| | 32004L0018: c3-35.1.1.cWorks    
| 32004L0018 - Classic (3rd generation) | Article 35.1.1.c | | (c) where works are concerned, the essential characteristics of the contracts or the framework agreements which they intend to award, the estimated value of which is equal to or greater than the threshold specified in Article 7, taking into account Article 9. | | 32004L0017 - Utilities (3rd generation) | Article 41.1.1.c | | (c) where works are concerned, the essential characteristics of the works contracts or the framework agreements which they intend to award over the following 12 months, whose estimated value is equal to or greater than the threshold specified in Article 16, taking into account the provisions of Article 17. | | 31993L0037 - Works (2nd generation) | Article 11.1 | TITLE III
COMMON ADVERTISING RULES
Article 11
1. Contracting authorities shall make known, by means of an indicative notice, the essential characteristics of the works contracts which they intend to award and the estimated value of which is not less than the threshold laid down in Article 6 (1). | | 31993L0038 - Utilities (2nd generation) | Article 22.1.b | | (b) in the case of works contracts, the essential characteristics of the works contracts which the contracting entities intend to award, the estimated value of which is not less than the threshold laid down in Article 14 (1). | | 31989L0440 - Fourth amendment of Works (1st generation) | Article 1.12=W1-12.1 | 12. Articles 12 to 15 are replaced by the following:
Article 12
1. Contracting authorities shall make known, by means of an indicative notice, the essential characteristics of the works contracts which they intend to award and the estimated value of which is not less than the threshold laid down in Article 4a (1). | | 31990L0531 - Utilities (1st generation) | Article 17.1.b | | (b) in the case of works contracts, the essential characteristics of the works contracts which the contracting entities intend to award, the estimated value of which is not less than the threshold laid down in Article 12 (1). |
| Case | Pte | Ref | Text | | C-225/98 | 31-43 | W2-11.1
G1A2-9.1 | 31 It should be borne in mind, first, that, under Article 11(1) of Directive 93/37, contracting authorities are to make known, by means of an indicative notice, the essential characteristics of the works contracts which they intend to award and the estimated value of which is not less than the threshold laid down in Article 6(1) of that directive.
32 Second, it follows from Articles 12(1) and (2) and 13(3) and (4) of Directive 93/37 that, as a general rule, the time-limits for the receipt of tenders may not be less than 52 days from the date of dispatch of the contract notice in respect of open procedures and 40 days from the date of dispatch of the written invitation in respect of restricted procedures, but that they may be reduced, respectively, to 36 and 26 days only where the contracting authorities have published the prior information notice.
33 Since the compulsory or optional nature of the prior information notice is not expressly clear from the wording of those provisions, it is necessary to take account of the scheme which Directive 93/37 was intended to establish overall and, consequently, to examine Articles 11(1), 12(1) and (2) and 13(3) and (4) of Directive 93/37 jointly and systematically in order to arrive at a coherent interpretation and application of that directive.
34 The prior information procedure is one of the rules on advertising laid down in Directive 93/37. As is clear in particular from the 10th recital in the preamble to that directive, the purpose of those rules is to ensure development, at the Community level, of effective competition in the field of public works contracts, by ensuring that potential tenderers from other Member States are in a position to respond to the various invitations in circumstances comparable to those prevailing for national tenderers.
35 It follows that the purpose of the rules on advertising laid down in Directive 93/37, including publication of the prior information notice, is to inform all potential tenderers at the Community level in good time about the main points of a contract in order that they may submit their tender within the time-limits. That purpose shows that whether the prior information notice is compulsory must be determined by reference to the provisions of that directive relating to the time-limits for the receipt of tenders submitted by tenderers.
36 In this respect, Articles 12(1) and 13(3) of Directive 93/37, which fix as a general rule the normal time-limits for the receipt of tenders at 52 days in respect of open procedures and 40 days in respect of restricted procedures, make no reference to the preliminary publication of a prior information notice.
37 On the other hand, Articles 12(2) and 13(4) of Directive 93/37, which confer on the contracting authorities the power to reduce the time-limits laid down in Articles 12(1) and 13(3), expressly link that power to the preliminary publication of a prior information notice.
38 It follows that the publication of a prior information notice is compulsory only where the contracting authorities exercise their option to reduce the time-limits for the receipt of tenders.
39 If the publication of a prior information notice were compulsory for every award procedure, whatever the time-limit for the receipt of tenders, the reference to it in Articles 12(2) and 13(4) of Directive 93/37 would be superfluous.
40 By linking the exercise, by the contracting authorities, of the option to reduce the time-limits for the receipt of tenders to the obligation to publish a prior information notice, the Community legislature intended to give potential tenderers, as regards the time at their disposal to draw up their tender, safeguards comparable to those which they would have enjoyed if the normal time-limits had been applied.
41 That interpretation is furthermore borne out by the travaux préparatoires for Directive 89/440, which inserted the prior information procedure into Directive 71/305. In its proposal for a Council Directive amending Directive 71/305 (COM (86) 679 final), the Commission had initially proposed the insertion of an obligation to publish a prior information notice at least six months before the date on which such contracts are due to be put up for competition by also providing that the time-limit for the receipt of tenders would be doubled in the case of contracting authorities which had failed to fulfil that obligation. However, that proposal, which expressly characterised the prior information procedure as an obligation, was not accepted by the Council.
42 As regards, finally, the Commission's argument that the compulsory nature of the prior information notice was clearly acknowledged by the Court of Justice in Case C-272/91 Commission v Italy [1994] ECR I-1409, it is clear that that case concerned the indicative notice provided for under Article 9(1) of Council Directive 77/62/EEC of 21 December 1976 coordinating procedures for the award of public supply contracts (OJ 1977 L 13, p. 1), as amended by Council Directive 88/295/EEC of 22 March 1988 amending Directive 77/62 and repealing certain provisions of Directive 80/767/EEC (OJ 1988 L 127, p. 1; Directive 77/62).
43 The indicative notice provided for under Article 9(1) of Directive 77/62 does not, unlike the notice provided for under Article 11(1) of Directive 93/37, introduce any possibility of reducing the time-limits for the receipt of tenders. The problem of interpretation at issue in Commission v Italy, cited above, did not therefore arise in terms analogous to those in the present case. |
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