C-199/85

COMMISSION v ITALY

OPINION OF MR ADVOCATE GENERAL LENZ delivered on 13 January 1987 *

Mr President, down in other procedures cannot be Members of the Court, kept;

* Translated from the German.

OPINION OF MR LENZ —CASE 199/85

favour of awarding the contract to three Article 9 (d) had to be interpreted strictly Italian undertakings. After that preliminary and according to such an interpretation it work had been studied by a group of laid down three requirements, each of experts appointed in April 1979, the board which had to be satisfied. In relation to the of the Azienda decided, in July 1979, to events of 1979 they were, however, not award the aforementioned building contract satisfied since the need for a new plant was by private contract to a consortium of three not unforeseen and secondly the works Italian undertakings. On 15 November 1979 were not limited to what was strictly the Municipal Council of Milan adopted a necessary (namely the replacement of resolution approving that decision. existing plant) but were intended to increase capacity.

COMMISSION v ITALY

opinion, which is based on an assumed of Milan has thereby complied with the infringement of Community law by the Commission's reasoned opinion in good Municipality of Milan, the Italian Republic time and that there are no grounds for insti­ is again called upon 'to adopt the measures tuting proceedings before the Court for a necessary to comply with this reasoned declaration that it has failed to fulfil its obli­ opinion within 30 days' ['ad adottare le gations. misure necessarie per conformarsi al presente parere motivato'] and, since the Commission presumed that the allegedly urgent works had virtually been completed 11. Nevertheless, in June 1985 the and that the contracts which had been Commission instituted proceedings before awarded could no longer be suspended or the Court seeking a declaration that the rescinded, it added 'by necessary measures Italian Republic, and in particular the is meant above all a written undertaking by Municipality of Milan, as a regional or local the Municipality of Milan that it will authority, by deciding to award by private comply with all the provisions of Directive contract a contract for the construction of a 71/305/EEC in future' ['per misure plant for the recycling of solid urban waste necessarie, deve essere inteso soprattutto un and failing to publish notice thereof in the impegno scritto del Comune di Milano di Official Journal of the European rispettare in futuro tutte le disposizioni della Communities, had failed to fulfil its obli­ direttiva 71/305/EEC']. gations under Directive 71/305.

OPINION OF MR LENZ —CASE 199/85

which strengthened its position. During the Government's view, that they cannot fall proceedings before the Court and in answer within the scope of these proceedings since to a question posed by the Court it was the Italian Government has still not had the learnt that the project decided upon in 1979 opportunity to submit its observations in the has not in fact been realized (namely preliminary procedure provided for by because in 1982 new rules for the disposal Article 169 of the EEC Treaty. of waste were introduced which necessitated considerable alterations), that apart from those alterations the plant intended to be 1. 15. As far as that argument is concerned, built at Muggiano corresponds to the plant it must be admitted in the light of the sparse decided upon in 1979, that the task of facts with which the Court has been constructing the plant had also been acquainted that the second part thereof entrusted to the three aforementioned appears to be justified. According to the Italian undertakings and that (in August strict interpretation given to Article 169 in 1986) only the preliminary work had been the Court's case-law, it is in fact impossible carried out (whereas according to the to deal in these proceedings with events Commission's submissions at the hearing which occurred in 1984 and which were not work on the plant had not been begun at mentioned in the communication all). commencing the procedure or in the Commission's reasoned opinion. In particular, those events cannot be B — 13. In the light of all the written and considered in view of the fact that the oral submissions presented to the Court, the Italian Government stated in answer to a issues before the Court call for the question asked by the Court that the following observations. original plans underwent significant changes in 1982 and that therefore the new plans did not simply amount to a postponement of the I — Admissibility original project and the fact that this was not disputed by the Commission.

