| | ECT-226Cases against member states    
| ECT (2003) | Article 226 | If the Commission considers that a Member State has failed to fulfil an obligation under this Treaty, it shall deliver a reasoned opinion on the matter after giving the State concerned the opportunity to submit its observations.
If the State concerned does not comply with the opinion within the period laid down by the Commission, the latter may bring the matter before the Court of Justice. |
| Case | Pte | Ref | Text | C-481/06
Greece | 14-16 | ECT-226 | 14 La République hellénique conclut néanmoins au rejet du recours, en faisant valoir que, dans le cadre de la réforme législative relative aux fournitures dans le domaine de la santé, un projet de loi incluant un article relatif à l’abrogation de l’article 7, paragraphe 2, de la loi 2955 va être déposé. Elle précise que le retard est dû aux modifications importantes apportées par ledit projet de loi, qui vise à créer un nouvel environnement juridique dans le domaine très sensible de la santé, et qui garantira tant l’achèvement sans obstacle des procédures de passation de marchés que l’approvisionnement régulier des hôpitaux en matériel indispensable de technique médicale.
15 À cet égard, il suffit de rappeler que, selon une jurisprudence constante, l’existence d’un manquement doit être appréciée en fonction de la situation de l’État membre telle qu’elle se présentait au terme du délai fixé dans l’avis motivé (arrêts du 2 juin 2005, Commission/Luxembourg, C-266/03, Rec. p. I-4805, point 36, et du 26 octobre 2006, Commission/Autriche, C-102/06, non publié au Recueil, point 8).
16 Or, la disposition litigieuse étant restée en vigueur à l’expiration du délai imparti dans l’avis motivé, le recours introduit par la Commission doit être considéré comme fondé. | C-444/06
Spain | 33-34 | RC1-2.1.a
RC1-2.1.b
RC1-2.6.2
ECT-226-impl | 33. It should, at the outset, be stated that, in examining this action, it is necessary to take into consideration the explanations of the law provided by the Kingdom of Spain which are not disputed by the Commission. Those explanations are based on the interpretations in the caselaw of the national courts as to the effects which follow from the act of awarding the contract and the finalisation of the contract respectively, since those legal concepts are matters of national law.
34. Thus, the arguments put forward by the Commission in support of the first and second pleas must be analysed in the light of the finding that, according to the law of the Member State in question, first, the act of awarding the contract leads automatically to the formation of the contract to which it relates and, accordingly, determines, of itself, the rights and duties of the parties and, second, the finalisation of that contract is a formality required exclusively so that the contract awarded can be performed, and cannot alter the contract or add to it. | C-217/06
Italy | 12-21 | ECT-226-impl | 12 La Commission constate que, dans leur réponse à l’avis motivé, les autorités italiennes ne contestent plus le fait que la convention doit être considérée comme un marché public.
13 Elle considère que les autorités italiennes ont reconnu l’infraction commise en ce qui concerne les ouvrages déjà pratiquement achevés et un bassin de régulation hydraulique qui, à la date à laquelle elles ont envoyé leur réponse, était réalisé à 30 %.
14 La Commission fait toutefois valoir que le bassin de régulation hydraulique fait l’objet d’un seul des onze actes additionnels et considère que les autorités italiennes ne fournissent aucune information au sujet de l’état d’avancement des travaux faisant l’objet des autres actes additionnels portant sur des travaux qui, au total, représentent, pour la période 1992-2001, environ 16 millions d’euros. Elle estime, en outre, que ces travaux ne concernent qu’une partie des interventions susceptibles de s’inscrire dans le cadre de la convention qui semble avoir été conclue pour une durée indéterminée.
15 La Commission en déduit que, même si il a été mis un terme aux relations avec Maresar «en ce qui concerne la réalisation des infrastructures qui s’inscrivent dans le cadre de la convention, principal objet de contestation, et que les autorités italiennes ont procédé à la publication d’appels d’offres pour la sélection d’adjudicataires», aucun élément ne lui a été transmis et, notamment, aucune décision officielle de la commune de Stintino de nature à confirmer que la convention a cessé de produire des effets juridiques.
16 À cet égard, la convention n° 7/91, décrite au point 1, conclue le 2 octobre 1991 entre la commune de Stintino et Maresar, ensemble les onze actes additionnels qui confient à Maresar la réalisation d’ouvrages déterminés relevant de la convention, ainsi que celle de toutes les activités technico-administratives nécessaires jusqu’à la réception des travaux, a été passée par un pouvoir adjudicateur, la commune de Stintino, contre le paiement d’un prix supporté par celui-ci. Elle doit, par suite, conformément à l’article 1er, sous a), de la directive 71/305, être analysée comme un marché de travaux. Le gouvernement italien ne le conteste d’ailleurs plus.
17 Ainsi, c’est à bon droit que la Commission a estimé que ledit marché qui dépassait le seuil fixé par la directive 71/305 aurait dû faire l’objet de la publication d’un avis au Journal officiel des Communautés européennes prescrit par l’article 12 de cette directive et a, en conséquence, émis un avis motivé à l’encontre de la République italienne à l’effet de faire cesser le manquement constitué par l’attribution dudit marché à Maresar, par la commune de Stintino, sans procédure de mise en concurrence.
18 Il revient donc à la Cour de déterminer si, à la date pertinente pour apprécier le manquement, c’est-à-dire à l’issue du délai fixé dans l’avis motivé (voir en ce sens, arrêts du 14 septembre 2004, Commission/Espagne, C-168/03, Rec. p. I-8227, point 24, et du 27 octobre 2005, Commission/Luxembourg, C-23/05, Rec. p. I-9535, point 9), les mesures nécessaires pour faire cesser ce manquement avaient été prises par le gouvernement italien.
19 En l’espèce, compte tenu des éléments apportés par le gouvernement italien, au moment de l’expiration du délai fixé dans l’avis motivé, l’exécution de la convention irrégulière ne se poursuivait plus que pour la réalisation finale d’un ouvrage, le bassin de régulation hydraulique, prévu par l’acte additionnel n° 10. D’autres ouvrages étaient terminés. Par ailleurs, la Commission ne démontre pas que les affirmations du gouvernement italien selon lesquelles la commune de Stintino avait retiré à Maresar les autres prestations qui avaient été confiées à cette société par la convention seraient erronées.
20 Le gouvernement italien ne conteste plus que la commune de Stintino a manqué à ses obligations en passant la convention sans mise en concurrence. Il soutient toutefois, en premier lieu, que le recours est dépourvu d’objet dans la mesure où le marché litigieux avait, à la date d’expiration du délai fixé dans l’avis motivé, épuisé presque tous ses effets. À cette date, en tenant compte de la fin de la réalisation du bassin de régulation hydraulique, les travaux en cause auraient été achevés à hauteur de 82 %. Ainsi, il n’aurait plus été possible, matériellement, de se conformer à l’avis motivé.
21 Toutefois, s’il est vrai que, en matière de passation des marchés publics, la Cour a jugé qu’un recours en manquement est irrecevable si, à la date d’expiration du délai fixé dans l’avis motivé, le contrat en question avait déjà épuisé tous ses effets (voir, en ce sens, arrêts du 31 mars 1992, Commission/Italie, C-362/90, Rec. p. I-2353, points 11 et 13, et du 2 juin 2005, Commission/Grèce, C-394/02, Rec. p. I-4713, point 18), en l’espèce, la Cour ne peut que constater que la convention était, à cette date, en cours d’exécution, les travaux n’étant pas complètement achevés. Le marché n’avait donc pas épuisé tous ses effets. | C-157/06
Italy | 20-21 | ECT-226 | 20 In that regard, it is sufficient to point out an essential difference between this case and that which gave rise to the judgment in Commission v Italy. In this case, the Italian Republic acted pursuant to a decree of the Minister for the Interior while the case which gave rise to the judgment in Commission v Italy related to the lawfulness of a practice of the Italian authorities. That point is sufficient to establish that, in the present case, the principle of ne bis in idem cannot, on any basis, be effectively relied on.
21 Consequently, the plea of inadmissibility raised by the Italian Republic must be rejected. | C-119/06
Italy | 30-32 | ECT-226 | 30 Il résulte d’une jurisprudence constante que l’existence d’un manquement doit être appréciée en fonction de la situation de l’État membre, telle qu’elle se présentait au terme du délai fixé dans l’avis motivé (arrêt du 27 novembre 2003, Commission/France, C-429/01, Rec. p. I-14355, point 56). 31 En matière de passation des marchés publics, la Cour a jugé qu’un recours en manquement est irrecevable si, à la date d’expiration du délai fixé dans l’avis motivé, le contrat en question avait déjà épuisé tous ses effets (voir arrêt du 2 juin 2005, Commission/Grèce, C-394/02, Rec. p. I-4713, point 18). 32 En l’espèce, le délai fixé dans l’avis motivé est venu à expiration le 22 février 2005. L’accord-cadre régional du 11 octobre 1999 et le protocole d’accord du 28 mars 2003 ayant épuisé leurs effets avant cette date, le présent recours est irrecevable en tant qu’il les concerne. Par conséquent, il y a lieu de prendre en compte, aux fins du présent recours, le seul accord-cadre de 2004. | C-119/06
Italy | 53-60 | S2-7.1
S2-7.2
ECT-226 | 53 En vertu de son article 7, paragraphe 1, la directive 92/50 ne s’applique qu’aux marchés publics de services dont la valeur estimée hors TVA égale ou dépasse certains montants précisés à cette disposition.
54 Les termes de l’accord-cadre de 2004 ne permettent pas de connaître la valeur, même estimative, de celui-ci. Cet accord-cadre ne fournit qu’un barème de prix unitaires à partir duquel il n’est pas possible d’établir la valeur du marché en cause.
55 À la lumière de l’article 7, paragraphe 2, de la directive 92/50, il convient de considérer que la valeur de l’accord-cadre de 2004 est constituée par la valeur totale des marchés spécifiques qui sont ou seront passés en vertu de celui-ci (voir, en ce sens, arrêt du 4 mai 1995, Commission/Grèce, précité, point 15).
56 La Commission soutient que, compte tenu, d’une part, du fait que l’accord-cadre de 2004 couvre, sur le territoire de la Région de Toscane, tous les services de transport sanitaire qui ne sont pas effectués par les agences elles-mêmes et, d’autre part, de la durée pluriannuelle de cet accordcadre, il est présumé que le seuil d’application de la directive 92/50 de 200 000 euros est atteint.
57 Cependant, il est de jurisprudence constante que, dans le cadre d’une procédure en manquement en vertu de l’article 226 CE, il incombe à la Commission d’établir l’existence du manquement allégué. C’est elle qui doit apporter à la Cour les éléments nécessaires à la vérification par celle-ci de l’existence de ce manquement, sans pouvoir se fonder sur une présomption quelconque (arrêt du 26 avril 2005, Commission/Irlande, C-494/01, Rec. p. I-3331, point 41).
