Student Transport Scheme Ltd v The Minister for Education and Skills and Another

• Jurisdiction: Ireland
• Judge: Mr. Justice Brian J. McGovern
• Judgment Date: 23 October 2012
• Neutral Citation: [2012] IEHC 425
• Court: High Court
• Date: 23 October 2012

[2012] IEHC 425

THE HIGH COURT

[No. 1043 J.R./2011]

[No. 249 COM/2011]

Student Transport Scheme Ltd v Min for Education & Bus Eireann

BETWEEN

STUDENT TRANSPORT SCHEME LIMITED

APPLICANT

AND

THE MINISTER FOR EDUCATION AND SKILLS

RESPONDENT

AND

(BY ORDER OF THE COURT) BUS ÉIREANN

NOTICE PARTY

EUROPEAN COMMUNITIES (PUBLIC AUTHORITIES CONTRACTS)(REVIEW PROCEDURES) REGS 2010 SI 130/2010

EUROPEAN COMMUNITIES AWARD OFF PUBLIC AUTHORITIES CONTRACTS REGS 2006 SI 329/2006

EEC DIR 2007/66

EEC DIR 89/665

EEC DIR 92/13

EEC DIR 2007/66

PUBLIC CONTRACTS DIR ART 1(2)(A)

COMMISSION v IRELAND C-532/03 UNREP ECJ 18.12.2007

ASEMFA v TRAGSA C-295/05 UNREP ECJ 19.4.2007

ASOCIACION PROFESSIONAL DE EMPRESAS DE REPARTO Y MANIPULADO DE CORRESPONDENCIA v ADMINISTRACION GENERAL DEL ESTADO C-220/06 UNREP ECJ 18.12.2007

PRESSETEXT NACHRICHTENAGENTUR GMBH v AUSTRIA C-454/06 UNREP ECJ 13.11.2006

TECKAL SRL v COMUNE DI VIANO & AZIENDA GAS - ACQUA COSORZIALE (AGAC) C-107/98 UNREP ECJ 18.11.1999

EUROPEAN COMMUNITIES (PUBLIC AUTHORITIES CONTRACTS) REVIEW PROCEDURES REGS 2010 SI 130/2010 REG 7(2)

EUROPEAN COMMUNITIES (PUBLIC AUTHORITIES CONTRACTS) REVIEW PROCEDURES REGS 2010 SI 130/2010 REG 7(3)

EUROPEAN COMMUNITIES (PUBLIC AUTHORITIES CONTRACTS) REVIEW PROCEDURES REGS 2010 SI 130/2010 REG 7(6)

ESPACE TRIANON SA & SOFIBAIL v FOREM C- 129/04 UNREP ECJ ECR 8.9.2005

RYANAIR v MINISTER FOR TRANSPORT UNREP FINLAY-GEOGHEGAN 2.4.2009 2009/50/ 12519 2009 IEHC 171

LYNCH, STATE v COONEY 1982 IR 337

EUROPEAN COMMUNITIES (PUBLIC AUTHORITIES CONTRACTS) REVIEW PROCEDURES REGS 2010 SI 130/2010 REG 4

CONTRACT

Public contracts

Existence of contract - Effectiveness of alleged contract - School transport scheme - Nature of scheme - Pecuniary interest - Weight to be placed on passing of funding from one party to other - Exception to existence of contract - Practice and procedure - Delay - Eligibility to bring proceedings - Transport of children undertaken by notice party under scheme - Whether passing of funding from respondent to notice party determinative of whether scheme for pecuniary interest - Whether pecuniary interest - Whether contract contained normal commercial contract terms - Whether exception to existence of contract applied - Whether contract existed - Applicable time limit - Whether application statute-barred -Whether applicant eligible to bring proceedings - Whether applicant entitled to declaration contract ineffective - Commission v Ireland (Case C- 532/03) [2007] ECR I-11353; Asemfo v Tragsa (Case C-295/05) [2007] ECR I-02999; Asociacion Profesional de Empresas de Reparto y Manipulado de Correspondencia v Administracion General del Estado (Case C-220/06) [2007] ECR I-12175; Pressetext Nachrichtenagentur GmbH v Austria (Case C- 454/06) [2008] ECR I-04401; Teckal Sri v Comune di Viano (Case C-107/98) [1999] ECR I-08121; Espace Trianon SA v FOREM (Case C- 129/04) [2005] ECR I-07805 and The State (Lynch) v Cooney [1982] IR 337 applied - Ryanair v Minister for Transport [2009] IEHC 171, (Unrep, Finlay Geoghegan J, 2/4/2009) approved - European Communities (Award of Public Authorities' Contracts) Regulations 2006 (SI 329/2006), regs 41 and 45 - European Communities (Public Authorities' Contracts) (Review Procedures) Regulations 2010 (SI 130/2010), regs 4, 6, 7 and 8 - Freedom of Information Acts 1997 to 2003 - Council Directives 89/665/EEC of 21/12/1989 - Council Directive 92/13/EEC of 25/2/1992 - Council Directive 92/50/EEC of 18/6/1992 - Council Directive 93/36/EEC of 14/6/1993 - Council Directive 93/37/EEC of 14/6/1993 - Council Directive 93/38/EEC of 14/6/1993 - Council Directive 97/52/EC of 13/10/1997 - Directive 98/4/EC of 16/2/1998 - Commission Directive 2001/78/EC of 13/9/2001 - Council Directive 2004/18/EC of 31/3/2004, article 1(2)(a) - Directive 2007/66/EC of 11/ 12/2007, article 1(3) - Treaty on the Functioning of the European Union - Reliefs refused - (2011/1043JR and 2011/249COM - McGovern J - 23/10/2012) [2012] IEHC 425

Student Transport Scheme Limited v Minister for Education and Skills

Facts: Proceedings concerned the School Transport Scheme, a scheme established by the respondent which has been administered by the notice party since its creation. The applicant contended that a contract existed between the respondent and the notice party, which should have been put out to tender, it claimed it had suffered loss as a result of this not occurring.

