C-296/92

Mr President, The first sections of the highway, stages I, II Members of the Court, and III, and the first part of stage IV were the subject of a restricted tendering proce­ dure and were completed at the beginning of the 1970s. The work for stage IV was awarded to the undertaking Rozzi 1. In bringing these proceedings the Com­ Costantino. Stage IV, which covered inter mission is seeking a declaration that the Ital­ alia the link with the A14 motorway and ian Republic has failed to comply with its national highway No 16, was subsequently obligations under Council Directive extended by so-called supplementary 71/305/EEC concerning the coordination of projects entailing inter alia an extension of procedures for the award of public works the original highway. contracts. 1 It claims that Italy breached its obligations by allowing the provincial administration of Ascoli Piceno to conclude a contract concerning the construction of a section of rapid transit highway without put­ ting the work out to public tender and with­ out publishing a notice of invitation to ten­ der in the Official Journal of the European Communities and 'by not taking steps to preclude at the outset the legal effects thereof which infringe Community law'. 3. These proceedings concern the '11th and 12th supplementary projects' which were ultimately treated as a joint project. The project related to an extension of the high­ way. The object was to overcome the physi­ 2. The section of road in question was part cal barriers represented by national highway of the 'Ascoli — Mare' highway which was No 16 and the railway line between Bologna to link the town of Ascoli Piceno, which is and Lecce and thus to create a good connec­ the capital of the province of the same name tion between the port of San Benedetto on and lies some 25 km from the Adriatic coast, the one hand and the main traffic arteries and with the Al 4 motorway and the national Ascoli Piceno's industrial area on the other. highway No 16, which runs along the coast, The works included the construction of a and with the coastal town of San Benedetto viaduct over the railway line between Bolo­ del Tronto. gna and Lecce. The section of road was only a few kilometres and was to join up the sec­ tion covered by the 10th supplementary project and a road towards San Benedetto * Original language: Danish. which was being built at the same time by I — Directive of 26 July 1971, OJ, English Special Edition 1971 (II), p. 682. the Commune of Ascoli Piceno.

5. The circumstances surrounding the con­ The Italian Government denies that it failed struction of the highway 'Ascoli —Mare' to fulfil its supervisory obligation with came to the attention of the Commission regard to the provincial administration and which decided to open Article 169 proceed­ that is the fundamental basis of its case. Only ings against Italy which it confined to the in the alternative does it contend that the 11th and 12th supplementary projects. The conditions under Article 9(b) were met. Commission sent its letter of formal notice to the Italian Government on 17 January 1991.

8. It must be observed straightaway that the 6. It is not disputed in these proceedings formulation of the Commission's claims has that the project at issue is covered by Direc­ given rise to certain procedural problems in tive 71/305. this case.

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OPINION OF MR GULMANN — CASE C-296/92

In its defence the Italian Government con­ from an expert it had consulted, which dis­ centrated on demonstrating that it had not puted that the conditions under Article 9(b) failed to comply with its supervisory obliga­ were met. tions. It did indeed mention that non­ compliance with obligations under the direc­ tive might be justified under Article 9(b) but its treatment of that provision showed that it primarily believed that it could rely on that In that document the Commission further provision to show that it was far from obvi­ contended that the working drawings and ous in the present situation that there had the like which had been submitted should be been a breach of the directive. The Italian regarded as new pleas in law which pursuant Government did not submit detailed argu­ to Article 42 of the Rules of Procedure could ment on whether the conditions under not be introduced. Article 9(b) were met.

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COMMISSION v ITALY

11 . 1 consider it appropriate to go on to con­ — to carry out the work in progress sepa­ sider first whether the provincial administra­ rately from the work at issue here tion could refrain on the basis of Article 9(b) because of the close structural connection of the directive from putting the contract out of the foundations. to tender and publishing a notice in the Official Journal of the European Communi- ties. 14. The Commission denies that those cir­ cumstances in themselves reveal technical reasons malung it possible to award the The fundamental precondition for any judg­ work only to the contractor for the section ment being given against the Italian Republic of road covered by the 10th supplementary is that the provincial administration acted in project. breach of the directive.

— to begin work at two different places because of the very cramped nature of 2 — Judgment in Case 199/85 Commission v luth [1987] ECR the site of the works, and 1039.

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OPINION OF MR GULMANN — CASE C-296/92

produce cogent evidence of the alleged seri­ case-law that a Member State may be found ous difficulties involved in leaving the con­ guilty on the basis of objective factors of struction of the section of highway at issue infringement of the directive irrespective of to an undertaking other than that responsible what State, regional or local body has failed 3 for the construction of the section of road to comply with the rules in the directive. covered by the 10th supplementary project. It also seems implausible that such serious difficulties exist in the light of the views expressed in the report submitted on behalf of the Commission.

20. The Court may of course consider that it would be appropriate to hold that a general duty applies for individual Member States as Nor may the fact be altogether overlooked, such to ensure in all cases that State, regional in my view, that the Italian Government and local authorities comply with the direc­ itself in its defence expressed certain doubts tive in connection with their public works as to whether the conditions for the applica­ and that a Member State may be held to have tion of Article 9(b) were met. breached the Treaty whenever it is objec­ tively found that it has failed to comply with its supervisory obligation because action has been taken which is contrary to the directive.

17. I therefore consider that it may be pre­ sumed that, as the Commission has alleged, the provincial administration of Ascoli Piceno acted in breach of Directive 71/305.

22. For those reasons and in view of the pleadings exchanged and the oral procedure, As mentioned above, the Italian Government I consider that the claims must necessarily be denies that State authorities accepted that construed as seeking judgment against the conduct and that there was in fact any pos­ Italian Government not for the fact that the sibility of taking steps against it. It points provincial administration had acted in breach out that its attention was first drawn to that of the directive but for the fact that that was conduct by the Commission in January 1991, allowed by the Italian Government and that eight months after the contract had been the latter did not take any steps to stop it. awarded to the undertaking in question, and it had no possibility under Italian law to take appropriate steps in that regard. No consideration has been given in these proceedings to the question what authorities in this instance allowed the provincial 24. On that basis I consider that I must pro­ administration's conduct and failed to take pose that the Court dismiss the case against steps to stop it. It is unnecessary to examine the Italian Republic. that question further. The form of order sought by the Commission necessarily pre­ supposes that there exist authorities which The Commission has failed to demonstrate have such supervisory obligations and that the Italian Government or other State which, by the nature of the case, must be authorities expressly or tacitly allowed the State authorities. conduct of the provincial administration and it has not produced cogent evidence that the Italian Government or other State authorities 23. Judgment against the Member State is had any real possibility of subsequently tak­ therefore conditional on it being established ing steps to remedy the situation.