Judgment of the Court of 22 September 1976. - Commission of the European Communities v Italian Republic. - Public works contracts. - Case 10-76.



European Court reports 1976 Page 01359

Greek special edition Page 00519

Portuguese special edition Page 00559



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

DIRECTIVES - MANDATORY NATURE - TIME-LIMITS - COMPLIANCE THEREWITH

( EEC TREATY , ARTICLE 189 )

Summary

THE MANDATORY NATURE OF DIRECTIVES ENTAILS THE OBLIGATION FOR ALL MEMBER STATES TO COMPLY WITH THE TIME-LIMITS CONTAINED THEREIN IN ORDER THAT THEIR IMPLEMENTATION SHALL BE ACHIEVED UNIFORMLY WITHIN THE WHOLE COMMUNITY .

Parties

IN CASE 10/76

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY ITS LEGAL ADVISER , ANTONINO ABATE , ACTING AS AGENT , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF MARIO CERVINO , LEGAL ADVISER OF THE COMMISSION , BATIMENT CFL , PLACE DE LA GARE ,

APPLICANT ,

V ITALIAN REPUBLIC , REPRESENTED BY ITS AMBASSADOR ADOLFO MARESCA , ACTING AS AGENT , ASSISTED BY IVO MARIA BRAGUGLIA , VICEAVVOCATO DELLO STATO , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE ITALIAN EMBASSY ,

DEFENDANT ,

Subject of the case

APPLICATION FOR A DECLARATION THAT THE GOVERNMENT OF THE ITALIAN REPUBLIC HAS FAILED TO FULFIL ITS OBLIGATIONS UNDER COUNCIL DIRECTIVE NO 71/305/EEC OF 26 JULY 1971 CONCERNING THE COORDINATION OF PROCEDURES FOR THE AWARD OF PUBLIC WORKS CONTRACTS ( OJ , ENGLISH SPECIAL EDITION 1971 ( II ), P . 682 ,

Grounds

1 BY AN APPLICATION WHICH WAS RECEIVED AT THE REGISTRY ON 5 FEBRUARY 1976 THE COMMISSION HAS BROUGHT BEFORE THE COURT UNDER ARTICLE 169 OF THE EEC TREATY AN ACTION SEEKING A DECLARATION THAT THE ITALIAN REPUBLIC HAS FAILED TO FULFIL ITS OBLIGATIONS UNDER DIRECTIVE NO 71/305/EEC OF THE COUNCIL OF 26 JULY 1971 ( OJ , ENGLISH SPECIAL EDITION , 1971 ( II ), P . 682 ).

2 IN CONJUNCTION WITH DIRECTIVE NO 71/304/EEC OF THE SAME DATE CONCERNING THE ABOLITION OF RESTRICTIONS ON FREEDOM TO PROVIDE SERVICES IN RESPECT OF PUBLIC WORKS CONTRACTS , DIRECTIVE NO 71/305/EEC SEEKS TO COORDINATE THE NATIONAL PROCEDURES FOR THE AWARD OF THESE CONTRACTS . UNDER ARTICLE 32 MEMBER STATES WERE TO ADOPT THE MEASURES NECESSARY TO COMPLY WITH THE DIRECTIVE WITHIN TWELVE MONTHS OF ITS NOTIFICATION TO THEM , WHICH PERIOD EXPIRED ON 29 JULY 1972 .

3 SUBSEQUENT TO THIS DIRECTIVE THE ITALIAN REPUBLIC ADOPTED THE LAW OF 2 FEBRUARY 1973 RELATING TO THE PROCEDURES FOR THE AWARD OF PUBLIC CONTRACTS BY RESTRICTED INVITATION TO TENDER ( LICITAZIONE PRIVATA ) THE TEXT OF WHICH WAS CONVEYED TO THE COMMISSION ON 16 AUGUST 1973 .

IN APPLICATION OF ARTICLE 169 OF THE EEC TREATY THE COMMISSION , HOWEVER , INFORMED THE ITALIAN REPUBLIC BY LETTER OF 10 JUNE 1974 THAT IT CONSIDERED THAT THE OBLIGATIONS ARISING FROM THE ABOVEMENTIONED DIRECTIVE HAD NOT BEEN SATISFIED BY THE ADOPTION OF THE LAW .

4 IN THE FIRST PLACE IT WAS CLAIMED THAT THE DEFENDANT HAD EXCLUDED FROM THE SCOPE OF THE LAW PROCEDURES FOR THE AWARD OF PUBLIC WORKS CONTRACTS OTHER THAN BY RESTRICTED INVITATION TO TENDER .

5 SECONDLY , IT WAS ALLEGED THAT THE DEFENDANT HAD NOT COMPLIED WITH ARTICLE 29 OF THE DIRECTIVE WHEREBY THE ITALIAN ' ANONYMOUS ENVELOPE ' PROCEDURE HAD TO BE ABOLISHED BY 29 JULY 1975 OR 29 JULY 1979 ACCORDING TO THE ESTIMATED VALUE OF THE CONTRACT AS THE ITALIAN LAW OF 2 FEBRUARY 1973 MADE NO PROVISION IN THIS RESPECT .

