Súdny dvor Európskej únie·20.6.1996

C-236/95

ECLI:EU:C:1996:248

Súd: Súdny dvor Európskej únie
IČS: 61995CC0236
Zdroj: eur-lex.europa.eu ↗

COMMISSION ν GREECE

OPINION OF ADVOCATE GENERAL LÉGER delivered on 20 June 1996 *

1. By this action the Commission seeks a 3. Since it had received no communication declaration that, by failing to adopt or failing to this effect from the Greek Government, to notify to it within the prescribed period the Commission put it on notice by letter the laws, regulations and administrative pro- dated 20 May 1992, pursuant to the pro- visions necessary to comply fully with cedure laid down by Article 169 of the Council Directive 89/665/EEC of Treaty, to submit its observations within two 21 December 1989 on the coordination of months. the laws, regulations and administrative pro- visions relating to the application of review procedures to the award of public supply and public works contracts (hereinafter 'the directive'), 1 the Hellenic Republic has failed to fulfil its obligations under the EEC Treaty and that directive. It also claims that the Hel- 4. In its reply dated 17 June 1993, the Greek lenic Republic should be ordered to pay the Government informed the Commission that costs. measures partially implementing the direc- tive in its domestic legal system had been adopted as regards public works contracts — by Presidential Decree N o 23 of 15 January 1993 —, but that in contrast no measure had been adopted in the sphere of public supply contracts.

5. Since it received no further information 2. Under Article 5 of the directive, the concerning the implementation of the direc- Member States had to bring into force, tive in the latter field, on 4 July 1994 the before 21 December 1991, the measures nec- Commission sent the Hellenic Republic a essary to comply with the directive. The reasoned opinion asking it to take the ne- Member States also had to communicate to cessary measures within two months. the Commission 'the texts of the main national laws, regulations and administrative provisions which they adopt in the field gov- erned by this Directive'.

* Original language: French. 6. O n 18 August 1994 the Greek Govern- 1 — OJ 1989 L 395, p. 33. ment informed the Commission that a

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presidential decree was in preparation with a period. It nevertheless claims that the action view to implementing the directive in the should be dismissed. field of public supply contracts.

10. It considers in the first place that the Greek legislation in force on public works 7. However, since the Hellenic Republic did and supply contracts, considered in conjunc- not comply with its obligations under the tion with the provisions of the Code of Civil directive in that field, the Commission and Administrative Procedure and the Stat- brought this action for failure to fulfil obli- ute of the Council of State, 2 already affords gations, which was received at the Court sufficient judicial protection having regard to Registry on 6 July 1995. the requirements of the directive, bearing in mind that that protection has been further reinforced by recent case-law of the Council of State.

8. As the Commission stated at the hearing, the infringement in question relates only to 11. It further states that it has adopted sup- review procedures relating to the award of plementary measures in order fully to com- public supply contracts. The wording of the ply with the directive. An ad hoc statutory application proper differs slightly from that drafting committee was convened by Minis- of the reasoned opinion (in the reasoned terial Decision P1/481 of 15 March opinion, the infringement is stated to be 'as 1993 with a view to proposing any supple- regards supplies', whereas in the application mentary measures. It adds that a draft presi- the Hellenic Republic is charged with failing dential decree, drafted in August 1993 and to comply 'fully' with the directive, '... in notified to the Commission on 22 July 1994, particular ... in the field of public supply is at the stage of obtaining the final signa- contracts ...', but, to my mind, that aspect tures. cannot be construed as a change in the subject-matter of the action. Moreover, the parties have not raised this point.

12. The Hellenic Republic justifies the delays in adopting those provisions on

9. The defendant does not deny that it did 2 — Specifically, Article 52 of Presidential Decree N o 18/89 enti- not take the necessary measures formally to tled 'Codification of legislative provisions relating to the implement the directive in the field of public Council of State', which is concerned more particularly with the 'procedure for the stay of execution of an administrative supply contracts within the prescribed measure contested in an action for annulment'.

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COMMISSION ν GREECE

formal and procedural grounds, such as the annulment, can already secure the complete, fact that they had to be jointly considered by correct transposition of the directive. the competent authorities (Ministry of Industry and Ministry of Public Works), but above all on the grounds of recent changes in the case-law of the judicial division of the Council of State. It also points out that the supreme court has recently delivered a num ber of judgments on invitations to tender for public procurement and public works con tracts 3 expressly referring to the directive. In view of those recent developments, the Hel 15. Without making a detailed comparative lenic Republic states that it is reconsidering study of the content of that provision and the judicial protection available overall and that of the directive, it is sufficient to observe whether or not it is necessary to press for — as the Commission pointed out at the ward with the adoption of the relevant pres hearing — that all the measures provided for idential decree. It further points out that the by the directive do not appear in the relevant draft presidential decree has been amended national legislation. For example, Article in the light of observations received from the 52 relates only to procedures for a stay of Commission. execution, whereas the directive refers more broadly in Article 2(a) to any 'interim meas ures', 'including measures to suspend or to ensure the suspension of the procedure for the award of a public contract'. Furthermore, reliance can be made on Article 52 in Greek law only if there is a main action (action for annulment of an administrative measure). In contrast, the interim measures envisaged by the directive are to be capable of being 13. That argument is not convincing. sought independently of any prior action. It may also be mentioned that, according to Article 1(3), the directive calls upon the Member States to make the review proce dures available '... at least to any person hav ing or having had an interest in obtaining a particular supply or public works contract and who has been or risks being harmed by an alleged infringement', whereas under the Greek provision the procedure is available 14. In the first place, it is impossible effec only to an applicant for the annulment of a tively to argue that Article 52 of Presidential measure. Decree N o 18/89, a general text on the pro cedure for the stay of execution of an admin istrative measure contested by an action for 4 — In any event, even if it were to be held that that provision was capable of constituting a measure duly transposing the directive, there would none the less be an infringement for failure to notify the Commission in the prescribed period, since the provision in question was not relied upon by the 3 — Judgments N o s 39/1991, 355/1995, 470/1995, 471/1995, Hellenic Republic until after the end of the pre-litigation 473/1995 and 559/1995. procedure, for the first time in the rejoinder.

