C-247/89

2. Portugal maintains that the application is 5. Portugal argues finally that the reasoned inadmissible: since ANA-EP is a legal opinion gave no indication of what action person governed by public law empowered the Commission believed should have been to act autonomously in administrative and taken in order to cure the infringement. financial matters and in regard to its assets, its conduct cannot be attributed to the State; failure to transpose the directive was an infringement of the general obligation imposed by the directive, which should be distinguished from the specific requirement 6. The Portuguese Government further in Article 9 that certain tendering maintains that ANA-EP is excluded from procedures be published in the Official the scope of the directive, since, as a body Journal of the European Communities. which administers transport services, it is covered by the exception contained in * Original language: German. Article 2(2) of the directive. Accordingly the 1 — Council Directive of 21 December 1976 coordinating supply contract in question was not a supply procedures for the award of public supply contracts, OJ 1977 L 13, p. 1, amended by Directive 88/295/EEC, OJ contract within the meaning of the directive 1988 L 127, p. 1. since it was awarded under private law. Nor

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should the firm be regarded as a contracting hold that it has not failed to fulfil its authority within the meaning of the obligations under the Treaty, and dismiss directive, since the tendering procedure in the application accordingly; question was not subject to control by the State.

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12. Article 392 of the Act of Accession 15. At the time of the tendering procedure, provides : on 29 August 1987, the defendant Member State was unquestionably in default. Failure to act on the part of a Member State is a precondition for a directive being directly 'Upon accession, the new Member States applicable, always providing that it contains shall be considered as being addressees of a clear and unambiguous obligation. The and as having received notification of obligation contained in Article 9 of the Directives and Decisions within the meaning directive requiring publication in the of Article 189 of the EEC T r e a t y . . . , Official Journal is indeed clear and unam- provided that those directives, recommen- biguous. dations and decisions have been notified to all present Member States.'

14. However, even assuming that the duty to act to implement the directive only arose on 1 January 1986, and that the Portuguese Republic should be allowed as much time to 17. It is consequently quite possible for an transpose it as were the other Member organization to be deemed to be 'the State', States — 1 8 months, pursuant to Article even if, in formal terms, it does not 30 — it would have had to be implemented in national law by the end of June 1987 at 2 — Judgment in Case C-188/89 foster v British Gas [1990] ECR 1-3313, paragraphs 16 and 18. the latest. 3 — Judgment in Foster, above.

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constitute part of the State. 4 Thus if a for actions on the part of the undertaking to formally independent authority is dependent be automatically attributed to the State. For on the public authorities in personnel, that, public authorities would need to be material or financial terms, it may be appro- able to influence matters related to the priate to deem it to be a State body within directive — i.e., the award of supply the meaning of the provision. contracts, as contemplated by the directive.

19. ANA-EP is a legal person governed by public law, empowered to act autonomously 22. I shall therefore leave the question of in regard to its administration, finances and State control and influence open at present, assets. The mere fact that ANA-EP can be and address questions of Community law. classified as a public undertaking as a result of the State's dominant influence over appointments to its organs does not suffice

4 — Judgment in Case 31/87 Beentjes v Netherlands State 23. The Portuguese Government finds [1988] ECR 4633, at paragraph 11. further objections to the admissibility of the 5 — Judgment in Case 249/81 Commission v Ireland [1982] application in the form and content of the ECR 4005, and judgment in Case 222/82 Apple and Pear Development Counalv Lewis [1983] ECR 4083. reasoned opinion and in the Commission's 6 — Judgment in Case 290/83 Commission v france [1985] conduct in the pre-litigation procedure. In ECR 439 and judgment in Case 78/76 Steinike and Weinlig v Federal Republic of Germany [1977] ECR 595. point of fact all the objections relate to the

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27. However, the Commission is not under a duty to indicate all the measures which it regards as being capable of eliminating the infringement in question. That is particularly clear where there are a number 24. I shall deal with these objections of possible solutions, the Member State together, considering first the charge that being free to select which means to use. the reasoned opinion was not supported by an adequate statement of reasons, and that it should contain an unambiguous response to all the arguments put forward by the 28. On the other hand, if a Member State is defendant Member State. clearly working to eliminate a problem, but the Commission believes that the measures contemplated are inappropriate, the latter would be guilty of bad faith if it failed to make that view known. In such circum- stances the pre-litigation procedure cannot fulfil its role of enabling a dispute to be settled amicably. 25. Certainly the reasoned opinion in the pre-litigation procedure, like the whole preliminary procedure in proceedings under Article 169, is intended to permit a dispute 29. The Commission's reasoned opinion to be settled amicably. The Member State in which preceded these Treaty infringement question must therefore be given an oppor- proceedings is a document of several pages tunity to justify its position, 7 and, where appropriate, to amend its conduct. To that 8 — Judgment in Case 274/83 Commission v Italy [1985] ECR 1077, at paragraph 21; likewise, previously, the judgment in Case 7/61 [1961] ECR 699. 7 — Judgment of 18 March 1986, Case 85/85 Commission v 9 — Judgment in Case 70/72 Commission v Germany [1973] Belgium [1986] ECR 1149, at paragraph 11. ECR 813, at paragraph 13.