my understanding of the general tenor of the Municipal Administration had acted in a the Commission's reasoned opinion is lawful manner ('abbia agito legitti correct — that the requirement at the end mamente'). thereof, to give a written undertaking to comply with the directive in the future, was satisfactorily met by the Mayor of Milan's 21. The Mayor then goes on to state in the aforementioned declaration. declaration — and this is another important point — that the Municipality of Milan will ensure that, in the future, too, its adminis trative action is in conformity with the

That interpre aforementioned declaration cannot in fact tation arises from the fact that such a be regarded as a categorical guarantee that requirement is to be regarded as altogether the provisions of the directive will be unusual (for compliance with the observed. The Commission was right to requirement involves no legal changes since complain that the declaration was the duty to comply with the directive arises incomplete and that, because of the reser directly from the directive itself in vation in the first sentence, it was not clear. conjunction with the national measures Consequently, it cannot be said that, by implementing it; moreover, it involves no giving his declaration, the Mayor of Milan change in the factual situation since as far as did everything that was necessary to comply the legal position was concerned the matter with the Commission's reasoned opinion. had already been pointed out to the Munici pality of Milan by the Commission's letter

opinion. That could only mean that, if the 20. However, there is absolutely no recog Commission's assumption that the contract nition in the Mayor of Milan's declaration had been performed was to prove incorrect that the award of the contract in 1979 did (and the addressee of the reasoned opinion not conform to the directive; on the knew or should have known that was in fact contrary, it begins with the express the position since at that time not even a site statement that the Mayor is convinced that for the proposed plant had been found), the

Commission's concern was that the conduct a procedure for the award of a contract was of the Municipality of Milan should be commenced and brought to a formal brought into conformity with the reasoned conclusion in contravention of the basic opinion. Viewed in that light, the reasoned rules of the directive. However, as has been opinion therefore also required the award of made clear in a different context, it is the contract to be rescinded (which perfectly possible for proceedings under appeared quite feasible on the assumption Article 169 to be instituted in relation to that it was unlawful) and a proper matters which have occurred entirely in the procedure for the award of a contract to be past. Also of relevance is the fact that in instituted. The defendant should therefore relation to the form of the procedure the have given directions to that effect or (if it Municipality of Milan relies upon provisions is correct that in serious cases the of the directive whose clarification is of government has only limited influence on fundamental importance since they may independent municipalities which are essen­ become relevant again and again (at the tially subject to the regional supervisory hearing the Commission referred to a committees) it should at least have given number of other cases where local auth­ clear indications about the need for efforts orities had failed to comply with the at the municipal level to rescind the contract directive). Not least, it is also of interest and recommence the procedure for the that the events of 1979 clearly formed a sort award of contracts. of basis and starting point for subsequent actions involving a further failure to follow the correct procedure under the directive. In 25. At least in so far as nothing of the kind fact the contract to construct the plant was done and in his letter to the Prefect of which was subsequently decided upon was Milan the Minister for the Interior merely awarded to the same three undertakings requested that the Municipality of Milan which had been awarded the contract for should produce the written declaration, it the original project in 1979, which suggests certainly cannot be said that everything that there was no new procedure for necessary was done to comply with the awarding the contract but that the contracts reasoned opinion within the period laid concluded in 1979 were simply amended. down and that therefore there were no grounds for instituting proceedings before the Court. (d) 28. Consequently, there are really no decisive reasons why the application should (c) 26. Finally, it is necessary to consider, not be admissible. Nothing should therefore with regard to the facts known to the Court prevent the Court of Justice from inter­ and in connection with the question of preting the Council directive in the light of admissibility, whether the Commission has the circumstances of this case in order to any interest at all in proceedings which are clarify the obligations which arise therefrom limited to events that occurred in 1979 for the Member States. when it is now clear that the original decision was never put into effect.

works contract without following the 31. The crucial question is therefore the procedure laid down in Article 12 of meaning to be given to the provisions just Directive 71/305 which provides as follows: cited and whether it has been shown that the conditions for their application were satisfied in 1979. In that connection we can 'Authorities awarding contracts who wish to only rely—as far as the Italian side is award a public works contract by open or concerned — on the not very detailed restricted procedure shall make known their statements made by the Municipality of intention by means of a notice. Milan in the preliminary procedure since the Italian Government has restricted itself Such notice shall be sent to the Office for during the proceedings before the Court Official Publications of the European almost entirely to the question of admissi­ Communities and shall be published in full bility. in the Official Journal of the European Communities in the official languages of the Communities ... '. 1. 32. With regard, first, to Article 9 (b), it is certainly necessary to agree with the Commission that the provision is a dero­ 30. However, its action constitutes an gation which in principle must be strictly infringement of Community law only if construed and that the awarding authority Article 9 is not applicable (paragraphs (b) which relies on it must prove that the and (d) of that provision are relied upon by conditions for its application are satisfied. the Municipality of Milan). Article 9 provides as follows: 33. It also appears that the Commission's conclusion that, according to its investi­ 'Authorities awarding contracts may award gations, undertakings in the Community their works contracts without applying the other than those to whom the contract was provisions of this directive, except those of awarded were also in a position to construct Article 10, in the following cases: such a plant is not disputed. In that connection the Municipality of Milan merely contended (see its letter of 11 October 1983) that the advisory technical commission appointed to consider the (b) when, for technical or artistic reasons or matter came to the conclusion that the plant for reasons connected with the proposed by the three Italian undertakings protection of exclusive rights, the works to whom the contract was awarded may only be carried out by a particular guaranteed the greatest efficiency ('garanzie contractor; di migliore funzionalità'). However, that is hardly sufficient, in connection with the application of Article 9 (b), to show that 'for technical... reasons ..., the works may only be carried out by a particular (d) in so far as is strictly necessary when, contractor', especially since further and for reasons of extreme urgency brought more detailed particulars were not provided. by events unforeseen by the authorities awarding contracts, the time limit laid down in other procedures cannot be 34. In so far as the Municipality of Milan kept; also relies, in relation to Article 9 (b), on the alleged exclusive rights of the Italian undertakings to whom the contract was ...'. awarded, which rights were necessary for a

proper realization of the project, it is September 1978; only a few months after sufficient to refer to the Commission's the establishment of an advisory technical observation that since more detailed infor­ commission, the three Italian undertakings mation has not been provided at any stage to whom the contract was subsequently (for example regarding the patent number awarded were designated; in April 1979 or entries in the patent register) the those undertakings were then evaluated by a necessary supporting evidence is lacking. group of experts and finally they were awarded the contract by a decision taken in 35. Consequently, it is not possible to find July 1979 which the Municipality approved that the Municipality of Milan was right to in November 1979. Reference may also be rely on Article 9 (b) of the directive, thereby made to the fact that until 1984 it was not justifying the failure to apply Article 12 known where the plant was to be thereof. constructed (because a suitable site had not 2. 36. With regard, secondly, to Article 9 been found), the fact that it was decided in (d), the position is the same as it was with 1984 to build it at Muggiano, the further Article 9 (b), namely that the provision must fact that it was stated in the application for in principle be interpreted strictly and that finance made to the European Investment according to its wording there is no doubt Bank that the work had been begun in 1984 that the conditions contained therein must and would be completed by 1987 and finally all be satisfied. to the fact that it was stated in August 1986 in response to a question asked by the 37. In the present case, it is not, however, Court that by that date the preliminary necessary to consider them all. According to work ('interventi preliminari') had been the Commission's statements at the hearing, completed (which was in fact emphatically the total extra time needed to comply with disputed by the Commission at the hearing). the directive (period of notice, allowing time for the receipt of tenders and time for 38. In those circumstances, it is difficult to examining the tenders) would be a few see how it could be said that compliance months. In fact, merely what is known of with the periods laid down by the directive the course of the procedure up to in relation to the publication of notices November 1979 shows that this was not a would be greatly prejudicial. Consequently, case of extreme urgency, for the board of the Municipality of Milan cannot rely on Azienda was aware of the situation since Article 9 (d) of the directive either.