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16. I would further observe that, in so far as 19. Next, as far as concerns the case-law of it itself states that the measures required for the Council of State referred to by the defen- the full implementation of the directive in its dant, which, it maintains, by interpreting the national law are in preparation and that the national provisions in force in conformity draft presidential decree in question has been with the directive, secures, if not formal, at amended to take account of observations least substantive implementation of the from the Commission, the Greek Govern- directive, it must be observed first that most ment has admitted, impliedly but necessarily, of the judgments cited were given in that the national legislation in force does not 1995 and, as such, cannot be effectively relied fully satisfy the requirements of the directive upon by the Hellenic Republic, since '... and that the directive was not implemented whether there has been a failure to fulfil within the prescribed period. obligations must be examined on the basis of the position in which the Member State found itself at the end of the period laid down in the reasoned opinion and the Court cannot take account of any subsequent changes'. 6 Consequently, to my mind, there is no need to dwell on the content of those judgments, irrespective of their importance in the arguments of the parties in the course 17. The justifications put forward for the of the proceedings. delays in adopting these measures, in partic- ular the draft presidential decree mentioned, cannot be accepted either.

20. Only judgment N o 39/1991, which was given before the end of the pre-litigation procedure, might possibly be relevant. In that judgment, the Commission of the Council of State responsible for granting 18. In the first place, the formal and proce- stays of execution provisionally suspended dural difficulties experienced in the course of the execution of decisions relating to a pro- the procedure, such as the joint examination cedure for the award of public works con- by the competent ministries, are completely tracts in accordance with the aforementioned irrelevant: the Court has consistently held Article 52 on the application of a nature- that an argument based on internal legal con- protection association. straints is inadmissible. The Court takes the view that ' . . . a Member State may not plead provisions, practices or circumstances exist- ing in its internal legal system in order to justify a failure to comply with the obliga- tions and time-limits laid down in Commu- 21. However, in my view no effects should nity directives'. 5 attach to the reliance placed on that decision.

5 — See, for example, Case C-253/95 Commission ν Germany 6 — Case C-133/94 Commission ν Belgium [1996] ECR I-2323, [1996] ECR 1-2423, paragraph 12. paragraph 17.

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In the first place, it relates to the field of 24. This would run counter to the funda public works contracts, whereas this action is mental requirements underlying any trans confined to public supply contracts. position: those of legal certainty and ade 9 quate publicity. The Court has stated on many occasions that the provisions of a directive must be implemented 'with unques tionable binding force ... with the specificity, precision and clarity required ... in order to 10 satisfy the requirement of legal certainty' and so that '... where the directive is intended to create rights for individuals, the persons 22. Above all, however, without even check concerned can ascertain the full extent of ing whether the Council of State's interpre their rights and, where appropriate, rely on tation of the national legislation is consistent them before the national courts'. 1 1

with the requirements of the directive, it is sufficient to recall that the Court has held that '... the fact that a practice is in confor mity with the requirements of a directive may not constitute a reason for not transpos ing that directive into national law by provi sions capable of creating a situation which is sufficiently precise, clear and transparent to enable individuals to ascertain their rights 25. It is, moreover, in view of those require and obligations. As the Court held ..., in ments of legal certainty and adequate public order to secure the full implementation of ity that, in mentioning the 'measures ne directives in law and not only in fact, Mem cessary to comply with this Directive' which ber States must establish a specific legal the Member States are to take, Article framework in the area in question.' 7 5 expressly refers to 'the texts of the main national laws, régulations and administrative provisions'.12

23. I would further observe — even if the Hellenic Republic does not support this argument 8 — that to allow that the case-law 26. National case-law interpreting provi- in question is capable of justifying delays in sions of domestic law in a manner regarded the adoption of implementation measures would be liable to mean that case-law could be capable of securing due implementation 9 — Sec to this effect the Opinion of Advocate General Tesauro of the directive. in Joined Cases C-178/94, C-179/94, C-188/94, C-189/94 and C-190/94 Dillenkofer and Others [1996] not yet published in the ECR, section 24. 10 — Case C-59/89 Commission ν Germany, cited above, para graph 24. 7 — Case C-59/89 Commission ν Germany [1991] ECR I-2607, 11 — Case 363/85 Commission ν Italy [1987] ECR 1733, para paragraph 28. graph 7. 8 — First paragraph of point 1 of the rejoinder. 12 — My emphasis.

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as being in conformity with the requirements 27. Since the directive was not transposed of a directive is not sufficient to make those within the prescribed period, the Commis- provisions into measures transposing the sion's action must be held to be well directive in question. founded.

28. Consequently, I propose that the Court declare that, by failing to adopt within the prescribed period the laws, regulations and administrative provisions necessary to comply fully with Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts, the Hellenic Republic has failed to fulfil its obligations under Article 5 of that directive. I further propose that the Hellenic Republic should be ordered to pay the costs in accordance with Article 69(2) of the Rules of Procedure.

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