33. There is no conflict between the reasoned opinion and the application, since 30. It is true that no way of remedying the the issue remains the failure to publish a infringement is mentioned in the reasoned notice of the tendering procedure in the opinion. It is, however, clear that at an early Officiai Journal of the European stage there was disagreement over the legal Communities. The Commission's contention appraisal of the facts. The Portuguese in the application that the legislative Government did not endorse the amendment proposed by the Portuguese Commission's view of the law; it considered Government was not capable of curing the that the Treaty had not been infringed. infringement does not represent a broadening of the subject-matter of the proceedings. The substantive charge remained the same in the pre-litigation 31. While the Court's case-law requires the procedure and in the application; only the obligations which a Member State must legal arguments were amplified. fulfil to be indicated precisely in the reasoned opinion, 10 that does not neces- sarily include the measures needed to eliminate the infringement. The obligation 34. A separate issue is whether there is a which, the Commission believes, the legal interest in bringing Treaty defendant Member State should have infringement proceedings in the case of a fulfilled was publication of the tendering past Treaty infringement which has been procedure in the Officiai Journal of the terminated. Whether an interest in bringing European Communities. That is conveyed the present action exists would appear to be unmistakeably in the reasoned opinion; that questionable inasmuch as the contract was opinion was therefore adequately reasoned. awarded on the basis of the tendering procedure of 29 August 1987 without that tendering procedure having been published in conformity with the directive. The award of the contract cannot now be undone; 32. If, in the pre-litigation procedure, the consequently, there is no longer any possi- Portuguese Government did indeed intimate bility of influencing a situation which was its desire to preclude any infringement of conclusively determined by events in the the Treaty in the future by amending the past. law, and if the Commission was indeed convinced that such a course of action would fail to achieve the desired end, then it 35. Initially it might well have been possible 10 — Case 85/85 [1986] ECR 1149, at paragraph 11. to repeat the tendering procedure while

36. The mere fact that there is still a dispute about whether or not a Treaty infringement 39. (a) Article 2 of Directive 77/62 contains occurred constitutes a reason for concluding a sectoral exception in respect of public that there is a legal interest in bringing supply contracts awarded by bodies which proceedings, in order to obviate similar administer transport services. The cases in the future.11 It is also appropriate Commission argues that ANA-EP cannot be to point out that a Member State may not regarded as a body which administers rely on a fait accompli for which it is transport services within the meaning of the responsible in order to elude an application Directive. In support of its case it refers to against it. 12 the Commission's Guide to the Community Rules on Open Government Procurement, 13 a manual on the application and interpre- tation of the public procurement directives. It contains the following passage: 37. The Commission's application should be ruled admissible, subject to a review of the degree of State control over supply contracts of the type described above. 'In the transport sector the exception covers organizations actually undertaking the carriage of passengers or goods, but not, for 2. Merits example, those running ports or airports, which are covered by the directive.'

38. The Portuguese Government argues that the supply contract awarded by ANA-EP does not fall within the ambit of 40. In support of its views the Commission Directive 77/62. First, ANA-EP is covered also refers to the amendment to the exception effected by Directive 88/295. 11 — Opinion of Advocate General Lenz in Case 199/85 Since that reformulation in 1988 the Commiaion v Italy [1987] ECR 1047; see also paragraphs 7 to 9 of the judgment in the same case, at p. 1039. exception relating to the transport sector 12 — Judgment of 7 February 1973 in Case 31/72 Commissioni has read as follows: Italy [1973] ECR 101; Opinion of Advocate General Mancini in Case 303/84 Commission v Federal Republic of Germany [1986] ECR 1171 at pp. 1172 and 1173. 13 — OJ 1987 C 358, p. 1.

43. Whether ANA-EP comes within the scope of the directive in its original version can only be determined after an exam- 45. The foregoing view of the legislative ination of the exception in its legislative context is underpinned by the preamble to context. The words 'body which administers Directive 90/531. These state, for example: transport services' suggest that the whole sector was covered. ANA-EP's task, M — Council Directive of 17 September 1990, OJ 1990 L 297, consisting in the administration of several p. 1.

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' . . . the White Paper on the completion of (b) the exploitation of a geographical area the internal m a r k e t . . . contains . . . sectors for the purpose of: which are currently excluded from... Directive 77/62 . . .

