CELEX: 61994CJ0318
Failure to fulfil obligations
Public works contracts
Failure to publish a tender notice

By application lodged at the Registry of the Court on 6 December 1994, the Commission of the European Communities brought
an action under Article 169 of the EC Treaty for a declaration that, the Waterways and Navigation Office, Emden having awarded
the public works contract for the dredging of the lower Ems between Papenburg and Oldersum by negotiated procedure without
prior publication of a tender notice in the
Official Journal of the European Communities
, the Federal Republic of Germany has failed to fulfil its obligations under Council Directive 71/305/EEC of 26 July 1971
concerning the coordination of procedures for the award of public works contracts (OJ, English Special Edition 1971 (II),
p. 682), as amended by Council Directive 89/440/EEC of 18 July 1989 (OJ 1989 L 210, p. 1, hereinafter
the Directive).
In September 1989, at the request of the town of Papenburg, a plan was drawn up to alter the bed of the lower Ems with a view
to making it navigable for
Panama class vessels with a 6.80 metre draught.  The deepening of this section of the Ems river was of major economic significance
for the region.  Moreover, during 1990, the Meyer-Werft shipyard, the largest employer in the region, contracted to deliver
a
Panama class vessel by 18 February 1992 at the latest.  A
per diem
penalty of USD 80 000 was laid down in the event of failure to comply with that scheduled delivery date.  Delivery of the
vessel on that date could take place only after completion of this work.
Under German legislation, the plans for deepening the lower Ems had to be approved by a procedure requiring, in particular,
the agreement of the Weser-Ems Regional Authority.  At the end of May 1991, the date envisaged for conclusion of this procedure,
the Weser-Ems Regional Authority, which had not previously raised any objection, gave notice that it did not agree to the
project on ecological grounds.  A decision was then taken to continue the procedure with a view to obtaining approval only
of the plans for that part of the project which consisted in temporarily deepening the river bed in order to enable the vessel
being built by the Meyer-Werft shipyard to pass through.  The plans for this partial project were definitively approved on
15 August 1991.
However, on 15 April 1991, the Waterways and Navigation Office, Emden (hereinafter
the Office), which intended to award the work in accordance with the open procedure, sent a prior information notice concerning the
work envisaged which was published in a supplement to the
Official Journal of the European Communities
on 20 April 1991.
Given the delay in approving the plans, the Office decided to abandon the open procedure and to award the contract by negotiated
procedure without prior publication of a tender notice.  The contract was awarded on 15 August 1991 pursuant to the latter
procedure.
By formal notice of 12 November 1991, the Commission instituted Treaty-infringement proceedings against the Federal Republic
of Germany under Article 169 of the Treaty on the ground that it had acted in breach of the rules governing the procedure
for the award of public works contracts.  The Commission pointed out that, in this case, the choice of negotiated procedure
could not be justified under Article 5(3)(c) of the Directive.  In a letter of 6 March 1992, the German Government disputed
that contention.
In its reasoned opinion of 27 April 1993, the Commission restated its view and called on the German Government to take the
measures necessary to comply with the reasoned opinion and, in particular, to suspend the contract in question, as well as
any other contract negotiated on the same terms, within two months of notification of the opinion.
In its statement of position of 28 September 1993, the German Government stressed that it was imperative for the work to be
completed by 18 February 1992, the date on which the vessel was to be delivered, so that it had to be begun by no later than
mid-August 1991.  In view of the difficulties arising in the procedure for approval of the plans, it was not possible to follow
the open procedure, which would have lasted at least 72 days.
The Commission took the view that this reply was unsatisfactory and brought the present action.
It is necessary to consider whether the Federal Republic of Germany was entitled, on the basis of Article 5(3)(c) of the Directive,
to award the contract in question by negotiated procedure without prior publication of a tender notice.  Article 5(3)(c) provides
that: The contracting authorities may award their public works contracts by negotiated procedure without prior publication of a
tender notice, in the following cases:...