58 La Commission n’a produit aucune preuve relative à la valeur des marchés spécifiques conclus en vertu de l’accord-cadre de 2004.
59 Dans ces conditions, il n’est pas établi que le seuil d’application de la directive 92/50 a été atteint en l’espèce.
60 Il en résulte que le recours n’est pas fondé en ce qu’il est tiré d’une violation de la directive 92/50. | C-119/06
Italy | 61-68 | S2-10-impl
ECT-49
ECT-226 | 61 À titre subsidiaire, la Commission demande à la Cour de constater que la conclusion de l’accordcadre de 2004 serait contraire à l’article 49 CE si la valeur des services attribués à travers cet accord-cadre et figurant à l’annexe I B de la directive 92/50 devait s’avérer supérieure à celle des services figurant à l’annexe I A de cette directive.
62 Or, comme cela a été relevé au point 58 du présent arrêt, la Commission n’a fourni aucun élément de preuve quant à la valeur du marché en cause. Il est donc impossible de déterminer la valeur relative des services en cause qui relèvent de l’annexe I A ou de l’annexe I B de la directive 92/50.
63 À supposer que lesdits services relèvent, pour la partie prépondérante de leur valeur, de l’annexe I B de la directive 92/50, il conviendrait, toutefois, de rappeler que, dans la mesure où un marché relatif à un service relevant de cette annexe présente un intérêt transfrontalier certain, l’attribution, en l’absence de toute transparence, de ce marché à une entreprise située dans l’État membre du pouvoir adjudicateur de ce marché est constitutive d’une différence de traitement au détriment des entreprises susceptibles d’être intéressées par ce marché, qui sont situées dans un autre État membre (voir arrêt du 13 novembre 2007, Commission/Irlande, C-507/03, non encore publié au Recueil, point 30 et jurisprudence citée).
64 À moins qu’elle ne se justifie par des circonstances objectives, une telle différence de traitement, qui, en excluant toutes les entreprises situées dans un autre État membre, jouerait principalement au détriment de celles-ci, serait constitutive d’une discrimination indirecte selon la nationalité, interdite en application de l’article 49 CE (voir, en ce sens, arrêt du 13 novembre 2007, Commission/Irlande, précité, point 31 et jurisprudence citée).
65 Dans ces conditions, il appartiendrait à la Commission d’établir que, nonobstant le rattachement du marché en cause aux services relevant de l’annexe I B de la directive 92/50, ledit marché présentait, pour une entreprise située dans un État membre autre que celui dont relève le pouvoir adjudicateur concerné, un intérêt certain et que cette dernière, n’ayant pas eu accès aux informations adéquates avant que ce marché ne soit attribué, n’a pu être en mesure de manifester son intérêt pour celui-ci (voir arrêt du 13 novembre 2007, Commission/Irlande, précité, point 32).
66 En l’espèce, ces éléments n’ont pas été rapportés par la Commission. En effet, la simple indication, par celle-ci, de l’existence d’une plainte qui lui a été adressée en relation avec le marché en cause ne saurait suffire à démontrer que ledit marché présentait un intérêt transfrontalier certain et, par conséquent, à constater l’existence d’un manquement (voir, en ce sens, arrêt du 13 novembre 2007, Commission/Irlande, précité, point 34).
67 Dès lors, il convient de constater que le recours n’est pas fondé en ce qu’il est tiré d’une violation de l’article 49 CE.
68 En conséquence, le recours de la Commission doit être rejeté. | C-337/05
Italy | 19-26 | ECT-226 | 19. It is settled case-law that the purpose of the pre-litigation procedure is to give the Member State concerned an opportunity, on the one hand, to comply with its obligations under Community law and, on the other, to avail itself of its right to defend itself against the objections formulated by the Commission (see, among others, Case C-152/98 Commission v Netherlands [2001] ECR I-3463, paragraph 23; Case C-439/99 Commission v Italy [2002] ECR I-305, paragraph 10; and Case C185/00 Commission v Finland [2003] ECR I14189, paragraph 79).
20. The proper conduct of that procedure thus constitutes an essential guarantee required by the EC Treaty in order to protect the rights of the Member State concerned. It is only when that guarantee is observed that the contentious procedure before the Court can enable it to judge whether that State has in fact failed to fulfil the obligations which the Commission alleges it has breached (see, in particular, Case C-145/01 Commission v Italy [2003] ECR I-5581, paragraph 17). 21. It is in the light of that case-law that it is necessary to examine whether the Commission has respected the rights of the defence with regard to the Italian Republic in the pre-litigation procedure.
22. First, as regards the alleged divergences between the complaints made during the pre-litigation procedure and those formulated before the Court, it suffices to state that the reasoned opinion and the application commencing the proceedings, which are in almost identical terms, are based on the same complaints. Therefore, the Italian Republic's argument to show that the complaints raised in the course of the pre-litigation procedure do not correspond to those developed in that application cannot be accepted.
23. Secondly, as regards the alleged lack of clarity and precision in the definition of the complaints made against the Italian Republic in the pre-litigation procedure, it must be observed that, while the reasoned opinion referred to in Article 226 EC must contain a coherent and detailed statement of the reasons which led the Commission to conclude that the State in question has failed to fulfil one of its obligations under the Treaty, the letter of formal notice cannot be subject to such strict requirements of precision, since it cannot, of necessity, contain anything more than an initial brief summary of the complaints (see, in particular, Case 274/83 Commission v Italy [1985] ECR 1077, paragraph 21; Case C279/94 Commission v Italy [1997] ECR I4743, paragraph 15; and Case C221/04 Commission v Spain [2006] ECR I4515, paragraph 36).
24. In this case, the Commission's allegations in the pre-litigation procedure were sufficiently clear to enable the Italian Republic to deploy its defence, as is shown by the course which that part of the procedure took.
25. Thirdly, as regards the alleged breach of the principle of no double jeopardy, Case C525/03 Commission v Italy , cited above, was a case with a completely different subject-matter since, in that instance, the Commission's action concerned an ordinance of the President of the Italian Council of Ministers authorising recourse to negotiated procedures by derogation from Community directives on public supply contracts, and the action was declared inadmissible since that ordinance had ceased to have any effect before the expiry of the period fixed in the reasoned opinion. The subject-matter of the present action is not a re-examination of the legality of the abovementioned ordinance, but concerns a long-standing practice of the Italian State of directly awarding contracts for the purchase of Agusta and Agusta Bell helicopters without any competitive tendering procedure at Community level.
26. Accordingly, the Italian Republic's plea of inadmissibility must be rejected. | C-237/05
Greece | 22-41 | ECT-226 | 22. The Hellenic Republic raises a plea of inadmissibility against the Commission's action, alleging that it does not have a legal interest in bringing the proceedings and that the action is devoid of purpose.
23. In that connection, the Member State claims, first, that it took the necessary measures to bring the alleged failure to fulfil obligations to an end and that it was no longer in existence by the expiry of the period prescribed by the reasoned opinion for compliance, since: - over the course of 2003, there were no direct awards of contracts for the services at issue and the right to tender was extended to entities other than the UACs; - by Official Declaration No 5767 of the SecretaryGeneral of the Ministry of Agriculture of 6 November 2003, the Greek authorities undertook to use, if necessary, competitive tendering procedures for the award of the service contracts at issue, provided always that those services fall, wholly or in part, under Annex I A of Directive 92/50'.
24. Secondly, the Hellenic Republic submits that, by the expiry of the period prescribed for it to comply with the reasoned opinion, the alleged failure to fulfil obligations, which concerned the year 2001 only, was no longer in existence and had ceased to have any effects.
25. The Commission contends that a finding of failure to fulfil obligations is necessary because there is no guarantee that Directive 92/50 will be applied effectively and correctly, either in the present dispute concerning the year 2001, or in the future.
26. First, not only is Declaration No 5767 inadequate because it is not legally binding but it is also vague owing to the use of the expression if necessary'.
27. Secondly, the continuing disagreement between the Hellenic Republic and the Commission regarding the unique nature of the contracts at issue, and also as to whether the services concerned are included in Annex I A of Directive 92/50, is far from being theoretical and entails a risk that the Member State will reoffend.
28. Finally, there is no guarantee that Directive 92/50 will be correctly applied in the future since, during the years following 2001, the service contracts in question have also been awarded directly to the UAC.
29. In that regard, it is important to note that, as regards the award of public procurement contracts, the Court has held that an action for failure to fulfil obligations is inadmissible if, when the period prescribed in the reasoned opinion expired, the contract in question had already been completely performed (see Case C-362/90 Commission v Italy [1992] ECR I2353, paragraphs 11 and 13, and Case C394/02 Commission v Greece [2005] ECR I4713, paragraph 18).
30. Accordingly, it is necessary to verify whether, when the period prescribed by the reasoned opinion expired, that is to say, on 19 February 2004, the contracts at issue were, at least partly, still being performed or whether, on the contrary, the assistance work for which they were concluded was at that date already fully completed, so that they had been completely performed.
31. In the present case, the failure to fulfil obligations alleged by the Commission, described expressly in the claims in the application initiating proceedings, concerns the assistance provided by the UACs in the context of the implementation of the IACS solely for the year 2001, as those services are detailed in the contracts at issue concluded, in respect of that same year, for the performance of the framework agreement. At the hearing, the Commission confirmed that its action was limited to the year 2001 alone.
32. The assistance work provided for by the contracts at issue concerns the preparation of aid applications submitted by farmers for the purpose of recording the data they contain on the IACS database in accordance with Article 3(1) of Regulation No 3508/92. Those applications must be submitted annually to enable payments for the year in question to be paid. Therefore, these are, in essence, services related to an annual exercise concluded by the payment of the aid granted.
33. In that connection, it is necessary to state that Article 5(1) of the framework agreement - a provision which also appears in the contracts at issue - provides that they are to enter into force on the day they are signed and expire when all the financial aid has been paid to the farmers who applied for it.
34. The Commission was not able to refute the Hellenic Republic's argument, put forward by its representative at the hearing, that the payment of aid for the year 2001 was made in full in the course of the following year, in other words well before the expiry of the period prescribed by the reasoned opinion.
35. In the absence of indications from the Commission to the contrary, it must accordingly be found that, by the date that the period prescribed by the reasoned opinion expired, the framework agreement and the contracts at issue concerning the performance of that agreement for the year 2001 had already exhausted all their effects.
36. At the hearing, the Commission maintained that, unlike the infringement at issue in Commission v Italy , the failure to fulfil obligations which is the subject of the present action, namely awarding the services of assistance to the UAC directly and without advertising, was repeated in the years following 2001, in other words before the present case was brought.
