Keywords
Summary

Keywords

1. Approximation of laws — Procedures for the award of public works contracts, public supply contracts and public service contracts — Directive 2004/18 — Temporal application — Decision of the contracting authority choosing the type of procedure to be followed for the award of a contract which is adopted before the period prescribed for transposition expires — Directive not applicable

(European Parliament and Council Directive 2004/18, Art. 80(1))

2. Questions referred for a preliminary ruling — Question concerning the interpretation of provisions of a Union act which is not applicable to the dispute in the main proceedings — Admissibility — Condition — Provisions referred to in the question reproduced in the Union act which is applicable

(Art. 267 TFEU)

3. Approximation of laws — Procedures for the award of public works contracts — Directive 93/37 — Scope — Contract having as its main object the execution of a work corresponding to the contracting authority’s requirements — Included — Contract providing for the letting of the work — No effect

(Council Directives 92/50, Art. 1(a)(iii), and 93/37, Art. 1(a))

4. Member States — Obligations — Obligation of cooperation — No obligation for a national court to disapply domestic rules of procedure in order to review a judgment having the authority of res judicata — Exception — Establishing the possibility of departing from national decisions in national law

(Art. 4(3) TEU; Art. 267 TFEU)

Summary

1. See the text of the decision.

(see paras 31 and 33)

2. See the text of the decision.

(see paras 34 and 35)

3. On a proper construction of Article 1(a) of Directive 93/37 concerning the coordination of procedures for the award of public works contracts, where the main object of a contract is the execution of a work corresponding to the requirements expressed by the contracting authority, that contract constitutes a public works contract and is not, therefore, covered by the exclusion referred to in Article 1(a)(iii) of Directive 92/50 relating to the coordination of procedures for the award of public service contracts, even if it contains an undertaking to let the work in question.

In order for it to be possible to conclude that there is a public works contract for the purposes of Directive 93/37, the execution of a work must correspond to the requirements specified by the contracting authority. Such is the case where that authority has taken measures to define the characteristics of the work or, at the very least, has had a decisive influence on its design. Moreover, the decisive element for the purposes of the classification of the contract is the main object of that contract, not the amount paid to the contractor or the arrangements for payment.

(see paras 43, 44, 50, 52, operative part 1)

4. In the absence of EU legislation in this area, the rules implementing the principle of res judicata are a matter for the national legal order, in accordance with the principle of the procedural autonomy of the Member States, but must be consistent with the principles of equivalence and effectiveness. In that regard, EU law does not require a national court to disapply domestic rules of procedure conferring finality on a judgment, even if to do so would make it possible to remedy a domestic situation which is incompatible with EU law. That said, if the applicable domestic rules of procedure provide the possibility, under certain conditions, for a national court to go back on a decision having the authority of res judicata in order to render the situation compatible with national law, that possibility must prevail if those conditions are met, in accordance with the principles of equivalence and effectiveness, so that the situation at issue in the main proceedings is brought back into line with the applicable EU legislation.

Accordingly, to the extent that it is authorised to do so by the applicable domestic rules of procedure, a national court which has given a ruling at last instance, without a reference having first been made to the Court of Justice of the European Union under Article 267 TFEU, that has led to a situation which is incompatible with the EU legislation on public works contracts must either supplement or go back on that definitive ruling so as to take into account any interpretation of that legislation provided by the Court subsequently.

(see paras 54, 59, 62, 64, operative part 2)