| | 32004L0018: c3-31.2.bAdditional deliveries    
| 32004L0018 - Classic (3rd generation) | Article 31.2.b | | (b) for additional deliveries by the original supplier which are intended either as a partial replacement of normal supplies or installations or as the extension of existing supplies or installations where a change of supplier would oblige the contracting authority to acquire material having different technical characteristics which would result in incompatibility or disproportionate technical difficulties in operation and maintenance; the length of such contracts as well as that of recurrent contracts may not, as a general rule, exceed three years; | | 32004L0017 - Utilities (3rd generation) | Article 40.3.e | | (e) in the case of supply contracts for additional deliveries by the original supplier which are intended either as a partial replacement of normal supplies or installations or as the extension of existing supplies or installations, where a change of supplier would oblige the contracting entity to acquire material having different technical characteristics which would result in incompatibility or disproportionate technical difficulties in operation and maintenance; | | 31993L0036 - Goods (2nd generation) | Article 6.3.e | | (e) for additional deliverers by the original supplier which are intended either as a partial replacement of normal supplies or installations or as the extension of existing supplies or installations where a change of supplier would oblige the contracting authority to acquire material having different technical characteristics which would result in incompatibility or disproportionate technical difficulties in operation and maintenance. The length of such contracts as well as that of recurrent contracts may, as a general rule, not exceed three years. | | 31993L0038 - Utilities (2nd generation) | Article 20.2.e | | (e) in the case of supply contracts for additional deliveries by the original supplier which are intended either as a partial replacement of normal supplies or installations or as the extension of existing supplies or installations, where a change of supplier would oblige the contracting entity to acquire material having different technical characteristics which would result in incompatibility or disproportionate technical difficulties in operation and maintenance; | | 31971L0305 - Works (1st generation) | Article 9.1.f | (f) for additional works not included in the contract originally considered or in the contract first concluded but which have, through unforeseen circumstances, become necessary for carrying out the work described therein, on condition that the award is made to the contractor carrying out such work;
- when such works cannot be technically or financially separated from the main contract without great inconvenience to the authorities awarding contracts;
- or when such works, although separable from the execution of the original contract, are strictly necessary to its later stages;
However, the aggregate value of contracts awarded for additional works may not exceed 50 % of the value of the original contract; | | 31989L0440 - Fourth amendment of Works (1st generation) | Article 1.9=W1-9.1.f | | 9. Article 7, 8 and 9 are hereby repealed. | | 31977L0062 - Goods (1st generation) | Article 6.1.e | | (e) for additional deliveries by the original supplier which are intended either as part replacement of normal supplies or installations, or as the extension of existing supplies or installations where a change of supplier would compel the contracting authority to purchase equipment having different technical characteristics which would result in incompatibility or disproportionate technical difficulties of operation or maintenance; | | 31988L0295 - Second amendment of Goods (1st generation) | Article 7.4.e=G1-6.4.e | | (e) for additional deliveries by the original supplier which are intended either as a partial replacement of normal supplies or installations or as the extension of existing supplies or installations where a change of supplier would oblige the contracting authority to acquire material having different technical characteristics which would result in incompatibility or disproportionate technical difficulties in operation and maintenance. The length of such contracts as well as that of recurrent contracts may, as a general rule, not exceed three years. | | 31990L0531 - Utilities (1st generation) | Article 15.2.e | | (e) in the case of supply contracts for additional deliveries by the original supplier which are intended either as a partial replacement of normal supplies or installations or as the extension of existing supplies or installations, where a change of supplier would oblige the contracting entity to acquire material having different technical characteristics which would result in incompatibility or disproportionate technical difficulties in operation and maintenance; |
| Case | Pte | Ref | Text | C-337/05
Italy | 55-60 | G2-6.3.c
G2-6.3.e | 55. To justify the use of the negotiated procedure, the Italian Republic also invokes Article 6(3)(c) and (e) of Directive 93/36. It maintains, first, that, having regard to their technical specificity, the manufacture of the helicopters in question could be entrusted only to Agusta and, second, that it was necessary to ensure the interoperability of its fleet of helicopters, in order, particularly, to reduce the logistic, operational and pilot-training costs.
56. As is clear, in particular, from the 12th recital in the preamble to Directive 93/36, the negotiated procedure is exceptional in nature and may be applied only in cases which are set out in an exhaustive list. To that end, Article 6(2) and (3) of Directive 93/36 exhaustively and expressly lists the only exceptions for which recourse to the negotiated procedure is allowed (see, to that effect, as regards Directive 77/62, Case C71/92 Commission v Spain [1993] ECR I5923, paragraph 10; as regards Directive 93/36, see Teckal , paragraph 43, and Case C84/03 Commission v Spain , cited above, paragraph 47).
57. According to settled case-law, the derogations from the rules intended to ensure the effectiveness of the rights conferred by the Treaty in connection with public contracts must be interpreted strictly (see Case C57/94 Commission v Italy [1995] ECR I1249, paragraph 23; Case C318/94 Commission v Germany [1996] ECR I1949, paragraph 13; and Case C394/02 Commission v Greece [2005] ECR I4713, paragraph 33). To prevent Directive 93/36 being deprived of its effectiveness, the Member States cannot, therefore, provide for the use of the negotiated procedure in cases not provided for by that directive, or add new conditions to the cases expressly provided for by the directive in question which make that procedure easier to use (see, to that effect, Case C84/03 Commission v Spain , paragraph 48).