37. In that connection, it must be observed that the Commission has not succeeded in refuting the Hellenic Republic's submissions that, in those years, those services of assistance were provided under a procedure which was radically different from that followed for the year 2001.
38. In particular, the Commission has not succeeded in calling into question the statement made by the representative of the Hellenic Republic at the hearing on the basis of supporting documents submitted by the Greek Government, in response to a question asked in that regard by the Court, to the effect that, for the years following 2001, the Greek State budget made no provision for payment in consideration of the services of assistance provided by the UACs, since from that point onwards the UACs received a payment from each farmer for the services they provided to him.
39. It follows that, having regard to the evidence presented to the Court, the Commission has not succeeded in demonstrating to the requisite legal standard that the failure to fulfil obligations alleged by the Commission against the Hellenic Republic in respect of the year 2001 recurred in subsequent years.
40. Finally, concerning the Commission's argument to the effect that its action is admissible by virtue of the continuing dispute between it and the Hellenic Republic concerning the interpretation of Directive 92/50 in the light of the specific characteristics of the public contracts at issue, it is sufficient to note that that circumstance alone is not enough to make the action admissible.
41. It follows from all the foregoing that the Commission's application must be dismissed as inadmissible. | C-503/04
Germany | 13-16 | ECT-226
ECT-228 | 13. The Federal Republic of Germany alleges, firstly, that the Commission has no interest in bringing proceedings because of its failure to submit an application for interpretation within the meaning of Article 102 of the Rules of Procedure. According to that Member State, the dispute relating to the consequences which follow from the judgment in Commission v Germany could and should have been resolved by way of an application for interpretation of that judgement and not by way of an action based on Article 228 EC.
14. However, that argument cannot be accepted.
15. In proceedings for failure to fulfil obligations under Article 226 EC, the Court is required to find only that a provision of Community law has been infringed. Pursuant to Article 228(1) EC, the Member State concerned is required to take the measures necessary to comply with the judgment of the Court (see, to that effect, Case C-126/03 Commission v Germany [2004] ECR I-11197, paragraph 26). Since a question concerning the measures required for the implementation of a judgment establishing a failure to fulfil obligations under Article 226 EC does not form part of the subject-matter of such a judgment, such a question cannot form the subject-matter of an application for interpretation of a judgment (see also, to that effect, order in Joined Cases 146/85 INT and 431/85 INT Maindiaux and Others v ESC and Others [1988] ECR 2003, paragraph 6).
16. Furthermore, it is precisely at the stage of an action under Article 228(2) EC that it is for the Member State, whose responsibility it is to draw the conclusions to which the judgment establishing the failure to fulfil obligations appears to it to give rise, to justify the validity of those conclusions, should they be criticised by the Commission. | C-503/04
Germany | 17-22 | ECT-226
ECT-228
ECJR-92.2 | 17. Secondly, in its rejoinder, the Federal Republic of Germany, supported by the Kingdom of the Netherlands, requests the Court to close the procedure by application of Article 92(2) of the Rules of Procedure, as the action has become devoid of purpose since, with effect from 10 July 2005, the contract concluded by the City of Brunswick concerning waste disposal has also been rescinded.
18. The Commission responds, in its observations relating to the statements in intervention of the French Republic, the Kingdom of the Netherlands and of the Republic of Finland, that it retains an interest in obtaining from the Court a ruling on whether, on expiry of the period laid down in the reasoned opinion issued under Article 228 EC, the Federal Republic of Germany had already complied with the judgment of 10 April 2003 in Joined Cases C20/01 and C28/01 Commission v Germany . The Commission states, however, that an order for payment of a periodic penalty payment is no longer necessary.
19. In that regard, it should be recalled that, according to settled case-law, the reference date for assessing whether there has been a failure to fulfil obligations under Article 228 EC is the date of expiry of the period prescribed in the reasoned opinion issued under that provision (see Case C119/04 Commission v Italy [2006] ECR I6885, paragraph 27, and case-law cited).
20. In the present case, the period referred to in the reasoned opinion which, as is apparent from the receipt stamp, was received by the German authorities on 1 April 2004, was one of two months. The reference date for assessing whether there has been a failure to fulfil obligations under Article 228 EC is therefore 1 June 2004. At that date, the contract concluded by the City of Brunswick for waste disposal had not yet been terminated.
21. Nor, moreover, is the action inadmissible contrary to the Federal Republic of Germany's submissions at the hearing, on the ground that the Commission is no longer requesting the imposition of a periodic penalty payment.
22. Since the Court has jurisdiction to impose a financial penalty not suggested by the Commission (see, to that effect, Case C-304/02 Commission v France [2005] ECR I-6263, paragraph 90), the action is not inadmissible simply because the Commission takes the view, at a certain stage of the procedure before the Court, that a penalty is no longer necessary. | C-503/04
Germany | 23 | RC1-3
ECT-226
ECT-228
| 23. With regard, thirdly, to the plea of inadmissibility based on Article 3 of Directive 89/665, to which the Advocate General refers in point 44 of her Opinion, it is appropriate to note that the particular procedure laid down in that provision constitutes a preventive measure which can neither derogate from nor replace the powers of the Commission under Articles 226 EC and 228 EC (see, to that effect, Case C-394/02 Commission v Greece [2005] ECR I4713, paragraph 27, and case-law cited). | C-412/04
Italy | 42-44 | ECT-226-impl | 42. According to settled case-law, the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation obtaining in the Member State at the end of the period laid down in the reasoned opinion (see, inter alia, Case C-114/02 Commission v France [2003] ECR I-3783, paragraph 9, and Case C-433/03 Commission v Germany [2005] ECR I-6985, paragraph 32).
43. The adoption of laws, regulations or administrative provisions after the date on which that period expired cannot be taken into account.
44. Accordingly it is with regard to the legislation in force on 15 December 2003, the date on which the two month period prescribed in the reasoned opinion of 15 October 2003 expired, that it must be decided whether the Italian Republic committed the infringement alleged in this complaint, given that at that date neither the circular referred to in paragraph 39 of this judgment nor the national legislation cited in paragraph 40 had been adopted. | C-260/04
Italy | 17-19 | ECT-226-impl | 17. It should be noted at the outset that the Italian Government does not deny that Law No 200/2003 and Decision No 107/2003 took effect after expiry of the time-limit laid down in the reasoned opinion.
18. In that regard it must be remembered that, according to settled case-law, the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing in the Member State at the end of the period laid down in the reasoned opinion and that the Court cannot take account of any subsequent changes (see, in particular, Case C-282/02 Commission v Ireland [2005] ECR I4653, paragraph 40, and Case C-514/03 Commission v Spain [2006] ECR I963, paragraph 44).
19. Therefore, the provisions of Law No 200/2003 and Decision No 107/2003 cannot be of relevance for the purposes of determining whether the Italian Republic has failed to fulfil its obligations. It follows that the present action is concerned solely with a review of the contested decision. | C-195/04
Finland | 18-21 | ECT-226 | 18. In this regard, although it is true that the subject-matter of proceedings brought under Article 226 EC is circumscribed by the pre-litigation procedure provided for in that provision and that, consequently, the Commission's reasoned opinion and the application must be based on the same objections, that requirement cannot go so far as to mean that in every case exactly the same wording must be used in both, where the subject-matter of the proceedings has not been extended or altered but simply narrowed (see, in particular, Case C229/00 Commission v Finland [2003] ECR I-5727, paragraphs 44 and 46, Case C-433/03 Commission v Germany [2005] ECR I-6985, paragraph 28, and Case C-150/04 Commission v Denmark [2007] ECR I-0000, paragraph 67). Accordingly, in its application the Commission may clarify its initial grounds of objection provided, however, that it does not alter the subject-matter of the dispute (Case C-67/99 Commission v Ireland [2001] ECR I-5757, paragraph 23, judgment of 12 October 2004 in Case C-328/02 Commission v Greece , not published in the ECR, paragraph 32, and Case C-494/01 Commission v Ireland [2005] ECR I-3331, paragraph 38).
19. It should be pointed out, however, that in the present case the Commission has neither extended nor altered nor even narrowed the subject-matter of the action, as delimited in the reasoned opinion of 19 December 2002.
20. In fact, not only is it clear from the wording of the heads of claim of the reasoned opinion and of the Commission's application, which are framed in almost exactly the same terms, that those documents are based on the same objections, but it is also apparent that, by asserting in its application that the contracting authority should have organised an invitation for tender, the Commission merely clarified the objection alleged initially in its reasoned opinion, that is to say, that the contract for the supply of catering equipment for the regional administration of Turku should have been sufficiently advertised.
21. However, the Court may of its own motion examine whether the conditions laid down in Article 226 EC for bringing an action for failure to fulfil obligations are satisfied (Case C-362/90 Commission v Italy [1992] ECR I-2353, paragraph 8, Case C-439/99 Commission v Italy [2002] ECR I-305, paragraph 8, and Case C98/04 Commission v United Kingdom [2006] ECR I-4003, paragraph 16). | C-195/04
Finland | 22-32 | ECJR-38.1.c
ECT-226 | 22. It is clear from Article 38(1)(c) of the Rules of Procedure of the Court of Justice, and from the case-law relating to that provision, that an application must state the subject-matter of the proceedings and a summary of the pleas in law on which the application is based, and that that statement must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the application. It is therefore necessary for the essential points of law and of fact on which a case is based to be indicated coherently and intelligibly in the application itself (Case C178/00 Italy v Commission [2003] ECR I-303, paragraph 6, judgment of 14 October 2004 in Case C55/03 Commission v Spain , not published in the ECR, paragraph 23, and Case C199/03 Ireland v Commission [2005] ECR I8027, paragraph 50) and for the heads of claim to be set out unambiguously so that the Court does not rule ultra petita or indeed fail to rule on an objection (Case C296/01 Commission v France [2003] ECR I13909, paragraph 121, and Case C255/04 Commission v France [2006] ECR I5251, paragraph 24).
23. In the present case, however, the Commission's application does not fulfil those requirements.
24. By its action, the Commission seeks a declaration that the Republic of Finland failed to comply with its obligations under Article 28 EC on the ground that, in the context of a contract for catering equipment, Senaatti-kiinteistöt infringed fundamental Treaty rules and in particular the principle of non-discrimination, which implies an obligation of transparency.
25. As the Advocate General points out in point 45 of her Opinion, the heads of claim as formulated in the application are ambiguous and do not enable the Court to identify clearly and precisely the misconduct which the Commission imputes to the Republic of Finland, since it brackets together Article 28 EC, fundamental Treaty provisions, the principle of non-discrimination and the obligation of transparency.
