Order of the President of the Court of 13 March 1987. - Commission of the European Communities v Ireland. - Public works contract - Community tender procedure - Article 30 of the EEC Treaty. - Case 45/87 R.



European Court reports 1987 Page 01369



Parties

Grounds

Operative part



Keywords

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APPLICATION FOR INTERIM MEASURES - INTERIM MEASURES - CONDITIONS FOR GRANTING - PRIMA FACIE CASE - SERIOUS AND IRREPARABLE DAMAGE - WEIGHING UP ALL THE INTERESTS AT STAKE

( EEC TREATY, ART . 186; RULES OF PROCEDURE, ART . 83 ( 2 )*)

Parties

IN CASE 45/87 R

COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS AGENT, E . L . WHITE, A MEMBER OF ITS LEGAL DEPARTMENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF G . KREMLIS, JEAN MONNET BUILDING, KIRCHBERG,

APPLICANT,

V

IRELAND, REPRESENTED BY ITS AGENT, J . L . DOCKERY, CHIEF STATE SOLICITOR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE IRISH EMBASSY, 28 ROUTE D' ARLON,

DEFENDANT,

APPLICATION PRIMARILY FOR AN INTERIM ORDER THAT THE DEFENDANT SHOULD TAKE SUCH MEASURES AS MAY BE NECESSARY TO PREVENT, UNTIL SUCH TIME AS THE COURT HAS GIVEN FINAL JUDGMENT IN THIS CASE OR A SETTLEMENT HAS BEEN REACHED BETWEEN THE COMMISSION AND IRELAND, THE AWARD OF A CONTRACT FOR WORK RELATING TO THE DUNDALK WATER SUPPLY AUGMENTATION SCHEME : CONTRACT NO 4,

THE PRESIDENT OF THE COURT OF JUSTICE

OF THE EUROPEAN COMMUNITIES

MAKES THE FOLLOWING

ORDER

Grounds

1 BY AN APPLICATION LODGED AT THE COURT REGISTRY ON 13 FEBRUARY 1987, THE COMMISSION OF THE EUROPEAN COMMUNITIES BROUGHT AN ACTION UNDER ARTICLE 169 OF THE EEC TREATY FOR A DECLARATION THAT BY ADOPTING THE TENDERING PROCEDURE RELATING TO THE DUNDALK WATER SUPPLY AUGMENTATION SCHEME : CONTRACT NO 4, IRELAND HAD FAILED TO COMPLY WITH ITS OBLIGATIONS UNDER ARTICLE 30 OF THE EEC TREATY AND COUNCIL DIRECTIVE 71/305/EEC OF 26*JULY 1971 CONCERNING THE COORDINATION OF PROCEDURES FOR THE AWARD OF PUBLIC WORKS CONTRACTS ( OFFICIAL JOURNAL, ENGLISH SPECIAL EDITION 1971 ( II ), P . 682 ), AND IN PARTICULAR ARTICLE 10 ( 2 ) THEREOF .

2 BY AN APPLICATION LODGED AT THE COURT REGISTRY ON THE SAME DAY, THE APPLICANT REQUESTED THE COURT, UNDER ARTICLE 186 OF THE EEC TREATY AND ARTICLE 83 OF THE RULES OF PROCEDURE, PRIMARILY TO MAKE AN INTERIM ORDER THAT IRELAND SHOULD TAKE SUCH MEASURES AS MAY BE NECESSARY TO PREVENT, UNTIL SUCH TIME AS THE COURT HAS GIVEN FINAL JUDGMENT IN THIS CASE OR A SETTLEMENT HAS BEEN REACHED BETWEEN THE COMMISSION AND IRELAND, THE AWARD OF A CONTRACT FOR THE WORK RELATING TO THE DUNDALK WATER SUPPLY AUGMENTATION SCHEME : CONTRACT NO 4 . ALSO IN THAT APPLICATION, IN THE EVENT THAT SUCH A CONTRACT SHOULD ALREADY HAVE BEEN AWARDED, THE COMMISSION REQUESTED THE COURT TO ORDER THE DEFENDANT TO TAKE SUCH MEASURES AS MAY BE NECESSARY TO CANCEL THAT CONTRACT .

