Opinion of Mr Advocate General Lenz delivered on 29 May 1997. - Hera SpA v Unità sanitaria locale nº 3 - genovese (USL) and Impresa Romagnoli SpA. - Reference for a preliminary ruling: Tribunale amministrativo regionale della Liguria - Italy. - Directive 93/37/EEC - Public procurement - Abnormally low tenders. - Case C-304/96.



European Court reports 1997 Page I-05685



Opinion of the Advocate-General

A - Introduction

1 This reference for a preliminary ruling from the Tribunale Amministrativo Regionale (Regional Administrative Court), Liguria, concerns the Community legislation governing the award of public works contracts.

2 On 19 December 1995 the Unità Sanitaria Locale No 3, Liguria (the local health authority), published an invitation to tender for works relating to the internal reorganization and technological adaptation of the `Vecchio Istituto del Presidio Socio Sanitario' in Genoa. (1) According to the invitation to tender, the contract was to be awarded to the tenderer offering the maximum discount against the base price of LIT 16 463 000 000.

3 Hera SpA submitted the best tender, offering a discount of 17.3%. However, that bid was excluded from the tendering procedure on the ground that it was abnormally low, with the result that the contract was awarded to Impresa Romagnoli SpA.

4 The contracting authority based its decision on Law No 109 (`Legge quadro in materia de lavori pubblici'), (2) in the version resulting from Decree-Law No 101 of 3 April 1995, (3) and Law No 216 of 2 June 1995. (4) Article 21(1a) of Law No 109 provides that `until 1 January 1997, (5) tenders in which the percentage discount exceeds by more than one-fifth the average of the discounts in all the tenders admitted shall be excluded from public works contracts for amounts above or below the Community threshold'.

5 Hera brought an action contesting the decision to exclude it from the tendering procedure, relying in particular on the relevant provisions of Council Directive 93/37/EEC of 14 June 1993 concerning the coordination of procedures for the award of public works contracts. (6) Article 30 of that Directive concerns the criteria on which awards are to be based. Article 30(4) provides as follows:

`If, for a given contract, tenders appear to be abnormally low in relation to the works, the contracting authority shall, before it may reject those tenders, request, in writing, details of the constituent elements of the tender which it considers relevant and shall verify those constituent elements taking account of the explanations received.

The contracting authority may take into consideration explanations which are justified on objective grounds including the economy of the construction method, or the technical solution chosen, or the exceptionally favourable conditions available to the tenderer for the execution of the work, or the originality of the work proposed by the tenderer.

If the documents relating to the contract provide for its award at the lowest price tendered, the contracting authority must communicate to the Commission the rejection of tenders which it considers to be too low.

However, until the end of 1992, (7) if current national law so permits, the contracting authority may exceptionally, without any discrimination on grounds of nationality, reject tenders which are abnormally low in relation to the works, without being obliged to comply with the procedure provided for in the first subparagraph if the number of such tenders for a particular contract is so high that implementation of this procedure would lead to a considerable delay and jeopardize the public [interest] attaching to the execution of the contract in question. Recourse to this exceptional procedure shall be mentioned in the notice referred to in Article 11(5).'

6 The national court concluded that, in the case before it, the contracting authority had correctly applied the Italian legislation providing for the exclusion of abnormally low tenders. It held, however, that there was a `clear discrepancy' between that legislation and Article 30(4) of Directive 93/37.

7 The national court accordingly concluded that, in order to arrive at a decision in the dispute before it, it was necessary to seek a preliminary ruling from the Court of Justice under Article 177 of the EC Treaty. It therefore referred to the Court the question whether the Community rules allow - and if so in what cases - a Member State to make temporary exceptions regarding the entry into force of directives where the latter set an express time-limit. (8)

B - Analysis

Admissibility

8 It appears from the facts described that the question here is whether, after 31 December 1992, the Italian authorities were entitled to allow derogations from a provision of Directive 93/37, which was to be transposed into domestic law by 19 July 1990 at the latest. As the Commission has rightly observed, the question referred by the national court has further implications. The real question before the Court is, very generally speaking, whether a Member State may unilaterally postpone the date of entry into force of a directive and, if so, subject to what conditions. It is not, however, the Court's role in exercising its jurisdiction under Article 177 of the Treaty to deliver advisory opinions on general or hypothetical questions. (9)

9 The Commission's proposal that the wording of the question be adjusted ought therefore to be upheld. It is clear from the order for reference that the national court is asking whether provisions such as Article 21(1a) of Law No 109 are compatible with Article 30(4) of Directive 93/37 regarding the treatment of abnormally low tenders.

