Opinion of the Advocate General — ECLI:EU:C:2002:717
Date: 2002-11-28
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Provisional data;Right of establishment;Freedom to provide services
Procedure: Action for failure to fulfil obligations - successful
Origin: Germany

Summary of the Judgment 
1. Actions against Member States for failure to fulfil obligations — Commission's right 
to bring an action — Exercise of that right not dependent on a specific interest in 
bringing an action 
(Art. 226 EC) 
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SUMMARY — JOINED CASES C-20/01 AND C-28/01 
2. Approximation of laws — Procedures for the award of public service contracts — 
Directive 92/50 — Award of contracts — Negotiated procedure without prior 
publication of a contract notice — Conditions governing permissibility — Technical 
or artistic reasons, or reasons connected with the protection of exclusive rights — 
Meaning — Environmental protection — Whether included 
(Council Directive 92/50, Art. 11(3)(b)) 
1. In exercising its powers under 
Article 226 EC the Commission does 
not have to show that there is a specific 
interest in bringing an action. The 
provision is not intended to protect 
the Commission's own rights. The 
Commission's function, in the general 
interest of the Community, is to ensure 
that the Member States give effect to 
the Treaty and the provisions adopted 
by the institutions thereunder and to 
obtain a declaration of any failure to 
fulfil the obligations deriving therefrom 
with a view to bringing it to an end. 
Given its role as guardian of the 
Treaty, the Commission alone is there­
fore competent to decide whether it is 
appropriate to bring proceedings 
against a Member State for failure to 
fulfil its obligations and to determine 
the conduct or omission attributable to 
the Member State concerned on the 
basis of which those proceedings 
should be brought. It may therefore 
ask the Court to find that, in not 
having achieved, in a specific case, the 
result intended by the directive, a 
Member State has failed to fulfil its 
obligations. 
(see paras 29-30) 
2. Environmental protection is capable of 
constituting a technical reason for the 
purposes of Article 11(3)(b) of Direc­
tive 92/50 relating to the coordination 
of procedures for the award of public 
service contracts. That provision stipu­
lates that contracting authorities may 
award public service contracts by 
negotiated procedure without prior 
publication of a contract notice when, 
for technical or artistic reasons, or for 
reasons connected with the protection 
of exclusive rights, the services may be 
provided only by a particular service 
provider. However, the procedure used 
where there is a technical reason of that 
kind must comply with the fundamen­
tal principles of Community law, in 
particular the principle of non-dis­
crimination as it follows from the 
provisions of the Treaty on the right 
of establishment and the freedom to 
provide services. 
(see paras 59-60, 62) 
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