Keywords

Summary



Keywords

1 Actions for failure to fulfil obligations - Pre-litigation procedure - Subject-matter - Reasoned opinion - Content

(EC Treaty, Art. 169 (now Art. 226 EC))

2 Actions for failure to fulfil obligations - Pre-litigation procedure - Purpose - Time granted to the Member State concerned - Requirement that a reasonable length of time be allowed - Criteria for assessment

(EC Treaty, Art. 169 (now Art. 226 EC))

3 Approximation of laws - Review procedures relating to the award of public supply and public works contracts - Directive 89/665 - Procedure enabling the Commission to take preventive action where there has been a clear and manifest infringement of the Community rules on public procurement - Unrelated to the infringement procedure under Article 169 of the Treaty (now Article 226 EC)

(EC Treaty, Art. 169 (now Art. 226 EC); Council Directive 89/665)

4 Approximation of laws - Procedures for the award of public works contracts - Directive 93/37 - Where the Community rules are infringed by a contracting authority controlled and financed by one of the States within a Member State with a federal structure - Infringement imputable to the Member State

(Council Directive 93/37, Art. 1(b))

Summary

1 Since the subject-matter of an action brought under Article 169 of the Treaty (now Article 226 EC) is delimited by the pre-litigation procedure provided for therein, the action cannot be founded on any complaints other than those formulated in the reasoned opinion delivered by the Commission. Although the Commission is not obliged to indicate in the reasoned opinion the measures to be taken to eliminate the alleged infringement, it must, if it intends to make the failure to adopt a certain measure the subject-matter of its infringement action, specifically indicate to the Member State concerned that that measure must be adopted.

2 In the context of an action for failure to fulfil obligations, the purpose of the pre-litigation procedure is to give the Member State concerned an opportunity, on the one hand, to comply with its obligations under Community law and, on the other, effectively to put forward its defence to the complaints made by the Commission.

In view of the fact that the pre-litigation procedure has thus a dual purpose, the Commission must allow Member States a reasonable period to reply to letters of formal notice and to comply with reasoned opinions, or, where appropriate, to prepare their defence. In order to determine whether the period allowed is reasonable, account must be taken of all the circumstances of the case. Thus, very short periods may be justified in particular circumstances, especially where there is an urgent need to remedy a breach or where the Member State concerned is fully aware of the Commission's views long before the procedure starts.

3 The procedure by which, pursuant to Directive 89/665 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 Commission may - where it considers that a clear and manifest infringement of Community provisions in the field of public procurement has been committed - take up the matter with a Member State, constitutes a preventive measure which can neither derogate from nor replace the powers of the Commission under Article 169 of the Treaty (now Article 226 EC). It follows that the detailed provisions to which that special procedure is subject cannot affect the admissibility of an action brought under that provision.

4 A Member State which has a federal structure may be held liable for the actions of a contracting authority - within the meaning of Article 1(b), second subparagraph, of Directive 93/37 concerning the coordination of procedures for the award of public works contracts - all the activities of which are controlled and financed by one of the component States. If the actions of such a contracting authority were not imputable to the Member State concerned, the provisions of Community law governing the award of public contracts would be deprived of their effectiveness.