10 The Italian Government takes the view that there is no need to give a ruling on this question. It maintains that Directive 93/37 does not authorize the Member States to derogate from its provisions. Besides, in Costanzo, (10) the Court has already ruled that the provisions applying at the time of that judgment - which corresponded to Article 30(4) of Directive 93/37 - have direct effect. Thus the judgment in Costanzo gave the national court all the information needed to adjudicate in the dispute before it. That court should therefore refuse to apply the relevant part of Article 21(1a) of Law No 109 on the ground that it is contrary to Directive 93/37.

11 I agree that the reply to the question referred may be deduced from Costanzo, as well as from the judgment in Furlanis. (11) It should nevertheless be emphasized that in principle it is for the national court to assess whether or not it is necessary to seek a preliminary ruling, having regard to the circumstances of the individual case. The fact that it is relatively simple, on the basis of existing case-law, to answer a particular question referred for a preliminary ruling does not in itself mean that the question is inadmissible.

12 By way of an aside, I would point out that the Italian Government refers in its observations to the fact that the Minister responsible called on the authorities concerned, by circular of 7 October 1996, (12) to interpret and apply Article 21(1a) of Law No 109 consistently with Directive 93/37. Any inferences to be drawn from that circular - which was published after the main proceedings were initiated - are a matter for the national court.

The question

13 As the Commission has pointed out, the rule set out in Article 30(4) of Directive 93/37 corresponds in this case to that previously contained in Article 29(5) of Council Directive 71/305/EEC of 26 July 1971 concerning the coordination of procedures for the award of public works contracts. (13) That provision had been introduced by Council Directive 89/440/EEC of 18 July 1989. (14) The measures implementing Directive 89/440, which was notified to the Member States on 19 July 1989, were to be adopted by the Member States in the year following its publication at the latest. (15) That deadline expired on 19 July 1990. The aim of Directive 93/37 was to consolidate Directive 71/305 together with the provisions amending it since the date of its adoption. (16) That is why - as the Commission has rightly pointed out - that Directive did not set the Member States a time-limit for its implementation. On the contrary, the applicable time-limits are those that were fixed for the various amending directives.

14 However, Article 29(5), fourth subparagraph, of Directive 71/305 (corresponding to Article 30(4), fourth subparagraph, of Directive 93/37) authorized, subject to strict conditions, and until the end of 1992, the rejection of abnormally low tenders without the need to follow the verification procedure laid down in the first subparagraph. The Court has already ruled (in Furlanis) that that provision must be narrowly construed and is available only for procedures in which the definitive award was made by 31 December 1992 at the latest. (17) A provision of domestic law under which the verification procedure referred to above may continue to be waived after that date is therefore manifestly incompatible with Directive 93/37.

15 The Court has already ruled in Costanzo that Article 29(5) of Directive 71/305 is unconditional and sufficiently precise to have direct effect and be relied upon by an individual against the State. (18) The same must be true of Article 30(4) of Directive 93/37, which is to a large extent identical to that provision.

C - Conclusion

16 I therefore propose that the Court reply as follows to the question referred by the Tribunale Amministrativo Regionale della Liguria:

Article 30(4) of Council Directive 93/37/EEC of 14 June 1993 concerning the coordination of procedures for the award of public works contracts precludes domestic legislation authorizing, after the end of the year 1992, waiver of the procedure laid down therein for the verification of abnormally low tenders.

(1) - See the original text in Italian.

(2) - Published in Supplement No 29 to the Gazzetta Ufficiale della Repubblica Italiana (GURI) No 41 of 19 February 1994.

(3) - GURI No 78 of 3 April 1995, p. 8.

(4) - GURI No 127 of 2 June 1995, p. 3. This amended Decree-Law No 101 and converted it into a law.

(5) - Emphasis added.

(6) - OJ 1993 L 199, p. 54.

(7) - Emphasis added.

(8) - Emphasis added.

(9) - See Case C-83/91 Meilicke v ADV/ORGA [1992] ECR I-4871, paragraph 25.

(10) - Case 103/88 Fratelli Costanzo v Comune di Milano [1989] ECR 1839.

(11) - Case C-143/94 Furlanis v ANAS [1995] ECR I-3633.

(12) - Published in Supplement No 179 to GURI No 251 of 25 October 1996.

(13) - OJ, English Special Edition 1971 (II), p. 682.

(14) - OJ 1989 L 210. p. 1.

(15) - Article 3 of Directive 89/440.

(16) - See the first recital in the preamble to Directive 93/37.

(17) - Cited above (footnote 11), paragraphs 17 to 22.

(18) - Cited above (footnote 10), paragraph 32.