Opinion of the Advocate General — ECLI:EU:C:1998:117
Date: 1998-03-19
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: Belgium

summary of the important elements of each notice shallbe published in the other official languages of the Community, the original textalone being authentic. 18. According to Article 36(1) of Directive 93/37, Directive 71/305 is repealed, togetherwith the provisions which amended it, without prejudice to the obligations of theMember States concerning the deadlines for transposition into national law and forapplication. Directive 89/440 19. Directive 89/440 is one of the directives which amended Directive 71/305, prior tothe adoption of Directive 93/37. 20. With the exception of a few differences in drafting, the provisions of Directive71/305 as amended by Directive 89/440 concerning the definition of contractingauthorities (Article 1(b)), the definition of the material scope (Article 4a), theprocedures to be applied by the contracting authorities (Article 5) and the detailedrules concerning the publication of notices with which they were to comply, inparticular when applying the negotiated procedure (Article 12(2) and (9)) wereidentical to the corresponding provisions of Directive 93/37, reproduced inparagraphs 14 to 17 above. The application 21. As a preliminary point, it should be noted that, in its application, the Commissionclaims that the Kingdom of Belgium has failed to comply with Directives 89/440 and 93/37. It is apparent from the documents before the Court that Directive89/440 was in force when the first tendering procedure was initiated and thatDirective 93/37 was in force when the procedure relating to Lot No 4 was initiated. Furthermore, it should be recalled that Directive 93/37 repealed and replacedDirective 71/305, including the provisions which amended it, inter alia those inDirective 89/440. 22. The Commission argues that, in the present case, since 'non-open procedureswere applied, without a contract notice and without publication in the OJEC, theBelgian Government failed to comply with Directive 89/440 and Article 11(2) and(9) of Directive 93/37. 23. It also points out that, in order to award a contract by negotiated procedure, theconditions laid down in Article 7 of Directive 93/37 must be satisfied. Thus, acontracting authority may only award a contract by negotiated procedure withoutprior publication of a notice when the conditions laid down in Article 7(3) of thatdirective are satisfied. 24. Therefore, by applying a negotiated procedure for the second phase of Lot No 4,notwithstanding the fact that none of the justifications required by Article 7 ofDirective 93/37 were satisfied, the Kingdom of Belgium infringed that provision. 25. In order to resolve the dispute now before the Court, it is first necessary toconsider whether the Vlaamse Raad is a contracting authority within the meaningof Article 1(b) of Directive 71/305 as amended by Article 1(1) of Directive 89/440,and within the meaning of Article 1(b) of Directive 93/37. 26. The definition of contracting authority, which is identical in both directives, statesthat, for the purposes of each, 'contracting authorities shall be the State, regionalor local authorities, bodies governed by public law, associations formed by one orseveral of such authorities or bodies governed by public law. 27. The term 'the State referred to by that provision necessarily encompasses all thebodies which exercise legislative, executive and judicial powers. The same is trueof the bodies which, in a federal state, exercise those powers at federal level. 28. Furthermore, in Case 31/87 Beentjes [1988] ECR 4635, paragraphs 11 to 13, theCourt, after stating that the term 'the State, within the meaning of Article 1(b)of Directive 71/305 should be interpreted in functional terms, held that a local landconsolidation committee fell within that definition notwithstanding the fact that itwas not an integral part of the State administration in formal terms. It would beinconsistent to hold that a legislative body does not fall within the definition of theState for the purposes of the Community directives on public works contracts, whena body which is not an integral part of the State administration in formal terms hasbeen held to fall within that definition for the purposes of the application of oneof those directives. 29. It follows that a legislative body such as the Vlaamse Raad must be held as fallingwithin the definition of the State and thus constituting a contracting authority withinthe meaning of Article 1(b) of Directive 71/305 as amended by Article 1(1) ofDirective 89/440, and within the meaning of Article 1(b) of Directive 93/37. 30. Furthermore, it is not disputed that each of the lots which were the subject of theworks contracts put out to tender by the Vlaamse Raad exceeded the threshold laiddown by Article 4a of Directive 71/305, as inserted by Article 1(6) of Directive89/440, and by Article 6 of Directive 93/37. 31. In those circumstances, the contracts put out to tender by the Vlaamse Raad fellwithin the scope of Directive 71/305, as amended by Directive 89/440, and Directive93/37 and should therefore have been awarded in accordance with the rules set outtherein. 