Opinion of the Advocate General — ECLI:EU:C:1999:5
Date: 1999-01-19
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 - successful
Origin: Austria

Summary of the Judgment 
1. Actions for failure to fulfil obligations — Pre-litigation procedure — Subject-matter — 
Reasoned opinion — Content 
(EC Treaty, Art. 169 (now Art. 226 EC)) 
2. Actions for failure to fulfil obligations — Ρre-litigation procedure — Purpose — Time 
granted to the Member State concerned — Requirement that a reasonable length of 
time be allowed — Criteria for assessment 
(EC Treaty, Art. 169 (now Art. 226 EC)) 
I - 7479 
SUMMARY — CASE C-328/96 
3. Approximation of laws — Review procedures relating to the award of public supply 
and public works contracts — Directive 89/665 — Procedure enabling the Commis­
sion to take preventive action where there has been a clear and manifest infringement of 
the Community rules on public procurement — Unrelated to the infringement 
procedure under Article 169 of the Treaty (now Article 226 EC) 
(EC Treaty, Art. 169 (now Art. 226 EC); Council Directive 89/665) 
4. Approximation of laws — Procedures for the award of public works contracts — 
Directive 93/3 7 — Where the Community rules are infringed by a contracting 
authority controlled and financed by one of the States within a Member State with a 
federal structure — Infringement imputable to the Member State 
(Council Directive 93/37, Art. 1(b)) 
1. Since the subject-matter of an action 
brought under Article 169 of the 
Treaty (now Article 226 EC) is delim­
ited by the pre-litigation procedure 
provided for therein, the action cannot 
be founded on any complaints other 
than those formulated in the reasoned 
opinion delivered by the Commission. 
Although the Commission is not 
obliged to indicate in the reasoned 
opinion the measures to be taken to 
eliminate the alleged infringement, it 
must, if it intends to make the failure to 
adopt a certain measure the subject-
matter of its infringement action, spe­
cifically indicate to the Member State 
concerned that that measure must be 
adopted. 
2. In the context of an action for failure to 
fulfil obligations, the purpose of the 
pre-litigation procedure is to give the 
Member State concerned an opportu­
nity, on the one hand, to comply with 
its obligations under Community law 
and, on the other, effectively to put 
forward its defence to the complaints 
made by the Commission. 
In view of the fact that the pre-litiga­
tion procedure has thus a dual purpose, 
the Commission must allow Member 
States a reasonable period to reply to 
letters of formal notice and to comply 
with reasoned opinions, or, where 
appropriate, to prepare their defence. 
In order to determine whether the 
period allowed is reasonable, account 
must be taken of all the circumstances 
of the case. Thus, very short periods 
may be justified in particular circum­
stances, especially where there is an 
urgent need to remedy a breach or 
where the Member State concerned is 
fully aware of the Commission's views 
long before the procedure starts. 
3. The procedure by which, pursuant to 
Directive 89/665 on the coordination 
of the laws, regulations and adminis­
trative provisions relating to the appli­
cation of review procedures to the 
I - 7480 
COMMISSION V AUSTRIA 
award of public supply and public 
works contracts, the Commission 
may — where it considers that a clear 
and manifest infringement of Commu­
nity provisions in the field of public 
procurement has been committed — 
take up the matter with a Member 
State, constitutes a preventive measure 
which can neither derogate from nor 
replace the powers of the Commission 
under Article 169 of the Treaty (now 
Article 226 EC). It follows that the 
detailed provisions to which that spe­
cial procedure is subject cannot affect 
the admissibility of an action brought 
under that provision. 
4. A Member State which has a federal 
structure may be held liable for the 
actions of a contracting authority — 
within the meaning of Article 1(b), 
second subparagraph, of Directive 
93/37 concerning the coordination of 
procedures for the award of public 
works contracts — all the activities of 
which are controlled and financed by 
one of the component States. If the 
actions of such a contracting authority 
were not imputable to the Member 
State concerned, the provisions of 
Community law governing the award 
of public contracts would be deprived 
of their effectiveness. 
I - 7481