Opinion of the Advocate General — ECLI:EU:C:2006:560
Date: 2006-09-14
Language of the case: English
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: Ireland

Summary of the Judgment Actions for failure to fulfil obligations – Proof of failure – Burden of proof on the Commission (Art. 226 EC) Without prejudice to the obligation of the Member States, under Article 10 EC, to facilitate the achievement of the Commission’s tasks, which consist in particular, pursuant to Article 211 EC, in ensuring that the provisions of the Treaty and the measures taken by the institutions pursuant thereto are applied, in an action for failure to fulfil obligations it is incumbent upon the Commission to prove the allegation that the obligation has not been fulfilled. It is the Commission’s responsibility to place before the Court the information needed to enable the Court to establish that the obligation has not been fulfilled, and in so doing the Commission may not rely on any presumption. Thus, in an action for a declaration that for one public body, without prior advertising, to provide another with emergency ambulance services is contrary to freedom of establishment and the freedom to provide services, it is for the Commission to place before the Court the information needed to enable the Court to establish that a public contract has been awarded, given that the possibility that the public body concerned provides the services in question in the exercise of its own powers cannot be excluded. In that regard, the mere fact that, as between two public bodies, funding arrangements exist in respect of emergency ambulance services does not imply that the provision of the services concerned constitutes an award of a public contract which would need to be assessed in the light of the fundamental rules of the Treaty. (see paras 28-29, 36-37)