Opinion of the Advocate General — ECLI:EU:C:2005:105
Date: 2005-02-24
Language of the case: Greek
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: Greece

Summary of the Judgment 1. Actions for failure to fulfil obligations — Right of the Commission to bring proceedings — Exercise of that right not dependent on a specific interest in bringing an action (Art. 226 EC) 2. Actions for failure to fulfil obligations — Pre-litigation procedure — Subject-matter — Reasoned opinion — Content (Art. 226 EC) 3. Approximation of laws — Review procedures in respect of the award of public supply and public works contracts in the water, energy, transport and telecommunications sectors — Directives 89/665 and 92/13 — Procedure enabling the Commission 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 226 EC (Art. 226 EC; Council Directives 89/665, Art. 3, and 92/13, Art. 8) 4. Approximation of laws — Procurement procedures in the water, energy, transport and telecommunications sectors — Directive 93/38 — Derogations from common rules — Conditions — Strict interpretation — Burden of proof (Council Directive 93/38, Art. 20(2)(c) and (d)) 1. When 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 Commission’s function is to ensure, in the general interest, that the Member States give effect to Community law and to obtain a declaration of any failure to fulfil the obligations deriving therefrom with a view to bringing it to an end. Article 226 EC is not therefore intended to protect that institution’s own rights. It is for the Commission alone to decide whether or not it is appropriate to bring proceedings against a Member State for a declaration that it has failed to fulfil its obligations, and, depending on the circumstances, because of what conduct or omission those proceedings should be brought. (see paras 14-16) 2. While, within the framework of an action for failure to fulfil obligations, the reasoned opinion must contain a cogent and detailed exposition of the reasons which led the Commission to the conclusion that the Member State concerned had failed to fulfil one of its obligations under the Treaty, the Commission is not, however, obliged to set out in that opinion the steps to be taken to remedy the infringement complained of. The purpose of the pre‑litigation procedure is to define the subject‑matter of the action for failure to fulfil obligations in order to give the Member State an opportunity to comply with its obligations under Community law and to avail itself of its right to defend itself against the complaints made by the Commission. Consequently, it is only where the Commission intends to make failure to adopt measures to enable the infringement complained of to be remedied the subject‑matter of its action for failure to fulfil obligations that it has to specify those measures in the reasoned opinion. (see paras 21-23) 3. The procedure for direct intervention established by Article 8 of Directive 92/13 coordinating the laws, regulations and administrative provisions relating to the application of Community rules on the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors, and by Article 3 of 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, under which the Commission may, if it considers that a clear and manifest infringement of Community provisions in the field of public procurement has been committed, take up the matter with a Member State, is a preventive measure which can neither derogate from nor replace the powers of the Commission under Article 226 EC, with the result that the fact that the Commission used or did not use that procedure is irrelevant where it is a matter of deciding on the admissibility of infringement proceedings. Thus, the choice between the two procedures is within its discretion. (see paras 27-28) 4. The provisions of Article 20(2)(c) and (d) of Directive 93/38 coordinating the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors, which in certain cases authorise contracting entities to use a procedure without prior call for competition, must, as derogations from the rules relating to procedures for the award of public procurement contracts, be interpreted strictly. Also, the burden of proof lies on the party seeking to rely on them. As regards, first of all, Article 20(2)(c) of that directive, its application is subject to two cumulative conditions, namely, first, that there are technical reasons connected to the works which are the subject‑matter of the contract and, second, that those technical reasons make it absolutely necessary to award that contract to a particular contractor. As regards, secondly, the derogation under Article 20(2)(d) of that directive, it is subject to three cumulative conditions, namely an unforeseeable event, extreme urgency rendering impossible the observance of the time-limits laid down for calls for tenders, and a causal link between the unforeseeable event and the extreme urgency resulting therefrom. The fact that an authority which must approve the project concerned may impose time‑limits is, in that regard, a foreseeable part of the procedure for approving that project. (see paras 33-34, 40, 43)