12.9.2009

EN

Official Journal of the European Union

C 220/18

(Case C-226/09)

2009/C 220/33

Language of the case: English

Parties

Applicant: Commission of the European Communities (represented by: M. Konstantinidis, A.-A. Gilly, Agents)

Defendant: Ireland

The applicant claims that the Court should:

—Declare that, by attributing weightings to the award criteria following the closing date for the submission of the bids and by modifying them subsequent to an initial review of the submitted bids, Ireland has failed to fulfil its obligations under the principles of equal treatment and transparency as interpreted by the European court of Justice.

—order Ireland to pay the costs.

Pleas in law and main arguments

In the case of the award procedure in question the contracting authority produced a tender document where it was reasonably assumed that the award criteria would be applied in descending order of importance. Following the closing date for the submission of the bids it then decided to attribute relative weightings to the award criteria. Subsequent to an initial review of the submitted bids the evaluation team of the contracting authority discussed the possibility of varying these weightings and eventually modified them.

The relative weightings given to the award criteria after submission of the bids and the initial review modified the emphasis among the award criteria and attributed a materially different relative importance to that which a tenderer would have reasonably understood from the contract documents.

The award procedure in question being for the provision of services which are not enumerated in Annex II A to directive 2004/18/EC (1), the detailed procedural rules of that directive are not applicable. Accordingly, article 40 of the directive, pursuant to which contracting authorities have to specify in the invitation to tender, at the latest, the relative weightings of the award criteria, or the descending order of their importance, was also not applicable. Nevertheless, on the basis of the case law of the European Court of Justice, the contracting authority is bound to comply with the fundamental principles of the Treaty, including the principles of equal treatment and transparency.

The Commission submits that by modifying the award criteria during the award procedure the contracting authority, which was under the obligation to respect the fundamental rules and principles of the EC Treaty, infringed the principles of equal treatment and transparency as interpreted by the European Court of Justice.

(1) Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts

OJ L 134, p. 114