C-359/93

It should be borne in mind that the Com­ mission gave the Netherlands and the con­ To be more specific, the Commission consid­ tracting authority notice of those criticisms, ers that the tender notice for a public supply in accordance with the procedure laid down contract published by the Nederlands Ink­ in Article 3(1) and (2) of Council Directive oopcentrum NV (hereinafter 'the NIC' ) in 89/665/EEC on the coordination of the laws, the Official Journal of the European Com­ regulations and administrative provisions munities of 10 December 1991 concerning the supply and maintenance of a meteorologi­ relating to the application of review proce­ 4 cal station does not comply with Commu­ dures to the award of public supply and 5 nity requirements. The Commission relies on public works contracts. The Commission two grounds: failure to indicate the persons stated that notification was to be treated as authorized to be present at the opening of formal notice for the purposes of Article 169 of the Treaty and that the subsequent communication from the Netherlands Gov­ ernment would be treated as the observa­ * Original language: Italian. tions provided for in that article. 1 — OJ 1977 L 13, p. 1. 2 — OJ 19S0 L 215, p. 1. 3 — OJ 1988 L 127, p. 1. 4 — The notice in question was published in OJ S 233 of 10.12.1991, p . 25, under No . 91/S233-37730/NL. 5 — OJ 1989 L 395, p. 33.

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Finally, Article 3 of Directive 89/665/EEC introduces a 'swift' procedure for taking action against the competent authorities of the Member States and the contracting authorities, which may be invoked by the and Commission when, prior to a contract being concluded, it considers that 'a clear and mani­ fest infringement of Community provisions in the field of public procurement has been committed during a contract award proce­ dure'. In such cases, therefore, the Commis­ sion is to notify the abovementioned author­ '(b) the date, time and place of this opening.' ities of the infringements found and request their correction; from that moment, the Member State has 21 days in which to com­ municate to the Commission confirmation that the infringement has been corrected or the reasons why no correction has been made or else notice that the contract award Article 7(6), added to Title II of that direc­ procedure has been suspended. tive, provides that:

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certainly not preclude the Commission from State concerned has failed to fulfil its obliga­ bringing an action against the State con­ tions under Community rules on procure­ cerned under Article 169 of the Treaty for a ment contracts. declaration that such infringement has been committed. As we know, that right of action is not subject to any time-limit, because it represents a means of exercising the perma­ nent duty entrusted to the Commission by Article 155 of the Treaty to ensure compli­ 8 ance with Community law; accordingly, any doubt on that head is removed by plain 5. In the light of those considerations, the considerations of priority between rules. fact that proceedings were initiated simulta­ neously under Article 3 of Directive 89/665 and under Article 169 of the Treaty is in keeping with requirements of procedural economy which I have no difficulty in endorsing. The sole consequence of the Commission's delay in taking action, and from this point of view I cannot but support the complaints against it, is the risk that its action may not be as effective as the special procedure in question was intended to ensure.

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effectiveness of the means of monitoring the institutions and the national authorities were application of legislation concerning public and are entitled to make use of it in describ­ procurement contracts. ing the subject-matter of a contract. If this is the case, the action brought by the Commis­ sion must be dismissed on its merits, at least with regard to this point.

The article in question merely specifies the period to be considered 'reasonable' in this area, under the Article 169 procedure, to enable the Member State concerned to reply- to the letter of notification and, if appropri­ ate, prepare a defence to the charges levelled If, instead, there is a conflict, I fail to see against it. " But it was certainly not intended how the fact that the Commission too has to set a time-limit for the lapse of the Com­ infringed the rules of the directive can rem­ mission's right of action. edy any infringement by the Netherlands authorities. Community institutions are also bound to observe the rules on procurement contracts; if they do not, there is no principle of law authorizing Member States not to do so. Nor is an institution prevented from bringing an action for a declaration that a 6. The basis of the second plea of inadmissi­ Member State has committed an infringe­ bility put forward by the defendant is the ment merely because it has committed a need to safeguard the legitimate expectations breach of the same kind. as to the compatibility with Community law of the technical specification at issue, aroused in the Netherlands authorities as a result of the use of that specification by the Commis­ sion itself in a public contract notice.