3 IT APPEARS FROM THE DOCUMENTS IN THE CASE, IN PARTICULAR A LETTER DATED 3 FEBRUARY 1987, THAT IRELAND GAVE AN UNDERTAKING TO THE COMMISSION NOT TO AWARD THE CONTRACT BEFORE 20 FEBRUARY 1987 . IRELAND STATED, MOREOVER, THAT IT WOULD NOT BE ABLE TO DELAY THE AWARD ANY FURTHER UNLESS THE COURT OF JUSTICE SO ORDERED .

4 BY ORDER OF 16 FEBRUARY 1987 PURSUANT TO ARTICLE 84 ( 2 ) OF THE RULES OF PROCEDURE, THE PRESIDENT OF THE COURT OF JUSTICE THEREFORE DECIDED IN THE INTERESTS OF JUSTICE AND IN ORDER TO MAINTAIN THE STATUS QUO TO ORDER THE DEFENDANT TO TAKE SUCH MEASURES AS MIGHT BE NECESSARY TO PREVENT THE AWARD OF THE CONTRACT IN QUESTION BY DUNDALK URBAN DISTRICT COUNCIL BEFORE THE FINAL ORDER WAS DELIVERED IN THE PROCEEDINGS FOR INTERIM MEASURES IN CASE 45/87 R .

5 IRELAND PRESENTED ITS WRITTEN OBSERVATIONS ON 2 MARCH 1987 . THE PARTIES PRESENTED ORAL ARGUMENT ON 9 MARCH 1987 .

6 BEFORE CONSIDERING THE MERITS OF THIS APPLICATION FOR INTERIM MEASURES IT MAY BE USEFUL TO GIVE A BRIEF DESCRIPTION OF THE BACKGROUND TO THIS CASE AND IN PARTICULAR OF THE VARIOUS FACTS THAT PROMPTED THE COMMISSION TO BRING THE MAIN PROCEEDINGS .

7 DUNDALK URBAN DISTRICT COUNCIL IS THE PROMOTER OF THE PROJECT KNOWN AS THE DUNDALK WATER SUPPLY AUGMENTATION SCHEME . CONTRACT NO 4 OF THAT SCHEME CONCERNS THE CONSTRUCTION OF A WATER MAIN TO TRANSPORT WATER FROM THE RIVER FANE SOURCE TO A TREATMENT PLANT AT CAVAN HILL AND THENCE INTO THE EXISTING TOWN SUPPLY SYSTEM . THE INVITATION TO TENDER FOR THIS CONTRACT BY OPEN PROCEDURE WAS PUBLISHED ON PAGE 13 OF SUPPLEMENT NO S*50 OF THE OFFICIAL JOURNAL OF THE EUROPEAN COMMUNITIES OF 13 MARCH 1986 . AT POINT 13 OF THE PUBLISHED NOTICE IT WAS STATED THAT :

"THE CONTRACT WILL BE AWARDED, SUBJECT TO THE DUNDALK URBAN DISTRICT COUNCIL BEING SATISFIED AS TO THE ABILITY OF THE CONTRACTOR TO CARRY OUT THE WORK, TO THE CONTRACTOR WHO SUBMITS A TENDER, IN ACCORDANCE WITH THE TENDER DOCUMENTS, WHICH IS ADJUDGED TO BE THE MOST ECONOMICALLY ADVANTAGEOUS TO THE COUNCIL IN RESPECT OF PRICE, PERIOD OF COMPLETION, TECHNICAL MERIT AND RUNNING COSTS .

THE LOWEST OR ANY TENDER NEED NOT NECESSARILY BE ACCEPTED ."

