Case C-385/02

Commission of the European Communities

v

Italian Republic

(Failure of a Member State to fulfil obligations – Directive 93/37/EEC – Public works contracts – Negotiated procedure without prior publication of a contract notice)

Summary of the Judgment

1. Approximation of laws – Procedures for the award of public works contracts – Directive 93/37 – Derogations from common rules – Strict interpretation – Existence of exceptional circumstances – Burden of proof

(Council Directive 93/37, Art. 7(3))

2. Approximation of laws – Procedures for the award of public works contracts – Directive 93/37 – Derogations from common rules – Repetition of similar work awarded to the undertaking to which the original contract was awarded – Duration

(Council Directive 93/37, Art. 7(3)(e))

3. Actions for failure to fulfil obligations – Objective character – Excusable error – Not permissible

(Art. 226 EC)

1. Article 7(3) of Directive 93/37 concerning the procedures for the award of public works contracts which authorise derogations from the rules intended to ensure the effectiveness of the rights conferred by the Treaty in relation to public works contracts must be interpreted strictly and the burden of proving circumstances justifying a derogation lies on the person seeking to rely on those circumstances.

Having regard to the wording of Article 7(3)(b) of the directive, which provides that the contracting authorities may award their public works contracts by negotiated procedure without prior publication of a contract notice ‘when, for technical or artistic reasons or for reasons connected with the protection of exclusive rights, the works may only be carried out by a particular contractor’, a Member State must prove that technical reasons make it necessary to award the relevant contracts to the contractor who was entrusted with the original contract.

It is true that the aim of ensuring the continuity of works under complex projects which relate to the flood safety of an area is a technical reason which must be recognised as being important. However, merely to state that a package of works is complex and difficult is not sufficient to establish that it can only be entrusted to one contractor, particularly where the works are subdivided into lots which will be carried out over many years.

(see paras 19-21)

2. Article 7(3)(e) of Directive 93/37 concerning the procedures for the award of public works contracts authorises the use of the negotiated procedure without prior publication of a contract notice for new works consisting in the repetition of similar works entrusted to the undertaking to which an earlier contract was awarded only ‘during the three years following the conclusion of the original contract’.

In the light of a comparison of the language versions of that provision, the expression ‘conclusion of the original contract’ must be understood as meaning the time when the original contract was entered into and not as that of the completion of the works to which the contract relates.

That interpretation is confirmed by the objective of the provision in question and its place in the scheme of Directive 93/37.

First, as it is a derogating provision which falls to be strictly interpreted, the interpretation which restricts the period during which the derogation applies must be preferred rather than that which extends it. That objective is met by the interpretation which takes the starting point as being the date on which the original contract is entered into rather than the, necessarily later, date on which the works which are its subject-matter are completed.

Secondly, legal certainty, which is desirable where procedures for the award of public procurement contracts are involved, requires that the date on which the period in question begins can be defined in a certain and objective manner. While the date on which a contract is entered into is certain, numerous dates may be treated as representing the completion of the works and thus give rise to a corresponding level of uncertainty. Moreover, while the date on which the contract is entered into is clearly established at the outset, the date of completion of the works, whatever definition is adopted, may be altered by accidental or voluntary factors for so long as the contract is being carried out.

(see paras 33-34, 36-38)

3. Proceedings against a Member State for failure to fulfil obligations afford a means of determining the exact nature of the obligations of the Member States, particularly where there are differences of interpretation, and are based on the objective finding that a Member State has failed to fulfil its obligations under the Treaty or secondary legislation. Accordingly, the concept of excusable error cannot be relied on by a Member State to justify a failure to comply with the obligations imposed on it under a directive.

(see para. 40)