CELEX: C1999/314/03
Language: en
Date: 1999-10-30 00:00:00
Title: Case C-290/99: Action brought on 3 August 1999 by the Council of the European Union against Dr Martin Bangemann

C 314/2                 EN                    Official Journal of the European Communities                                       30.10.1999
1. Does recourse to a clause in calls for tenders for public             The Council claims that the Court should:
     works contracts which prevents the participation of under-
     takings which have not submitted with their tenders                 — disallow Dr Bangemann’s rights as a former member of
     explanations in respect of the price indicated, being equal              the Commission to a pension or other payments in lieu, in
     to at least 75 % of the figure specified in the tender                   particular any transitional allowance to which he may be
     conditions, represent an obstacle to the application of                  entitled under Article 7 of regulation No 422/67/EEC,
     Article 30(4) of Directive 93/37 (1)?                                    5/67/Euratom of the Council of 25 July 1967 (1); the
                                                                              Council leaves to the discretion of the Court for how long
2. Does the establishment of a mechanism for automatically                    and to what extent those rights should be disallowed;
     identifying tenders which overstep a threshold indicative
     of irregularities and whose validity should therefore be
     checked, based on a case-by-case criterion and an arith-            — declare that disallowance of those rights does not apply to
     metical mean, which is such that undertakings are unable                 those entitled under Regulation No 422/67/EEC,
     to ascertain that threshold in advance, represent an obstacle            5/67/Euratom of the Council of 25 July 1967 in the event
     to the application of Article 30(4) of Directive 93/37?                  of Dr Bangemann’s death;
3. Does the fact that provision is made for a prior exchange             — order Dr Bangemann to pay the costs of the proceedings.
     of views, without the undertaking which has allegedly
     submitted an irregular tender having an opportunity to
     state its reasons, after the opening of the envelopes and
     before the adoption of the measure excluding it, represent          Pleas in law and main arguments
     an obstacle to the application of Article 30(4) of Direc-
     tive 93/37?
                                                                         The Council’s action is founded on subparagraph 3 of
                                                                         Article 213(2) of the EC Treaty, subparagraph 3 of Article 9(2)
4. Does a provision under which the contracting authority                of the ECSC Treaty and subparagraph 3 of Article 126(2) of
     may take account of explanations relating solely to the             the EAEC Treaty, and, specifically, solely on the duty to behave
     economy of the construction method or the technical                 with discretion. It is the view of the Council that to satisfy this
     solutions adopted or the exceptionally favourable con-              duty, it is necessary not only to comply with applicable
     ditions available to the tenderer represent an obstacle to          legislation and rules but also to assess and evaluate with
     the application of Article 30(4) of Directive 93/37?                circumspection what is the appropriate course of conduct in a
                                                                         given situation so as, in particular, not to jeopardise the
5. Does the exclusion of explanations relating to items for              Commission’s reputation as an independent and impartial
     which minimum figures can be inferred from official lists           body. The Council considers that, in taking up a post with
     represent an obstacle to the application of Article 30(4) of        Teléfonica, Herr Bangemann breached the duty to behave with
     Directive 93/37?                                                    discretion incumbent upon him because
(1) Council Directive of 14 June 1993, OJ 1993 L 199 of 9.8.1993,        — he is a politician in the public eye;
    p. 54.
                                                                         — he has been responsible for the field of information
                                                                              technology and telecommunications within the Com-
                                                                              mission since 1992 and has now taken up a post with one
                                                                              of the largest companies in that very sphere;
                                                                         — he made public the fact that he was taking up the post
                                                                              when he was still a member of the Commission and
Action brought on 3 August 1999 by the Council of the                         indeed stated that he intended to take up his new post
       European Union against Dr Martin Bangemann                             immediately;
                                                                         — the Commission was at that time in an extremely delicate
                          (Case C-290/99)                                     position and it suffered damage to its reputation;
                         (1999/C 314/03)                                 — the reactions of citizens, the media, political circles and
                                                                              public opinion were, in view of those circumstances,
An action against Dr Martin Bangemann was brought before                      clearly foreseeable.
the Court of Justice of the European Communities on 3 August
1999 by the Council of the European Union represented by
Jean-Claude Piris, Director-General of the Legal Service of the          (1) Regulation No 422/67/EEC, 5/67/Euratom of the Council of
Council, and Martin Bauer, a member of the Legal Service,                    25 July 1967 determining the emoluments of the President and
assisted by Professor Doctor Hans-Jürgen Rabe, of the Ham-                   Members of the Commission and of the President, Judges,
burg Bar and the Brussels firm Gaedertz, with an address for                 Advocates General and Registrar of the Court of Justice.
service in Luxembourg at the office of Alessandro Morbilli,
General Counsel, Legal Affairs Directorate of the European
Investment Bank, 100 Boulevard Konrad Adenauer, L-2920
Luxembourg-Kirchberg.