26. In addition, even if the Commission's action were intended to obtain a declaration of infringement of Article 28 EC, neither the heads of claim of the application nor the submissions made in the body of the application identify with clarity and precision which measure is alleged in the present case to constitute a quantitative restriction on imports or a measure having equivalent effect within the meaning of that article.
27. In fact, the Commission merely calls into question the contracting authority's conduct in the context of a contract for catering equipment'.
28. Furthermore, at no point in the proceedings was the Commission able to state coherently and precisely the facts which provide the basis for the objections on which it relies in support of its application.
29. Thus, in its application the Commission does not furnish any precise evidence in relation to the first call for tenders, but merely states that it was unsuccessful in relation to the acquisition of catering equipment'.
30. In that respect, neither the submissions made in the body of the application nor the Commission's replies to the Court's questions at the hearing enable the Court to establish with certainty whether a tender for the supply and installation of catering equipment was submitted to the contracting authority in the context of the call for tenders.
31. By the same token, in its reply the Commission asserts - without, however, demonstrating the truth of that assertion - that at least one of the undertakings which submitted such a tender was not one of the four undertakings contacted by the contracting authority in 2000, and that the lot relating to the supply and installation of catering equipment which was part of the contract announced in the initial call for tenders did not have the same subject-matter as the contract which gave rise to the contacts made during the same year.
32. In those circumstances, the Court does not have sufficient evidence to enable it to appreciate exactly the scope of the infringement of Community law imputed to the Republic of Finland and thus to determine whether there is a breach of obligations as alleged by the Commission (see, to that effect, Commission v United Kingdom , cited above, paragraph 18).
33. Consequently, the action must be dismissed as inadmissible. | C-29/04
Austria | 25-30 | ECT-226 | 25. It is settled case-law that the purpose of the pre-litigation procedure is to give the Member State concerned an opportunity, on the one hand, to comply with its obligations under Community law and, on the other, to avail itself of its right to defend itself against the objections formulated by the Commission (see, inter alia, Case C-152/98 Commission v Netherlands [2001] ECR I-3463, paragraph 23, and Case C-439/99 Commission v Italy [2002] ECR I-305, paragraph 10).
26. It follows that, first, the subject-matter of proceedings under Article 226 EC is delimited by the pre-litigation procedure governed by that provision and that consequently the reasoned opinion and the application must be founded on identical charges. If a charge was not included in the reasoned opinion, it is inadmissible at the stage of proceedings before the Court (see, inter alia, Commission v Italy , cited above, paragraph 11).
27. Second, the reasoned opinion must contain a cogent and detailed exposition of the reasons which led the Commission to the conclusion that the Member State concerned had failed to fulfil one of its obligations under the Treaty (see, inter alia, Case C-207/96 Commission v Italy [1997] ECR I-6869, paragraph 18, and Case C-439/99 Commission v Italy , cited above, paragraph 12).
28. In the present case, in point 16 of its reasoned opinion and point 13 of its letter of formal notice, the Commission claimed that the sequence of events, from the Mödling municipal council's decision to make AbfallgmbH exclusively responsible for management of that municipality's waste up to the transfer of 49% of the shares in that company to Saubermacher AG, showed that the period during which the town of Mödling held 100% of the shares in AbfallgmbH constituted in reality only a transitional stage leading to the acquisition by a private undertaking of a holding in that company. The Commission thus clearly stated in the course of the pre-litigation procedure that it disputed the town of Mödling's argument based on the existence of three separate transactions.
29. The Commission thus gave a cogent and detailed exposition of the reasons why, taking the view that the provisions of Directive 92/50 were applicable, the conclusion of the contract transferring exclusive responsibility to AbfallgmbH for the collection and treatment of the town of Mödling's waste could not be regarded as an in-house' transaction and should have been the subject of a public tendering procedure.
30. In those circumstances, the inevitable conclusion is that the subject-matter of the action was clearly defined and that the plea of inadmissibility raised by the Austrian Government must be rejected. | C-532/03
Ireland | 28-38 | ECT-43
ECT-49
ECT-226 | 28. As a preliminary point, it must be noted that, as is apparent from the form of order sought in the application initiating proceedings, the present action for failure to fulfil obligations does not concern the application of Directive 92/50, but relates to the issue as to whether the provision by DCC, without prior advertising, of emergency ambulance services is contrary to the fundamental rules of the Treaty and, in particular, to the freedom of establishment and the freedom to provide services enshrined in Articles 43 EC and 49 EC respectively.
29. It follows from the case-law of the Court that, without prejudice to the obligation of the Member States, under Article 10 EC, to facilitate the achievement of the Commission's tasks, which consist in particular, pursuant to Article 211 EC, in ensuring that the provisions of the Treaty and the measures taken by the institutions pursuant thereto are applied (Case C494/01 Commission v Ireland [2005] ECR I3331, paragraph 42), in an action for failure to fulfil obligations it is incumbent upon the Commission to prove the allegation that the obligation has not been fulfilled. It is the Commission's responsibility to place before the Court the information needed to enable the Court to establish that the obligation has not been fulfilled, and in so doing the Commission may not rely on any presumption (see, in particular, Case 96/81 Commission v Netherlands [1982] ECR 1791, paragraph 6; Case C404/00 Commission v Spain [2003] ECR I6695, paragraph 26; and Case C135/05 Commission v Italy [2007] ECR I0000, paragraph 26).
30. The Commission claims that the maintenance of an agreement between DCC and the Authority, without any prior advertising, constitutes a breach of the rules of the Treaty and thereby of the general principles of Community law, in particular the principle of transparency.
31. In support of its case, the Commission takes the view that, even in the absence of a written contract detailing the terms of the services to be provided by DCC, the correspondence attached to a letter of 19 September 2002 shows that the scope of those services and the basis on which they are to be remunerated were considered by the parties and formalised in a draft agreement drawn up in June 1998. In particular, in a letter of 15 January 1999 attached to the letter of 19 September 2002, DCC's Finance Officer stated that the negotiations on the funding of the emergency ambulance service had resulted, in June 1998, in an agreement determining future charges by DCC to the Authority.
32. The Commission submits that it seems that DCC and the Authority agreed to enter into a service-level agreement and that a contract was drafted to that end. Therefore, according to the Commission, DCC provides emergency ambulance services at the behest of the Authority and for remuneration.
33. In that respect, it is apparent from the documents before the Court that national legislation empowers both the Authority and DCC to carry out emergency ambulance services. Under section 25 of the Fire Services Act 1981, a fire authority may carry out or assist in any operations of an emergency nature, whether or not a risk of fire is involved, and may accordingly make such provision for the rescue or safeguarding of persons and protection of property as it considers necessary for the purposes of that function. Thus, under section 9 of that Act, a local authority such as DCC is the responsible fire authority.
34. Bet ween 1899 and 1960, DCC provided emergency ambulance services in its capacity as a health authority. It subsequently acted in its capacity as a local authority and, under section 25 of the Fire Services Act 1981, provided those services through its permanent fire brigade service.
35. Consequently, it is conceivable that DCC provides such services to the public in the exercise of its own powers derived directly from statute, and applying its own funds, although it is paid a contribution by the Authority for that purpose, covering part of the costs of those services.
36. In that regard, as follows from the case-law cited in paragraph 29 of this judgment, it is, in the present case, incumbent upon the Commission to place before the Court the information needed to enable the Court to establish that a public contract has been awarded, and in so doing the Commission may not rely on any presumption in that regard.
37. However, neither the Commission's arguments nor the documents produced demonstrate that there has been an award of a public contract, since it is conceivable that DCC provides emergency ambulance services in the exercise of its own powers derived directly from statute. Moreover, the mere fact that, as between two public bodies, funding arrangements exist in respect of such services does not imply that the provision of the services concerned constitutes an award of a public contract which would need to be assessed in the light of the fundamental rules of the Treaty.
38. Since the Commission has not proved that Ireland has failed to fulfil its obligations under the Treaty, the action must be dismissed. | C-525/03
Italy | 8-17 | ECT-226 | 8. It is appropriate at the outset to emphasise that the Court may of its own motion examine the question whether the conditions laid down in Article 226 EC for the bringing of an action for failure to fulfil obligations are satisfied (see, inter alia, Case C-362/90 Commission v Italy [1992] ECR I-2353, paragraph 8, and Case C-439/99 Commission v Italy [2002] ECR I-305, paragraph 8).
9. It is of no effect in that regard that, in reply to a question put at the hearing, the Italian Republic submitted that the action was admissible although in the defence it claimed that the action was devoid of purpose on the ground that the contested ordinance had ceased to produce any effect even before the Commission disputed its legitimacy or sought to have it set aside.
10. Nor is the fact that the Italian Republic did not acknowledge the failure of which it was accused, a fact also evoked by the Commission at the hearing in support of the admissibility of its action, of any relevance since the procedure for a declaration of a failure on the part of a Member State to fulfil an obligation is based on the objective finding that a Member State has failed to fulfil its obligations under the Treaty or secondary legislation (see, inter alia, Case C-71/97 Commission v Spain [1998] ECR I-5991, paragraph 14, and Case C-83/99 Commission v Spain [2001] ECR I-445, paragraph 23).
11. It is appropriate, firstly, to state, as is clear from the form of order sought in the application initiating proceedings, that the present action for failure to fulfil obligations is limited to Articles 1(2) and 2(1) to (3) of the contested ordinance and does not seek to call into question the subsequent acts adopted pursuant to that ordinance, which were nevertheless explicitly mentioned in the reasoned opinion.
12. It is important, secondly, to recall that the Commission, in exercising its powers under the second paragraph of Article 226 EC, has the function, in the general interest of the Community, of ensuring that the Member States give effect to the Treaty and the provisions adopted by the institutions thereunder and of obtaining a declaration of any failure to fulfil the obligations deriving therefrom with a view to bringing it to an end (see, to that effect, Case C-431/92 Commission v Germany [1995] ECR I2189, paragraph 21, and Joined Cases C-20/01 and C-28/01 Commission v Germany [2003] ECR I-3609, paragraph 29).
13. In that regard, it follows from the very terms of the second paragraph of Article 226 EC that the Commission may bring an action for failure to fulfil obligations before the Court only if the Member State concerned has failed to comply with the reasoned opinion within the period laid down by the Commission for that purpose (see Case C-362/90 Commission v Italy , cited above, paragraph 9).
14. It is, furthermore, settled case-law that the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing in the Member State at the end of the period laid down in the reasoned opinion (see, inter alia, Case C-362/90 Commission v Italy , cited above, paragraph 10, Case C-173/01 Commission v Greece [2002] ECR I-6129, paragraph 7, and Case C-114/02 Commission v France [2003] ECR I-3783, paragraph 9).
