Keywords
Summary

Keywords

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1 . Approximation of laws - Procedure for the award of public works contracts - Directive 71/305 - Scope - Contracts awarded by a body which falls within the notion of the State although it is not formally part of the State administration - Included

( Council Directive 71/305, Art . 1 )

2 . Approximation of laws - Procedure for the award of public works contracts - Directive 71/305 - Technical ability and knowledge of tenderers - Criteria for checking - Award of contracts - Most economically advantageous tender - Condition concerning employment of long-term unemployed persons - Permissibility - Conditions - Publicity requirements - Direct effect of Articles 20, 26 and 29 of the directive

( Council Directive 71/305, Arts 20, 26 and 29 )

3 . Measures adopted by the institutions - Directives - Implementation by the Member States - Need to ensure effectiveness of directives - Obligation of national courts

( EEC Treaty, Art . 5 and Art . 189, third paragraph )

4 . Measures adopted by the institutions - Directives - Direct effect

( EEC Treaty, Art . 189, third paragraph )

Summary

1 . A body whose composition and functions are laid down by legislation and which depends on the authorities for the appointment of its members, the observance of the obligations arising out of its measures and the financing of the public works contracts which it is its task to award must be regarded as falling within the notion of the State for the purpose of Article 1 of Directive 71/305, so that that directive applies to public works contracts awarded by that body .

2 . With regard to the award of a public works contract falling within the scope of Directive 71/305,

( i)the criterion of specific experience for the work to be carried out is a legitimate criterion of technical ability and knowledge for the purpose of ascertaining the suitability of contractors pursuant to Articles 20 and 26 of the directive . Where such a criterion is laid down by a provision of national legislation to which the contract notice refers, it is not subject to the specific requirements laid down in the directive concerning publication in the contract notice or the contract documents;

( ii)the criterion of "the most acceptable tender", as laid down by a provision of national legislation, may be compatible with the directive if it reflects the discretion which the authorities awarding contracts have in order to determine the most economically advantageous tender on the basis of objective criteria and thus does not involve an element of arbitrary choice . It follows from Article 29 ( 1 ) and ( 2 ) of the directive that where the authorities awarding contracts do not take the lowest price as the sole criterion for the award of a contract but have regard to various criteria with a view to awarding the contract to the most economically advantageous tender, they are required to state those criteria in the contract notice or the contract documents;

( iii)the condition relating to the employment of long-term unemployed persons is compatible with the directive if it has no direct or indirect discriminatory effect on tenderers from other Member States of the Community . An additional specific condition of this kind must be mentioned in the contract notice .

Articles 20, 26 and 29 of the directive may be relied on by an individual before the national courts .

3 . The Member States' obligation arising from a directive to achieve the result envisaged by the directive and their duty under Article 5 of the Treaty to take all appropriate measures, whether general or particular, to ensure fulfilment of that obligation are binding on all the authorities of the Member States, including, for matters within their jurisdiction, the courts . It follows that in applying national law, in particular the provisions of a national law specifically introduced in order to implement a directive, national courts are required to interpret their national law in the light of the wording and the purpose of the directive in order to achieve the result referred to in the third paragraph of Article 189 of the Treaty .

4 . Where the provisions of a directive appear, as far as their subject-matter is concerned, to be unconditional and sufficiently precise, those provisions may be relied on by individuals against the State where that State fails to implement the directive in national law within the prescribed period or where it fails to implement the directive correctly .