30.1.2010

Official Journal of the European Union

C 24/9

(Case C-299/08)

(Failure of a Member State to fulfil obligations - Directive 2004/18/EC - Procedures for the award of public contracts - National legislation providing for a single procedure for the award of the contract defining needs and of the ensuing marché d’exécution - Compatibility with that directive)

2010/C 24/13

Language of the case: French

Parties

Applicant: European Commission (represented by: D. Kukovec, G. Rozet and M. Konstantinidis, Agents)

Defendant: French Republic (represented by: G. de Bergues, J.C. Gracia and J.-S. Pilczer, Agents)

Re:

Failure of a Member State to fulfil obligations — Breach of Articles 2, 28 and 31 of 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 2004 L 134, p. 114) — Use of the negotiated procedure without publication of a contract notice in situations not provided for in Directive 2004/18 — Distinction between marchés de définition (public contracts for designing the parameters, including the purpose, of a public works, supply or service contract), subject to the rules of the Directive, and public works, supply or service contracts, not subject to those rules — Breach of the principles of transparency and equal treatment.

Operative part of the judgment

The Court:

1.Declares that, by adopting and keeping in force Articles 73 and 74-IV of the Public Procurement Code, adopted by Decree No 2006-975 of 1 August 2006, inasmuch as those provisions lay down a procedure for the award of marchés de définition (public contracts for designing the parameters, including the purpose, of a public works, supply or service contract) under which it is possible for the contracting authority to award a marché d’exécution (a public works, supply or service contract) to one of the holders of the initial marchés de définition by opening it to competition limited to those holders, the French Republic has failed to fulfil its obligations under Articles 2 and 28 of 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;

2.Dismisses the remainder of the action;

3.Orders the French Republic to pay the costs.

(<span class="super">1</span>) OJ C 272, 25.10.2008.