15. It must be stated that the contested ordinance had ceased to produce any legal effect at the expiry date of the state of emergency declared on Italian territory until 31 October 2002 by the decree of the President of the Council of Ministers of 28 June 2002, the duration for the application of that ordinance being limited to that fixed by the decree.
16. The effects intrinsic to the contested ordinance, which was no longer in force from 1 November 2002, had, as a consequence, been exhausted before the period laid down in the reasoned opinion expired and even before the letter of formal notice was sent. Since it relates only to that single ordinance, the failure of which the Italian Republic is accused in the present action, even if established, could in any event no longer have existed at the time that period expired.
17. It follows from all the foregoing that the Commission's application must be dismissed as inadmissible. | C-507/03
Ireland | 33-35 | ECT-43
ECT-49
ECT-226
| 33. According to settled case-law, it is the Commisssion's responsibility to provide the Court with the evidence necessary to enable it to establish that an obligation has not been fulfilled and, in so doing, the Commission may not rely on any presumption (see, to that effect, inter alia, Case C-434/01 Commission v United Kingdom [2003] ECR I13239, paragraph 21; Case C-117/02 Commission v Portugal [2004] ECR I-5517, paragraph 80; and Case C-135/05 Commission v Italy [2007] ECR I-0000, paragraph 26), in this case a presumption that a contract relating to services coming within the scope of Annex I B to Directive 92/50 and subject to the rules described in paragraph 24 of this judgment necessarily is of certain cross-border interest.
34. In the present case, that evidence has not been provided by the Commission. A mere statement by it that a complaint was made to it in relation to the contract in question is not sufficient to establish that the contract was of certain cross-border interest and that there was therefore a failure to fulfil obligations.
35. The Court accordingly finds that, in entrusting the provision of social benefit payment services to An Post without undertaking any prior advertising, Ireland has not failed to fulfil its obligations under Articles 43 EC and 49 EC and the general principles of Community law in connection with a contract for the supply of such services. 36. The Commission's action must therefore be dismissed. | C-414/03
Germany | 6-12 | ECT-226 | 6 Le gouvernement allemand admet que le Landkreis Friesland aurait dû passer le marché en cause en conformité avec les dispositions de la directive 92/50. Il n’est par ailleurs pas contesté que ce pouvoir adjudicateur s’est abstenu de le faire.
7 Il est également constant que, à la date à laquelle le délai imparti dans l’avis motivé a expiré, le contrat en cause était en cours d’exécution si bien que le manquement persistait encore à cette date (voir, en ce sens, arrêt du 9 septembre 2004, Commission/Allemagne, C‑125/03, non publié au Recueil, point 13).
8 Selon le gouvernement allemand, la République fédérale d’Allemagne ayant reconnu le manquement au cours de la phase précontentieuse, la Commission n’était pas obligée, en l’absence de litige entre les parties, de s’adresser à la Cour, si bien que le recours doit être rejeté.
9 À cet égard, il convient de rappeler que, dans le cadre d’un recours en manquement, il appartient à la Cour de constater si le manquement reproché existe ou non, même si l’État concerné ne conteste plus celui‑ci. S’il en était autrement, les États membres, en reconnaissant le manquement et en admettant la responsabilité qui peut en découler, seraient libres, à tout moment lors d’une procédure en manquement pendante devant la Cour, de mettre fin à celle-ci sans que l’existence du manquement et le fondement de leur responsabilité aient jamais été établis (voir, notamment, arrêt Commission/Allemagne, précité, point 16).
10 Par ailleurs, les parties ont échangé divers arguments quant aux conséquences découlant de la constatation qu’une attribution de marché est intervenue en méconnaissance de la directive 92/50 et, notamment, quant à la question de savoir si une telle constatation avait pour conséquence de contraindre le pouvoir adjudicateur concerné à résilier le contrat en cours. Selon le gouvernement allemand, le débat ainsi introduit par la Commission est étranger à l’objet du litige soumis à la Cour et ne contribue ni à clarifier ni à fonder la demande formulée par la Commission, laquelle demande doit dès lors être rejetée.
11 À cet égard, il suffit de rappeler que, si, dans le cadre de la procédure en manquement au titre de l’article 226 CE, la Cour est uniquement tenue de constater qu’une disposition du droit communautaire a été violée, il ressort de l’article 228, paragraphe 1, CE que l’État membre concerné est tenu de prendre les mesures que comporte l’exécution de l’arrêt de la Cour (voir arrêt du 18 novembre 2004, Commission/Allemagne, C‑126/03, non encore publié au Recueil, point 26).
12 Par ailleurs, ainsi qu’il ressort des points 6 à 9 du présent arrêt, le manquement dont la requête poursuit la constatation est clairement établi, si bien que le recours de la Commission doit être accueilli. | C-275/03
Portugal | 34 | ECT-226 | 34 Il est en outre établi que, à l’expiration des délais fixés par les avis motivés, le projet de loi relatif à la responsabilité civile extracontractuelle de l’État introduisant la notion de présomption de faute n’avait pu être Arrêt de la Cour http://curia.eu.int/jurisp/cgi-bin/gettext.pl?lang=fr&num=79958985C... 5 of 5 28/04/2005 12:23 adopté. Or, d’une part, un État membre ne saurait exciper de situations de son ordre juridique interne pour justifier le non‑respect des obligations et des délais prescrits par une directive (arrêt du 10 avril 2003, Commission/France, C‑114/02, Rec. p. I‑3783, point 11) et, d’autre part, des modifications introduites dans la législation nationale sont sans pertinence pour statuer sur l’objet d’un recours en manquement, dès lors qu’elles n’ont pas été mises en oeuvre avant l’expiration du délai imparti dans l’avis motivé (voir arrêt du 24 mars 1994, Commission/Belgique, C‑80/92, Rec. p. I‑1019, point 19). | C-264/03
France | 29 | ECT-226 | 29. Admittedly, since the commencement of this action, the French authorities have amended Law No 85704 by allowing the agency of delegated project contracting henceforth to be entrusted to any public or private person, thus abolishing the requirement that the agent be a legal person under French law. It is appropriate none the less to point out that the question whether a Member State has failed to fulfil its obligations must be determined with reference to the situation prevailing in the Member State at the end of the period laid down in the reasoned opinion (see, among others, Case C63/02 Commission v United Kingdom [2003] ECR I-821, paragraph 11, and Case C313/03 Commission v Italy , not published in the ECR, paragraph 9). The Court cannot take account of any subsequent changes (see, among others, Case C482/03 Commission v Ireland , not published in the ECR, paragraph 11, and Case C-341/02 Commission v Germany [2005] ECR I2733, paragraph 33). | C-126/03
Germany | 25-26 | ECT-226
ECT-228.1 | 25. The German Government submits that, should there be a finding of failure to fulfil obligations, the Federal Republic of Germany would not be obliged to terminate the contract which has already been entered into.
26. In that regard, it is sufficient to reply that while, in proceedings for failure to fulfil obligations under Article 226 EC, the Court is only required to find that a provision of Community law has been infringed, it is clear from Article 228(1) EC that the Member State concerned is required to take the measures necessary to comply with the judgment of the Court. | C-125/03
Germany | 11-17 | ECT-226 | 11 Il y a lieu de rappeler qu’il résulte des termes mêmes de l’article 226, second alinéa, CE que la Commission ne peut saisir la Cour d’un recours en manquement que si l’État membre en cause ne s’est pas conformé à l’avis motivé dans le délai que celle-ci a imparti à cette fin (voir arrêt du 31 mars 1992, Commission/Italie, C‑362/90, Rec. p. I‑2353, point 9).
12 Si, en matière de passation des marchés publics, la Cour a dit pour droit qu’un manquement n’existe plus à la date d’expiration du délai fixé dans l’avis de la Commission lorsque l’avis de marché en question avait, à ce moment-là, déjà épuisé tous ses effets (voir, en ce sens, arrêt Commission/Italie, précité, points 11 et 13), il ressort également de la jurisprudence qu’un manquement subsiste à cette date lorsque des contrats prétendument conclus en violation des dispositions communautaires relatives aux marchés publics continuent à produire leurs effets (voir, en ce sens, arrêts précités, Commission/Autriche, point 44, et Commission/Allemagne, points 34 à 37).
13 En l’espèce, il convient de constater que, au terme du délai fixé dans l’avis motivé, les contrats d’enlèvement d’ordures prétendument conclus en violation des dispositions de la directive 92/50 étaient en cours d’exécution. Par conséquent, le prétendu manquement persistait encore à cette date et n’a pris fin qu’à la date d’échéance de ces contrats.
14 Dans ce contexte, l’argumentation avancée par le gouvernement allemand pour écarter la recevabilité du recours en manquement ne peut pas être accueillie.
15 En effet, selon le gouvernement allemand, il ressort de l’article 2, paragraphe 6, de la directive 89/665/CEE du Conseil, du 21 décembre 1989, portant coordination des dispositions législatives, réglementaires et administratives relatives à l’application des procédures de recours en matière de passation des marchés publics de fournitures et de travaux (JO L 395, p. 33) que le principe pacta sunt servanda s’oppose à une obligation de résilier ces contrats et protège les droits acquis même en vertu de contrats conclus en violation des dispositions régissant la passation des marchés publics. À cet égard, il convient de répondre que, si cette disposition permet aux États membres de limiter, après la conclusion du contrat, la protection juridique nationale à des dommages-intérêts aux personnes lésées par une telle violation, elle ne saurait avoir pour conséquence que le comportement d’un pouvoir adjudicateur devrait, en toute éventualité, être considéré comme conforme au droit communautaire dans le cadre d’un recours en manquement (voir, en ce sens, arrêt Commission/Allemagne, précité, points 38 et 39).
16 S’agissant de l’argument selon lequel la République fédérale d’Allemagne a reconnu les défauts qui ont affecté les procédures de passation en question, il convient de relever que, dans le cadre d’un recours en manquement, il appartient à la Cour de constater si le manquement reproché existe ou non, même si l’État concerné ne conteste plus le manquement. S’il en était autrement, les États membres, en reconnaissant le manquement et en admettant la responsabilité qui peut en découler, seraient libres, à tout moment lors d’une procédure en manquement pendante devant la Cour, de mettre fin à celle-ci sans que l’existence du manquement et le fondement de leur responsabilité aient jamais été établis en justice (voir, en ce sens, arrêts du 22 juin 1993, Commission/Danemark, C‑243/89, Rec. p. I-3353, point 30 et Commission/Allemagne, précité, points 40 et 41).
17 Au vu de ce qui précède, il convient de considérer que le recours introduit par la Commission est recevable. | C-394/02
Greece | 12-16 | ECT-226 | 12. The Greek Government raises four pleas of inadmissibility on the grounds, respectively, of the Commission's lack of interest in bringing proceedings, the want of any purpose to the action, the imprecision of the reasoned opinion and abuse of process. The Commission's lack of any interest in bringing proceedings
13. The Greek Government submits that the Commission had no legitimate interest in opening the procedure for failure to fulfil obligations since the alleged infringement of Community law had, when the period for compliance with the reasoned opinion expired, been fully or at least in large measure completed.
