C-10/76

The mandatory nature of directives contained therein in order that their entails the obligation for all Member implementation shall be achieved States to comply with the time-limits uniformly within the whole Community.

In Case 10/76

Commission of the European Communities, represented by its Legal Adviser, Antonino Abate, acting as Agent, with an address for service in Luxembourg at the office of Mario Cervino, Legal Adviser of the Commission, Bâtiment CFL, place de la Gare,

applicant, v

Italian Republic, represented by its Ambassador Adolfo Maresca, acting as Agent, assisted by Ivo Maria Braguglia, Viceavvocato dello Stato, with an address for service in Luxembourg at the Italian Embassy,

defendant,

Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts

The facts and the arguments put forward — Advertising of notices of contracts on by the parties in the course of the written the Community level by publication procedure may be summarized as in the Official Journal of the follows: European Communities (Article 12); — Introduction of objective criteria for the selection of undertakings and the I — Facts and procedure award of contracts by national administrations (Article 23 et seq.); 1. On 26 July 1971 the Council of the — Introduction of a procedure designed European Communities adopted two to ensure that these principles are Directives for attaining freedom of observed, particularly through the establishment and freedom to provide intervention of the Advisory services in the matter of public works Committee set up by Council contracts. The first, No 71/304/EEC (OJ, Decision No 71/306/EEC of 26 July English Special Edition 1971 (II), p. 678), 1971 (OJ, English Special Edition implements, with regard to public works 1971 (II), p. 693). contracts, the principle of the prohibition of discrimination based on nationality in The directive was devised to bring into the matter of freedom to provide services. line the law of the Member States on this The second, No 71/305/EEC (OJ, matter and required the Member States English Special Edition 1971 (II), p. 682), to adopt the measures necessary to provides for the coordination of national comply with it within twelve months of procedures for the award of public works its notification; this period expired on 29 contracts based on the following basic July 1972. principles: — Prohibition of national technical 2. By a Law of 2 February 1973, the specifications having a discrimi­ Italian legislature prescribed the 'Rules natory effect (Articles 10 and 11); relating to the procedures for the award

satisfied to a large extent the conditions laid down by the directive in question. In its defence, the Italian Government As this bill had not yet been passed in sets out its point of view, but does not March 1975, the Commission, by a however submit any conclusion on the reasoned opinion of 1 April 1975, invited issues of the action. the Italian Republic to adopt the necessary measures within a month. Ill — Submissions and argu­ By a letter of 29 April 1975 from the ments of the parties Permanent Representation, the Italian Government conveyed to the In the submission of the Commission, Commission the bill presented to the first of all the Italian Republic failed to Chamber of Deputies on 1 August 1974, fulfil its obligation to enact before 29 entitled: 'Rules of adapting procedures July 1972 the measures necessary to give for the award of public works contracts to effect to the directive and, furthermore, the directives of the European Law No 14 of 2 February 1973 only Community' (Norme di adequamento fulfilled its obligations under that delle procedure di aggiudicazione degli directive very incompletely. appalti di lavori pubblici alle direttive della Comunità Europea) a text Indeed:

corresponding to the draft bill sent to the (a; whereas the directive applies to all Commission on 5 July 1974. At the procedures for the award of contracts, same time an assurance was given that both 'open' and 'restricted' (Article 5), the Office of the President of the the Italian Law applies only to the Council of Ministers, the Ministry of procedure for award by restricted Construction and the Ministry for invitation to tender, termed Foreign Affairs would make every effort 'licitazione privata'; to set in motion the procedure for the (b) Article 29 (3) of Directive No passing of the bill by Parliament. 71/305/EEC provides for the progressive abolition of the Italian The application dated 30 January 1976 'anonymous envelope' procedure, but was lodged at the Court Registry on 5 the Italian Law makes no mention of February 1976. this subject;

