Opinion of Mr Advocate General Léger delivered on 20 June 1996. - Commission of the European Communities v Hellenic Republic. - Failure by a Member State to fulfil its obligations - Failure to implement Directive 89/665/EEC within the prescribed period - Review procedures relating to public supply and public works contracts. - Case C-236/95.



European Court reports 1996 Page I-04459



Opinion of the Advocate-General

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1. By this action the Commission seeks a declaration that, by failing to adopt or failing to notify to it within the prescribed period the laws, regulations and administrative provisions necessary to comply fully with Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts (hereinafter `the directive'), (1) the Hellenic Republic has failed to fulfil its obligations under the EEC Treaty and that directive. It also claims that the Hellenic Republic should be ordered to pay the costs.

2. Under Article 5 of the directive, the Member States had to bring into force, before 21 December 1991, the measures necessary to comply with the directive. The Member States also had to communicate to the Commission `the texts of the main national laws, regulations and administrative provisions which they adopt in the field governed by this Directive'.

3. Since it had received no communication to this effect from the Greek Government, the Commission put it on notice by letter dated 20 May 1992, pursuant to the procedure laid down by Article 169 of the Treaty, to submit its observations within two months.

4. In its reply dated 17 June 1993, the Greek Government informed the Commission that measures partially implementing the directive in its domestic legal system had been adopted as regards public works contracts - by Presidential Decree No 23 of 15 January 1993 -, but that in contrast no measure had been adopted in the sphere of public supply contracts.

5. Since it received no further information concerning the implementation of the directive in the latter field, on 4 July 1994 the Commission sent the Hellenic Republic a reasoned opinion asking it to take the necessary measures within two months.

6. On 18 August 1994 the Greek Government informed the Commission that a presidential decree was in preparation with a view to implementing the directive in the field of public supply contracts.

7. However, since the Hellenic Republic did not comply with its obligations under the directive in that field, the Commission brought this action for failure to fulfil obligations, which was received at the Court Registry on 6 July 1995.

8. As the Commission stated at the hearing, the infringement in question relates only to review procedures relating to the award of public supply contracts. The wording of the application proper differs slightly from that of the reasoned opinion (in the reasoned opinion, the infringement is stated to be `as regards supplies', whereas in the application the Hellenic Republic is charged with failing to comply `fully' with the directive, `... in particular ... in the field of public supply contracts ...', but, to my mind, that aspect cannot be construed as a change in the subject-matter of the action. Moreover, the parties have not raised this point.

9. The defendant does not deny that it did not take the necessary measures formally to implement the directive in the field of public supply contracts within the prescribed period. It nevertheless claims that the action should be dismissed.

10. It considers in the first place that the Greek legislation in force on public works and supply contracts, considered in conjunction with the provisions of the Code of Civil and Administrative Procedure and the Statute of the Council of State, (2) already affords sufficient judicial protection having regard to the requirements of the directive, bearing in mind that that protection has been further reinforced by recent case-law of the Council of State.

11. It further states that it has adopted supplementary measures in order fully to comply with the directive. An ad hoc statutory drafting committee was convened by Ministerial Decision P1/481 of 15 March 1993 with a view to proposing any supplementary measures. It adds that a draft presidential decree, drafted in August 1993 and notified to the Commission on 22 July 1994, is at the stage of obtaining the final signatures.

12. The Hellenic Republic justifies the delays in adopting those provisions on formal and procedural grounds, such as the fact that they had to be jointly considered by the competent authorities (Ministry of Industry and Ministry of Public Works), but above all on the grounds of recent changes in the case-law of the judicial division of the Council of State. It also points out that the supreme court has recently delivered a number of judgments on invitations to tender for public procurement and public works contracts (3) expressly referring to the directive. In view of those recent developments, the Hellenic Republic states that it is reconsidering the judicial protection available overall and whether or not it is necessary to press forward with the adoption of the relevant presidential decree. It further points out that the draft presidential decree has been amended in the light of observations received from the Commission.

13. That argument is not convincing.

14. In the first place, it is impossible effectively to argue that Article 52 of Presidential Decree No 18/89, a general text on the procedure for the stay of execution of an administrative measure contested by an action for annulment, can already secure the complete, correct transposition of the directive. (4)

15. Without making a detailed comparative study of the content of that provision and that of the directive, it is sufficient to observe - as the Commission pointed out at the hearing - that all the measures provided for by the directive do not appear in the relevant national legislation. For example, Article 52 relates only to procedures for a stay of execution, whereas the directive refers more broadly in Article 2(a) to any `interim measures', `including measures to suspend or to ensure the suspension of the procedure for the award of a public contract'. Furthermore, reliance can be made on Article 52 in Greek law only if there is a main action (action for annulment of an administrative measure). In contrast, the interim measures envisaged by the directive are to be capable of being sought independently of any prior action. It may also be mentioned that, according to Article 1(3), the directive calls upon the Member States to make the review procedures available `... at least to any person having or having had an interest in obtaining a particular supply or public works contract and who has been or risks being harmed by an alleged infringement', whereas under the Greek provision the procedure is available only to an applicant for the annulment of a measure.

16. I would further observe that, in so far as it itself states that the measures required for the full implementation of the directive in its national law are in preparation and that the draft presidential decree in question has been amended to take account of observations from the Commission, the Greek Government has admitted, impliedly but necessarily, that the national legislation in force does not fully satisfy the requirements of the directive and that the directive was not implemented within the prescribed period.