8 IN RESPONSE TO THAT INVITATION TO TENDER, AN IRISH CONTRACTOR, P.*J.*WALLS ( CIVIL ) LTD ( HEREINAFTER REFERRED TO AS "WALLS"),SUBMITTED THREE TENDERS . ONE WAS BASED ON THE USE OF ASBESTOS CEMENT PIPES SUPPLIED BY A SPANISH COMPANY, URALITA SA . WALLS CONSIDERED THAT THAT TENDER, WHICH WAS THE LOWEST IT HAD SUBMITTED, OFFERED IT THE BEST POSSIBILITY OF OBTAINING THE CONTRACT . HOWEVER, THE ENGINEERS CONSULTED BY THE DUNDALK AUTHORITIES CONCERNING THE PROJECT CONSIDERED THAT THE TENDER DID NOT COMPLY WITH CLAUSE 4.29 OF THE SPECIFICATION FOR THE CONTRACT . THAT CLAUSE PROVIDES THAT :

"ASBESTOS CEMENT PRESSURE PIPES SHALL BE CERTIFIED AS COMPLYING WITH IRISH STANDARD SPECIFICATION 188-1975 IN ACCORDANCE WITH THE IRISH STANDARD MARK LICENSING SCHEME OF THE INSTITUTE FOR INDUSTRIAL RESEARCH AND STANDARDS . ALL ASBESTOS CEMENT WATER MAINS ARE TO HAVE A BITUMINOUS COATING INTERNALLY AND EXTERNALLY . SUCH COATINGS SHALL BE APPLIED AT THE FACTORY BY DIPPING ."

THE CONSULTING ENGINEERS THEREFORE INFORMED WALLS THAT THAT TENDER COULD NOT BE CONSIDERED . WALLS AND URALITA THEN COMPLAINED TO THE COMMISSION THAT THEIR TENDER HAD NOT BEEN DULY CONSIDERED .

9 IN FACT ONLY ONE MANUFACTURER HAS OBTAINED APPROVAL FROM THE INSTITUTE FOR INDUSTRIAL RESEARCH AND STANDARDS AS REGARDS IRISH STANDARD ( IS ) 188 AND IS AUTHORIZED TO AFFIX THE IRISH STANDARD MARK TO PIPES OF THE TYPE REQUIRED FOR THE WORK IN QUESTION . THAT COMPANY IS TEGRAL PIPES LTD, OF DROGHEDA, IRELAND .

10 THE COMMISSION TOOK THE VIEW THAT CLAUSE 4.29 INFRINGED ARTICLES 30 TO 36 OF THE EEC TREATY AND ARTICLE 10 OF COUNCIL DIRECTIVE 71/305/EEC AND THEREFORE INITIATED THE PRE-LITIGATION PROCEDURE UNDER ARTICLE 169 OF THE EEC TREATY BY A TELEX DATED 11 AUGUST 1986 . THAT TELEX DREW IRELAND' S ATTENTION TO THE ALLEGED INFRINGEMENTS AND INVITED IT TO SUBMIT ITS OBSERVATIONS . BY LETTER DATED 9 SEPTEMBER 1986 THE DEFENDANT STATED THAT IT DID NOT ACCEPT THE VALIDITY OF THE COMPLAINT SINCE THE COMPLAINANTS HAD NOT SUBMITTED ANY EVIDENCE THAT THEIR PRODUCTS MET THE REQUIREMENTS OF IS 188 OR ANY EQUIVALENT RECOGNIZED INTERNATIONAL STANDARD .

11 BY LETTER DATED 20 OCTOBER 1986 THE COMMISSION FORMALLY REITERATED ITS VIEWS TO THE DEFENDANT AND INVITED IT TO SUBMIT ITS OBSERVATIONS WITHIN TWO WEEKS OF RECEIVING THE LETTER . IRELAND' S REPLY DID NOT SATISFY THE COMMISSION WHICH, BY LETTER OF 13 JANUARY 1987, DELIVERED A REASONED OPINION STATING THAT CLAUSE 4.29 INFRINGED ARTICLES 30 TO 36 OF THE EEC TREATY AND ARTICLE 10 OF COUNCIL DIRECTIVE 71/305/EEC; THE COMMISSION REQUESTED IRELAND TO TAKE ALL NECESSARY MEASURES TO COMPLY WITH THE REASONED OPINION WITHIN 15 DAYS FOLLOWING NOTIFICATION . BY LETTER DATED 3 FEBRUARY 1987 IRELAND STATED THAT IT STOOD BY THE VIEWS EXPRESSED IN ITS LETTER OF 9*SEPTEMBER 1986 . IT DID, HOWEVER, ALSO UNDERTAKE NOT TO AWARD THE CONTRACT BEFORE 20 FEBRUARY 1987 . SINCE IRELAND HAD NOT COMPLIED WITH THE REASONED OPINION, THE COMMISSION APPLIED TO THE COURT ON 13 FEBRUARY 1987 PURSUANT TO ARTICLE 169 OF THE EEC TREATY FOR A DECLARATION THAT IRELAND HAD FAILED TO FULFIL ITS OBLIGATIONS UNDER THE TREATY .

