Opinion of the Advocate General — ECLI:EU:C:1998:373
Date: 1998-07-16
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Approximation of laws
Procedure: Action for failure to fulfil obligations - successful
Origin: Ireland

Summary of the Judgment
1. Approximation of laws — Review procedures in respect of the award of public supply and
public works contracts — Directive 89/665 — Procedure enabling the Commission to take
preventive action where there has been a clear and manifest infringement of Community pro­
visions in the field of public procurement — Procedure unrelated to the infringement procedure
under Article 169 of the Treaty
(EC Treaty, Art. 169; Council Directive 89/665)
2. Approximation of laws — Procedures for the award of public supply contracts — Directive
77/62 — Contracting authorities — Bodies corresponding to legal persons governed by public
law — Annex I to Directive 77/62 — Public authorities whose public supply contracts are
subject to control by the State
(Council Directive 77/62, Art. 1(b) and Annex I, Point VI)
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SUMMARY— CASE C-353/96
1. The procedure under Directive 89/665 on
the coordination of the laws, regulations
and administrative provisions relating to
the application of review procedures to
the award of public supply and public
works contracts, which enables the Com­
mission, where it considers that a clear
and manifest infringement of Community
provisions in the field of public procure­
ment has been committed, to take up the
matter with a Member State, constitutes a
preventive measure which can neither der­
ogate from nor replace the powers of the
Commission under Article 169 of the
Treaty, so that the way in which the Com­
mission has used that procedure is irrel­
evant in assessing the admissibility of an
action for failure to fulfil obligations
brought by the Commission against a
Member State by reason of its infringe­
ment of Community provisions in the
field of public procurement.
2. A body such as Coillte Teoranta (Irish
Forestry Board) is a contracting authority
within the meaning of Article 1(b) of
Directive 77/62 coordinating procedures
for the award of public supply contracts.
Such a body, which has legal personality
and does not award public contracts on
behalf of the State or a regional or local
authority, cannot be regarded as being the
State or a regional or local authority, but
constitutes a body corresponding to legal
persons governed by public law within the
meaning of Article 1(b) of Directive 77/62
in conjunction with Point VI (Ireland) of
Annex I thereto, where the State may exer­
cise control, at least indirectly, over the
award of public supply contracts.
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