| | 31989L0665: rc1-3.1May invoke    
| 31989L0665 - Remedies Classic (1st generation) | Article 3.1 | Article 3
1. The Commission may invoke the procedure for which this Article provides when, prior to a contract being concluded, it considers that a clear and manifest infringement of Community provisions in the field of public procurement has been committed during a contract award procedure falling within the scope of Directives 71/305/EEC and 77/62/EEC. | | 31992L0013 - Remedies Utilities (1st generation) | Article 8.1 | CHAPTER 3
Corrective mechanism
Article 8
1. The Commission may invoke the procedures for which this Article provides when, prior to a contract being concluded, it considers that a clear and manifest infringement of Community provisions in the field of procurement has been committed during a contract award procedure fallig within the scope of Directive 90/531/EEC or in relation to Article 3 (2) (a) of that Directive in the case of the contracting entities to which that provision applies. |
| Case | Pte | Ref | Text | 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). | T-202/02-A
Makedoniko | 48-50 | RC1-3.1 | 48. Second, the claim for compensation for the damage allegedly suffered by the applicants as a result of the Commission ' s failure to initiate the procedure provided for in Article 3 of Directive 89/665 is also inadmissible.
49. Article 3(1) of that directive provides that the Commission may invoke the procedure for which the following paragraphs provide when, prior to a contract being concluded, it considers that a clear and manifest infringement of Community provisions in the field of public procurement has been committed during a contract award procedure falling within the scope of Directive 93/37.
50. The clear wording of that provision, which neither derogates from nor replaces Article 226 EC, shows that only the Commission is allowed to use the procedure for which it provides. Since the choice not to make use of such power is not unlawful, it cannot give rise to non-contractual liability on the part of the Community. In fact, even when called on to use it the Commission retains the option of considering the complaint referred to it under Article 226 EC (see, to that effect, Case C-359/93 Commission v Netherlands [1995] ECR I-157, paragraphs 12 and 13; Case C-353/96 Commission v Ireland [1998] ECR I-8565, paragraph 22; order in Case T-83/97 Sateba v Commission , cited in paragraph 46 above, paragraphs 36 and 37, upheld on appeal by order in Case C-422/97 P Sateba v Commission , cited in paragraph 46 above, paragraph 32). | C-236/95
Greece | 16-17 | RC1-3.1
RC1-3.2 | 16 Neither does the national legislation mentioned transpose Article 3 of the directive, which organizes the procedure for the intervention of the Commission with the Member State' s competent authorities and the contracting authority in question if it considers that a clear and manifest infringement has been committed during a procedure for the award of a public contract.
17 Private persons and, in particular, undertakings receiving subsidies from public authorities may, in certain circumstances, be given the responsibilities of contracting authorities in connection with the award of contracts covered by the directive. To that extent, the obligation of bona fide cooperation and assistance to which the Member States are subject under Article 5 of the EC Treaty in order to facilitate the achievement of the Commission' s tasks is not sufficient to secure the implementation of Article 3 of the directive. The Member States should therefore implement that provision in order to ensure that it is also complied with by such private persons. | C-79/94
Greece | 8 + 11 | RC1 | 3.1 | 8 The Hellenic Republic then goes on to submit that under Article 3(1) 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), the Commission must act prior to conclusion of the contract in question if it forms the view that there has been an infringement of Community provisions relating to the award of public contracts. In the present case, the Commission took action only once the agreement in question was in the course of being performed.
11 With regard to the argument derived from Article 3(1) of Directive 89/665, cited above, it must be pointed out (judgment of 24 January 1995 in Case C-359/93 Commission v Netherlands [1995] ECR I-0000, paragraph 13) that the special procedure provided for by that directive can neither derogate from nor replace the powers of the Commission under Article 169 of the Treaty. | C-359/93
Netherlands | 11-14 | RC1 | 3.1+2 | 11 With regard to the objection based on the Commission' s conduct, Article 3(1) and (2) of Directive 89/665
provides that where, "prior to a contract being concluded", the Commission considers that a clear and manifest infringement of Community law has been committed during a contract award procedure falling within the scope of Directive 77/62, it is to notify the Member State and the contracting authority concerned of the reasons which have led it to conclude that such an infringement has been committed and request its correction.
12 It is clear from the letter and spirit of Directive 89/665 that it is very much to be preferred, in the interest of all the parties concerned, that the Commission should give notice of its objections to the Member State and the contracting authority as soon as possible before the contract is concluded, thereby giving the Member State and the contracting authority time to answer it, in accordance with Article 3(3) of Directive 89/665, and if necessary to correct the alleged infringement before the contract is awarded.
13 However, that 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 one of its obligations under the Treaty and that the State concerned has not complied with the Commission' s reasoned opinion.
14 Furthermore, a declaration that a State has failed to fulfil its obligations under Article 169 does not depend on the existence of a clear and manifest infringement within the meaning of Directive 89/665. Such a declaration is confined to the finding that a Member State has not fulfilled an obligation under Community law and does not in any way prejudge the nature or seriousness of the infringement. |
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