14. In that regard, it must be noted that, when exercising its powers under Article 226 EC, the Commission does not have to show that there is a specific interest in bringing an action (see Case 167/73 Commission v France [1974] ECR 359, paragraph 15, and Joined Cases C-20/01 and C28/01 Commission v Germany [2003] ECR I-3609, paragraph 29).
15. The Commission's function is to ensure, in the general interest, that the Member States give effect to Community law and to obtain a declaration of any failure to fulfil the obligations deriving therefrom with a view to bringing it to an end (see Commission v France , cited above, paragraph 15, and Commission v Germany , cited above, paragraph 29 and the caselaw there cited).
16. Article 226 EC is not therefore intended to protect that institution's own rights. It is for the Commission alone to decide whether or not it is appropriate to bring proceedings against a Member State for a declaration that it has failed to fulfil its obligations, and, depending on the circumstances, because of what conduct or omission those proceedings should be brought (see, to that effect, Case C-431/92 Commission v Germany [1995] ECR I2189, paragraph 22; Case C-476/98 Commission v Germany [2002] ECR I9855, paragraph 38, and Commission v Germany , cited in paragraph 14 above, paragraph 30). | C-394/02
Greece | 17-19 | ECT-226 | 17. The Greek Government submits that the action lacks any purpose, since the contract for works concluded between DEI and the Koch/Metka consortium for the purposes of the contract at issue, had, when the period fixed by the reasoned opinion expired, been almost fully performed. At that time, the works in question had been largely completed, that is to say to the extent of 85% of them. In actual fact, it was therefore no longer possible to comply with the reasoned opinion.
18. In that regard, it is indeed the case that, as far as concerns the award of public procurement contracts, the Court has held that an action for failure to fulfil obligations is inadmissible if, when the period prescribed in the reasoned opinion expired, the contract in question had already been completely performed (see, to that effect, Case C-362/90 Commission v Italy [1992] ECR I-2353, paragraphs 11 and 13).
19. Here, the contract concluded between DEI and the Koch/Metka consortium for the purposes of the contract at issue, was, when the period prescribed by the reasoned opinion expired, in course of performance, since only 85% of the works had been completed. That contract had therefore not been fully performed. | C-394/02
Greece | 20-24 | ECT-226 | 20. The Greek Government submits that the reasoned opinion was too imprecise, in that the Commission had not specified the measures to be adopted in order to comply with it.
21. In that regard, it is clear from settled caselaw that, while the reasoned opinion must contain a cogent and detailed exposition of the reasons which led the Commission to the conclusion that the Member State concerned had failed to fulfil one of its obligations under the EC Treaty, the Commission is not, however, obliged to set out in that opinion the steps to be taken to remedy the infringement complained of (see, to that effect, Case C-247/89 Commission v Portugal [1991] ECR I3659, paragraph 22, and Case C-328/96 Commission v Austria [1999] ECR I7479, paragraph 39).
22. The purpose of the prelitigation procedure is to define the subjectmatter of the action for failure to fulfil obligations in order to give the Member State an opportunity to comply with its obligations under Community law and to avail itself of its right to defend itself against the complaints made by the Commission (see, to that effect, Commission v Austria , cited above, paragraph 34, and Case C476/98 Commission v Germany , paragraphs 46 and 47).
23. Consequently, it is only where the Commission intends to make failure to adopt measures to enable the infringement complained of to be remedied the subjectmatter of its action for failure to fulfil obligations that it has to specify those measures in the reasoned opinion (see, to that effect, Commission v Austria , cited above, paragraph 39).
24. Here, the subjectmatter of the action is limited to a declaration of failure to fulfil obligations by reason of the award of the contract at issue without prior publication of a notice. It does not therefore seek a declaration of a further infringement, based on failure to adopt measures to enable the first infringement to be remedied. | C-394/02
Greece | 25-28 | ECT-226 | 25. The Greek Government submits that, instead of bringing an action for failure to fulfil obligations, the Commission should have intervened directly and ordered the suspension of the award of the contract at issue under Article 3 of Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts (OJ 1989 L 395, p. 33).
26. In that context, as regards the energy sector, it is not Directive 89/665, but Council Directive 92/13/EEC of 25 February 1992 coordinating the laws, regulations and administrative provisions relating to the application of Community rules on the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors (OJ 1992 L 76, p. 14), which is applicable.
27. Even if the Greek Government had cited Article 8 of Directive 92/13, which provides for a procedure essentially identical to that under Article 3 of Directive 89/665, it follows from settled caselaw that, even were it preferable that the Commission use the procedure for direct intervention established by those directives, such a procedure is a preventive measure which can neither derogate from nor replace the powers of the Commission under Article 226 EC (see, in the context of Directive 89/665, Case C-359/93 Commission v Netherlands [1995] ECR I157, paragraph 13; Case C-79/94 Commission v Greece [1995] ECR I1071, paragraph 11; Case C-353/96 Commission v Ireland [1998] ECR I8565, paragraph 22; and Commission v Austria , cited above, paragraph 57). The fact that the Commission used or did not use that procedure is therefore irrelevant where it is a matter of deciding on the admissibility of infringement proceedings.
28. The Commission alone is competent to decide whether it is appropriate to bring proceedings under Article 226 EC for failure to fulfil obligations (see, to that effect, Case C431/92 Commission v Germany , paragraph 22, and Case C476/98 Commission v Germany , paragraph 38). Thus, the choice between the two procedures is within its discretion. | C-385/02
Italy | 40 | ECT-226-impl | 40. With respect to the Italian Government's request that it be given the benefit of having made an excusable error, it must be pointed out that proceedings against a Member State for failure to fulfil obligations afford a means of determining the exact nature of the obligations of the Member States, particularly where there are differences of interpretation, and are based on the objective finding that a Member State has failed to fulfil its obligations under the Treaty or secondary legislation (see, to that effect, Case C-83/99 Commission v Spain [2001] ECR I-445, paragraph 23). Accordingly, the concept of excusable error cannot be relied on by a Member State to justify a failure to comply with the obligations imposed on it under a directive. | C-340/02
France | 25-29 | ECT-226 | 25. It is settled case-law that the purpose of the pre-litigation procedure is to give the Member State concerned an opportunity, on the one hand, to comply with its obligations under Community law and, on the other, to avail itself of its right to defend itself against the charges formulated by the Commission (see, in particular, Case C-152/98 Commission v Netherlands [2001] ECR I-3463, paragraph 23, and Case C-439/99 Commission v Italy [2002] ECR I-305, paragraph 10).
26. It follows that, first, the subject-matter of proceedings under Article 226 EC is delimited by the pre-litigation procedure governed by that provision. Accordingly, the application must be founded on the same grounds and pleas as the reasoned opinion. If a charge was not included in the reasoned opinion, it is inadmissible at the stage of proceedings before the Court (see, in particular, Commission v Italy , cited above, paragraph 11).
27. Second, the reasoned opinion must contain a cogent and detailed exposition of the reasons which led the Commission to the conclusion that the Member State concerned had failed to fulfil one of its obligations under the EC Treaty (see, in particular, Case C-207/96 Commission v Italy [1997] ECR I-6869, paragraph 18, and Case C439/99 Commission v Italy , cited above, paragraph 12).
28. In the present case, at paragraphs 20 and 21 of the reasoned opinion the Commission claims, in connection with the second complaint, that the reference in the contract notice to the option for the successful candidate to cooperate in the execution of the selected idea ... provided the successful candidate with no certainty, nor any right as regards the provision of other services under a later contract for the provision of technical assistance to the maitre d'ouvrage ' and... that the contracting authority unlawfully failed to apply an advertising and competition procedure to the various services to assist the maitre d'ouvrage , planned for the second phase of the comprehensive scheme of works in question'.
29. In those circumstances, it must be held that, by submitting that, in breach of the principle of equal treatment of candidates, the award criteria for the contract to provide assistance to the maitre d'ouvrage were not defined in the contract notice of 30 November 1996, the Commission merely expanded on the charge set out in paragraphs 20 and 21 of the reasoned opinion and did not formulate a new charge. It follows that the defence of inadmissibility raised by the French Government must be rejected. | C-212/02
Austria | 27-28 | ECT-226 | 27 Finally, while the Austrian Government states that amending laws have since taken effect, it is clear from its statements that they entered into force after the period of two months laid down in the reasoned opinion.
28 The question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation in the Member State at the end of the period laid down in the reasoned opinion. The Court cannot take account of any subsequent changes (Case C-147/00 Commission v France [2001] ECR I-2387, paragraph 26, and Case C-354/99 Commission v Ireland [2001] ECR I-7657, paragraph 45). | C-20/01 & C-28/01
Germany | 29-37 | ECT-226 | 29 It is settled case-law that in exercising its powers under Article 226 EC the Commission does not have to show that there is a specific interest in bringing an action. The provision is not intended to protect the Commission's own rights. The Commission's function, in the general interest of the Community, is to ensure that the Member States give effect to the Treaty and the provisions adopted by the institutions thereunder and to obtain a declaration of any failure to fulfil the obligations deriving therefrom with a view to bringing it to an end (Case 167/73 Commission v France [1974] ECR 359, paragraph 15; Case C-431/92 Commission v Germany [1995] ECR I-2189, paragraph 21; and Case C-476/98 Commission v Germany [2002] ECR I-0000, paragraph 38).
30 Given its role as guardian of the Treaty, the Commission alone is therefore competent to decide whether it is appropriate to bring proceedings against a Member State for failure to fulfil its obligations and to determine the conduct or omission attributable to the Member State concerned on the basis of which those proceedings should be brought. It may therefore ask the Court to find that, in not having achieved, in a specific case, the result intended by the directive, a Member State has failed to fulfil its obligations (Commission v Germany, cited above, paragraph 22, and Case C-471/98 Commission v Belgium [2002] ECR I-0000, paragraph 39).
31 The German Government submits, however, that in this instance, the failure to fulfil obligations consisted of breaches of procedural rules, whose effects were entirely exhausted before the end of the periods laid down in the reasoned opinions and that the Federal Republic of Germany admitted before that date that it had failed to fulfil its obligations.
32 It is true that the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing in the Member State at the end of the period laid down in the reasoned opinion (Case C-200/88 Commission v Greece [1990] ECR I-4299, paragraph 13; Case C-362/90 Commission v Italy [1992] ECR I-2353, paragraph 10; and Case C-29/01 Commission v Spain [2002] ECR I-2503, paragraph 11).
