Opinion of the Advocate General — ECLI:EU:C:1999:7
Date: 1999-01-19
Language of the case: French
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Approximation of laws
Procedure: Action for failure to fulfil obligations - successful;Action for failure to fulfil obligations - unfounded
Origin: France

Summary of the Judgment 
1. Approximation of laws — Public procurement in the water, energy, transport and telecom­
munications sectors — Application of the Community rules to public procurement procedures 
— Directive 92/13 —Judicial remedies at national level — Obligation for Member States to 
confer appropriate jurisdiction on review bodies — Where power is conferred on the courts to 
impose fines — Obligation fulfilled 
(Council Directive 92/13, Arts 2(l)(c) and 5) 
2. Approximation of laws — Public procurement in the water, energy, transport and telecom­
munications sectors — Application of the Community rules to public procurement procedures 
— Directive 92/13 — Attestation system and conciliation procedure — Obligation for the 
Member States to adopt implementing measures 
(Council Directive 92/13, Arts 3 to 7 and 9 to 11) 
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SUMMARY — CASE C-225/97 
1. Chapter 1 (Articles 1 and 2) of Directive 2 
92/13 relating to the application of Com­
munity rules on the procurement proce­
dures of entities operating in the water, 
energy, transport and telecommunications 
sectors provides that the Member States 
are to take the measures necessary to 
ensure that appropriate judicial remedies 
are made available to prospective suppliers 
and operators in the event of infringement 
by the contracting entities of the rules 
applicable to contract award procedures. 
It also authorises the Member States to 
choose between various options as regards 
the powers to be exercised by the courts. 
These requirements are satisfied where a 
Member State chooses the option provided 
for in Article 2(1 )(c) of the Directive — 
the introduction of measures permitting, 
by means of appropriate procedures, the 
making of an order for the payment of a 
particular sum in cases where the infringe­
ment has not been corrected or prevented 
— and provides that a court has the power 
to impose a fine, the level of which it is to 
fix according to its assessment of the cir­
cumstances of each particular case. Such a 
fine meets the requirements set out in 
Article 2(5). 
. Chapter 2 (Articles 3 to 7) of Directive 
92/13 relating to the application of Com­
munity rules on the procurement proce­
dures of entities operating in the water, 
energy, transport and telecommunications 
sectors provides for an attestation system 
enabling the contracting entities to obtain 
an attestation that they have correctly 
applied the rules governing the award of 
contracts. Chapter 4 (Articles 9 to 11) of 
the Directive provides for a conciliation 
mechanism at Community level for the 
amicable settlement of any differences 
arising between the undertakings involved 
and the contracting entities. 
The fact that the Directive offers the enti­
ties falling within its scope the possibility 
of recourse to an attestation system in no 
way signifies that the transposition of that 
system into national law is optional. The 
relevant provisions of the Directive must 
be implemented with unquestionable 
binding force, and the specificity, preci­
sion and clarity necessary to satisfy the 
requirements of legal certainty. Transposi­
tion into national law is also necessary in 
order to ensure that persons having an 
interest know of the existence of such a 
procedure and may have recourse to it. 
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