C-362/90

COMMISSION v ITALY

OPINION OF MR ADVOCATE GENERAL LENZ delivered on 26 February 1992 *

Mr President, defence, it suggested that the application be Members of the Court, withdrawn because the contested clause produced no effects, after the expiry, at the end of 1989, of the invitation to tender and subsequent invitations to tender did not include it. In the further course of the written procedure the defendant A — Introduction Government formally raised an objection of inadmissibility on the ground that when the reasoned opinion was delivered in March 1990, and thus necessarily before the expiry of the period set therein, there was no longer any infringement. 1. In the present Treaty infringement proceedings the Commission claims that the Unità Sanitaria Locale (Local Health Authority, hereinafter referred to as 'the USL') XI, Genoa 2, has infringed Directive 77/62/EEC coordinating procedures for the award of public supply contracts. 1 The USL published on 10 October 1988 an invitation 3. The Italian Government also took the to tender for the supply of several products view that a Member State could not be in the course of 1989, including beef valued charged with infringement of a directive by at LIT 5 800 000 000. The invitation laid a public body where the directive had been down a minimum condition for admittance duly transposed into domestic law. That to participate in the invitation to tender, State thus complied with its obligations namely that the potential tenderer should under Article 189 of the EEC Treaty. have supplied identical products to the value Furthermore national implementing of six times the value of each supply provisions have precedence over a directive requested, 50% of that amount to be made with the result that legal protection against up of supplies to public administrative auth- any infringements can be granted only orities. The Commission considered that within the framework of national law. condition to be contrary to Community law. The invitation to tender lapsed on 31 December 1989.

In its rejoinder it contends that the Court 10. The application could be inadmissible in should: the present case because, as the Commission admitted at the hearing, the reasoned opinion in the preliminary procedure was delivered only in March 1990 and therefore, — declare the action inadmissible. on the expiry of the period stipulated in the reasoned opinion for putting an end to the infringement of the Treaty, the alleged infringement, through the invitation to 7. Reference is made to the Report for the tender for 1989, could no longer have Hearing for the facts of the case, the legal existed. Furthermore the contested clause background and the arguments of the was no longer included in the invitations to parties. tender for 1990 and 1991.

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COMMISSION v ITALY

14. In my opinion in the present case there ceased on the expiry of the period laid is no reason for considering whether it is down in the reasoned opinion. possible to apply such an exception, even though the contested clause in the invitation to tender was from the outset limited in time, because that period was so calculated that the proper conduct of the Treaty 12. The case-law relating to the positive infringement procedure was possible finding of an interest in bringing without any difficulty in relation to time: proceedings in the context of the action for the invitation to tender was published on 10 failure to fulfil Treaty obligations 3(such as October 1988 and ceased to have effect at possible obligations to compensate on the the end of 1989. A period of almost 15 part of the defendant Member State months was therefore available for action to vis-à-vis other Member States of the be taken against the irregularities in the Community or individuals who are affected) context of a pre-litigation procedure. applies only where the alleged infringement of the Treaty was terminated after the expiry of the period laid down in the reasoned opinion. Accordingly, where the infringements were terminated before that period there is in principle no ground for 15. If it is borne in mind that the considering that there is an interest in Commission gave the defendant Member pursuing the action.

. to be made or the complexity of the 3 —• Judgment in Case 26/69 Commission v France [1970] ECR 565; see also the judgment in Case C-361/88 problem. Commission v Germany, judgment in Case C-59/89 Commission v Germany, judgment in Case C-353/89 Commission v Netherlands [1991] ECR I-4069, and in 4 — Judgments in Case 240/86, cited above and in Case Case 103/84, cited above. C-110/89, cited above.

17. At the hearing on 16 January 1992 the Commission submitted that the reasoned opinion of 27 March 1990 was actually a second opinion. The first reasoned opinion had been delivered on 17 August 1989. Since the defendant Government replied to the warning letter, after considerable delay, The decision on the admissibility of the plea only on 30 June 1989, a reply received by shall be reserved for the final judgment.' the Commission on 6 July 1989, and since the content of that reply could not be taken into account in the drafting of the reasoned opinion of 17 August 1989, the Commission considered it expedient to draft a second opinion to take account of all the objections 20. The reasoned opinion directed to the of the Italian Government. The delay in the defendant Member State on 17 August 1989 preliminary procedure was therefore attrib­ is certainly not a fact which first came to utable to the defendant Government. light in the course of the written procedure. The proper conduct of the preliminary procedure is a prior condition for the admissibility of an action for failure to fulfil Treaty obligations under Article 169 of the EEC Treaty and the burden of proving this 18. The first question which arises in lies on the Commission. From the outset the considering those arguments is whether the Commission relied only on the reasoned factual matters put forward for the first time opinion of 27 March 1990. Only when the at the hearing can at all be taken into Court enquired about the subject-matter of account. its action against the background of the reasoned opinion issued on 27 March 1990 and the commencement of the action on 11 December 1990 did the Commission find itself compelled to mention the previous reasoned opinion. The Court's question can 19. Article 42 of the Rules of Procedure scarcely be regarded as a 'matter of law' provides : within the meaning of Article 42(2) of the

