CELEX: C2000/233/37
Language: en
Date: 2000-08-12 00:00:00
Title: Case C-230/00: Action brought on 9 June 2000 by the Commission of the European Communities against the Kingdom of Belgium

12.8.2000             EN                    Official Journal of the European Communities                                       C 233/19
of the First Chamber of the Supreme Administrative Court) of           1.    In calls for tenders for public works contracts, do clauses
10 May 1999, which was received at the Court Registry on                     excluding undertakings which have not submitted with
2 June 2000, for a preliminary ruling in the case of Director-               their tenders explanations concerning components of the
Geral do Departamento para os Assuntos do Fundo Social                       price indicated, amounting to at least 75 % of the figure
Europeu against Partex — Companhia Portuguesa de Serviços                    specified in the tender conditions represent an obstacle
SA. The Supremo Tribunal Administrativo referred to the                      to the application of Article 30(4) of Directive 93/37 (1)?
Court for a preliminary ruling on the correct interpretation of
Community law, namely:                                                 2.    Does the establishment of a mechanism for determining
                                                                             the threshold indicative of irregularity, below which the
                                                                             validity of tenders falls to be verified, on the basis of an
—    Articles 5(4) and 7(2) of Council Regulation (EEC)
                                                                             ad hoc criterion and an arithmetical mean, automatically
     No 2950/83 (1) of 17 October 1983 on the implementa-                    so that undertakings are unable to ascertain the threshold
     tion of Decision 83/516/EEC (2) on the tasks of the
                                                                             in advance, represent an obstacle to the application of
     European Social Fund (ESF); and
                                                                             Article 30(4) of Directive 93/37?
—    Article 5 of Council Decision 83/516/EEC of 17 October            3.    Does the fact that the exchange of views is to take place
     1983 on the tasks of the European Social Fund                           at an earlier stage, without the undertaking which has
                                                                             allegedly submitted an irregular tender being assured of
                                                                             an opportunity to state its reasons, after the opening of
in order to ascertain whether where the certification decision,              the envelopes and before the adoption of the measure
for which the DAFSE is competent, deems certain expenditure                  excluding it, represent an obstacle to the application of
to be unreasonable and only certifies it in part (in other words,            Article 30(4) of Directive 93/37?
the negative part of the certification decision) makes it
impossible for the Commission to approve payments relating             4.    Does a provision under which the contracting authority
to the expenditure which was not certified by the competent                  may take account of explanations relating solely to the
body in the Member State.                                                    economy of the construction method or the technical
                                                                             solutions adopted or the exceptionally favourable condi-
                                                                             tions available to the tenderer represent an obstacle to
(1) OJ 1983 L 289, p. 1.                                                     the application of Article 30(4) of Directive 93/37?
(2) OJ 1983 L 289, p. 38.
                                                                       5.    Does the exclusion of explanations relating exclusively to
                                                                             items for which minimum values have been established
                                                                             by administrative provisions or can be inferred from
                                                                             official lists represent an obstacle to the application of
                                                                             Article 30(4) of Directive 93/37?
                                                                       (1) Council Directive 93/37/EEC of 14 June 1993 concerning the
Reference for a preliminary ruling by the Fourth Chamber                   coordination of procedures for the award of public works
of the Consiglio di Stato (Council of State) by order of                   contracts (OJ L 199 of 9.8.1993, p. 54).
that court of 7 March 2000 in the case of Cavalleri Ottavio
SpA, acting on its own account and also as mandated
under its ad hoc association with Anselmi Cave Ghiaia Srl,
against ANAS — Ente Nazionale per le Strade and Lauro
Cantieri Valsesia SpA, acting on its own account and also
  as mandated under its ad hoc association with IOS SpA
                                                                       Action brought on 9 June 2000 by the Commission of the
                         (Case C-225/00)
                                                                        European Communities against the Kingdom of Belgium
                         (2000/C 233/36)                                                         (Case C-230/00)
                                                                                                (2000/C 233/37)
Reference has been made to the Court of Justice of the
European Communities by order of the Fourth Chamber of
the Consiglio di Stato (Council of State) of 7 March 2000,             An action against the Kingdom of Belgium was brought before
received at the Court Registry on 5 June 2000, for a prelimina-        the Court of Justice of the European Communities on 9 June
ry ruling in the case of Cavalleri Ottavio SpA, acting on its          2000 by the Commission of the European Communities,
own account and also as mandated under its ad hoc association          represented by H. van Lier, Legal Adviser in the Commission’s
with Anselmi Cave Ghiaia Srl, against ANAS — Ente Nazionale            Legal Service, acting as Agent, assisted by H. van der Woude
per le Strade and Lauro Cantieri Valsesia SpA, acting on its           and T.E.M. Chellingsworth, of the Brussels Bar, with an address
own account and also as mandated under its ad hoc association          for service in Luxembourg at the office of C. Gómez de la
with IOS SpA, on the following questions:                              Cruz, also of the Legal Service, Wagner Centre, Kirchberg.
