Voluntary Ex Ante Transparency Notice Does Not Provide A Clean Bill Of Health For Awarding A Contract Without Prior Publication

The ECJ has ruled that the so-called "voluntary ex ante transparency notice" under certain circumstances does not preclude review authorities from declaring a contract ineffective if it was awarded without prior publication of a contract notice. Moreover, the ECJ ruled that review authorities must declare a contract ineffective if the contracting authority could not legitimately hold that that the conditions for directly awarding the contract were in fact satisfied (ECJ 11.09.2014, Case C—19/13 Fastweb SpA).

Legal background

The (illegal) direct awarding of (public) contracts is regarded as the most serious breach of Community law in the field of public procurement on the part of a contracting authority or contracting entity. In order to combat the illegal direct awarding of contracts, the Remedies Directives (EC 89/665) as amended by Directive 2007/66/ΕC ("Remedies Directive") stipulates in principle a duty of the Member States to consider an (illegally) directly awarded contract ineffective. According to Article 2d(1) of the Remedies Directive, the Member States shall ensure that such a contract is considered ineffective by a review body that is independent of the contracting authority or that the contract's ineffectiveness is the result of a decision of such a review body in certain circumstances outlined in that provision, cf., including direct illegal award.

However, contracting entities can avoid the sanction of ineffectiveness by following the procedure outlined in Article 2d(4) of the Remedies Directive. Under that provision, the general rule (of ineffectiveness) does not apply if the contracting authority: (i) considers that the awarding of a contract without prior publication of a contract notice in the Official Journal is permissible, and (ii) has published in the Official Journal a voluntary ex ante transparency notice announcing that it intends to conclude the contract, and (iii) the contract has not been concluded before the expiry of at least 10 calendar days with effect from the day following the date of the publication of the notice.

Facts of the case

In 2003, the Ministero dell'Interno ("Ministero") entered into an agreement with Telecom Italia for the management and development of telecommunications services. As that agreement was due to expire on 31st December 2011, the Ministero considered it possible to use the negotiated procedure without prior publication of a contract notice by arguing that for technical reasons and...