CONTRACT FOR THE CONSTRUCTION OF A PLANT FOR THE RECYCLING OF SOLID URBAN WASTE AND THUS FAILING TO PUBLISH A NOTICE THEREOF IN THE OFFICIAL JOURNAL OF THE EUROPEAN COMMUNITIES, HAS FAILED TO FULFIL ITS OBLIGATIONS UNDER COUNCIL DIRECTIVE 71/305 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 ).
2 REFERENCE IS MADE TO THE REPORT FOR THE HEARING FOR THE FACTS AND THE SUBMISSIONS AND ARGUMENTS OF THE PARTIES, WHICH ARE MENTIONED OR DISCUSSED HEREINAFTER ONLY IN SO FAR AS IS NECESSARY FOR THE REASONING OF THE COURT .
I - ADMISSIBILITY
3 THE ITALIAN REPUBLIC HAS RAISED AN OBJECTION OF INADMISSIBILITY . IT MAINTAINS THAT IT FULLY COMPLIED WITH THE REASONED OPINION DELIVERED BY THE COMMISSION AND THAT, CONSEQUENTLY, AN ACTION BEFORE THE COURT OF JUSTICE UNDER ARTICLE 169 OF THE EEC TREATY IS NO LONGER ADMISSIBLE .
4 IN ITS REASONED OPINION DELIVERED IN THE PRE-LITIGATION PROCEDURE THE COMMISSION REQUESTED THE ITALIAN REPUBLIC "TO ADOPT THE MEASURES NECESSARY TO COMPLY WITH THIS REASONED OPINION WITHIN 30 DAYS OF NOTIFICATION HEREOF" AND IN THE FINAL PARAGRAPH THEREOF STATED THAT "BY NECESSARY MEASURES IS MEANT ABOVE ALL A WRITTEN UNDERTAKING BY THE MUNICIPALITY OF MILAN THAT IT WILL COMPLY WITH ALL THE PROVISIONS OF DIRECTIVE 71/305/EEC IN FUTURE ".
5 IN RESPONSE TO THE REASONED OPINION, THE ITALIAN AUTHORITIES SENT TO THE COMMISSION A COPY OF A LETTER IN WHICH THE MINISTER FOR THE INTERIOR INSTRUCTED THE PREFECT OF MILAN TO ENJOIN THE MUNICIPALITY OF MILAN STRICTLY TO ENSURE THAT THE DIRECTIVE WAS COMPLIED WITH IN FULL IN FUTURE TOGETHER WITH THE FOLLOWING WRITTEN DECLARATION BY THE MAYOR OF MILAN DATED 19 APRIL 1984 :
"... ALTHOUGH CONVINCED THAT THE MUNICIPAL ADMINISTRATION ACTED, AS ON EVERY OTHER OCCASION, IN A LAWFUL MANNER IN AUTHORIZING THE AWARD BY PRIVATE CONTRACT OF A CONTRACT FOR THE CONSTRUCTION OF THE SAID PLANT FOR THE RECYCLING OF SOLID URBAN WASTE,
I HEREBY DECLARE,
AS REQUESTED IN THE AFOREMENTIONED OPINION, THAT THE MUNICIPALITY OF MILAN WILL ENSURE THAT, IN THE FUTURE, TOO, ITS ADMINISTRATIVE ACTION IS IN CONFORMITY WITH THE PROVISIONS OF PRIMARY AND SECONDARY LEGISLATION, INCLUDING ALL THE PROVISIONS OF DIRECTIVE 71/305/EEC, BY ACCORDING THEM FULL RESPECT, IN BOTH FORM AND SUBSTANCE ".
6 IT IS CLEAR FROM THE DOCUMENTS BEFORE THE COURT THAT SUBSEQUENTLY THERE WERE CONSIDERABLE DELAYS IN THE CONSTRUCTION OF THE PROPOSED PLANT, THE AWARD OF THE CONTRACT FOR WHICH WAS OBJECTED TO BY THE COMMISSION IN ITS REASONED OPINION, AND THAT CONSIDERABLE CHANGES HAD TO BE MADE TO THE PROJECT . HOWEVER, NO STEPS WERE TAKEN WITH A VIEW TO PROCEEDING TO A FRESH INVITATION TO TENDER UNDER CONDITIONS COMPLYING WITH THE TERMS OF THE REASONED OPINION .
7 IT MUST BE POINTED OUT THAT THE PURPOSE OF THE PROCEDURE PROVIDED FOR IN ARTICLE 169 OF THE EEC TREATY IS, INTER ALIA, TO AVOID A SITUATION IN WHICH A MEMBER