22. Assuming however, for the sake of argument, that the Commission's arguments are to be regarded a relevant defence, it is 25. In the preliminary procedure the difficult to imagine why no account of the defendant Government put forward the objections of the Italian Government in its defence, in its reply of 30 June 1989, that letter of 30 June 1989, which was received the contested clause was consistent with the by the Commission on 6 July 1989, could be measure implementing Directive 77/62. In taken in the opinion of 17 August 1989, the course of the subsequent procedure its although there was a period of six weeks for premise has always been that the directive consideration, while the Italian Government had been correctly transposed. was in each case given only 14 days to reply to the warning letter and the reasoned opinion. I cannot understand why in those 26. The objections of the Italian circumstances the delivery of a second Government call for a discussion of the opinion in March 1990 was the fault of the extent of the duties of a Member State in Italian Government. In my view the transposing and applying directives. The Commission alone is responsible for the defendant Government is certainly wrong in delay in dealing with the matter in general its view that a Member State, on duly trans­ and, in particular, for the reasoned opinion posing a directive into domestic law, has of 27 March 1990, so that there was no performed all its duties under Article 189 in interest in bringing the action because the implementing Community law. Formal alleged infringement was terminated before transposition is only one of the obligations the expiry of the period prescribed in the of Member State under Community law. In reasoned opinion. addition, Member States are required to give effect, in their national legal systems, to the objectives of the directive, not only in the abstract by means of legislative measures, but also in a concrete manner. This duty to ensure that a directive is 'fully 23. Since the action must thus be dismissed effective' 5 concerns first and foremost all as inadmissible, the following considerations concerning its merits are set out only in the 5 — Judgment in Case 14/83 von Colson and Kamann v Land alternative. Nordrhcin-Westfalen [1984] ECR 1891, paragraph 15.

the Italian Government's objection that only recognized that the provisions of a directive in the reply did the Commission submit that are directly applicable. 8 the Italian Government had not only to transpose Directive 77/62 into Italian law but also to ensure that it was fully effective. That, according to the Italian Government, is a different plea from those put forward in 31. If therefore, a discrepancy between the the reasoned opinion and the application measure transposing the directive and the and is therefore one which should be directive itself were to give rise to a rejected as being out of time. question of infringement of the Treaty, as was suggested in the preliminary procedure, the sole criterion for the purpose would be the directive. In such a case the infringement of Community law would, irrespective of whether it led to specific 28. According to the Commission, it was proceedings for infringement of the Treaty, the specific infringement by USL — Genoa's consist both in the defective transposition of invitation to tender which was from the the directive and in the application of the outset the subject of the proceedings. It was law in a manner contrary to the directive. only in response to the Italian Government's plea in defence in the proceedings before the Court, namely that after transposing the directive correctly it had no further direct obligations, that the Commission referred to 32. If, on the other hand the directive were the continuing wider obligation which in its correctly transposed, it would still be view lay on the Member State. 6 — See the Opinion of Mr Advocate General van Gerven in Case C-106/89, point 9. 7 — In the case of unconditional and sufficiendy precise provisions, see the judgments in Case 148 Pubblico Ministero v Ratti [1979] ECR 1629 and in Case 8/81 Becker v Finanzamt Münster-Innenstadt [1982] ECR 53. 8 — As regards the legal effects of a directive in domestic law, see the judgment of the Bundesverfassungsgericht (Federal 29. This amounts to no more than an expo­ Constitutional Court) of 28 January 1992 on the prohibition of night work for women — 1 BvR sition of the Commission's preliminary view 1025 / 82 — 1 BvL 16 / 83 — 1 BvL 10/91.