 ---pagebreak--- C 233/20               EN                    Official Journal of the European Communities                                     12.8.2000
The applicant claims that the Court should:                             through expiry of the period within which a decision must be
                                                                        taken should be regarded as constituting a very serious
                                                                        infringement of the above directives.
—     Declare that, by failing to adopt the laws, regulations and
      administrative provisions necessary to transpose in full          ( 1) OJ 1975 L 194, p. 39.
      Article 9 of Council Directive 75/442/EEC (1) of 15 July          ( 2) OJ 1976 L 129, p. 23.
      1975 on waste, as amended by Council Directive                    ( 3) OJ 1980 L 20, p. 43.
      91/156/EEC of 18 March 1991, Articles 3, 4, 5 and 7 of            ( 4) OJ 1984 L 188, p. 20.
      Council Directive 76/464/EEC (2) of 4 May 1976 on                 ( 5) OJ 1985 L 175, p. 40.
      pollution caused by certain dangerous substances dischar-
      ged into the aquatic environment of the Community,
      Articles 3, 4, 5, 7 and 10 of Council Directive
      80/68/EEC (3) of 17 December 1979 on the protection
      of groundwater against pollution caused by certain
      dangerous substances, Articles 3, 4, 9 and 10 of Council
      Directive 84/360/EEC (4) of 28 June 1984 on the comba-            Action brought on 13 June 2000 against the French
      ting of air pollution from industrial plants, and Articles 2      Republic by the Commission of the European Communi-
      and 8 of Council Directive 85/337/EEC (5) of 27 June                                              ties
      1985 on the assessment of the effects of certain public
      and private projects on the environment, the Kingdom of
      Belgium has failed to fulfil its obligations under Artic-                                   (Case C-233/00)
      le 249 EC and the above directives;
                                                                                                  (2000/C 233/38)
—     order the Kingdom of Belgium to pay the costs of the              An action against the French Republic was brought before the
      proceedings.                                                      Court of Justice of the European Communities on 13 June
                                                                        2000 by the Commission of the European Communities,
                                                                        represented by Götz zur Hausen and Jean-François Pasquier,
                                                                        Legal Advisers, acting as Agents, with an address for service in
                                                                        Luxembourg at the office of Carlos Gómez de la Cruz, a
                                                                        Member of the Commission’s Legal Service, Wagner Centre,
Pleas in law and main arguments                                         Kirchberg.
                                                                        The Commission of the European Communities claims that
                                                                        the Court should:
The Commission takes the view that the so-called ‘implied
authorisation’ provided for in the local legislation of Flanders        —     declare that by not correctly transposing Article 2(a) and
and Wallonia runs counter to the provisions of the directives                 Article 3(2), (3) and (4) of Council Directive 90/313/EEC
listed in the forms of order sought. The mechanism of this                    of 7 June 1990 on the freedom of access to information
‘implied authorisation’ operates as follows: if the competent                 on the environment (1) the French Republic has failed to
authority at first instance does not take a decision on an                    fulfil its obligations under that directive and under the
application for authorisation, the requested authorisation will               third paragraph of Article 249 of the Treaty;
then be deemed to have been refused (the principle of implied
refusal). However, precisely the opposite applies at higher             —     order the French Republic to pay the costs.
instance. If the appellate authority fails, within the specified
period, to take a decision, authorisation will be deemed to
have been granted (the principle of implied authorisation).             Pleas in law and main arguments
This rule applies even in the case of express or implied refusal
of authorisation at first instance.                                     —     Incomplete transposition of the combined provisions of
                                                                              Article 2(a) and Article 3(1) of Directive 90/313/EEC
                                                                              (scope of the duty to communicate): The concept of
                                                                              ‘administrative document’ used by (French) Law No 78-
‘Implied authorisation’ resulting from the mere fact that the                 753 is narrower than that of ‘information relating to the
time-limit for taking a decision has passed cannot, however,                  environment’ contained in the directive, with the result
be treated as constituting express administrative action. The                 that certain documents held by the administration and
directives cited above require, not a merely formal licensing                 containing environmental information likely to be of
obligation, but a substantive decision. In addition, the authori-             interest to citizens might not be communicable on the
sation applied for may be granted only after a prior investiga-               basis of Law No 78-753.
tion has been conducted; the mechanism of ‘implied authorisa-
tion’ provides no guarantee that authorisation will be granted          —     Incorrect transposition of the first paragraph of Artic-
only once such an investigation has been completed. Finally,                  le 3(2) (exceptions to the principle that environmental
the possibility that, if the competent authority at first instance            information is to be communicated): The final indent of
concludes that the requested authorisation has to be refused,                 Article 6 of Law No 78-753 allows a request for access
that decision may be overturned at appellate level merely                     to information to be refused where consultation or the