Order — ECLI:EU:T:1997:140
Date: 1997-09-29
Language of the case: French
Court formation: First Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Competition;Approximation of laws
Concepts: General;Scope;Bringing matters before the Commission
Procedure: Action for annulment - inadmissible;Application to intervene - decision unnecessary
Origin: France

Summary of the O r d e r 
Approximation of Uws — Public procurement procedures in the water, energy, transport and 
telecommunications sectors — Directive 93/38 — CompUint by a tenderer alleging that the con­
duct of the contracting entity infringes the directive and restricts competition and constitutes an 
obstacle to the free movement of goods — Examination by the Commission under the procedure 
applicable to failure by a Member State to fulfil its obligations — Permissibility — Failure to 
initiate the procedure under ReguLtion No 17 — Abuse of procedure — None — Distinct and 
independent character of the two procedures 
(EC Treaty, Art. 169; Council ReguUtion No 17; Council Directive 93/38) 
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SUMMARY — CASE T-83/97 
It is proper for the Commission to examine 
under the procedure established by Article 
169 of the Treaty a complaint in which a ten­
derer for a procurement contract alleges that 
the conduct of the contracting entity consti­
tutes an infringement of Directive 93/38 
coordinating the procurement procedures of 
entities operating in the water, energy, trans­
port and telecommunications sectors, and 
serves to restrict competition and constitutes 
an obstacle to the free movement of goods. 
Recourse to that procedure is no less justi­
fied by the fact that the complaint related 
exclusively to conduct by the contracting 
entity and did not comprise any criticism of 
the relevant national legislation or the con­
duct of the government concerned since, in 
the application of the Community rules on 
public procurement, the acts of contracting 
entities must be imputed to the Member 
States to which those entities belong. 
In so far as such a complaint does not con­
tain any specific indication which would 
enable it to be characterized as a request sub­
mitted under Article 3(2)(b) of Regulation 
N o 17, the Commission does not, therefore, 
commit any abuse of procedure by not 
examining it in the light of competition law. 
Furthermore, and even supposing that the 
complainant did properly request the Com­
mission to initiate the procedure under 
Regulation N o 17, that procedure remains 
independent of the procedure for a finding 
that the conduct of a Member State infringes 
Community law and for termination of that 
conduct. The two procedures serve different 
purposes and are governed by different rules. 
The fact that the Commission decides not to 
initiate a procedure for a declaration of fail­
ure to fulfil obligations or decides to discon­
tinue such a procedure, cannot therefore 
imply that it is prevented from finding that 
the conduct of the contracting entity at issue 
constitutes an infringement of the compe­
tition rules and ordering termination of the 
infringement. It follows that a decision to 
close the file, adopted in the context of a 
procedure for a declaration of failure to fulfil 
obligations, relates exclusively to that pro­
cedure and does not constitute an implied 
rejection of a complaint submitted under 
Regulation N o 17, meaning that it does not 
affect the complainant's legal position in the 
context of a possible procedure in applica­
tion of the competition rules. 
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