58. In addition, it must be recalled that the burden of proving the existence of exceptional circumstances justifying the derogation from those rules lies on the person seeking to rely on those circumstances (see Case 199/85 Commission v Italy [1987] ECR 1039, paragraph 14, and Commission v Greece , cited above, paragraph 33).
59. In this case, the Italian Republic has not discharged the burden of proof as regards the reason for which only helicopters produced by Agusta would be endowed with the requisite technical specificities. In addition, that Member State has confined itself to pointing out the advantages of the interoperability of the helicopters used by its various corps. It has not however demonstrated in what respect a change of supplier would have constrained it to acquire material manufactured according to a different technique likely to result in incompatibility or disproportionate technical difficulties in operation and maintenance.
60. Having regard to all the foregoing, it must be declared that, by adopting a procedure, which has been in existence for a long time and is still followed, of directly awarding to Agusta contracts for the purchase of Agusta and Agusta Bell helicopters to meet the requirements of several military and civilian corps of the Italian State, without any competitive tendering procedure, and, in particular, without complying with the procedures provided for by Directive 93/36 and, previously, by Directive 77/62, the Italian Republic has failed to fulfil its obligations under those directives. | C-328/92
Spain | 15-16 | G1-6.1.a
G1-6.1.b
G1-6.1.c
G1-6.1.d
G1-6.1.e
G1-6.1.f
G1-6.1.g
G1-6.1.h
ECT-EffUtil | In that regard, Article 6 of Directive 77/62, which authorizes derogations from rules intended to ensure the effectiveness of rights conferred by the Treaty in the public supply contracts sector, must be interpreted strictly (see the judgment in Commission v Spain, cited above, paragraph 36).
Furthermore, the burden of proving the actual existence of exceptional circumstances justifying a derogation lies on the person seeking to rely on those circumstances (see, with regard to public works contracts, the judgment in Case 199/85 Commission v Italy [1987] ECR 1039, paragraph 14). | C-71/92
Spain | 36 | W1-9.1.a
W1-9.1.b
W1-9.1.c
W1-9.1.d
W1-9.1.e
W1-9.1.f
W1-9.1.g
G1-6.1.a
G1-6.1.b
G1-6.1.c
G1-6.1.d
G1-6.1.e
G1-6.1.f
G1-6.1.g
G1-6.1.h
ECT-EffUtil | It should be stressed first of all that the provisions of Article 9 of Directive 71/305 and of Article 6 of Directive 77/62, which authorize derogations from the rules intended to ensure the effectiveness of the rights conferred by the Treaty in the field of public works and supply contracts, must be strictly interpreted (see, as regards Article 9 of Directive 71/305, the judgment in Case 199/85 Commission v Italy [1987] ECR 1039, paragraph 14). For the same reasons, the abovementioned provisions specifying the cases in which privately negotiated contracts may be concluded must be regarded as exhaustive. |
| Case | Pte | Ref | Text | N-990609
Humus | 1 | G2-6.1-impl
G2-6.3.c-impl
G2-6.3.e-impl | 1. Idet det af indklagede skete beholderindkøb allerede i 1993 var i EU–udbud i forbindelse med et af indklagede foretaget »systemvalg«, da indklagede allerede i forbindelse med de indgåede kontrakter forpligtede sig til flerårige aftaler, og da indklagede i hvert fald ikke med de nu påklagede dispositioner har handlet i strid med Indkøbsdirektivet (direktiv 93/36), tages klagerens påstand ikke til følge.
[Sagsfremstillingen: Klageren har nedlagt påstand om, at Miljøteam Århus skal tilpligtes at anerkende, at indkøb af affaldsbeholdere i 1996 og 1997 er sket i strid med gældende udbudsregler i henhold til Indkøbsdirektivet (direktiv 93/36 EØF).
.....
Indklagede har til støtte for frifindelsespåstanden bl.a. anført, at Århus Renholdningsselskab rent faktisk i sommeren 1993 afholdt udbud og derfor har opfyldt de betingelser, der er foreskrevet i Indkøbsdirektivet.
Indklagede har ikke ved sin efterfølgende indkøb været forpligtet til at foretage udbud, idet indkøbet alene kan betragtes som en opfølgning/ supplement af det indkøb, der fandt sted i forbindelse med udbuddet i 1993.
Indklagede har yderligere anført, at der i forbindelse med det udbud, der blev gennemført i 1993, fra indklagedes side er foretaget et egentligt systemvalg af beholdere. Dette valg blev understøttet af en materieludviklingsgruppe med repræsentanter fra Århus Kommune, Miljøstyrelsen og Arbejdsmarkedets Parter. Denne gruppe fandt frem til de beholdere, der var mest velegnede i Århus. Gruppens vurdering dannede grundlag for det i 1993 gennemførte udbud.] |
|
|
