Official Journal of the European Union

C 180/21

(Case C-327/08)

(Failure of a Member State to fulfil obligations - Directives 89/665/EEC and 92/13/EEC - Review procedures concerning the award of public contracts - Guarantee of effective review - Minimum period to be ensured between notification to the unsuccessful candidates and tenderers of the decision to award a contract and the signature of the contract concerned)

2009/C 180/34

Language of the case: French

Parties

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

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

Re:

Failure of a Member State to fulfil obligations — Breach of Article 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), as amended by Directive 92/50/EEC (OJ 1992 L 209, p. 1), and of Article 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) — Minimum period to be ensured between notification to the candidates and tenderers of the decision to award a contract and the signature of the contract concerned

Operative part of the judgment

The Court hereby:

1.Declares that, by adopting and maintaining in force Article 1441-1 of the new Code of Civil Procedure, as amended by Article 48-1o of Decree No 2005-1308 of 20 October 2005 concerning contracts awarded by the contracting authorities referred to in Article 4 of Order No 2005-649 of 6 June 2005 on contracts awarded by certain public bodies or private persons not subject to the Public Procurement Code, in so far as that provision imposes on the contracting authority or entity a ten-day period within which to respond to a formal challenge — the bringing of any precontractual proceedings before that response being precluded — and where that period does not have the effect of suspending the period which must be ensured between the notification to the unsuccessful candidates and tenderers of the decision to award the contract and the signature of that contract, the French Republic has failed to fulfil its obligations under 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, as amended by Council Directive 92/50/EEC of 18 June 1992, and 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;

2.Dismisses the remainder of the action;

3.Orders the Commission of the European Communities and the French Republic to bear their own respective costs.

(1) OJ C 285, 8.11.2008.