C-323/96

COMMISSION v BELGIUM

OPINION OF ADVOCATE GENERAL ALBER delivered o n 19 M a r c h 1998 *

A — Introduction the Vlaamse Raad was therefore entitled t o refrain from complying with the provisions of Community law relating to the publication of notices for public works contracts.

1. These proceedings for failure of a Member State to fulfil its obligations under the Treaty relate to the interpretation of Directives 89/440/EEC and 93/37/EEC 1 concerning the coordination of procedures for the award of public works contracts for the construction of a building for the Vlaamse Raad. Most of 3. The Commission claims that the Court the contracts for the regional parliament should: building were awarded by a negotiated pro- cedure and Lot 4 was awarded by a restricted procedure. The Commission considers that such conduct constitutes failure to comply with the requirements on tendering and pub- lication established by the directives.

— declare that the Kingdom of Belgium has failed to fulfil its obligations under Direc- tives 89/440/EEC and 93/37/EEC, and in particular Articles 7 and 11 of Directive 93/37/EEC, in so far as it did not place a 2. The Belgian Government, on the other notice in the Official Journal of the Euro- hand, is of the opinion that the regional par- pean Communities, either for the overall liament, as a legislative body, cannot be bound project or for the individual lots, for the by decisions of the minister responsible under construction of a building for the Vlaamse the legal system of a Member State for the Raad and it did not apply the award pro- award of public contracts. It maintains that cedures in accordance with those direc- tives;

4. The Belgian Government does not seek a The national legislation applicable to the award specific form of order in its defence. procedure carried out at the turn of the year 1996/97 was the Law of 14 July 1976 2 on public contracts, including the provisions adopted for its implementation. That Law assumes that only the executive is bound by the award provisions. Although a new law was adopted on 24 December 1993, 3its entry into force was delayed by the fact that the decrees 4 necessary for its implementation had 5. I shall refer to the submissions of the par- not been adopted. In that context, the con- ties in the course of the opinion. siderable problems connected with the special constitutional position of legislative bodies, which are relevant in this case, were discussed both at national level and in contacts with the Commission, but no solution which was sat- isfactory for all the parties concerned could B — Opinion be reached. The Belgian Government is of the opinion that the Commission did not provide it with the necessary assistance in the search for a solution and that, consequently, the bringing of the action giving rise to the present proceedings was unreasonable. It contends that the timing of the action taken against the Belgian Government was also particularly unfavourable since the events in question fall 6. The Commission takes the view that the within the temporal context of the achieve- Vlaamse Raad is undoubtedly a 'contracting ment of constitutional autonomy by the authority' within the meaning of the Direc- regions, a period of radical change which was tive. It maintains that the Directive was there- accompanied by legal uncertainties. fore applicable to the construction project in question. In awarding the contract by a nego- tiated procedure, the Vlaamse Raad failed t o fulfil its obligations under the Directive.

Parliament, as it has since become known — 10. Since the construction project in question is a legislative body which is independent in does not fulfil any of the criteria justifying a accordance with the understanding of democ- negotiated procedure without prior publica- racy prevailing in the Member States and tion, the provisions of Article 11 of the Direc- underlying the Treaty of Maastricht. It is clear tive relating to publication of a notice must from the Directive itself that there are fields be complied with in so far as the Vlaamse to which it does not apply, as Article 4 of the Raad is to be regarded as a contracting auth- Directive shows. ority within the meaning of the Directive. Article 1(b) of the Directive defines con- tracting authorities as 'the State, regional o r local authorities, bodies governed by public law, associations formed by one or several of such authorities or bodies governed by public law'.

8. In reply to those arguments, the Commis- sion asserts that internal problems in the legal system of a Member State cannot release it from the duty to comply with Community law. Moreover, a parliament is also obliged to observe Community law.

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O P I N I O N OF MR ALBER — CASE C-323/96

12. The question concerning the binding effect in question in this case. The issue has been on the administration of the provisions of principally whether subsidiary bodies and Community law relating to public contracts institutions had failed to comply with the was the subject-matter of the Costanzo case. 9 award provisions. 14 In that case, the Court held that the obliga- tions arising under the provisions of a direc- tive 'are binding upon all the authorities of the Member States'. 10 The Court goes on t o state that in all the defined circumstances in which individuals may rely on the provisions of a directive 'all organs of the administra- tion, including decentralised authorities such as municipalities, are obliged to apply those provisions'. 1 1In that respect, the binding 14. A parliament, on the other hand, as an effect on State authorities must also be organ of State power, is certainly part of the regarded as positively established. State in functional terms. The same is obvi- ously true of the parliaments of the con- stituent States in a federal structure.

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COMMISSION v BELGIUM

16. Moreover, at the hearing the Belgian Gov- 18. It may be unfortunate that the Commis- ernment's representative conceded that in sion did not provide the assistance hoped for reality the Vlaamse Raad did not act in its from it during the legislative procedure. H o w - capacity as a legislature when it awarded the ever, from the time of the institution of the contract. According to the Belgian Govern- Treaty infringement proceedings at the latest, ment, the freedom invoked is founded on the there could be no doubt about the Commis- exceptional nature of the constitutional situ- sion's attitude. The letter of formal notice ation. Thus, it justifies the use of the pro- instituting the Treaty infringement procedure dates from 28 July 1994 and the Belgian Gov- cedure at issue by reference to its own domestic ernment replied to it on 31 August of that legal situation. It maintains that the Law of year. Over a year later, on 16 November 1995, 14 July 1976 expressly rendered only the the Commission addressed its reasoned executive subject to the award provisions. opinion to the defendant government, which replied by letter of 15 December 1995. The Commission finally brought its action on 2 October 1996.

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OPINION OF MR. ALBER — CASE C-323/96

21. Against that it must be stated that, in this separation of powers cannot therefore be con- particular case, Article 4 offers no grounds strued as pleading the protection of essential for disregarding the obligations which arise interests of the State. from the Directive. Article 4(1) merely pro- vides for derogation in respect of certain fields, referring to certain provisions of Council Directive 90/531/EEC on the pro- curement procedures of entities operating in 23. In view of the independence of the the water, energy, transport and telecommu- Vlaamse Raad as a legislative body, the ques- nications sectors. 16 Article 4(2) excludes from tion still arises, in any event, of the liability the scope of the Directive those works con- of the Member State in the context of pro- tracts 'which are declared secret or the execu- ceedings under Article 169 of the Treaty. In tion of which must be accompanied by spe- this respect also, reference may be made to cial security measures in accordance with the settled case-law of the Court which states laws, regulations or administrative provisions that the liability of a Member State under in force in the Member State concerned or Article 169 arises whatever the agency of the when the protection of the basic interests of State whose action or inaction is the cause of the Member State's security so requires'. The the failure to fulfil its obligations, even in the Belgian Government has not put forward any case of a constitutionally independent institu- facts which justify application of the provi- tion. 18 sion authorising derogation, whether by men- tioning specific laws, regulations or adminis- trative provisions declaring the works contract secret or by pleading special security mea- sures or the protection of essential interests 24. I therefore conclude that the form of of the State. order sought by the Commission should be granted.

(1) declare that, by failing to comply with the requirements in the field of ten- dering procedures and publication in respect of the award of both the overall project and the various lots concerning the construction of a building for the Vlaamse Raad, the Kingdom of Belgium has failed to fulfil its obligations under Directives 89/440/EEC and 93/37/EEC, in particular Articles 7 and 11 of Directive 93/37;

(2) order the Kingdom of Belgium to pay the costs.

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