13.

The issue is not however of decisive significance in this case. It is in fact doubtful whether the report in question is really as important as the Italian Government claims. It must be borne in mind that Article 9(d) requires the existence ‘of extreme urgency brought by events unforeseen by the authorities awarding contracts’ (emphasis added). ( 10 ) In other words, there must be a causal link between the unforeseen event alleged by the Italian Government and the extreme urgency involved in this case. Quite apart from the question of whether or not the contracting authorities could have foreseen the content of the report from the Geological Department, fulfilment of the conditions under Article 9(d) necessarily implies that the authorities appraisal and their decision as to the necessity of beginning the works in 1988 was necessarily brought about by the production of that report. In my opinion, it can be inferred from the information before the Court that the Italian Government has not proved that it was the report which prompted the Italian authorities to conclude that it was necessary to commence the works in 1988. On the contrary, that information shows that the need to start the works in 1988 was perceived before presentation of the report on 9 June 1988, that the competent authorities had already started preparing the plans before that date and that they thus had sufficient time to implement an advertising procedure in accordance with the rules of the directive. In drawing that conclusion I rely on the following details: — The Ufficio del Genio Civile, Bolzano, drew up a report on 4 March 1986 in which it concluded that there existed in the Alpe Gallina ‘an objective danger of avalanches liable, with a frequency of 50 years, to affect communications at the bottom of the valley’ and that the ‘author is of the opinion that the situation is now urgent and it is impossible do defer works for the construction of an avalanche barrier in the Alpe Gallina at least, in order to ensure the necessary safeguards for communications with the countries beyond the Alps’. ( 11 ) — On 3 April 1987 a meeting was held at the request of the regional adviser, attended also by the Mayor of Brennero, the chairman of Auto-Brennero and the head of the Bolzano section of ANAS, during which the ‘urgency of carrying out the works and the impossibility of postponing them ... were accepted’. ( 12 ) — On 22 January 1988 the Mayor of Brennero stated as follows in his letter No 186: ‘Having learned that in the second Finance Law for 1988 ... provision has been made for expenditure of LIT 10500000000 for the establishment of an avalanche barrier in the Alpe Gallina ... and in view of the fact that those works are urgently required ... the municipal administration of Brennero requests ... that the competent administrative authorities make available ... the technical and administrative facilities necessary to enable the works to be started immediately and carried on through this season by placing a contract for them as a matter of the utmost urgency, avoiding the delays inherent in awards of contracts of other kinds, thereby gaining a whole year and removing for the future the serious danger of avalanches in this area. In our view the only way of ensuring such rapid action is to have recourse ... to the same means as those used for similar action, to general satisfaction and ahead of the deadlines set, in neighbouring areas, within the boundaries of the Municipality of Brennero’ (emphasis added). ( 13 ) — On 11 March 1988, as I stated earlier, the finance Law allocated LIT 10.5 thousand million for the construction of an avalanche barrier in the Alpe Gallina. At the hearing, the Italian Government explained that that amount had been spread over three years: 5 thousand million in 1988, 3 thousand million in 1989 and 2.5 thousand million in 1990. — On 10 May 1988 the Geological Department was asked to prepare the report in question concerning the geological conditions in the region. In other words, the report was prepared after adoption of the decision to construct the avalanche barrier, probably being linked with that decision, and everything appears to indicate that it was precisely on that basis that the plans for the works were to be drawn up. Moreover, there are solid grounds for believing that much of the technical and scientific information needed for preparation of the plans was already available before the report of 9 June 1988 was presented since it seems most unlikely that plans for the works could otherwise have been drawn up in the short space of time between 10 June 1988, the date of presentation of the report, and 18 June 1988, the date on which, according to the information provided by the Italian Government itself, the plans for the works were finalized. The whole course of events indicates, in my opinion, that the authorities had long known that there was an urgent need to construct an avalanche barrier in the Alpe Gallina and that it was accepted, after the Finance Law was passed in March 1988, that those works should start in 1988. Thus, as early as January 1988, the Mayor of Brennero had drawn attention to the importance of ‘gaining a year’. Furthermore, when replying on 15 March 1990 to the formal letter from the Commission, the Italian Government certainly did not give the impression that the report of 9 June 1988 had been decisive. On the contrary, the Italian Government stated in its letter that the report of 9 June 1988 merely confirmed ‘the urgency of the situation and the impossibility of postponement’ which had been known since March 1986, and it is only in its defence that the Italian Government contends that that report made a decisive contribution to the authorities' decision to arrange for the works to be started in 1988.