33 The Court did indeed find an action for failure to fulfil obligations in the sphere of public procurement inadmissible, but it was on the ground that all the effects of the contract notice at issue had been exhausted by the end of the period laid down in the reasoned opinion (Commission v Italy, cited above, paragraphs 11 to 13).
34 By contrast, the Court dismissed an objection of inadmissibility based on a claim that the alleged infringement had ceased in a situation in which the procedures for the award of contracts had been conducted entirely before the date on which the period laid down in the reasoned opinion expired, since the contracts had not been fully performed by that date (Case C-328/96 Commission v Austria [1999] ECR I-7479, paragraphs 43 to 45).
35 Furthermore, although Directive 92/50 contains essentially procedural rules, it was nevertheless adopted with a view to eliminating barriers to the freedom to provide services and therefore is intended to protect the interests of traders established in a Member State who wish to offer services to contracting authorities established in another Member State (see, inter alia, Case C-19/00 SIAC Construction [2001] ECR I-7725, paragraph 32).
36 Therefore the adverse effect on the freedom to provide services arising from the infringement of Directive 92/50 must be found to subsist throughout the entire performance of the contracts concluded in breach thereof.
37 In this instance, the contracts allegedly concluded in breach of Directive 92/50 will continue to produce effects for decades. It cannot therefore be maintained that the alleged breaches of obligations came to an end before the periods laid down in the reasoned opinions expired. | C-20/01 & C-28/01
Germany | 38-39 | RC1-2.6
ECT-226 | 38 That conclusion is not affected by the fact that the Member States are able, pursuant to Article 2(6) of Directive 89/665, to limit the powers of the body responsible for review procedures, after the conclusion of a contract following its award, to awarding damages to any person harmed by an infringement of Community law on public procurement.
39 Although Article 2(6) permits the Member States to preserve the effects of contracts concluded in breach of directives relating to the award of public contracts and thus protects the legitimate interests of the parties thereto, its effect cannot be, unless the scope of the Treaty provisions establishing the internal market is to be reduced, that the contracting authority's conduct vis-à-vis third parties is to be regarded as in conformity with Community law following conclusion of such contracts. | C-20/01 & C-28/01
Germany | 40-44 | ECT-226 | 40 Furthermore, the admissibility of these actions is not affected either by the fact that the German Government, during the pre-litigation procedure, admitted the breaches of obligations complained of by the Commission or by that government's contention that a claim for damages may be made under national law even where the Court of Justice has not made a declaration that there has been a failure to fulfil obligations.
41 The Court has already held that it is responsible for determining whether or not the alleged breach of obligations exists, even if the State concerned no longer denies the breach and recognises that any individuals who have suffered damage because of it have a right to compensation (Case C-243/89 Commission v Denmark [1993] ECR I-3353, paragraph 30).
42 Since the finding of failure by a Member State to fulfil its obligations is not bound up with a finding as to the damage flowing therefrom (Case C-263/96 Commission v Belgium [1997] ECR I-7453, paragraph 30), the Federal Republic of Germany may not rely on the fact that no third party has suffered damage in the case of the contracts concluded by the Municipality of Bockhorn and the City of Braunschweig.
43 Given that the alleged breaches of obligations alleged have continued beyond the date set in the reasoned opinions and notwithstanding the Federal Republic of Germany's admission of those breaches, the latter may not base any argument on either a comparison with the action for failure to act provided for in Article 232 EC or on the circumstances in which the Court considers that a failure to act has been brought to an end.
44 In the light of the foregoing, the actions brought by the Commission must be held to be admissible. | C-296/92
Italy | 12-14 | ECT-226 [ex 169] | In its reasoned opinion the Commission complained that the Italian Republic had failed to comply with its obligations under Directive 71/305 in so far as the provincial administration of Ascoli Piceno had awarded the public works at issue by a private contract and had failed to publish a notice of invitation to tender in the Official Journal of the European Communities. In its application, on the other hand, the Commission asks the Court to declare that the Italian Republic has failed to comply with those obligations by allowing the provincial administration of Ascoli Piceno to act in that way and by not taking steps to preclude the effects thereof.
While it is true that each Member State is responsible vis-à-vis the Community for any breach of Community law by one of its bodies it must nevertheless be emphasized that in this case the subject-matter of the action is not a declaration of such a breach and in any event the application is founded on a complaint which is different from that formulated in the reasoned opinion; that difference has given rise to the dispute referred to in paragraphs 9 and 10 of this judgment regarding the presentation by the Italian Government of its defence.
Consequently the Commission' s application must be dismissed. | C-362/90
Italy | 6 | ECT-226 [ex 169] | In its defence the Italian Government contended that the action brought by the Commission had become devoid of purpose, since the effects of the supply contract which followed the contract notices in question became exhausted in their entirety on 31 December 1989 and the contract notices for 1990 and 1991, published in Official Journal S 213 and 216, did not contain the condition at issue. Consequently, it asked the Commission to discontinue its action and, should the Commission not do so, requested the Court to dismiss it. | C-337/98
France | 43-46+56 | U2-45.1
ECT-226 | 43 However, it must be observed that, by two separate resolutions of 22 September 1995, the contracting entity, first, withdrew the resolution of 30 March 1993 awarding the contract to Matra and, second, asked Semtcar to continue negotiations with that company.
44 Accordingly, it must be considered whether the negotiations opened after 22 September 1995 were substantially different in character from those already conducted and were, therefore, such as to demonstrate the intention of the parties to renegotiate the essential terms of the contract, so that the application of the provisions of Directive 93/38 might be justified.
45 In that regard, it must be observed, as a preliminary point, that, according to settled case-law, in proceedings under Article 169 of the Treaty for failure to fulfil an obligation, it is incumbent on the Commission to prove that the obligation has not been fulfilled and to place before the Court the evidence necessary to enable it to determine whether that is the case (see, inter alia, Case C-96/98 Commission v France [1999] ECR I-8531, paragraph 36).
46 It follows that, in the present case, it is for the Commission to adduce all such evidence as is necessary to prove that fresh negotiations were commenced after 22 September 1995 and were such as to demonstrate the intention of the parties to renegotiate the essential terms of the contract, which would justify the application of the provisions of Directive 93/98.
.....
56 Accordingly, it must be held that the Commission has not adduced evidence capable of proving that fresh negotiations demonstrating the intention of the parties to renegotiate the essential terms of the contract were opened following the withdrawal of the resolution of 30 March 1993 and, therefore, after the expiry of the period prescribed for the transposition of Directive 93/38. | C-225/98
France | 68-92 | ECT-226 [ex 169] | 68 As regards the admissibility of this complaint of the Commission, it should be borne in mind, first, that it follows from the purpose assigned to the pre-litigation stage of the Treaty infringement procedure that the letter of formal notice is intended to define the subject-matter of the dispute and to indicate to the Member State, which is invited to submit its observations, the factors enabling it to prepare its defence (Case 274/83 Commission v Italy [1985] ECR 1077, paragraph 19).
69 Second, according to consistent case-law, the opportunity for the Member State concerned to submit its observations constitutes an essential guarantee required by the Treaty and, even if the Member State does not consider it necessary to avail itself thereof, observance of that guarantee is an essential formal requirement of the Treaty infringement procedure (see, in particular, Case 51/83, paragraph 5; and Case 274/83, paragraph 20).
70 Although it follows that the reasoned opinion provided for in Article 169 of the Treaty must contain a coherent and detailed statement of the reasons which led the Commission to conclude that the State in question has failed to fulfil one of its obligations under the Treaty, the Court cannot impose such strict requirements as regards the letter of formal notice, which of necessity will contain only an initial brief summary of the complaints. There is nothing therefore to prevent the Commission from setting out in detail in the reasoned opinion the complaints which it has already made more generally in its letter of formal notice (see Case 274/83, paragraph 21).
71 In this respect, it is clear from the documents before the Court that, in the supplementary letter of formal notice of 8 May 1996, the Commission made a general criticism of the award criteria in the disputed contract notices. It drew the French authorities' attention to the fact that the contract notices must enable undertakings to determine whether the information they contain enables them to assess whether the proposed contracts are of interest to them. It also referred to the case-law of the Court according to which a general reference to a provision of national legislation cannot satisfy the requirements as to advertising in respect of contract notices.
72 It follows that the formal notice, even if its wording was not very explicit as regards the method known as award by reference to the Code des Marchés Publics, none the less enabled the French Government to be aware of the complaint made against it. Therefore, the criticism of the award criteria subsequently made by the Commission in its reasoned opinion is a lawful detailed specification of the complaints raised in the letter of formal notice. The Commission's complaint is therefore admissible. | C-422/97-PA
Sateba | Summary-1 + 4-5 | ECT-226 [ex 169] | 1 In the case of a complaint submitted to the Commission by a tenderer for a public contract falling within the scope of Directive 93/38, criticising the conduct of the contracting entity, the mere fact that reference is made to a restriction of competition is not sufficient to indicate an infringement of the competition rules in Article 86 of the Treaty when such a restriction is mentioned in the context of infringement of the rules in that directive, but can legitimately be interpreted as intended to supplement that allegation. The fact that the Commission may take action upon its own initiative, pursuant to Article 3(1) of Regulation No 17, in order to examine a possible infringement of the competition rules contained in the Treaty cannot alter that conclusion.
4 The procedure under Regulation No 17 in the field of competition is independent of the procedure based on Article 169 of the Treaty for a finding that the conduct of a Member State infringes Community law and for termination of that conduct. The two procedures serve different purposes and are governed by different rules, so that the initiation of a procedure under Article 169 of the Treaty cannot automatically entail the adoption of a decision on the basis of Regulation No 17. It follows that a decision by the Commission to take no further action in the context of a procedure for a declaration of failure to fulfil obligations relates exclusively to that procedure and does not constitute an implied rejection of a complaint submitted under Regulation No 17.
5 The procedural position of parties who have submitted a complaint to the Commission is fundamentally different in the case of a procedure under Article 169 of the Treaty from their position in the case of a proceeding under Regulation No 17 in the field of competition. As regards the former, the Commission is not bound to initiate the procedure but has a discretion which excludes the right for individuals to require it to adopt a specific position. Consequently it is not open to persons who have lodged a complaint in the case of a procedure under Article 169 of the Treaty to bring an action before the Community judicature against a decision to take no further action on their complaint; nor do they have any procedural rights, comparable to those they may have in the case of a procedure under Regulation No 17, enabling them to require the Commission to inform them and to grant them a hearing. | C-422/97 P
Sateba | Summary-3 | U2-48
ECT-226 [ex 169] | 3 It follows from the application of the Community rules on public procurement, in this case those covered by Directive 93/38, that acts of contracting entities are imputable to the Member States to which those entities belong and may therefore be condemned in the context of the infringement procedure established by Article 169 of the Treaty. | T-83/97-A
Sateba | Summary | ECT-226 [ex 169] | It is proper for the Commission to examine under the procedure established by Article 169 of the Treaty a complaint in which a tenderer for a procurement contract alleges that the conduct of the contracting entity constitutes an infringement of Directive 93/38 coordinating the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors, and serves to restrict competition and constitutes an obstacle to the free movement of goods. Recourse to that procedure is no less justified by the fact that the complaint related exclusively to conduct by the contracting entity and did not comprise any criticism of the relevant national legislation or the conduct of the government concerned since, in the application of the Community rules on public procurement, the acts of contracting entities must be imputed to the Member States to which those entities belong.