(c)
in so far as is strictly necessary when, for reasons of extreme urgency brought about by events unforeseen by the contracting
authorities in question, the time-limit laid down for the open, restricted or negotiated procedures referred to in paragraph 2
above cannot be kept.  The circumstances invoked to justify extreme urgency must not in any event be attributable to the contracting
authorities ...
.
Before Directive 71/305 was amended by Directive 89/440, Article 9 of the earlier directive provided that: Authorities awarding contracts may award their works contracts without applying the provisions of this Directive, except those
of Article 10, in the following cases:...
(d)
in so far as is strictly necessary when, for reasons of extreme urgency brought [about] by events unforeseen by the authorities
awarding contracts, the time-limit laid down in other procedures cannot be kept ...
.
In so far as Article 5(3)(c) of the Directive reproduces the wording of the former Article 9(d), those provisions must be
given the same interpretation.
The Court has held in this regard that the provisions of Article 9 of Directive 71/305, which authorize derogations from the
rules intended to ensure the effectiveness of the rights conferred by the Treaty in relation to public works contracts, must
be interpreted strictly and that the burden of proving the existence of exceptional circumstances justifying a derogation
lies on the person seeking to rely on those circumstances (Case C-57/94
Commission
v
Italy
[1995] ECR I-1249, paragraph 23).
The Court has also held that, according to Article 9(d) of Directive 71/305, the derogation for which it provides, namely
exemption from the obligation to publish a notice of a call for tenders, is available only if three conditions are fulfilled
concurrently.  That derogation requires the existence of an unforeseeable event, extreme urgency, rendering the observance
of time-limits laid down by other procedures impossible, and, finally, a causal link between the unforeseeable event and the
extreme urgency resulting therefrom (Case C-107/92
Commission
v
Italy
[1993] ECR I-4655, paragraph 12).  If one of those conditions is not satisfied, use of the negotiated procedure will not
be justified.
According to the German Government, the event which the contracting authorities could not have foreseen was the totally unexpected
refusal by the Weser-Ems Regional Authority to grant its approval following its deliberation.
That argument cannot be accepted.
It must be stressed that, in order to take account of the public and private interests concerned in procedures for approving
public works projects, Member States may confer on natural or legal persons potentially concerned by a project certain rights
which the competent authorities must respect.
The possibility that a body which must approve a project might, before expiry of the period laid down for this purpose, raise
objections for reasons which it is entitled to put forward is, consequently, something which is foreseeable in plan approval
procedure.
The refusal of the Weser-Ems Regional Authority to approve the project for dredging the lower Ems, thereby obliging the competent
authorities to amend that project, cannot therefore be regarded as an event unforeseen by the contracting authorities within
the meaning of Article 5(3)(c) of the Directive.
It follows from the foregoing, without its being necessary to determine whether the other derogation conditions were satisfied
in this case, that, the Waterways and Navigation Office, Emden having awarded the public works contract for the dredging of
the lower Ems between Papenburg and Oldersum by negotiated procedure without prior publication of a tender notice in the
Official Journal of the European Communities
, the Federal Republic of Germany has failed to fulfil its obligations under Council Directive 71/305/EEC of 26 July 1971
concerning the coordination of procedures for the award of public works contracts, as amended by Council Directive 89/440/EEC
of 18 July 1989.
Costs
Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs.  Since the Federal
Republic of Germany has been unsuccessful, it must be ordered to pay the costs.
On those grounds,
THE COURT (Fifth Chamber)
hereby:
1.
Declares that, the Waterways and Navigation Office, Emden having awarded the public works contract for the dredging of the
lower Ems between Papenburg and Oldersum by negotiated procedure without prior publication of a tender notice in the
Official Journal of the European Communities
, the Federal Republic of Germany has failed to fulfil its obligations under Council Directive 71/305/EEC of 26 July 1971
concerning the coordination of procedures for the award of public works contracts, as amended by Council Directive 89/440/EEC
of 18 July 1989;
2.
Orders the Federal Republic of Germany to pay the costs.
Edward
Moitinho de Almeida
Jann
Sevón
Wathelet
Delivered in open court in Luxembourg on 28 March 1996.
R. Grass
D.A.O. Edward
Registrar
President of the Fifth Chamber
–
Language of the case: German.