The applicant had to satisfy the court that the contract existed under the Public Contracts Directive 2004/18/EC, the issue of eligibility and delay would be considered thereafter.

McGovern J held that the operation of the scheme did not establish the existence of a contract as the basis of the operation of the scheme was entirely administrative; none of the normal features of a commercial relationship existed. The scheme did not contain any terms that might normally be associated with a commercial contract. Asemfo v Tragsa (Case C-295/05) [2007] ECR I-02999 and Asociación Profesional de Empresas de Reparto y Manipulado de Correspondencia v Administración General Estado (Case C-220/06) [2007] ECR I-12175 considered.

Eligibility and delay were considered for the sake of completeness, although neither the Remedies Directive or Remedies Regulations applied as no contract was held to exist. The applicant was held to be not entitled to a declaration of ineffectiveness.

1 1. These proceedings concern the School Transport Scheme (the "Scheme"), an administrative scheme by which the respondent provides school transport to over 100,000 school children every day, including children with special needs. The Scheme in its present form was created in 1967, and has been administered by the notice party since that time.

2 2. The applicant company was formed in June 2011, and commenced these proceedings some four months later. The applicant contends that a contract exists between the respondent and the notice party and that this contract ought to have been put out to tender. The applicant complains that because it was not in fact put out to tender it has thereby suffered loss. The issue of damages (should they arise) has been deferred by the agreement of the parties and by virtue of a direction by Kelly J. in the course of case management.

3 3. The proceedings are brought by way of judicial review application and have been admitted to the Commercial Court.

4 4. At the commencement of the hearing, counsel for the applicant informed the court that the reliefs being pursued at the hearing are to be found in paragraphs 7, 11, 12 and 13 of the notice of motion. Paragraphs 11, 12 and 13 deal with the issue of damages and other ancillary relief and costs. Paragraph 7 is the substantive point which arises at this hearing. In paragraph 7, the applicant seeks " a declaration that the Contract to which the Services relate is ineffective, pursuant to the Remedies Regulations". These are the European Communities (Public Authorities' Contracts) (Review Procedures) Regulations 2010 ( S.I. No. 130 of 2010) (hereafter the "Remedies Regulations").

5 5. Counsel for the applicant accepted that he has to satisfy the court of the existence of the contract contended for. If there is such a contract, then the issue of eligibility and the issue of delay have to be considered. However, both of these assume the existence of a contract.

6 6. The award of public service contracts is regulated by Council Directive 2004/18/EC of the European Parliament and of the Council of 31 ^st of March, 2004, on the coordination procedures for the award of public works contracts, public supply contracts and public service contracts, O.J.L 134/114 30. 4.2004 (hereafter "the Public Contracts Directive") and the European Communities (Award of Public Authorities' Contracts) Regulations 2006 ( S.I. No. 329 of 2006). In addition, the Treaty of the Functioning of the European Union O.J. C 83/47 30. 3.2010 (T.F.E.U.) and the principles established by the Court of Justice of the European Union (E.C.J.) apply to the procurement of services whether or not they fall within the scope of the Public Contracts Directive. The review of public service contracts is regulated by Directive 2007/66/EC of the European Parliament of the Council of 11 ^th December, 2007, amending Council Directives 89/665/EEC and 92/13/EEC with regard to improving the effectiveness of review procedures concerning the award of public contracts, O.J.L 335/31 20.12.2007 (hereafter "the Remedies Directive") and the Remedies Regulations ( S.I. No. 130 of 2010).

7 7. The Remedies Directive provides under Article 1 (3):

"Member States shall ensure that the review procedures are available, under detailed rules which the Member States may establish, at least to any person having or having had an interest in obtaining a particular contract and has been or risks being harmed by an alleged infringement."

The rules are to be availed of by a person "... having or having had an interest in obtaining a particular contract...." This presupposes the existence of a contract. In these proceedings, the respondent denies that there was ever a contract in place between the respondent and the notice party.

8 8. In 1966, the Government introduced free post-primary education in Ireland. The evidence establishes that on 10 ^th February, 1967, the respondent informed Córas Iompair Éireann (C.I.E.) that it had "decided to give the total administration of this scheme to CIE" The scheme in question was the School Transportation Scheme. C.I.E. was to administer the Scheme as agents of the respondent. In 1973, Ireland entered the European Economic Community. In January 1975, the accounting arrangements between the respondent and C.I.E. for the operation of the Scheme were put in place.

9 9. On 22 ^nd June, 2006, the earliest legislation...