C-439/00
ECLI:EU:C:2001:232
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OPINION OF MR MISCHO — CASE C-439/00
OPINION OF ADVOCATE GENERAL MISCHO delivered on 2 May 2001 1
1. In these Treaty-infringement proceed- 3. In the absence of any notification of the ings, which it brought on 28 November measures transposing the directive by the 2000, the Commission of the European expiry of the time-limit, the Commission, Communities has asked the Court to by letter dated 10 May 1999, gave the declare that, by failing to adopt the laws, French Government formal notice to sub- regulations and administrative measures mit its observations within two months. necessary to comply with Directive 98/4/ EC of the European Parliament and of the Council of 16 February 1998 amending Directive 93/38/EEC coordinating the pro- curement procedures of entities operating in the water, energy, transport and tele- 4. By letter dated 6 January 2000, the communications sectors 2or, at all events, French Government informed the Commis- by failing to communicate the same to the sion that the process of adopting the draft Commission, the French Republic has decree providing for the transposition of failed to comply with its obligations under this directive, among others, was in hand, that directive. that the draft decree would shortly be submitted to the Conseil d'État (The Coun- cil of State) (France) and that the directive had already been partially transposed by an order dated 22 April 1998.
Facts and pre-litigation procedure 5. On 18 February 2000 the Commission sent a reasoned opinion to the French Republic requesting it to adopt the mea- 2. Article 2(1) of Directive 98/4/EC sures necessary to comply with the obliga- requires the Member States to enact the tions resulting from the directive within laws, regulations and administrative provi- two months from the date of notification of sions necessary to comply with the directive the opinion. by 16 February 1999 at the latest, and immediately to inform the Commission of them.
1 — Original language: French. 6. Having received no further information 2 — OJ 1998 L 101, p. 1. as to whether the legislative procedure had
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COMMISSION V FRANCE
been brought to a conclusion and the necessitates the amendment of the Code decree enacted, the Commission brought des marchés publics (Code of Public Pro- the present action. curement) as well as other legislative mea- sures. A text amending the code has already been submitted to the Conseil d'État for consideration. The draft decree, which aims to transpose the directive so far as it concerns the contracting entities not subject to the Code des marchés publics, will also Analysis have to be submitted to the Conseil d'État, in the interest of consistency between the reform of the Code des marchés publics and the whole body of legislation governing 7. Pointing out the obligations of the public procurement. Member States under the third paragraph of Article 249 EC, the Commission submits that the French Republic was required to take the necessary measures to comply with the directive within the prescribed period.
9. It is clear, however, that, at the date of commencement of the action, the legisla- tion had not been amended to comply with 8. In its defence the French Republic states Directive 98/4, which, moreover, the that the transposition of the directive French Republic does not deny.
Conclusion
10. In these circumstances, I can only suggest to the Court that it allow the Commission's application and, as a result:
(1) declare that, by not adopting all the necessary laws, regulations and administrative measures necessary to comply with Directive 98/4/EC of the
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OPINION OF MR MISCHO — CASE C-439/00
European Parliament and of the Council of 16 February 1998 amending Directive 93/38/EEC coordinating the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors, the French Republic has failed to fulfil its obligations under that directive;
(2) order the French Republic to pay the costs.
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