpretation – Temporal effects of judgments giving an interpretation – Retroactive effect (Art. 234 EC) (see para. 39)
Re:
| Failure of a Member State to fulfil obligations – Infringement of Articles 1(1) and 2(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 (OJ 1989 L 395, p. 33) – Infringement of Articles 1(1) and 2(1) of Council Directive 92/13/EEC of 25 February 1992 coordinating the laws, regulations and administrative provisions relating to the application of Community rules on the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors (OJ 1992 L 76, p. 14) – Obligation to provide under national law for an effective and rapid review procedure enabling unsuccessful tenderers to procure the annulment of a decision awarding a contract – Time-limits for bringing proceedings |
Operative part
The Court:
1. |
| Declares that, by adopting Article49 of Statutory Instrument No329 of 2006 and Article51 of Statutory Instrument No50 of 2007, Ireland established the rules governing the notification of contracting authorities’ and entities’ award decisions and their reasoning to tenderers in such a way that by the time that tenderers are fully informed of the reasons for the rejection of their offer, the standstill period preceding the conclusion of the contract may already have expired, and that, by so doing, Ireland has failed to fulfil its obligations under Articles1(1) and2(1) of Council Directive89/665/EEC of 21December 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, as amended by Council Directive92/50/EEC of 18 June 1992, and Articles1(1) and2(1) of Council Directive92/13/EEC of 25 February 1992 coordinating the laws, regulations and administrative provisions relating to the application of Community rules on the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors; |
2. |
| Orders Ireland to pay the costs. |