12 PURSUANT TO ARTICLE 186 OF THE EEC TREATY, THE COURT OF JUSTICE MAY IN CASES BEFORE IT PRESCRIBE ANY NECESSARY INTERIM MEASURES .

13 AS A CONDITION FOR THE GRANT OF A MEASURE SUCH AS THAT REQUESTED, ARTICLE 83 ( 2 ) OF THE RULES OF PROCEDURE PROVIDES THAT AN APPLICATION FOR INTERIM MEASURES MUST STATE THE CIRCUMSTANCES GIVING RISE TO URGENCY AND THE FACTUAL AND LEGAL GROUNDS ESTABLISHING A PRIMA FACIE CASE FOR THE INTERIM MEASURES APPLIED FOR .

14 IN ORDER TO ESTABLISH A PRIMA FACIE CASE FOR THE INTERIM MEASURE IT SEEKS THE APPLICANT REFERS TO THE TWO SUBMISSIONS ON WHICH IT BASES ITS MAIN APPLICATION . ITS FIRST SUBMISSION IS THAT, HAVING REGARD TO ITS DETAILED TECHNICAL REQUIREMENTS, CLAUSE 4.29 OF THE SPECIFICATIONS FOR THE CONTRACT IS INCOMPATIBLE WITH ARTICLE 10 OF COUNCIL DIRECTIVE 71/305/EEC .

15 ARTICLE 10 ( 1 ) OF DIRECTIVE 71/305 STATES THAT THE "TECHNICAL SPECIFICATIONS MAY BE DEFINED BY REFERENCE TO NATIONAL STANDARDS ". HOWEVER, ARTICLE 10 ( 2 ) LAYS DOWN CERTAIN CONDITIONS WITH WHICH SUCH TECHNICAL SPECIFICATIONS MUST COMPLY . IT PROVIDES : "UNLESS SUCH SPECIFICATIONS ARE JUSTIFIED BY THE SUBJECT OF THE CONTRACT, MEMBER STATES SHALL PROHIBIT THE INTRODUCTION INTO THE CONTRACTUAL CLAUSES RELATING TO A GIVEN CONTRACT OF TECHNICAL SPECIFICATIONS WHICH MENTION PRODUCTS OF A SPECIFIC MAKE OR SOURCE OR OF A PARTICULAR PROCESS AND WHICH THEREFORE FAVOUR OR ELIMINATE CERTAIN UNDERTAKINGS . IN PARTICULAR, THE INDICATION OF TRADE MARKS, PATENTS, TYPES OR OF A SPECIFIC ORIGIN OR PRODUCTION, SHALL BE PROHIBITED . HOWEVER, IF SUCH INDICATION IS ACCOMPANIED BY THE WORDS 'OR EQUIVALENT' , IT SHALL BE AUTHORIZED IN CASES WHERE THE AUTHORITIES AWARDING CONTRACTS ARE UNABLE TO GIVE A DESCRIPTION OF THE SUBJECT OF THE CONTRACT USING SPECIFICATIONS WHICH ARE SUFFICIENTLY PRECISE AND INTELLIGIBLE TO ALL PARTIES CONCERNED ."

16 THE COMMISSION' S SECOND SUBMISSION IS THAT CLAUSE 4.29 INSERTED IN THE SPECIFICATIONS BY DUNDALK URBAN DISTRICT COUNCIL, A BODY SUBJECT TO THE AUTHORITY OF THE IRISH DEPARTMENT OF THE ENVIRONMENT, CREATES A BARRIER TO TRADE WHICH IS CONTRARY TO ARTICLE 30 OF THE EEC TREATY SINCE IT HAS THE EFFECT OF EXCLUDING THE USE OF PIPES MANUFACTURED IN OTHER MEMBER STATES WHICH WOULD PROVIDE GUARANTEES OF SAFETY, PERFORMANCE AND RELIABILITY EQUIVALENT TO THOSE OFFERED BY PIPES MANUFACTURED BY THE IRISH COMPANY, TEGRAL PIPES LTD, WHICH IS THE ONLY UNDERTAKING CERTIFIED TO IS 188 AS REQUIRED BY THAT CLAUSE . IRELAND HAS, MOREOVER, NOT PUT FORWARD ANY GROUND BASED ON ARTICLE 36 OF THE EEC TREATY OR ON THE "MANDATORY REQUIREMENTS" WITHIN THE MEANING OF THE COURT' S CASE-LAW TO JUSTIFY THAT INFRINGEMENT OF ARTICLE 30 OF THE EEC TREATY . THE EXISTENCE OF SUCH AN INFRINGEMENT IS ALSO CLEARLY BORNE OUT BY THE FACT THAT CONTRACTORS WHICH MIGHT HAVE CONSIDERED SUBMITTING A TENDER BASED ON THE USE OF IMPORTED PIPES WERE DETERRED FROM DOING SO AND A CONTRACTOR WHO DID IN FACT SUBMIT SUCH A TENDER WAS HAMPERED BY THE FACT THAT HE WAS UNAWARE OF THE ADDITIONAL CONDITIONS WHICH MIGHT BE IMPOSED IF OTHER PIPES WERE TO BE USED .

17 IN THE WRITTEN OBSERVATIONS SUBMITTED BY IT IN THESE PROCEEDINGS FOR INTERIM MEASURES, THE DEFENDANT ARGUES THAT ARTICLE 30 OF THE EEC TREATY IS NOT APPLICABLE SINCE THERE IS NO BARRIER TO TRADE OR, IN ANY EVENT, NO BARRIER TO TRADE AS A RESULT OF A COMMERCIAL PROVISION OR OTHER MEASURE ADOPTED BY IRELAND . IT REFERS TO THE JUDGMENT OF THE COURT OF 22 MARCH 1977 ( IANNELLI & VOLPI SPA V MERONI (( 1977 )) ECR 577 ) IN PARAGRAPH 9 OF WHICH THE COURT STATED THAT THE FIELD OF APPLICATION OF ARTICLE 30 OF THE EEC TREATY "DOES NOT INCLUDE OBSTACLES TO TRADE COVERED BY OTHER PROVISIONS OF THE TREATY ". IT POINTS OUT THAT, IN ANY EVENT, ANY BARRIER TO TRADE IN THIS FIELD WOULD BE COVERED BY OTHER PROVISIONS OF COMMUNITY LAW, NAMELY COUNCIL DIRECTIVE 71/305/EEC ADOPTED PURSUANT TO ARTICLE 57 ( 2 ) AND ARTICLES 66 AND 100 OF THE EEC TREATY, AND IS THUS EXCLUDED FROM THE SCOPE OF ARTICLE 30 OF THE TREATY . THE PROPER COURSE FOR THE COMMISSION TO TAKE IN ORDER TO PUT AN END TO THE BARRIERS TO TRADE RESULTING FROM DISPARITY BETWEEN NATIONAL STANDARDS IS TO PROPOSE MEASURES OF HARMONIZATION UNDER ARTICLE 100 OF THE EEC TREATY RATHER THAN TO APPLY ARTICLE 30 .

18 IT DOES NOT APPEAR THAT THE FIRST SUBMISSION RELIED ON BY THE COMMISSION CAN ESTABLISH A PRIMA FACIE CASE FOR THE INTERIM MEASURES APPLIED FOR . IT IS CLEAR FROM THE SIXTH RECITAL IN THE PREAMBLE TO DIRECTIVE 71/305/EEC READ IN CONJUNCTION WITH ARTICLE 5 ( 3 ), WHICH PROVIDES THAT :

"THE PROVISIONS OF THIS DIRECTIVE SHALL NOT APPLY TO PUBLIC WORKS CONTRACTS AWARDED BY THE PRODUCTION, DISTRIBUTION, TRANSMISSION OR TRANSPORTATION SERVICES FOR WATER AND ENERGY",

THAT THE PUBLIC WORKS CONTRACT NO 4 OF THE DUNDALK WATER SUPPLY AUGMENTATION SCHEME DOES NOT FALL WITHIN THE SCOPE OF THAT DIRECTIVE AND IS NOT SUBJECT TO THE REQUIREMENTS LAID DOWN THEREIN .

19 AS REGARDS THE COMMISSION' S SECOND SUBMISSION, IT SHOULD BE POINTED OUT THAT ONCE IT IS FOUND THAT PRIMA FACIE DIRECTIVE 71/305/EEC DID NOT APPLY TO THE PUBLIC WORKS CONTRACT IN QUESTION, IRELAND' S ARGUMENTS AGAINST THE APPLICABILITY OF ARTICLE 30 OF THE EEC TREATY WHICH IT BASES ON THE JUDGMENT IN IANNELLI & VOLPI SPA V MERONI BECOME WHOLLY IRRELEVANT . FURTHERMORE, AS THE COMMISSION HAS RIGHTLY POINTED OUT, SECONDARY COMMUNITY LEGISLATION SUCH AS A DIRECTIVE CANNOT DEROGATE FROM A DIRECTLY APPLICABLE PROVISION OF THE EEC TREATY SUCH AS ARTICLE 30 .

20 THE NEXT STEP IS TO EXAMINE WHETHER CLAUSE 4.29 OF THE SPECIFICATIONS MAY AMOUNT TO A BARRIER TO TRADE AND WHETHER SUCH A BARRIER IS IMPUTABLE TO A MEASURE ADOPTED BY IRELAND .

21 ALTHOUGH IT WOULD SEEM NORMAL THAT IN A PUBLIC WORKS CONTRACT SUCH AS THAT AT ISSUE THE MATERIALS TO BE USED MAY BE REQUIRED TO COMPLY WITH A CERTAIN TECHNICAL STANDARD, EVEN A NATIONAL STANDARD, IN ORDER TO ENSURE THAT THEY ARE APPROPRIATE AND SAFE, SUCH A TECHNICAL STANDARD CANNOT, WITHOUT CREATING PRIMA FACIE A BARRIER TO TRADE WHICH IS CONTRARY TO ARTICLE 30 OF THE EEC TREATY, HAVE THE EFFECT OF EXCLUDING, WITHOUT SO MUCH AS AN EXAMINATION, ANY TENDER BASED ON ANOTHER TECHNICAL STANDARD RECOGNIZED IN ANOTHER MEMBER STATE AS PROVIDING EQUIVALENT GUARANTEES OF SAFETY, PERFORMANCE AND RELIABILITY .

22 IN THIS CASE IT SHOULD BE OBSERVED THAT THE AUTOMATIC EFFECT OF CLAUSE 4.29 OF THE SPECIFICATIONS, BY ITSELF AND WITHOUT ANY OTHER JUSTIFICATION, IS TO EXCLUDE ANY TENDER BASED ON THE USE OF ANY TYPES OF PIPES OTHER THAN THOSE CERTIFIED TO COMPLY WITH IS 188, THAT IS TO SAY THOSE MANUFACTURED BY THE ONLY UNDERTAKING CERTIFIED TO THAT STANDARD, TEGRAL PIPES LTD, IRELAND, ALTHOUGH THERE ARE A NUMBER OF FEATURES IN THE DOCUMENTS BEFORE THE COURT THAT SUGGEST THAT THE POSSIBILITY CANNOT NECESSARY BE RULED OUT THAT EQUIVALENT TECHNICAL STANDARDS EXIST IN OTHER MEMBER STATES .

23 SINCE THAT CLAUSE WAS INSERTED IN THE SPECIFICATIONS BY DUNDALK URBAN DISTRICT COUNCIL, A BODY SUBJECT TO THE AUTHORITY OF THE MINISTER FOR THE ENVIRONMENT AND FOR WHOSE ACTS IRELAND IS RESPONSIBLE, THE BARRIER TO INTRA-COMMUNITY TRADE TO WHICH IT PRIMA FACIE GIVES RISE IS IMPUTABLE TO IRELAND .

24 IN THE LIGHT OF THE FOREGOING IT MUST BE CONSIDERED THAT THE COMMISSION HAS INDEED RAISED A MATERIAL ARGUMENT WHICH ESTABLISHES A PRIMA FACIE CASE FOR THE INTERIM MEASURE APPLIED FOR .

25 ALTHOUGH IT MAY BE CONSIDERED THAT IN THIS CASE THE COMMISSION HAS INDICATED FACTUAL AND LEGAL GROUNDS ESTABLISHING A PRIMA FACIE CASE FOR THE INTERIM MEASURE APPLIED FOR, THE COURT STILL HAS TO ASSESS THE CIRCUMSTANCES GIVING RISE TO URGENCY .

26 THE COURT HAS CONSISTENTLY HELD THAT THE URGENCY REQUIRED BY ARTICLE 83 ( 2 ) OF THE RULES OF PROCEDURE IN REGARD TO AN APPLICATION FOR INTERIM MEASURES MUST BE ASSESSED ON THE BASIS OF THE NEED TO ADOPT SUCH MEASURES IN ORDER TO AVOID SERIOUS AND IRREPARABLE DAMAGE TO THE PARTY SEEKING THOSE MEASURES .

27 THE COMMISSION SUBMITS THAT IF THE CONTRACT IN QUESTION WERE AWARDED IN A MANNER CONTRARY TO COMMUNITY LAW, IRREPARABLE HARM WOULD BE CAUSED NOT ONLY TO THE INTERESTS OF THE COMMUNITY BUT ALSO TO THOSE OF CONTRACTORS WHOSE TENDERS WERE NOT CONSIDERED AS A RESULT OF CLAUSE 4.29 AND THEIR SUPPLIERS . THE AWARD OF THE CONTRACT WILL CREATE A SITUATION WHEREBY THE INFRINGEMENT BECOMES PROGRESSIVELY IRREVERSIBLE AS COMMITMENTS ARE ENTERED INTO BY THE CONTRACTOR, ORDERS ARE PLACED AND PHYSICAL WORK COMMENCES ON THE EXECUTION OF THE CONTRACT . THE URGENCY FOR THE INTERIM MEASURES APPLIED FOR IS SUFFICIENTLY HIGHLIGHTED BY THE MERE FACT THAT IRELAND' S UNDERTAKING NOT TO AWARD THE CONTRACT IN QUESTION EXPIRED ON 20 FEBRUARY 1987 .

28 THE COMMISSION ALSO STATES THAT A DELAY IN THE AWARD OF THE CONTRACT WILL NOT INVOLVE SERIOUS INCONVENIENCE FOR THE IRISH AUTHORITIES SINCE OTHER PHASES OF THE DUNDALK WATER SUPPLY AUGMENTATION SCHEME ARE STILL AT THE DESIGN STAGE . A DELAY IN THE AWARD OF THE CONTRACT IN QUESTION WILL THEREFORE SCARCELY DELAY THE ACHIEVEMENT OF THE ULTIMATE OBJECTIVE OF INCREASING THE WATER SUPPLY IN THE DUNDALK AREA .

29 IRELAND CONTENDS THAT THE COMMISSION HAS NOT RAISED ANY SERIOUS ARGUMENTS SHOWING THAT THE DAMAGE TO WHICH THE SITUATION WOULD ALLEGEDLY GIVE RISE WOULD BE SERIOUS AND IRREPARABLE . THE COMMISSION HAS MERELY INFERRED AS MUCH FROM THE TRITE OBSERVATION THAT THE PIPELINE CAN ONLY BE CONSTRUCTED ONCE AND REFERENCE TO ALL THE CONSEQUENCES THAT ENTAILS . IT HAS NOT STATED WHO WILL SUFFER DAMAGE AND HOW OR THE NATURE AND EXTENT OF THE DAMAGE . BESIDES, TENDERERS WRONGFULLY EXCLUDED FROM CONSIDERATION FOR THE CONTRACT CAN ALWAYS CLAIM DAMAGES .