In so far as such a complaint does not contain any specific indication which would enable it to be characterized as a request submitted under Article 3(2)(b) of Regulation No 17, the Commission does not, therefore, commit any abuse of procedure by not examining it in the light of competition law.
Furthermore, and even supposing that the complainant did properly request the Commission to initiate the procedure under Regulation No 17, that procedure remains independent of the procedure for a finding that the conduct of a Member State infringes Community law and for termination of that conduct. The two procedures serve different purposes and are governed by different rules. The fact that the Commission decides not to initiate a procedure for a declaration of failure to fulfil obligations or decides to discontinue such a procedure, cannot therefore imply that it is prevented from finding that the conduct of the contracting entity at issue constitutes an infringement of the competition rules and ordering termination of the infringement. It follows that a decision to close the file, adopted in the context of a procedure for a declaration of failure to fulfil obligations, relates exclusively to that procedure and does not constitute an implied rejection of a complaint submitted under Regulation No 17, meaning that it does not affect the complainant's legal position in the context of a possible procedure in application of the competition rules. | C-353/96
Ireland | 20-22 | RC1-3.4
ECT-226 [ex 169] | 20 While not formally contesting the admissibility of the application, the Irish Government raises the question whether proceedings under Article 169 of the Treaty may be initiated when other means exist of remedying a possible failure to fulfil obligations, such as those provided for in Article 3 of Directive 89/665.
21 It submits that, since proceedings were brought in the High Court on 21 June 1994, it is Article 3(4) of that directive which applies in the present case. It is in the context of those proceedings that any infringement of the relevant provisions on the award of public contracts should be assessed. Moreover, such an infringement would not be the result of a failure by Ireland to fulfil its obligations, but would be attributable to Coillte Teoranta if it were to be regarded as a contracting authority.
22 On this point, it must be noted that the special procedure under Directive 89/665 is a preliminary measure which can neither derogate from nor replace the powers of the Commission under Article 169 of the Treaty. That article gives the Commission discretionary power to bring an action before the Court where it considers that a Member State has failed to fulfil an obligation under the Treaty and that the State concerned has not complied with the Commission's reasoned opinion (Case C-359/93 Commission v Netherlands [1995] ECR I-157, paragraph 13). | C-328/96
Austria | 34-41 | ECT-226 [ex 169] | 34 According to settled case-law, the purpose of the pre-litigation procedure is to give the Member State concerned an opportunity, on the one hand, to comply with its obligations under Community law and, on the other, to avail itself of its right to defend itself against the complaints made by the Commission. The subject-matter of an action brought under Article 169 of the Treaty is therefore delimited by the pre-litigation procedure provided for by that article. Consequently, the action cannot be founded on any complaints other than those formulated in the reasoned opinion (Case C-206/96 Commission v Luxembourg [1998] ECR I-3401, paragraph 13).
35 In its reasoned opinion, the Commission set out the various infringements, committed in the conduct of contract-awarding procedures, of which the Republic of Austria was accused. It was also pointed out that the reply given by the Austrian authorities to the notice calling for its observations did not refer to `the contracts for which an award procedure had already been initiated, by means in particular of national publication, but which had not yet been the subject of an award decision' and pointed out that it was for the `Austrian authorities to take all appropriate measures to rectify the infringement in question' indicating that `this was also the case for contracts for which a definitive decision has still not been taken' or `for which a contract-awarding procedure has not yet been initiated'.
36 It follows that, although, in its reasoned opinion of 21 February 1996, the Commission was referring to the infringements committed in the contract-awarding procedures conducted under the version of the AAVB in force on 1 January 1995, it nowhere expressly referred to an obligation to cancel contracts concluded before 6 February 1996 in so far as this was reasonably possible.
37 That finding is, moreover, corroborated by the circumstance that, in the letter of formal notice of 15 December 1995, the Commission expressly referred `to those lots already awarded' and requested the Republic of Austria `to suspend the legal effects of the contracts already awarded contrary to Community law'. The fact that such a passage did not appear in the reasoned opinion therefore prompts the conclusion that the corresponding complaint was abandoned by the Commission in that opinion.
38 The Commission maintains, however, that the fact that in its reasoned opinion it requested the Austrian Government to take `all appropriate measures to rectify the infringement in question' was sufficient because, according to the case-law of the Court (Case C-247/89 Commission v Portugal [1991] ECR I-3659, paragraph 22), the Commission is not obliged to set out in its reasoned opinion the measures or steps to be taken to eliminate the infringement in question. It also points out that, in its reply to the reasoned opinion, the Austrian Government devoted a section to the `contracts already awarded', which indicated that the government had already addressed itself, in the pre-litigation procedure, to that claim.
39 It must be observed in this regard that, although, according to the case-law of the Court, the Commission is not obliged to indicate in the reasoned opinion the measures or steps to be taken to eliminate the infringement in question (see the judgment in Case C-247/89 Commission v Portugal, cited above, paragraph 22), that does not mean that it is not obliged to indicate in its reasoned opinion the complaints which will be the subject of its application to the Court (see, to this effect, Commission v Luxembourg, cited above, paragraph 13). Thus, the Commission must specifically indicate to the Member State concerned that it must adopt a certain measure if it intends to make the failure to adopt that measure the subject-matter of its infringement action. That procedural requirement, specific to the proceedings brought before the Court, does not, however, limit the rights which individuals have under the Community legal order and which may be invoked directly before the national court.
40 The fact that, in its reply to the reasoned opinion, the Austrian Government referred at length to the contracts already awarded and also explained the reasons for which the contracts concerned could not, in its view, be cancelled is not relevant in considering whether the omission in the reasoned opinion of the complaint relating to the failure to cancel the contracts already concluded was remedied. The safeguarding of the rights of the defence depends solely on the complaints contained in the application being identical to those in the reasoned opinion, and not on arguments taken up, spontaneously or following informal contacts in the reply which the Member State gives to the opinion.
41 Having regard to the foregoing considerations, it must be held that the Commission's complaint, in so far as it could be interpreted as seeking a declaration that the Republic of Austria ought, in any event, to have cancelled the contracts concluded in breach of Community law before 6 February 1996, must be held to be inadmissible. | C-328/96
Austria | 42-45 | ECT-226 [ex 169] | 42 The Austrian Government explains that, on 7 March 1996, the date on which the period set in the reasoned opinion expired, it had entirely brought to an end the infringements alleged in the reasoned opinion, since the AAVB had been amended in the way sought by the Commission and contract-awarding practice had also been amended after 6 February 1996.
43 Having regard to the findings in paragraphs 32 and 41 above, it must be determined whether, on the date on which the period set in the reasoned opinion expired, the Republic of Austria had brought to an end the alleged infringement arising from the breach of Community law affecting the contract-awarding procedures conducted under the version of the AAVB applying from 1 January 1995.
44 Although it is true that the Republic of Austria has, from 12 December 1995, amended the AAVB in the way indicated by the Commission and that, from 6 February 1996, it has applied the new version of the AAVB to all procedures already underway on that date, it is also established that it has done nothing in relation to the contract-awarding procedures conducted entirely under the version of the AAVB applying on 1 January 1995, so that any effects contrary to Community law produced by these procedures still subsisted on the date on which the period set in the reasoned opinion expired.
45 This objection of inadmissibility must therefore be dismissed. | C-328/96
Austria | 52-56 | ECT-226 [ex 169] | 52 The question to be examined is therefore whether the shortness of the periods set by the Commission was justified in view of the particular circumstances of this case.
53 As regards, first of all, the one-week period set in the letter of formal notice, it must be concluded that, as the Commission quite rightly indicated without being effectively contradicted by the Austrian Government, the situation objected to was urgent, having regard to the contracts of considerable value which were still in the process of being awarded during the pre-litigation procedure on the basis of procedures which the Commission considered to be contrary to Community law.
54 Moreover, the adaptation to Community law of contract-awarding practices did not require any time-consuming coordination between the various authorities or departments since a simple decision by the contracting authority would have been sufficient. Besides, the Austrian authorities had already been informed of the Commission's complaints from the time of the meeting which had taken place at the end of November 1995.
55 Next, as regards the 14-day period set in the reasoned opinion, it is common ground that, at the time when that opinion was adopted, the Republic of Austria had not sent to the Commission the list of contract awards completed under the version of the AAVB in force on 1 January 1995, so that the Commission was unable to assess to what extent the notification made by the Republic of Austria on 7 February 1996 concerning the adaptation to Community law of contract-awarding practice with effect from 6 February 1996 was capable of guaranteeing that there would be no more contract-awarding procedures contrary to Community law. Similarly, the fact that the Commission issued its reasoned opinion nearly a month after the reports concerning the opinion appeared in the press, though regrettable, was not such as to detract from the urgency of the situation in question.
56 It follows that the periods set by the Commission in the letter of formal notice and in the reasoned opinion must be regarded as reasonable. | C-328/96
Austria | 57-58 | ECT-226 [ex 169]
RC1-3.3 | 57 As regards the argument which the Austrian Government bases on Article 3(3) of Directive 89/665, it is sufficient to reiterate that the special procedure under that directive is a preventive measure which can neither derogate from nor replace the powers of the Commission under Article 169 of the Treaty (see Case C-353/96 Commission v Ireland [1998] ECR I-8565, paragraph 22). It follows that the detailed provisions to which that special procedure is subject cannot affect the admissibility of an action brought under Article 169 of the Treaty.
58 Consequently, this objection of inadmissibility must be dismissed. | C-57/94
Italy | 10 + 14 | ECT-226 [ex 169] | 10 The Italian Government considers that, following the Court' s judgment of 12 January 1994, the Commission should have recommenced the entire pre-litigation procedure laid down in Article 169 of the Treaty, or at the very least have supplemented the reasoned opinion of 1 August 1991 by a further opinion.
14 In the circumstances it must be concluded that in order to remedy the defects found by the Court in its judgment of 12 January 1994 it sufficed for the Commission to submit an application based on the same complaints, pleas in law and arguments as the reasoned opinion of 1 August 1991. |
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