6 IN ADDITION , UNDER ARTICLE 12 OF THE DIRECTIVE , AUTHORITIES AWARDING CONTRACTS WHO WISH TO AWARD A PUBLIC WORKS CONTRACT BY OPEN OR RESTRICTED PROCEDURE MUST MAKE THEIR INTENTION KNOWN BY MEANS OF A NOTICE PUBLISHED IN THE OFFICIAL JOURNAL OF THE COMMUNITIES WHEREAS THE ITALIAN LAW LIMITS ITSELF TO PROVIDING FOR THE PUBLICATION OF A NOTICE IN THE OFFICIAL JOURNAL OF THE ITALIAN REPUBLIC .

7 THE ITALIAN LAW DOES NOT CONTAIN THE PROVISIONS REFERRED TO IN ARTICLES 14 , 15 , 16 AND 17 OF THE DIRECTIVE CONCERNING THE TIME-LIMIT FOR THE RECEIPT OF REQUESTS TO PARTICIPATE , THE FORM REQUIRED FOR TENDERS AND THE COMPULSORY INDICATION OF THE TIME-LIMIT FOR THE COMPLETION OF THE WORKS PUT OUT TO TENDER .

8 FINALLY , ARTICLES 20 , 24 , 25 AND 26 OF THE DIRECTIVE LAY DOWN THE CRITERIA FOR QUALITATIVE SELECTION WHICH ALLOW CERTAIN UNDERTAKINGS TO BE EXCLUDED FROM PARTICIPATION IN THE CONTRACTS , WHILE THE ITALIAN LAW CONTAINS NO PROVISION TO THIS EFFECT AND RETAINS THE WIDE DISCRETION CONFERRED ON AUTHORITIES AWARDING CONTRACTS BY ARTICLE 89 OF THE ROYAL DECREE OF 23 MAY 1924 .

9 THE DEFENDANT DID NOT CONTEST THE ALLEGED FAILURES AND , ON 5 JULY 1974 , CONVEYED TO THE COMMISSION A PRELIMINARY DRAFT OF A BILL ' CONTAINING THE COMMUNITY RULES IN FULL . '

10 THE DRAFT , WHICH ACCORDING TO THE COMMISSION SATISFIES THE ESSENTIAL REQUIREMENTS OF THE DIRECTIVE , WAS CONVEYED TO THE ITALIAN PARLIAMENT ON 13 AUGUST 1974 BUT HAS STILL NOT BEEN ADOPTED WITH THE RESULT THAT THE MEASURES INTENDED TO ENSURE THE IMPLEMENTATION OF THE DIRECTIVE ARE NOT YET IN FORCE AT THE DATE OF THIS JUDGMENT .

11 ARTICLE 189 OF THE TREATY PROVIDES THAT A DIRECTIVE SHALL BE BINDING , AS TO THE RESULT TO BE ACHIEVED , UPON EACH MEMBER STATE TO WHICH IT IS ADDRESSED BUT LEAVES TO THE NATIONAL AUTHORITIES THE CHOICE OF FORM AND METHODS .

12 THE MANDATORY NATURE OF DIRECTIVES ENTAILS THE OBLIGATION FOR ALL MEMBER STATES TO COMPLY WITH THE TIME-LIMITS CONTAINED THEREIN IN ORDER THAT THE IMPLEMENTATION SHALL BE ACHIEVED UNIFORMLY WITHIN THE WHOLE COMMUNITY .

13 IT FOLLOWS THAT AS THE ITALIAN REPUBLIC HAS FAILED TO ADOPT , WITHIN THE PRESCRIBED PERIOD , THE MEASURES NECESSARY TO COMPLY WITH DIRECTIVE NO 71/305/EEC OF THE COUNCIL CONCERNING THE COORDINATION OF PROCEDURES FOR THE AWARD OF PUBLIC WORKS CONTRACTS , IT HAS FAILED TO FULFIL AN OBLIGATION UNDER THE TREATY .

Decision on costs

COSTS

14 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE OF THE COURT OF JUSTICE , THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS .

THE DEFENDANT HAS FAILED IN ITS SUBMISSIONS .

IT MUST THEREFORE BE ORDERED TO PAY THE COSTS .

Operative part

ON THOSE GROUNDS ,

THE COURT

HEREBY RULES :

1 . AS THE ITALIAN REPUBLIC HAS FAILED TO ADOPT , WITHIN THE PRESCRIBED PERIOD , THE MEASURES NECESSARY TO COMPLY WITH DIRECTIVE NO 71/305/EEC OF THE COUNCIL CONCERNING THE COORDINATION OF PROCEDURES FOR THE AWARD OF PUBLIC WORKS CONTRACTS , IT HAS FAILED TO FULFIL AN OBLIGATION UNDER THE TREATY .

2 . THE DEFENDANT SHALL PAY THE COSTS .