17. The justifications put forward for the delays in adopting these measures, in particular the draft presidential decree mentioned, cannot be accepted either.

18. In the first place, the formal and procedural difficulties experienced in the course of the procedure, such as the joint examination by the competent ministries, are completely irrelevant: the Court has consistently held that an argument based on internal legal constraints is inadmissible. The Court takes the view that `... a Member State may not plead provisions, practices or circumstances existing in its internal legal system in order to justify a failure to comply with the obligations and time-limits laid down in Community directives'. (5)

19. Next, as far as concerns the case-law of the Council of State referred to by the defendant, which, it maintains, by interpreting the national provisions in force in conformity with the directive, secures, if not formal, at least substantive implementation of the directive, it must be observed first that most of the judgments cited were given in 1995 and, as such, cannot be effectively relied upon by the Hellenic Republic, since `... whether there has been a failure to fulfil obligations must be examined on the basis of the position in which the Member State found itself at the end of the period laid down in the reasoned opinion and the Court cannot take account of any subsequent changes'. (6) Consequently, to my mind, there is no need to dwell on the content of those judgments, irrespective of their importance in the arguments of the parties in the course of the proceedings.

20. Only judgment No 39/1991, which was given before the end of the pre-litigation procedure, might possibly be relevant. In that judgment, the Commission of the Council of State responsible for granting stays of execution provisionally suspended the execution of decisions relating to a procedure for the award of public works contracts in accordance with the aforementioned Article 52 on the application of a nature-protection association.

21. However, in my view no effects should attach to the reliance placed on that decision. In the first place, it relates to the field of public works contracts, whereas this action is confined to public supply contracts.

22. Above all, however, without even checking whether the Council of State's interpretation of the national legislation is consistent with the requirements of the directive, it is sufficient to recall that the Court has held that `... the fact that a practice is in conformity with the requirements of a directive may not constitute a reason for not transposing that directive into national law by provisions capable of creating a situation which is sufficiently precise, clear and transparent to enable individuals to ascertain their rights and obligations. As the Court held ..., in order to secure the full implementation of directives in law and not only in fact, Member States must establish a specific legal framework in the area in question.' (7)

23. I would further observe - even if the Hellenic Republic does not support this argument (8) - that to allow that the case-law in question is capable of justifying delays in the adoption of implementation measures would be liable to mean that case-law could be capable of securing due implementation of the directive.

24. This would run counter to the fundamental requirements underlying any transposition: those of legal certainty and adequate publicity. (9) The Court has stated on many occasions that the provisions of a directive must be implemented `with unquestionable binding force ... with the specificity, precision and clarity required ... in order to satisfy the requirement of legal certainty' (10) and so that `... where the directive is intended to create rights for individuals, the persons concerned can ascertain the full extent of their rights and, where appropriate, rely on them before the national courts'. (11)

25. It is, moreover, in view of those requirements of legal certainty and adequate publicity that, in mentioning the `measures necessary to comply with this Directive' which the Member States are to take, Article 5 expressly refers to `the texts of the main national laws, regulations and administrative provisions'. (12)

26. National case-law interpreting provisions of domestic law in a manner regarded as being in conformity with the requirements of a directive is not sufficient to make those provisions into measures transposing the directive in question.

27. Since the directive was not transposed within the prescribed period, the Commission's action must be held to be well founded.

28. Consequently, I propose that the Court declare that, by failing to adopt within the prescribed period the laws, regulations and administrative provisions necessary to comply fully with Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts, the Hellenic Republic has failed to fulfil its obligations under Article 5 of that directive. I further propose that the Hellenic Republic should be ordered to pay the costs in accordance with Article 69(2) of the Rules of Procedure.

(1) - OJ 1989 L 395, p. 33.

(2) - Specifically, Article 52 of Presidential Decree No 18/89 entitled `Codification of legislative provisions relating to the Council of State', which is concerned more particularly with the `procedure for the stay of execution of an administrative measure contested in an action for annulment'.

(3) - Judgments Nos 39/1991, 355/1995, 470/1995, 471/1995, 473/1995 and 559/1995.

(4) - In any event, even if it were to be held that that provision was capable of constituting a measure duly transposing the directive, there would none the less be an infringement for failure to notify the Commission in the prescribed period, since the provision in question was not relied upon by the Hellenic Republic until after the end of the pre-litigation procedure, for the first time in the rejoinder.

(5) - See, for example, Case C-253/95 Commission v Germany [1996] ECR I-0000, paragraph 12.

(6) - Case C-133/94 Commission v Belgium [1996] ECR I-0000, paragraph 17.

(7) - Case C-59/89 Commission v Germany [1991] ECR I-2607, paragraph 28.

(8) - First paragraph of point 1 of the rejoinder.

(9) - See to this effect the Opinion of Advocate General Tesauro in Joined Cases C-178/94, C-179/94, C-188/94, C-189/94 and C-190/94 Dillenkofer and Others [1996] ECR I-0000, section 24.

(10) - Case C-59/89 Commission v Germany, cited above, paragraph 24.

(11) - Case 363/85 Commission v Italy [1987] ECR 1733, paragraph 7.

(12) - My emphasis.