36. The USL — Genoa 2, which issued the invitation to tender, is a municipal authority and it is not in dispute that it is a ' 'contracting authority within the meaning 33. A completely different question, which of the directive. does not arise in the present case, is the legal consequences of a simple infringement of the national implementing provisions by independent persons. In so far as the acts of 12 a State body are in question, the formal 37. The judgment in Case 31/87, on responsibility for the measure in the context which both parties in the present of Treaty infringement proceedings must be proceedings rely, was concerned with the held to lie with the Member State 9and the question whether the relevant authority in authorities and institutions of the Member that case was to be regarded as a State State must be considered to have a authority in order to come within the ambit substantive obligation to ensure that effect is ratione personae of Directive 71/305/EEC 10 given to Community law. on the coordination of procedures for the award of public works contracts. I have to agree with the Italian Government that the judgment in Case 31/87 was by way of a preliminary ruling, so that no decision was given on the responsibility of a Member State in the context of Treaty infringement 34. If in Treaty infringement proceedings proceedings in which it was alleged that the conduct of State bodies is generally a there was an infringement of the provisions matter for review because the Member State of Community law on invitations to tender. is responsible vis-à-vis the Community also However, in view of the obligation, which I for those institutions which are organized have already mentioned, of the Member on an independent basis, that is so a fortiori State vis-à-vis the Community in the matter within the sphere of application of the of implementing directives, it is necessary in directive concerning the coordination of principle to start from the premise that the procedures for the award of public works acts of a State authority for the purposes of contracts. 11 the directive fall within the area of responsi­ bility of the Member State as regards the 9 — Sec the Opinion in Case C-247/89 Commission v application of Community law. That conse­ Portuguese Republic [1991] ECR I-3659, I-3670, quence follows from the definition of the paragraph 10 et seq. and in Case C-24/91 Commission v Kingdom of Spain [1992] ECR I-1989, I-1995, paragraph sphere of application ratione personae of the 9 et seq.. directive on the award of public contracts. 10 — See judgment in Case 103/88 Costanzo v Commune di Milano [1989] ECR 1839. 11 — Council Directive 71/305/EEC of 26 July 1971, OJ, 12 — Case 31/87 Beentjes v Netherlands State [1988] ECR English Special Edition 1971 (II), p. 682. 4635.

40. In that respect it must be observed that there is no national legal remedy which could take precedence over Treaty infringement proceedings. In an action for (d) ... the information and formalities failure to fulfil Treaty obligations the issue necessary for an appraisal of the is always one of the relationship between minimum economic and technical the duties of the Member States and the standards which the contracting auth­ Community. Nor is it possible to set up any orities require of suppliers for their general rule according to which the legal selections; those requirements may not remedy afforded by Community law in be other than those referred to in Article principle takes second place. At most, it is in 20, 22 and 23.' the context of actions for damages that situ­ ations are conceivable in which a subsidiary role might be accepted. It is also quite possible that a judgment declaratory of an 43. According to Article 23 of the directive, infringement of the Treaty, given in the evidence of the supplier's technical capacity abstract, may have an effect in an action for 13 may be furnished by: damages by an injured party.

13 — See the judgment in Joined Cases C-60/90 and C-9/90 Francovich and Bonifaci v Italian Republic [1991] ECR in relation to a claim for damages by individuals against a c Member State for failure to transpose a directive.

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COMMISSION v ITALY

(a) a list of the principal deliveries effected because different forms of proof are in the past three years, with the sums, prescribed with respect to supplies to them. dates and recipients, public or private, involved :

44. The provision lists the forms of 47. The fixing of a particular percentage of evidence which may serve to prove the the volume of supplies to public authorities volume of contracts of an undertaking is not, as the Italian Government contends, during a particular period in order that the a question of assessment of the evidence, necessary conclusions about technical since from the outset all tenderers are capacity may be drawn. The wording of excluded who have not provided the Article 14 of the directive in conjunction requisite minimum volume of supplies to with Article 23 leads to the inference that public authorities. Assessment of the the enumeration of the forms of proof of evidence takes place only at a later stage, technical capacity is exclusive. The situation that is, when the authorized tenderers have is different as regards the proof of the adduced evidence of supplies, and then in financial and economic capacity of the the selection procedure an assessment is undertaking, but that is not relevant in the made of the purchasers who have been present case. supplied.

45. Article 23(1)(a) of the directive is concerned primarily with the volume of 48. In the result, the clause complained of deliveries. The distinction between public must therefore be regarded as an authorities awarding contracts and private exclusionary criterion which is not provided purchasers thus seems to have been made for in the directive.

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OPINION OF MR LENZ —CASE C-362/90

C — Proposal

49. I propose that the Court: