C-341/96
ECLI:EU:C:1997:510
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O P I N I O N OF MR FENNELLY — CASE C-341/96
OPINION OF ADVOCATE GENERAL FENNELLY delivered on 23 October 1997 *
1. The present infringement action concerns given for the rejection of an application or the alleged (and partially admitted) failure by tender and that a written report be drawn up the Federal Republic of Germany fully to by contracting authorities in respect of each transpose Council Directive 93/36/EEC of contract awarded, 5and the rules on partici- 14 June 1993 coordinating procedures for the pation in and the award of contracts. 6 award of public supply contracts 1 (hereinaf- Article 34(1) of the Directive requires the ter 'the Directive'), or to inform the Com- Member States to bring into force the laws, mission of its implementing measures. regulations and administrative provisions necessary to comply with it before 14 June 1994, and immediately to inform the Com- mission thereof.
I — Pre-litigation- proceedings
2. The Directive has as one of its objectives 3. Having received no such notification from the establishment of an updated text of the Germany, the Commission issued a letter of much-amended Council Directive formal notice pursuant to Article 169 of the 77/62/EEC of 21 December 1976 coordinat- Treaty establishing the European Commu- ing procedures for the award of public sup- nity (hereinafter 'the Treaty') on 9 August ply contracts 2(hereinafter 'the 1976 Direc- 1994, requesting Germany to present its tive'), incorporating a number of drafting observations within two months. In its changes aimed at improving the clarity of response of 6 October 1994, Germany existing provisions. 3 It also introduces a referred to an earlier letter to the Commis- number of substantive changes, regarding the sion of 25 July 1994, in which it had definition of the contracting authority, 4 the explained that the Directive would be imple- imposition of requirements that reasons be mented by an amendment to Part A of the Verdingungsordnung für Leistungen aus- genommen Bauleistungen (Rules regarding public supply contracts except in the con- * Original language: English. struction sector, hereinafter 'the VOL/A'). 1 — OJ 1993 L 199, p. 1. 2 — OJ 1977 L 13, p. 1. This Directive was amended by Council The proposed amendment was at that time Directives 80/767/EEC of 22 July 1980, OJ 1980 L 215, p. 1, 88/295/EEC of 22 March 1988, OJ 1988 L 127, p. 1, and 92/50/EEC of 18 June 1992, OJ 1992 L 209, p. 1. 3 — See the first and fourth recitals in the preamble to the Direc- tive. 5 — Article 7 of the Directive. 4 — Article 1(b) of the Directive. 6 — Title IV of the Directive.
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COMMISSION v GERMANY
being considered by the Deutscher Ver- VgV had been sent to the Commission on dingungsausschuß für Leistungen (German 29 September 1994, but still required the committee on public supply contracts), and approval of the Federal Government and of was expected to be published in the autumn the Bundesrat (Federal Council, upper house of 1994. Germany also stated that it had of parliament). Germany explained the already incorporated the new definition of unforeseen delay by reference to the federal 'contracting authorities' in Paragraph 57 of structure of the State. the Haushaltsgrundsätzegesetz (Law on bud- getary principles), and had, while awaiting full implementation, communicated in writ- ing on 22 June 1994 with all contracting authorities to ensure observance of the terms of the Directive, on the basis that it was directly effective after 14 June 1994. II — Proceedings before the Court
5. Having received no further information on the implementation of the. Directive, the Commission- applied to the Court on 15 October 1996, pursuant to Article 169 of the Treaty, requesting that it declare that 4. O n 16 January 1996, the Commission Germany, in omitting to adopt, or to inform delivered a reasoned opinion to Germany, the Commission of, the measures necessary stating that it had still received no infor- to comply with the Directive, had failed to mation pursuant to Article 34 regarding the fulfil its obligations under the Treaty, and transposition of the Directive, and laying that it condemn Germany to pay the costs of down a period of two months for Germany the proceedings. The Court decided, with to take the necessary measures. In its reply the express consent of the parties, to dis- of 10 April 1996, Germany stated that, in so pense with the oral procedure pursuant to far as the Directive constituted a restatement Article 44a of its Rules of Procedure. of the amended text of the 1976 Directive, it had already been implemented by the Second Law amending the Haushaltsgrundsätzege- setz, of 26 November 1993, 7 the Verordnung über die Vergabebestimmungen für öffentli- che Aufträge (Order concerning public con- tracts, hereinafter 'the V g V ) , of 22 February III — Analysis 1994, 8 and the VOL/A, of 3 August 1993. » The implementation of the new elements in the Directive was being examined. A draft measure amending the V O L / A and the 6. It is an admitted fact that Germany has not adopted, and, therefore, has not commu- nicated to the Commission, all the measures 7 — BGBl I, p. 1928. 8 — BGBl I, p. 321. necessary to comply fully with the Directive 9 — Bitndesanzeiger No 175a of 17 September 1993. within the period prescribed. In particular,
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OPINION OF MR FENNELLY — CASE C-341/96
those aspects of the Directive which go stitutional order. Furthermore, the fact that a beyond mere consolidation have not been Directive is capable of direct effect in the transposed into German law, with the appar- absence of implementing measures does not ent exception of the revised definition of relieve a Member State of its duty to adopt contracting authorities. The consistent case- such measures. Direct effect, where it arises, law of the Court makes clear that a Member is merely a consequence of Member States' State's failure to fulfil its obligations, includ- failure in this regard, and does not secure the ing those concerning the implementation of objective that the Directive be implemented directives, cannot be excused on the basis of fully and, consistently with the principle of obstacles posed by that State's domestic con- legal certainty, by binding national measures.
IV — Conclusion
7. In the light of the foregoing, I r e c o m m e n d t h a t the C o u r t :
(1) Declare that, b y failing w i t h i n t h e t i m e - l i m i t p r o v i d e d t o a d o p t a n d c o m m u - nicate t o t h e C o m m i s s i o n t h e laws, r e g u l a t i o n s a n d administrative p r o v i s i o n s necessary t o c o m p l y fully w i t h C o u n c i l D i r e c t i v e 9 3 / 3 6 / E E C of 14 J u n e 1993 c o o r d i n a t i n g p r o c e d u r e s for t h e a w a r d of p u b l i c s u p p l y contracts, t h e F e d e r a l R e p u b l i c of G e r m a n y has failed t o c o m p l y w i t h its obligations u n d e r t h a t directive a n d u n d e r t h e Treaty establishing t h e E u r o p e a n C o m m u n i t y ;
(2) O r d e r t h e F e d e r a l R e p u b l i c of G e r m a n y t o p a y t h e costs.
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