Judgment of the TS, Case C 16/98 – komentarz do orzeczenia

By | Lipiec 3, 2017

JUDGMENT OF THE ETS

5 October 2000

Case C 16/98

In judgment C-16/98 the ETS expressed opinion that in the case where there is a contract for one construction works must be attributable to the fact, whether the result of the whole works or engineering may itself act as an economic or technical. The term building object that contains the Directive 93/38/EWG in Article 14(3) doesn’t make the existence of a building of such items as the number of contracting entities or whether the whole works can be carried out by a single company. The decisive for the qualification or a series of specific works is the realization of the one object of building within the meaning of the directive are therefore criteria for economic and technical functions performed by the result of these works.

The organization Sydev containing different common group responsible for urban electrification department Vendée in France on 21 December 1994, sent for publication in the official French bulletin of notices on public works and service contracts („BOAMP”), a series of 37 notices of invitation to tender for electrification and street lighting. The scope of work were planned for a period of three years. Those notices were published in the BOAMP on 12 January 1995, concerned works amounting in total to FRF 609 000 000 contains, FRF 483 000 000 of which was for contracts for electrification and FRF 126 000 000 for contracts for street lighting. In all the ads published in BOAMP Sydev defined as a body which grants the contract. The contracts were awarded under the restricted tender procedure on the basis of price lists and order forms. Records of the tendering procedures disclosed by the French government show that the contracts were awarded under with the following procedure: first brief was drawn up of candidates who produced all the certificates attesting to compliance with administrative requirements and had the ability to do the job. Then, one of the candidates is selected, possibly in connection with the lowest bid. Offers were in the form of a percentage of the difference. The candidate was to be given to perform working positions over three years.

Among the 37 contracts in question 6 have been published in the Official Journal European Communities, where on September 29, 1995, those complaints Sydev was described as „body award”. On the other hand, the notification of the awardthe agreement was sent for publication in the Official Journal of the EC.

The Commission concluded that the disputed agreement constituted a single „Work,” which comes from one of the contracting entity. For this entity identified Sydev, and thus the provisions of the Directive should be applied to all of them, not just the six main parts. Therefore sent a letter of formal notice french authorities on 17 January 1996. In a letter that opposed the division of the party orders for different contract and thus to publish two-thirds of the party at the european community level. In response, the French authorities denied violation and complained about not agreeing with the Commission’s view that the contracts at issue were artificially divided. They pointed out that in fact was concluded by each joint municipal electrification of a group interested in the Vendée and the for this reason, the threshold for publication in the Official Journal of the EC should have been applied for each of the contracts individually. Contentious issue proved to be also the form of the contract being awarded by Sydev.

Legal problem with which the court had to resolve was the question of the distribution of orders due to the implementation of the territory. That issue was in fact necessary to assess the rest of the weaknesses concerning the contested contracts with regard to the provisions of the Directive. Proceedings conducted in the award violated Article 14(13) which provides: „Contracting entities may not circumvent this directiveby splitting contracts or using special methods of calculating the value of contracts”. The French Government justified their actions involving the sharing of orders quantity and diversity of the works, as well as varying geographical location of activities. While the Commission based its argument on the content of the Directive, from which a literal interpretation can be assumed that the division of work for the reasons cited by the opposing party seems to be unfounded.

Discussed the decision was made during the validity of Directive 93/38, but established in the case law has had an impact also on current EU and national law. The impact of this ruling on EU legislation is reflected in particular in the wording of Article 5 (3) of the current Directive 2014/24, which provides: „The choice of the method used to calculate the estimated value of a procurement shall not be made with the intention of excluding it from the scope of this Directive. A procurement shall not be subdivided with the effect of preventing it from falling within the scope of this Directive, unless justified by objective reasons”. The difference, which in certain situations may be of importance is that the current directive includes the concept of a building in the context of the definition of works, but in terms of the ban on the distribution of orders for the parts are no longer the object, but the construction project. Construction project may agree in meaning to the concept of a building, and may be either bigger or smaller, which will always depend on the individual circumstances related to granting public contracts.

On the basis of Polish law to address this issue has been implemented in Article 32 (4), which establishes the principle of estimating the value of the contract as a whole, even if it consists of parts which are covered by separate proceedings. This provision allows avoiding artificial divisions of public procurement in order not to apply the provisions of the EU. In my opinion The Solution such that a priority in assessing whether the works are one object or building one building project recognizes the existence of certain common criteria of economic and technical function fulfilled by the outcome of these works is right and proper.

W orzeczeniu C-16/98 (Komisja Wspólnot Europejskich przeciwko Republice Francuskiej) ETS wyraził opinię w sprawie dokonania sztucznego podziału zamówienia na obiekt budowlany na części. Trybunał orzekł, iż kwestią rozstrzygającą kwestie określenia zamówienia na obiekt budowlany jako całości stanowi rozważenie czy wynik całości robót budowlanych lub inżynieryjnych może samoistnie spełniać funkcję gospodarczą lub techniczną. Czynnikiem decydującym dla określenia szeregu konkretnych prac jako realizacji jednego celu budowy w rozumieniu dyrektywy jest występowanie wspólnych funkcji ekonomiczno-technicznych wykonywanych w wyniku tych prac. Omawiany wyrok został wydany podczas obowiązywania dyrektywy Rady 93/38/EWG z dnia 14 czerwca 1993r. koordynującej procedury udzielania zamówień publicznych przez podmioty działające w sektorach gospodarki wodnej, energetyki, transportu i telekomunikacji.

Berenika Sikora

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