C-304/96

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OPINION OF MR LENZ — CASE C-304/96

Directive concerns the criteria on which However, until the end of 1992, 7 if current awards are to be based. Article 30(4) pro- national law so permits, the contracting vides as follows: authority may exceptionally, without any discrimination on grounds of nationality, reject tenders which are abnormally low in relation to the works, without being obliged to comply with the procedure provided for in the first subparagraph if the number of such tenders for a particular contract is so high that implementation of this procedure would lead to a considerable delay and jeop- 'If, for a given contract, tenders appear to be ardize the public [interest] attaching to the abnormally low in relation to the works, the execution of the contract in question. contracting authority shall, before it may Recourse to this exceptional procedure shall reject those tenders, request, in writing, be mentioned in the notice referred to in details of the constituent elements of the ten- Article 11(5).' der which it considers relevant and shall verify those constituent elements taking account of the explanations received.

6. The national court concluded that, in the case before it, the contracting authority had correctly applied the Italian legislation pro- The contracting authority may take into viding for the exclusion of abnormally low consideration explanations which are justi- tenders. It held, however, that there was a fied on objective grounds including the 'clear discrepancy' between that legislation economy of the construction method, or the and Article 30(4) of Directive 93/37. technical solution chosen, or the exception- ally favourable conditions available to the tenderer for the execution of the work, or the originality of the work proposed by the tenderer.

10. The Italian Government takes the view Admissibility that there is no need to give a ruling on this ' question. It maintains that Directive 93/37 does not authorize the Member States to derogate from its provisions. Besides, in Cos- tanzo, I0 the Court has already ruled that the 8. It appears from the facts described that provisions applying at the time of that judg- the question here is whether, after 31 ment — which corresponded to Article 30(4) December 1992, the Italian authorities were of Directive 93/37 — have direct effect. Thus entitled to allow derogations from a provi- the judgment in Costanzo gave the national sion of Directive 93/37, which was to be court all the information needed to adjudi- transposed into domestic law by 19 July cate in the dispute before it. That court 1990 at the latest. As the Commission has should therefore refuse to apply the relevant rightly observed, the question referred by part of Article 21 (la) of Law N o 109 on the the national court has further implications. ground that it is contrary to Directive 93/37. The real question before the Court is, very generally speaking, whether a Member State may unilaterally postpone the date of entry into force of a directive and, if so, subject to what conditions. It is not, however, the Court's role in exercising its jurisdiction under Article 177 of the Treaty to deliver advisory opinions on general or hypothetical 11. I agree that the reply to the question questions. 9 referred may be deduced from Costanzo, as well as from the judgment in Furlanis. n It should nevertheless be emphasized that in principle it is for the national court to assess whether or not it is necessary to seek a pre- liminary ruling, having regard to the circum- 9. The Commission's proposal that the stances of the individual case. The fact that it wording of the question be adjusted ought is relatively simple, on the basis of existing

14. However, Article 29(5), fourth subpara- graph, of Directive 71/305 (corresponding to The question Article 30(4), fourth subparagraph, of Direc- tive 93/37) authorized, subject to strict con- ditions, and until the end of 1992, the rejec- tion of abnormally low tenders without the need to follow the verification procedure laid down in the first subparagraph. The Court has already ruled (in Furlanis) that that pro- vision must be narrowly construed and is 13. As the Commission has pointed out, the available only for procedures in which the rule set out in Article 30(4) of Directive definitive award was made by 31 December 93/37 corresponds in this case to that previ- 1992 at the latest. 17 A provision of domestic ously contained in Article 29(5) of Council law under which the verification procedure Directive 71/305/EEC of 26 July 1971 con- referred to above may continue to be waived cerning the coordination of procedures for after that date is therefore manifestly incom- the award of public works contracts. , 3 That patible with Directive 93/37. provision had been introduced by Council

14 — OJ 1989 L 210. p. 1. 12 — Published in Supplement N o 179 to G U R I N o 251 of 25 15 — Anicie 3 of Directive 89/440. October 1996. 16 — See the first recital in the preamble to Directive 93/37. 13 — OJ, English Special Edition 1971 (II), p. 682. 17 — Cited above (footnote 11), paragraphs 17 to 22.

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HERA v USL GENOA AND ROMAGNOLI

15. The Court has already ruled in Costanzo vidual against the State. IS The same must be that Artide 29(5) of Directive 71/305 is true of Article 30(4) of Directive 93/37, unconditional and sufficiently precise to have which is to a large extent identical to that direct effect and be relied upon by an indi- provision.