32. Among those rules, Article 12(2) and (9) of Directive 71/305, as amended byArticle 1(12) of Directive 89/440, provides that contracting authorities who wish toaward a public works contract by open, restricted or negotiated procedure referredto in Article 5(2) are to make known their intention by means of a notice publishedin the OJEC. 33. Similarly, Article 11(2) and (9) of Directive 93/37 requires 'contracting authoritieswho wish to award a public works contract by open, restricted or negotiatedprocedure referred to in Article 7(2) to make known their intention by publishinga notice in the OJEC. 34. It follows from those provisions that the obligation to publish a notice does notexist only when the contracting authorities intend to award a public works contractby negotiated procedure referred to in Article 5(3) of Directive 71/305, as amendedby Directive 89/440, or in Article 7(3) of Directive 93/37. 35. In the present case, the Belgian Government does not contest the fact that nonotice was published in the OJEC, nor the fact that the conditions laid down inArticle 5(3) of Directive 71/305, as amended by Directive 89/440, and in Article7(3) of Directive 93/37 for carrying out a negotiated procedure without priorpublication of a notice were not satisfied. 36. At the hearing, however, the Belgian Government referred to Article 4 of Directive93/37 in support of a submission that, under certain circumstances, a Member Statecould legitimately dispense with the obligations laid down in that directive. 37. That article provides that Directive 93/37 does not apply to: '(a) contracts awarded in the fields referred to in Articles 2, 7, 8 and 9 ofDirective 90/531/EEC or fulfilling the conditions in Article 6(2) of thatDirective; (b) works contracts which are declared secret or the execution of which mustbe accompanied by special security measures in accordance with the laws,regulations or administrative provisions in force in the Member Stateconcerned or when the protection of the basic interests of the MemberState's security so requires. 38. Quite apart from the question of the belated nature of that plea, which the BelgianGovernment raised for the first time at the hearing without submitting any validreason to explain the delay, it should be observed that the Belgian Government hasnot put forward anything to show that the works contracts put out to tender by theVlaamse Raad came within one of the situations referred to in Article 4. 39. That plea must therefore be dismissed. 40. The Belgian Government also submitted that, at national level, the Law of 14 July1976, which was in force at the material time, Article 2(1) of which provides that'Every Minister has authority, within the limits of his powers, to adopt decisionsconcerning the conclusion and performance of contracts of the State and the bodieswhich fall under its hierarchial authority, did not apply to legislative bodies, interalia, because the independence and supremacy of the legislative authority under theBelgian Constitution prevented the legislative chambers, and thus the VlaamseRaad, from being subject to Ministerial authority. 41. First, it should be pointed out that this plea, based on national law, affects neitherthe finding that the Vlaamse Raad constitutes a contracting authority within themeaning of Article 1(b) of Directive 71/305 as amended by Article 1(1) of Directive89/440, and within the meaning of Article 1(b) of Directive 93/37, nor the resultingobligation to comply with the provisions of those directives as regards publicationand award procedures. 42. According to settled case-law, a Member State cannot rely on provisions, practicesor circumstances existing in its internal legal order in order to justify its failure tocomply with the obligations and time-limits laid down by a directive (see, inparticular, Case C-144/97 Commission v France [1998] ECR I-613, paragraph 8). 43. That plea must therefore also be dismissed. 44. In view of all the foregoing considerations, it must be held that  by failing to publish a contract notice in the OJEC both for the overallproject and for each of the lots relating to the construction of the premisesof the Vlaamse Raad, and  by failing to apply the award procedures laid down in Directive 71/305, asamended by Directive 89/440, and Directive 93/337 and, more specifically,by awarding Lot No 4 by negotiated procedure without justification, the Kingdom of Belgium has failed to fulfil its obligations under those directivesand, more specifically, under Articles 7 and 11(2) and (9) of Directive 93/37. Costs 45. Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to beordered to pay the costs. Since the Kingdom of Belgium has been unsuccessful, itmust be ordered to pay the costs. On those grounds, THE COURT (Sixth Chamber) hereby: 1. Declares that,  by failing to publish a contract notice in the Official Journal of theEuropean Communities both for the overall project and for each ofthe lots relating to the construction of the premises of the VlaamseRaad, and  by failing to apply the award procedures laid down in CouncilDirective 71/305/EEC of 26 July 1971 concerning the coordination ofprocedures for the award of public works contracts, as amended byCouncil Directive 89/440/EEC of 18 July 1989, and Council Directive93/37/EEC of 14 June 1993 concerning the coordination of proceduresfor the award of public works contracts and, more specifically, byhaving awarded lot No 4 by negotiated procedure withoutjustification, the Kingdom of Belgium has failed to fulfil its obligations under thosedirectives and, more specifically, under Articles 7 and 11(2) and (9) ofDirective 93/37; 2. Orders the Kingdom of Belgium to pay the costs. Ragnemalm Mancini Kapteyn Murray Ioannou Delivered in open court in Luxembourg on 17 September 1998. R. Grass H. Ragnemalm Registrar President of the Sixth Chamber 1: Language of the case: Dutch.