European Business Law, the fourth volume in our series, shows how the European authorities simultaneously abolish all restrictions on access to and exercise of economic activities and support the growth of domestic markets, through the harmonization the internal legislation or the enactment of genuinely unified regulations.

European Business Law

In order to guarantee the free movement of goods, the freedom of establishment and the freedom to provide services, public procurement contract procedures must be as open as possible. Before any awarding of a public contract, the contracting authority is therefore bound to notify its intentions either by publishing an opinion on the Publications Office of the European Union's website  or on their  …

Rules laid down by Directive No 2014/24

In order to guarantee the free movement of goods, the freedom of establishment and the freedom to provide services, public procurement contract procedures must be as open as possible. Before any awarding of a public contract, the contracting authority is therefore bound to notify its intentions either by publishing an opinion on the Publications Office of the European Union's website  or on their buyer profiles  . Directive No 2014/24 distinguishes the prior information notice (Art. 48) and the contract notice (Art. 49).

Article 48 gives the contracting authorities the possibility of reducing the time-limit for the receipt of tenders  by means of a prior information notice making known their intentions of planned procurements. The notice covers a maximum period of twelve months from the date the notice is transmitted for publication . For restricted procedures and competitive procedures with negotiation, the notice must fulfill four conditions; it must: i) refer specifically to the supplies, works or services that will be the subject of the contract to be awarded, ii) indicate that the contract will be awarded by restricted procedure or competitive procedure with negotiation without further publication of a call for competition and invite interested economic operators to express their interest, iii) contain, in addition to the information set out in Annex V part B section I, the information set out in Annex V part B section II, and iv) be sent for publication between 35 days and 12 months prior to the date on which the invitation referred to in Article 54(1) is sent. The notices do not have to be published on buyer profiles. Pursuant to Article 49, contract notices are used as a means of calling for competition. Prior information notices and public contract notices are, under Article 51, drawn up and sent to the Publications Office of the European Union by electronic means and are published not later than five days after they are sent. 

Prior information and contract notices must include the information mentioned in Annex V of the directive in the format of standard forms adopted by the Commission . It must specifically indicate the estimated quantity and/or the estimated value as well as a maximum quantity and/or a maximum value of the supplies under the framework agreement and that that agreement will no longer have any effect once  that limit is reached . The absence of references such as, in particular, those relating to the conditions of financing of the contract, total quantity or scope of the contract , value of the services, existing remedies or conditions to be present at the opening of tenders , makes the perpetrator liable to the exercise of remedies guaranteed by Directive No 89/665. These remedies may result in the suspension of the procedure  or the enforcement of any decision adopted by the contracting authority, the cancellation of the procedure, or of the effects of the awarded contract . They do not exclude the possibility of an action for failure to fulfill obligations .

As an exception to the obligation of competitive tender and publication of a notice, Article 32 of Directive  2014/24 provides for the possibility for contracting authorities to use a negotiated procedure without prior publication of a contract notice in the following cases:

- when no tenders or no suitable tenders or no applications have been submitted in response to an open or a restricted procedure, provided that the initial conditions of contract are not substantially altered and on condition that a report is sent to the Commission if it so requests; 

- when, for technical or artistic reasons, or for reasons connected with the protection of exclusive rights, the contract may be awarded only to a particular economic operator. In such a case, the contracting authority cannot merely state a technical specificity, but must bring positive evidence that only the chosen operator is capable of carrying it out . Thus, in the pharmaceutical sector, although there are pharmaceutical specialties that do not have equivalent, the European court has ruled that there cannot be systematic recourse to the same operator ;

- insofar as is strictly necessary when, for reasons of extreme urgency brought about by events unforeseeable by the contracting authorities in question, the time-limit for the open (Art. 27), restricted (Art. 28) or  competitive procedures with negotiation (Art. 29) cannot be complied with. The circumstances invoked to justify extreme urgency must not in any event be attributable to the contracting authorities. Urgency must be such as it is an obstacle to the use of accelerated procedures with publication of a notice of an invitation to tender as referred to in Article 38 of the directive . The event that triggers extreme urgency must be unforeseeable: this is not the case of the negative opinion given by an authority consulted on the works project in question .

The limitative character of the list prevents Member States from setting forth other cases authorizing recourse to the negotiated procedure or from including new conditions to the cases it mentions in order to facilitate recourse to the procedure . 

Exceptions laid down in paragraphs 3) and 4) only cover certain public contracts. Paragraph 3(b) of Article 32 allows use of the negotiated procedure for additional deliveries by the original supplier which are intended either as a partial replacement of supplies or installations or as the extension of existing supplies or installations where a change of supplier would oblige the contracting authority to acquire supplies having different technical characteristics which would result in incompatibility or disproportionate technical difficulties in operation and maintenance; the duration of such contracts as well as that of recurrent contracts shall not, as a general rule, exceed three years. This period of time starts running when the original works are concluded but not completed . Lastly, paragraph 4 authorizes the awarding of the contract, without competitive invitation to tender, in the case of a service contract which follows a contest, to the successful candidate or to one of the successful candidates, subject, in the latter case, that all successful candidates of the contest must be invited to participate in the negotiations. Such an exemption only applies if the whole service comes within the definition of the plan or project and if there is an actual functional link between the contest and the contract .

including a notice of the publication on their buyer profile to the Publications Office of the European Union.

Case C-359/93 Commission v Netherlands [1995] ECR I-157, LawLex200900000509JBJ.

Case C-385/02 Commission v Italy [2004] ECR I-8121, LawLex200900000616JBJ; See C-57/94 Commission v Italy [1995] ECR I-1249, LawLex200900001060JBJ; C-337/05 Commission v Italy [2008] ECR I-2173, LawLex200900000381JBJ.

Case C-328/92 Commission v Spain [1994] ECR I-1569, LawLex200900000318JBJ. 

Case C-107/92 Commission v Italy [1993] ECR I-4655, LawLex200900000339JBJ; C-385/02 Commission v Italy [2004] ECR I-8121, LawLex200900000616JBJ: there is no extreme urgency resulting from an unforeseeable event, where the works awarded without invitation to tender were initiated seventeen years before and the successive awarding of lots was planned from the origin as and when funding became necessary.

Case C-318/94 Commission v Germany [1996] ECR I-1949, LawLex200900002132JBJ.

Case C-84/03 Commission v Spain [2005] ECR I-139, LawLex200900001196JBJ.

Case C-340/02 Commission v France [2004] ECR I-9845, LawLex200800000912JBJ.

Case C-225/98 Commission v France [2000] ECR I-7445, LawLex200700001613JBJ.

For social and other specific services  the prior information notice may cover a longer period in conformity with Article 75.

See Commission Regulation (EC) No 1564/2005 of 7 September 2005 establishing standard forms for the publication of notices in the framework of public procurement procedures pursuant to directives 2004/17/EC and 2004/18/EC of the European Parliament and of the Council, OJ L 257 of 1 October 2005, 1, amended by Regulation (EC) No 1150/2009 of 10 November 2009, OJ L 313 of 28 November 2009, 3.

Case C-23/20 Simonsen & Weel A/S,  Judgment of 17 June 2021, LawLex202200002743JBJ: adding that the contracting authority may lay down additional requirements in the contract notice.

Case C-241/06 Lämmerzahl [2007] ECR I-8415, LawLex200900000892JBJ. 

Directive No 89/665/EEC of 2 December 1989, OJ L 395 of 30 December 1989.

European Business Law

294. Rules laid down by Directive No 2014/24

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

294. Rules laid down by Directive No 2014/24

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise