C-351/88
ECLI:EU:C:1991:271
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OPINION OF MR LENZ —CASE C-351/88
O P I N I O N O F M R ADVOCATE G E N E R A L LENZ delivered on 27 June 1991 *
Mr President, 4. The similarity to Case C-21/88 of the Members of the Court, reference for a preliminary ruling in this case was drawn to the attention of the national court. However, the reference for a preliminary ruling has not yet been withdrawn — probably for reasons connected with the national rules of 1. The case in which I am called to give my procedure. For that reason, the procedure in opinion today is one of four references for a the present case must be taken to its formal preliminary ruling concerning the same conclusion. subject matter. ' It is concerned with a requirement laid down in Italian legislation that at least 30% of all public supply contracts are to be given to undertakings established in the Mezzogiorno. 5. In order to answer the questions referred for a preliminary ruling, I refer to my Opinion of 28 November 1989 and the judgment of 2 March 1990 in Case C-21/88.
2. In Case C-21/88 the Court had occasion to rule on a legal situation identical to the present, Case C-351/88. In particular, the 6. Even though the legal problems way in which intra-Community trade is correspond to those in Case C-21/88 — as, affected in the present case is similar to moreover, the parties to the proceedings Case C-21/88. In Case C-21/88 the plaintiff agree — and the question referred for a claimed that it obtained 80% of its X-ray preliminary ruling must therefore be material from Germany. In the present case, regarded as answered by the judgment, in the plaintiff in the main proceedings obtain view of the observations made by the a significant proportion of the equipment it plaintiffs representative at the hearing on distributes from France. 5 June 1991 some remarks on the duties arising from a judgment of the Court of Justice are called for.
3. In Case C-21/88 I delivered my opinion on 28 November 1989 and it was broadly 7. The plaintiffs representative emphasized followed by the Court in its judgment of that, more than a year after the Court's 20 March 1990. judgment in Case C-21/88, no measures had been adopted to bring the Italian legis- * Original language : German. lation into conformity with Community law. I — See Case C-21/88 Du Pont de Nemours v Unità sanitaria He stated that no steps had been taken, locale No 2 di Carrara [1990] ECR 1-889, Case C-310/88 Istituto Behring v USSL pending, and Case C-311/88 whether by legislative measures or adminis- Hoechst ¡talia v USSL pending. trative directions or the latest annual law on
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the Community, to give effect to the conse- 10. In order to provide legal protection to quences of the judgment. Efforts to make individual persons, it is, admittedly, not the Commission bring proceedings for absolutely essential to amend national law breach of Treaty obligations had been as individuals can rely on Community law fruitless. before the courts even in the absence of legislative measures to that effect. In this way individuals can, as in the main proceedings, achieve the implementation of Community law through courts prepared to 8. It must first be stated that a judgment in apply it — which is, moreover, a duty of proceedings for a preliminary ruling is a each of the courts of the Member States. judgment on interpretation and binds only the parties to the proceedings and the courts charged with ruling on the case. Nonetheless, Member States are required to rectify a provision in their internal legal 11. However, the situation becomes order which is contrary to Community law, particularly critical if — as in the period when such a situation can be deduced from following the judgment in Case C-21/88, a judgment in proceedings for a preliminary according to the assertions made by the ruling. If a Member State fails to take the plaintifPs representative at the necessary measures and thereby maintains in hearing — courts in the Member States force the legal situation that is contrary to maintain that the legal situation contrary to the Treaty, it commits a breach of the Community law is lawful, in spite of the Treaty, which the Commission, in the first clear wording to the contrary of a judgment place, is required to pursue. of the Court of Justice, and fail to apply Community law. Such a denial of legal protection in itself constitutes a fresh breach of the Treaty.
9. The practice of the Commission has therefore been to react to judgments delivered by the Court of Justice in proceedings for a preliminary ruling by 12. Action by the Member State concerned bringing proceedings against the Member is necessary both to clarify the legal States concerned. As examples of where situation and to avoid further breaches of such an approach has been taken, one can the Treaty. In the event that the Member cite proceedings for a breach of a Treaty State fails to take any action, the obligation 2 brought against the Federal Commission, whose task it is to monitor the Republic of Germany regarding 'butter application of the Treaty (Article 155 of the ships' 3 and proceedings for breach of a EEC Treaty), may and ought to remind it Treaty obligation 4 brought against Belgium of its obligations under Community law by in connection with the levying of a regis- means of the procedures for breach of tration fee for students known under the Treaty obligations and urge it to bring its name of 'minervai'. 5 internal legal order into conformity.
2 — Case 325/82 Commistioni Germany [1984] ECR 777. 3 — Case 158/80 Rewe v Hauptzollamt [1981] ECR 1805, and Case 278/82 Rewe v Hauptzollämter Flensburg, Itzehoe and Lübeck-West [1984] ECR 721. 4 — Case 293/85 Commission v Belgium [1988] ECR 305. 13. In so doing, the Commission must act 5 — Case 293/83 Gravieri City of Liège [1985] ECR 593, and Case 152/82 Forcherii Belgium [1983] ECR 2323. on its own initiative, because it cannot be
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obliged by individual persons to intervene. without prejudice to the compatibility of these Natural or legal persons may bring provisions with the Treaty.'7 proceedings under Article 175 of the EEC Treaty for failure to take action only if a Community institution has failed to address to them a binding legal act (third paragraph 16. That rule is comparable to a provision of Article 175 of the EEC Treaty). As of a directive which was referred to in the regards the bringing of proceedings for two cases on milk substitutes,8 in order to breach of Treaty obligations individuals are justify legal provisions which were incom- restricted to making informal complaints patible with Article 30 of the EEC Treaty. and observations. The Court of Justice also stated in those two cases that:
14. Lastly, it should be stated again, in 'Without its even being necessary to rule on order to make the legal position absolutely whether Article 5 of Regulation N o clear, that Article 30 of the EEC Treaty 1898/87 is retroactive it is sufficient to prohibits the contested rules from reserving observe that that article provides that part of the public supply market, and the national regulations may be maintained only rules cannot be justified by the provisions of on condition that the general provisions of the Directive coordinating procedures for the EEC Treaty are complied with. the award of public supply contracts. 6 I However, as the Court has held above, the have already discussed that point in provision at issue in this case is contrary to paragraph 49 et seq. of my Opinion in Case Article 30 of the EEC Treaty and therefore C-21/88. Paragraph 17 of the judgment in does not satisfy the conditions laid down by that case expressly states that Article 26 of Article 5 of Regulation N o 1898/87."» the directive cannot impede the application of Article 30 of the EEC Treaty.
17. The subsequent amendment of Article 26 of Directive 77/62 10 is equally incapable of justifying rules of the kind referred to. 15. In its original version Article 26 of the The wording of the amended Article is as Directive stated: follows :
'(1) This Directive shall not prevent, until 'This Directive shall not prevent the 31 December 1992, the application of implementation of provisions contained in existing national provisions on the Italian Law N o 835 of 6 October 1950 award of public supply contracts which (Official Gazette N o 245 of 24 October have as their objective the reduction of 1950 of the Italian Republic) and in modifi- cations thereto in force on the date on 7 — My emphasis. which this Directive is adopted; this is 8 — Case 216/84 Commission v France [1988] ECR 793 and Case 76/86 Commission v Germany [1989] ECR 1021. 6 — Council Directive 77/62/EEC of 21 December 1976 coor- 9 — See paragraph 22 of the judgment in Case 216/84 and dinating procedures for the award of public supply paragraph 23 of the judgment in Case 76/86, referred to contracts (OJ 1977 L 13, p. 1), last amended by Council above. Directive 90/531/EEC of 17 September 1990 (OJ 1990 10 — By Council Directive 88/295/EEC of 22 March 1988 L 297, p. 1). (OJ 1988 L 127, p. 1).
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regional disparities and the promotion in Article 26 for the exceptions cannot of job creation in the most disad- remove the incompatibility of the system of vantaged regions and in declining preferences with the Treaty. industrial regions, on condition that the provisions concerned are compatible with the Treaty and with the Community's Costs international obligations.' " 19. The proceedings for a preliminary ruling are in the nature of a step in the 18. In particular, the amended version proceedings pending before the national cannot — as was argued at the court. For that reason, it is for the national hearing — excuse the Commission's inac- court to rule on the costs as between the tivity as regards bringing proceedings for parties to the main proceedings. The costs breach of a Treaty obligation. The incurred by the Italian Government and the time-limit of 31 December 1992 laid down Commission are not recoverable.
20. Having regard to the fact that it is not for the Court of Justice in preliminary-ruling proceedings to rule on whether or not a provision of a national law is in conformity with Community law, I suggest that, in reply to the request for an assessment under Community law of the rules reserving the award of contracts to certain undertakings, the Court should adopt the formulation contained in its judgment in Case C-21/88 and rule as follows:
'(1) Article 30 of the EEC Treaty must be interpreted as precluding national rules which reserve to undertakings established in particular regions of the national territory a proportion of public supply contracts.
(2) The fact that national rules might be regarded as aid within the meaning of Article 92 of the Treaty cannot exempt them from the prohibition set out in Article 30 of the Treaty.'
11 — My emphasis.
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