. . . among such excluded sectors are those concerning the provision of water, energy (ii) the provision of airport, maritime or and transport services . . . inland port or other terminal facilities to carriers by air, sea or inland waterway;

. . . the main reason for their exclusion was that entities providing such services are in some cases governed by public law, in others by private law'.

confirms that view. Its purpose is to enable a 51. (b) I now turn to the Portuguese clear line to be drawn between the fields Government's argument that ANA-EP's covered by the two directives. Article 35 of supply contract for the supply and assembly Directive 90/531 provides that: of a telephone exchange for Lisbon Airport was not covered by the directive on account of the legal form of the contract concerned. In support of that argument the Portuguese Government relies on the Portuguese version of the text of Annex I to the directive coordinating procedures for the '(1) Article 2(2) of Directive 7 7 / 6 2 / E E C is award of public supply contracts. That hereby replaced by the following: version defines contracting authorities as

"(2) This directive shall not apply to: 'Legal persons governed by public law whose supply contracts governed by public law are subject to State control'. 15

(a) contracts awarded in the fields referred to in Articles 2, 7, 8 and 9 of Council Directive 90/531/EEC . . . or fulfilling the conditions in Article 6(2) of the said 52. The parties are in dispute over the directive;" '. question of which language version was binding. Precisely which form of words in which language the parties regarded as decisive in the pre-litigation procedure is not a question on which the outcome of these proceedings will turn. The question to settle is an objective one: which is the 49. Thus the sectoral exception in Directive binding form of words on the basis of which 77/62 is defined as covering the contracting the legal question falls to be decided? authorities covered by the new Directive and the bodies still not covered even by the new Directive.

56. The question whether the words 54. The content of Point XIII of Annex I 'contracts governed by public law' may be to the directive is the same in all disregarded need not be finally resolved, Community languages. The form of words since at the time of the tendering procedure relied on by the Portuguese Government for the telephone exchange contract, the was first incorporated in the directive by version of Annex I to Directive 77/62 that Directive 88/295/EEC. It is noteworthy was in force was none other than that that the linguistic variation is only to be resulting from the Act of Accession. found in the Portuguese text. Whatever the reasons for it — whether it was a mere oversight or a translator's error — an attempt must be made to construe the provision concerned in a uniform way. The Court has consistently held that the 57. The Portuguese Government's objection necessity for uniform application and that the contract could not have come accordingly interpretation make it within the scope of the directive because it impossible to consider one version of a text had to be concluded under private law must in isolation, but require it to be interpreted therefore be rejected. on the basis of the intention of its author and the aim pursued, in the light of all language versions. I7

16 — OJ 1985 L 302, p. 217. 17 — Judgment in Case 29/69 Erich Stauder v City o/ Ulm 58. (c) The Portuguese Government finally [19691 ECR 419; judgment in Case 30/77 Pierre raises the objection that ANA-EP is not a Bouchèrent [1977] ECR 1999; judgment in Case 9/79 Marianne Koschniske v Raad van Arbeid [1979] contracting authority within the meaning of ECR 2717; and judgment in Case 55/87 Alexander Moksel the directive. Apart from the fact that v Bundesanstalt ßr landwirtschaftliche Marktordnung [1988] ECR 3845. ANA-EP is in any case excluded from the

59. In my view, in determining whether an 61. The Portuguese Government has undertaking is covered by the above defi­ submitted that the aforesaid general legis­ nition one must look at the facts of the lation does not apply to ANA-EP's trans­ situation. Thus the issue is not whether an actions since the Decree-Laws in question undertaking is subject to some form of State rank equally in the hierarchy of legislation, control since, as the Portuguese with Decree-Law N o 246/79, which set up Government rightly points out, all public ANA-EP, taking precedence as the more undertakings are subject to some form of specific enactment. Moreover, Decree-Law State control. Even the theoretical possibility N o 29/84 had provided that the of State control in the case of supply constitutions of public undertakings were to contracts is not sufficient. What is required be brought into line with the general rules is that, under the terms of the relevant legis­ within a given period. Since no such lation, the contract in question be open to adjustments had been made, Decree-Law State control in such a way as to enable the 246/79 and the constitution of ANA-EP public authorities to influence the remained in force unchanged. conclusion of the contract.

62. I do not wish to embark here on a 60. Whether or not ANA-EP is a legal detailed examination of Portuguese law. person governed by public law whose However, it seems to me, on the basis of the awards of public supply contracts are general theory of laws, that the mere subject to State control is a question to be passing of a deadline by which legislation determined under the relevant provisions of was due to have been amended cannot itself Portuguese law. ANA-EP was set up under effect a change in the law. However, that Decree-Law N o 246/79 of 20 July 1979, to would mean that the supply contract for the

2. The Commission shall bear the costs of the proceedings.

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