(c) The second paragraph of Article 12 of The Italian authorities moreover the directive provides for the implicitly accepted the findings of the publication of notices of contracts in Commission and realized the need to the Official Journal of the Euro adjust the Italian legal system to the pean Communities: the Italian Law Community provisions, as is shown by limits itself (Article 7) to providing the existence of the bill submitted to the for the publication of notices in the Chamber of Deputies on 13 August 1974 Official Journal of the Italian and not yet passed.

a Member State to fulfil its obligations. (vocational aptitude, financial and economic standing and technical knowledge or ability), which must be In its defence the Italian Government observed by the authority awarding points out that the bill presented to the contracts, are not mentioned in the Chamber of Deputies on 13 August 1974 Italian Law, which thus maintains the is designed to amend existing law to the wide discretionary powers conferred extent necessary to put the directive into effect. on authorities awarding contracts by

conclusions formulated in the tive (first paragraph of Article 14) be application. It stresses, as has already less than twenty-one days from the been done in the reasoned opinion of 1 date of sending the notice of April 1975, that Bill No 3219 submitted contract; the Italian Law limits itself to the Chamber of Deputies on 13 to providing a minimum time-limit August 1974 would in large measure of 10 days from the publication of satisfy, both as to substance and as to the notice; form, the conditions set by Council (h) The Italian Law does not lay down Directive No 71/305.

COMMISSION v ITALY

Law

1 By an application which was received at the Registry on 5 February 1976 the Commission has brought before the Court under Article 169 of the EEC Treaty an action seeking a declaration that the Italian Republic has failed to fulfil its obligations under Directive No 71/305/EEC of the Council of 26 July 1971 (OJ, English Special Edition, 1971 (II), p. 682).

JUDGMENT OF 22. 9. 1976 -CASE 10/76

2 In conjunction with Directive No 71/304/EEC of the same date concerning the abolition of restrictions on freedom to provide services in respect of public works contracts, Directive No 71/305/EEC seeks to coordinate the national procedures for the award of these contracts. Under Article 32 Member States were to adopt the measures necessary to comply with the directive within twelve months of its notification to them, which period expired on 29 July 1972.

3 Subsequent to this directive the Italian Republic adopted the Law of 2 February 1973 relating to the procedures for the award of public contracts by restricted invitation to tender (licitazione privata) the text of which was conveyed to the Commission on 16 August 1973.

In application of Article 169 of the EEC Treaty the Commission, however, informed the Italian Republic by letter of 10 June 1974 that it considered that the obligations arising from the abovementioned directive had not been satisfied by the adoption of the Law.

9 The defendant did not contest the alleged failures and, on 5 July 1974, conveyed to the Commission a preliminary draft of a bill 'containing the Community rules in full.'

10 The draft, which according to the Commission satisfies the essential requirements of the directive, was conveyed to the Italian Parliament on 13 August 1974 but has still not been adopted with the result that the measures intended to ensure the implementation of the directive are not yet in force at the date of this judgment.

11 Article 189 of the Treaty provides that a directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed but leaves to the national authorities the choice of form and methods.

12 The mandatory nature of directives entails the obligation for all Member States to comply with the time-limits contained therein in order that the implementation shall be achieved uniformly within the whole Community.

13 It follows that as the Italian Republic has failed to adopt, within the prescribed period, the measures necessary to comply with Directive No 71/305/EEC of the Council concerning the coordination of procedures for the award of public works contracts, it has failed to fulfil an obligation under the Treaty.

Costs

hereby rules:

1. As the Italian Republic has failed to adopt, within the prescribed period, the measures necessary to comply with Directive No 71/305/EEC of the Council concerning the coordination of procedures for the award of public works contracts, it has failed to fulfil an obligation under the Treaty.

2. The defendant shall pay the costs.

Lecourt Kutscher O'Keeffe Donner Mertens de Wilmars

Pescatore Sørensen Mackenzie Stuart Capotorti

Delivered in open court in Luxembourg on 22 September 1976.