First of all, the Commission claims that the contracting authority, as already stated, infringed Article 9(5) of the directive in that 8. I cannot support the Netherlands Gov­ when it drew up the tender notice it failed to ernment's arguments on that point either. In comply with the conditions contained in the first place they have no basis in the Annex III to the directive, referred to in wording of the directive. In specifying what Article 9(5), which at point 7 requires the information must appear in contract notices notice to indicate the persons authorized to where the open procedure is used, Annex III be present at the opening of tenders and also to the directive draws a clear distinction the date, time and place of opening. The between mandatory and optional informa­ Netherlands Government shares the Com­ mission's view as to the existence of a duty tion. The second category includes informa­ on the part of the contracting authorities to tion concerning any time-limit for delivery draw up notices in accordance with the of the goods to be supplied (point 4), the model set out in Annex III and as to the amount and terms of payment of any sum unconditional nature of the requirement payable in order to obtain documents rele­ referred to in point 7 of the Annex. It con­ vant to the contract from the administrative tends, however, that the information in ques­ service concerned (point 5(c)) or the legal tion is necessary only where the contracting form to be taken by the grouping of suppli­ authority intends to restrict the opportunity ers to whom the contract is awarded (point to be present at the opening of tenders by, 10). for example, allowing only the suppliers who have submitted them to attend. If, as in this case, they are opened in public and anyone interested may attend, such information is unnecessary.

transparency in all the operations and proce­ a particular product but to a product with dures for supplying the contracting author­ well-defined characteristics. In support of its ities as one of the most effective means of argument, the Netherlands Government opening up the market in public supply con­ refers to the fact that in the end the contract tracts. It should also be borne in mind that in was awarded to a supplier who does not use many cases proper application of Commu­ the UNIX system but a similar one. nity legislation can be ensured only if infringements of the latter are met with a timely response. It is therefore understand­ able that it may be important for suppliers participating in an award procedure to be present when the tenders are opened, if only, as the Commission observes, to discover the identity of their competitors and to be able to check, even at that stage, whether they meet the criteria for qualitative selection contained in Article 20 et seq. of the direc­ tive. It is clear, therefore, that their opportu­ I would point out, in this connection, that nity to do so would be completely thwarted the defendant acknowledges that the UNIX if the practical conditions attached to open­ system is not a standardized system, that is ing (in public as well) were not disclosed. to say a technical specification approved by an international standards institution recog­ nized in the field of information technology. The system was produced within one of the unofficial bodies set up by producers and consumers for the purpose of speeding up the standardization process, to be precise, X / OPEN , which undertakes the standard­ ization of operational systems based on AT&T's UNIX ." It is only when the results of the work carried out by those bod­ ies have been adopted by the administrative 9. As to the alleged infringement of Article authorities that the technical specifications 7(6) of the directive and Article 30 of the thus drawn up become standards. Conse­ Treaty, as a result of introducing into the quently, it seems to me to be difficult to general terms and conditions of the disputed claim, as the Netherlands Government does, contract a technical specification mentioning that the conduct of the contracting authority a particular product, the Netherlands Gov­ is in accordance with Council Decision ernment contends that those terms and con­ 87/95/EEC of 22 December 1986 on stan­ ditions actually refer to a class of products, dardization in the field of information tech­ u in so far as the UNIX system is to be nology and telecommunications, which regarded, in the field of information technol­ requires the Member States to make refer- ogy, as a technical specification generally rec­ ognized by traders in that sector. Accord­ ingly, the fact that it deliberately failed to include the words 'or equivalent' alongside 13 — Sec, on that point, the document 'Standardization-Fact Sheet 4', drafted in October 1990 by the Commission's UNIX was intended to convey to the suppli­ Directorate-General XIII, to which both the parties in the case refer. ers concerned that NIC meant to refer not to 14 — OJ 1987 L 36, p. 31.

15 — See the judgment in Case 45/87 Commission v Ireland [1988] ECR 4929, in particular paras 12 to 27.

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opening, and by including in the general terms and conditions a technical specifica­ tion defined by reference to a product of a specific make, the Kingdom of the Neth­ erlands has failed to fulfil its obligations under Council Directive 77/62/EEC, as amended by Directives 80/767/EEC and 88/295/EEC, and also under Article 30 of the Treaty;

Order the Kingdom of the Netherlands to pay the costs.

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