30 IRELAND EMPHASIZES THAT CONTRARY TO WHAT THE COMMISSION ASSERTS, THE INTERIM MEASURE APPLIED FOR WOULD HAVE THE EFFECT OF DELAYING COMPLETION OF THE SCHEME ITSELF WHICH WOULD HAVE VERY SERIOUS IMPLICATIONS FOR THE PEOPLE OF DUNDALK AND THE SURROUNDING REGION .

31 IRELAND CITES THE FOLLOWING EXAMPLES OF THE REPERCUSSIONS FOR THE PEOPLE OF DUNDALK IF THE INTERIM MEASURE APPLIED FOR IS GRANTED :

THE OVERALL PROJECT, WHOSE OBJECTIVE IS TO PROVIDE WATER TO THE TOWN OF DUNDALK BY 1990, HAS BEEN SUBDIVIDED INTO EIGHT CONTRACTS . THE COMPLETION OF THREE OF THOSE CONTRACTS IS DEPENDENT ON THE COMMENCEMENT OF WORK ON THE CONTRACT AT ISSUE, CONTRACT NO 4 . THE WORK UNDER CONTRACT NO 4 MUST BE STARTED BY JUNE AT THE LATEST IF THE PROJECT IS TO BE COMPLETED BY 1990 .

FROM A PUBLIC INQUIRY HELD IN 1982 IT EMERGED THAT THE 30*000 INHABITANTS OF DUNDALK HAVE FOR MANY YEARS BEEN FACED BY ACUTE WATER SHORTAGES WHICH HAVE FREQUENTLY NECESSITATED WATER RATIONING . EVIDENCE WAS ALSO GIVEN AT THE INQUIRY THAT THE WATER SHORTAGE CONSTITUTES A SERIOUS FIRE HAZARD AND EVEN A HEALTH HAZARD . IT IS ALSO A SERIOUS DISINCENTIVE TO ATTRACTING INDUSTRY TO THE REGION .

32 ALTHOUGH AT FIRST SIGHT THE PROBLEM SEEMS TO BE A MATTER OF SOME URGENCY, PARTICULARLY SINCE THE DAMAGE TO THE COMMISSION, AS GUARDIAN OF THE INTERESTS OF THE COMMUNITY, WILL ARISE AS SOON AS THE CONTRACT AT ISSUE IS AWARDED, IT MAY BE NECESSARY IN PROCEEDINGS FOR INTERIM MEASURES UNDER ARTICLES 185 AND 186 OF THE EEC TREATY TO WEIGH AGAINST EACH OTHER ALL THE INTERESTS AT STAKE .

33 IN THIS CASE THE OBJECTIVE OF THE PUBLIC WORKS CONTRACT IN QUESTION, NAMELY TO SECURE WATER SUPPLIES FOR THE INHABITANTS OF THE DUNDALK AREA BY 1990 AT THE LATEST, AND THE AGGRAVATION OF THE EXISTING HEALTH AND SAFETY HAZARDS FOR THEM IF THE AWARD OF THE CONTRACT AT ISSUE IS DELAYED TILT THE BALANCE OF INTERESTS IN FAVOUR OF THE DEFENDANT . IT SHOULD BE STRESSED THAT A QUITE DIFFERENT ASSESSMENT MIGHT BE ARRIVED AT IN THE CASE OF OTHER PUBLIC WORKS CONTRACTS SERVING DIFFERENT PURPOSES WHERE A DELAY IN THE AWARD OF THE CONTRACT WOULD NOT EXPOSE A POPULATION TO SUCH HEALTH AND SAFETY HAZARDS .

Operative part

ON THOSE GROUNDS,

THE PRESIDENT,

BY WAY OF INTERIM DECISION,

HEREBY ORDERS AS FOLLOWS :

( 1 ) THE APPLICATION IS DISMISSED .

( 2 ) THIS ORDER CANCELS AND REPLACES THE ORDER OF 16 FEBRUARY 1987 .

( 3 ) COSTS ARE RESERVED .

LUXEMBOURG, 13 MARCH 1987 .