Opinion of the Advocate General — ECLI:EU:C:2000:156
Date: 2000-03-23
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Right of establishment;Approximation of laws;Freedom to provide services
Procedure: Action for failure to fulfil obligations - unfounded
Origin: France

Summary of the Judgment 
1. Approximation of laws — Public procurement procedures in the water, energy, 
transport and telecommunications sectors — Directive 93/38 — Effects of the 
directive on decisions of the contracting authority adopted before expiry of the period 
for transposition — None 
(Council Directive 93/38) 
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SUMMARY — CASE C-337/98 
2. Actions for failure to fulfil obligations — Proof of failure — Burden on Commis­
sion — Submission of evidence that the obligation has not been fulfilled 
(EC Treaty, Art. 169 (now Art. 226 EC)) 
1. In the area of public procurement, 
Community law does not require an 
awarding authority in a Member State 
to intervene, at the request of an 
individual, in existing legal relations 
established for an indefinite period or 
for several years where those relations 
came into being before expiry of the 
period prescribed for transposition of 
the directive in question. That general 
principle can be applied to all the 
stages of a procedure for the award of 
a contract which are completed before 
the expiry of the period prescribed for 
transposition of a directive but form 
part of a procedure which ended after 
that date. Accordingly, Directive 93/38 
coordinating the procurement proce­
dures of entities operating in the water, 
energy, transport and telecommunica­
tions sectors is not applicable to the 
choice made by the contracting entity's 
decision to use a negotiated procedure 
without a prior call for competition to 
award a contract, made before the 
expiry of the period prescribed for 
transposing that directive and forming 
part of an award procedure which was 
not completed until after the expiry of 
the period prescribed. 
(see paras 38-39, 41-42) 
2. In proceedings under Article 169 of the 
Treaty (now Article 226 EC) for failure 
to fulfil an obligation, it is incumbent 
on the Commission to prove that the 
obligation has not been fulfilled and to 
place before the Court the evidence 
necessary to enable it to determine 
whether that is the case. 
(see para. 45) 
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