European Union: 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 in order to protect certain exclusive rights, Telecom Italia was the only economic operator in a position to perform the contract at issue. Subsequently the Ministero published a voluntary ex ante transparency notice, announcing its intention of awarding an electronic communications contract to Telecom Italia by applying the negotiated procedure without prior publication notice.

After the expiry of the 10 days standstill period and the signing of the respective framework agreement, Fastweb brought an action before the Regional Administrative court for the annulment of the awarding of the contract, and sought a declaration that the contract was ineffective. The Court (and subsequently the appeals court) upheld the annulment of the contract's awarding on the grounds that the Ministero had failed to demonstrate that the conditions for using a negotiated procedure without prior publication of a notice had been satisfied.

The appeals court approached the ECJ asking whether, in the event that a public contract was awarded without prior publication of a contract notice but the conditions laid down in Directive 2004/18 for use of that procedure had not been satisfied, the contract is not to be declared ineffective if the contracting authority had published in the Official Journal a notice to ensure ex ante transparency and, before concluding the contract, had allowed the 10-day minimum standstill period to elapse from the day following the date on which that notice was published.

Key findings of the ECJ

Based on the opinion of the Advocate General (GA Bot 10.04.2014, Case C-19/13), the ECJ ruled the following:

  1. Where a public contract has been awarded without prior publication of a contract notice in the Official Journal, but doing so was not permissible under Directive 2004/18, the contract may not be declared ineffective if the three conditions laid down in Article 2d(4) of Directive 89/665 are satisfied.
  2. When verifying whether those conditions have been fulfilled, review bodies must carry out an effective review verifying whether the contracting authority

    1. considers that the awarding of a contract without prior publication of a contract notice is permissible,
    2. has published a notice as described in Article 3a of this Directive expressing its intention to conclude the contract, and
    3. has not concluded the contract before the expiry of a period of at least 10 calendar days with effect from the day following the date of the publication of this notice.
  3. The review body is under a duty to determine whether the contracting authority acted diligently and whether it could legitimately hold that the conditions laid down in the Directive 2004/18 were in fact satisfied. In that regard, the review body must take into consideration the circumstances and the reasons mentioned in the notice under Article 3a(c) of Directive 89/665. That notice must clearly and unequivocally state the reasons that caused the contracting authority to consider it legitimate to award the contract without prior publication of a contract notice, so that interested persons are able to decide with full knowledge of the relevant facts whether they consider it appropriate to bring an action before the review body and so the review body is able to undertake an effective review.
  4. If the review body finds that the conditions laid down in Article 2d(4) of Directive 89/665 are not satisfied, it must declare that the contract is ineffective, in accordance with the rule laid down in Article 2d(1)(a) of that directive.


The protection of the volentery ex ante transparency notice against ineffectiveness is not absolute.

The judgment can be interpreted to the effect, that in situations where the contracting authority knew or ought to have known that directly awarding the contract was not permissible, the review authority must declare the contract as ineffective, even if a voluntary ex ante transparency notice was published. Hence, contracting authorities are well advised to carefully and with due diligence examine whether the direct awarding of a contract may be considered as permissible prior to publishing an ex ante transparency notice and directly awarding the contract. The respective voluntary ex ante notice shall clearly and unequivocally describe the reasons that caused the contracting authority to consider it legitimate to award the contract without prior publication of a contract notice.

Through this ruling, the ECJ has further clearly outlined that the publication of a voluntary ex-ante transparency notice may not be "abused" with the aim of circumventing the obligation to tender under procurement law. The ex-ante transparency notice only provides protection against ineffectiveness of a directly awarded contract in case the contracting authority considered that approach permissible after diligently examining the legitimacy. In all other cases, the contract might be declared null and void despite the publishing of an ex ante notice in advance.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions