CELEX: 61994CJ0318
Language: en
Date: 1996-03-28
Title: Judgment of the Court (Fifth Chamber) of 28 March 1996. # Commission of the European Communities v Federal Republic of Germany. # Failure to fulfil obligations - Public works contracts - Failure to publish a tender notice. # Case C-318/94.

Case C-318/94 Commission of the European CommunitiesvFederal Republic of Germany
            «(Failure to fulfil obligations – Public works contracts – Failure to publish a tender notice)»
            
               
                  Opinion of Advocate General Elmer delivered on 8 February 1996 
                     
                
               
            
                   
               
               
            
               
                  Judgment of the Court (Fifth Chamber), 28 March 1996  
                     
                
               
            
                   
               
               
            
            Summary of the Judgment
         
         
                  
                  Approximation of laws – Procedures for the award of public works contracts – Directive 71/305 – Derogations from common rules – Conditions – Refusal by a body within a Member State, during the procedure provided for under national legislation, to give its approval
                     for a public works project – Refusal not an unforeseeable event within the meaning of the directive
                  (Council Directive 71/305, as amended by Directive 89/440, Art. 5(3)(c))The possibility under Article 9(d) of Directive 71/305 concerning the coordination of procedures for the award of public works
         contracts, in its original version, and under Article 5(3)(c) of the version resulting from the amendment by Directive 89/440
         of bypassing the tendering procedure in order to apply the negotiated procedure is available only if a number of conditions
         are satisfied concurrently, one of which is the occurrence of an unforeseeable event.  If one of those conditions is not satisfied,
         use of the negotiated procedure will not be justified.The fact that a body in a Member State which must, in the procedure for approval of public works projects provided for under
         national legislation, approve a project may, before expiry of the period laid down for that purpose, raise objections for
         reasons which it is entitled to put forward cannot constitute an unforeseeable event.A Member State whose competent authorities, after deciding not to award a public works contract by open procedure by reason
         of the delay resulting from the refusal by a body to approve the work plans originally envisaged, award a contract for partial
         work by negotiated procedure without prior publication of a tender notice, will therefore be in breach of its obligations
         under the directive.
      

      
      
      
      
      
      
      
      
      
      
      
      
      
      
      
            
            JUDGMENT OF THE COURT (Fifth Chamber)28 March 1996  (1)
         
         
            
         
               ((Failure to fulfil obligations – Public works contracts – Failure to publish a tender notice))
               
            In Case C-318/94, 
            
            
             Commission of the European Communities , represented by Hendrik van Lier, Legal Adviser, and, initially, by Angela Bardenhewer, and, subsequently, by Claudia Schmidt,
            of its Legal Service, acting as Agents, with an address for service in Luxembourg at the office of Carlos Gómez de la Cruz,
            also of its Legal Service, Wagner Centre, Kirchberg,
            
            
            applicant, 
            
            v
             Federal Republic of Germany , represented by Ernst Röder, Ministerialrat in the Federal Ministry for Economic Affairs, and Gereon Thiele, Assessor in
            the same ministry, acting as Agents, D-53107 Bonn,
            
            defendant, 
            
            APPLICATION for a declaration that, the Waterways and Navigation Office, Emden having awarded the public works contract for
            the dredging of the lower Ems between Papenburg and Oldersum by negotiated procedure without prior publication of a tender
            notice in the  
             Official Journal of the European Communities , the Federal Republic of Germany has failed to fulfil its obligations under Council Directive 71/305/EEC of 26 July 1971
            concerning the coordination of procedures for the award of public works contracts (OJ, English Special Edition 1971 (II),
            p. 682), as amended by Council Directive 89/440/EEC of 18 July 1989 (OJ 1989 L 210, p. 1),
            
            
            THE COURT (Fifth Chamber),,
            
            composed of: D.A.O. Edward, President of the Chamber, J.C. Moitinho de Almeida, P. Jann (Rapporteur), L. Sevón and M. Wathelet, Judges, 
            
            Advocate General: M.B. Elmer, Registrar: R. Grass, 
            
            
            having regard to the report of the Judge-Rapporteur,
            
            after hearing the Opinion of the Advocate General at the sitting on 8 February 1996, 
         gives the following
         
         
         Judgment
         1
            
         By application lodged at the Registry of the Court on 6 December 1994, the Commission of the European Communities brought
         an action under Article 169 of the EC Treaty for a declaration that, the Waterways and Navigation Office, Emden having awarded
         the public works contract for the dredging of the lower Ems between Papenburg and Oldersum by negotiated procedure without
         prior publication of a tender notice in the  
          Official Journal of the European Communities , the Federal Republic of Germany has failed to fulfil its obligations under Council Directive 71/305/EEC of 26 July 1971
         concerning the coordination of procedures for the award of public works contracts (OJ, English Special Edition 1971 (II),
         p. 682), as amended by Council Directive 89/440/EEC of 18 July 1989 (OJ 1989 L 210, p. 1, hereinafter  
         the Directive). 
         
         
         2
            
         In September 1989, at the request of the town of Papenburg, a plan was drawn up to alter the bed of the lower Ems with a view
         to making it navigable for  
         Panama class vessels with a 6.80 metre draught.  The deepening of this section of the Ems river was of major economic significance
         for the region.  Moreover, during 1990, the Meyer-Werft shipyard, the largest employer in the region, contracted to deliver
         a  
         Panama class vessel by 18 February 1992 at the latest.  A  
          per diem  penalty of USD 80 000 was laid down in the event of failure to comply with that scheduled delivery date.  Delivery of the
         vessel on that date could take place only after completion of this work. 
         
         
         3
            
         Under German legislation, the plans for deepening the lower Ems had to be approved by a procedure requiring, in particular,
         the agreement of the Weser-Ems Regional Authority.  At the end of May 1991, the date envisaged for conclusion of this procedure,
         the Weser-Ems Regional Authority, which had not previously raised any objection, gave notice that it did not agree to the
         project on ecological grounds.  A decision was then taken to continue the procedure with a view to obtaining approval only
         of the plans for that part of the project which consisted in temporarily deepening the river bed in order to enable the vessel
         being built by the Meyer-Werft shipyard to pass through.  The plans for this partial project were definitively approved on
         15 August 1991. 
         
         
         4
            
         However, on 15 April 1991, the Waterways and Navigation Office, Emden (hereinafter  
         the Office), which intended to award the work in accordance with the open procedure, sent a prior information notice concerning the
         work envisaged which was published in a supplement to the  
          Official Journal of the European Communities  on 20 April 1991. 
         
         
         5
            
         Given the delay in approving the plans, the Office decided to abandon the open procedure and to award the contract by negotiated
         procedure without prior publication of a tender notice.  The contract was awarded on 15 August 1991 pursuant to the latter
         procedure. 
         
         
         6
            
         By formal notice of 12 November 1991, the Commission instituted Treaty-infringement proceedings against the Federal Republic
         of Germany under Article 169 of the Treaty on the ground that it had acted in breach of the rules governing the procedure
         for the award of public works contracts.  The Commission pointed out that, in this case, the choice of negotiated procedure
         could not be justified under Article 5(3)(c) of the Directive.  In a letter of 6 March 1992, the German Government disputed
         that contention. 
         
         
         7
            
         In its reasoned opinion of 27 April 1993, the Commission restated its view and called on the German Government to take the
         measures necessary to comply with the reasoned opinion and, in particular, to suspend the contract in question, as well as
         any other contract negotiated on the same terms, within two months of notification of the opinion. 
         
         
         8
            
         In its statement of position of 28 September 1993, the German Government stressed that it was imperative for the work to be
         completed by 18 February 1992, the date on which the vessel was to be delivered, so that it had to be begun by no later than
         mid-August 1991.  In view of the difficulties arising in the procedure for approval of the plans, it was not possible to follow
         the open procedure, which would have lasted at least 72 days. 
         
         
         9
            
         The Commission took the view that this reply was unsatisfactory and brought the present action. 
         
         
         10
            
         It is necessary to consider whether the Federal Republic of Germany was entitled, on the basis of Article 5(3)(c) of the Directive,
         to award the contract in question by negotiated procedure without prior publication of a tender notice.  Article 5(3)(c) provides
         that: The contracting authorities may award their public works contracts by negotiated procedure without prior publication of a
         tender notice, in the following cases:...
         
         (c)
         in so far as is strictly necessary when, for reasons of extreme urgency brought about by events unforeseen by the contracting
         authorities in question, the time-limit laid down for the open, restricted or negotiated procedures referred to in paragraph 2
         above cannot be kept.  The circumstances invoked to justify extreme urgency must not in any event be attributable to the contracting
         authorities ...
         . 
         
         
         11
            
         Before Directive 71/305 was amended by Directive 89/440, Article 9 of the earlier directive provided that: Authorities awarding contracts may award their works contracts without applying the provisions of this Directive, except those
         of Article 10, in the following cases:...
         
         (d)
         in so far as is strictly necessary when, for reasons of extreme urgency brought [about] by events unforeseen by the authorities
         awarding contracts, the time-limit laid down in other procedures cannot be kept ...
         . 
         
         
         12
            
         In so far as Article 5(3)(c) of the Directive reproduces the wording of the former Article 9(d), those provisions must be
         given the same interpretation. 
         
         
         13
            
         The Court has held in this regard that the provisions of Article 9 of Directive 71/305, which authorize 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 that the burden of proving the existence of exceptional circumstances justifying a derogation
         lies on the person seeking to rely on those circumstances (Case C-57/94  
          Commission  v  
          Italy  [1995] ECR I-1249, paragraph 23). 
         
         
         14
            
         The Court has also held that, according to Article 9(d) of Directive 71/305, the derogation for which it provides, namely
         exemption from the obligation to publish a notice of a call for tenders, is available only if three conditions are fulfilled
         concurrently.  That derogation requires the existence of an unforeseeable event, extreme urgency, rendering the observance
         of time-limits laid down by other procedures impossible, and, finally, a causal link between the unforeseeable event and the
         extreme urgency resulting therefrom (Case C-107/92  
          Commission  v  
          Italy  [1993] ECR I-4655, paragraph 12).  If one of those conditions is not satisfied, use of the negotiated procedure will not
         be justified. 
         
         
         15
            
         According to the German Government, the event which the contracting authorities could not have foreseen was the totally unexpected
         refusal by the Weser-Ems Regional Authority to grant its approval following its deliberation. 
         
         
         16
            
         That argument cannot be accepted. 
         
         
         17
            
         It must be stressed that, in order to take account of the public and private interests concerned in procedures for approving
         public works projects, Member States may confer on natural or legal persons potentially concerned by a project certain rights
         which the competent authorities must respect. 
         
         
         18
            
         The possibility that a body which must approve a project might, before expiry of the period laid down for this purpose, raise
         objections for reasons which it is entitled to put forward is, consequently, something which is foreseeable in plan approval
         procedure. 
         
         
         19
            
         The refusal of the Weser-Ems Regional Authority to approve the project for dredging the lower Ems, thereby obliging the competent
         authorities to amend that project, cannot therefore be regarded as an event unforeseen by the contracting authorities within
         the meaning of Article 5(3)(c) of the Directive. 
         
         
         20
            
         It follows from the foregoing, without its being necessary to determine whether the other derogation conditions were satisfied
         in this case, that, the Waterways and Navigation Office, Emden having awarded the public works contract for the dredging of
         the lower Ems between Papenburg and Oldersum by negotiated procedure without prior publication of a tender notice in the 
         
          Official Journal of the European Communities , the Federal Republic of Germany has failed to fulfil its obligations under Council Directive 71/305/EEC of 26 July 1971
         concerning the coordination of procedures for the award of public works contracts, as amended by Council Directive 89/440/EEC
         of 18 July 1989. 
         
         Costs
         21
            
         Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs.  Since the Federal
         Republic of Germany has been unsuccessful, it must be ordered to pay the costs. 
         
         On those grounds, 
         
         
         
            
            THE COURT (Fifth Chamber)
         
         
         hereby:  
         
            
            1.
             Declares that, the Waterways and Navigation Office, Emden having awarded the public works contract for the dredging of the
            lower Ems between Papenburg and Oldersum by negotiated procedure without prior publication of a tender notice in the  
             Official Journal of the European Communities , the Federal Republic of Germany has failed to fulfil its obligations under Council Directive 71/305/EEC of 26 July 1971
            concerning the coordination of procedures for the award of public works contracts, as amended by Council Directive 89/440/EEC
            of 18 July 1989; 
            
            
            2.
             Orders the Federal Republic of Germany to pay the costs. 
            
            
                  Edward
               
               
                  Moitinho de Almeida 
               
               
                  Jann 
               
            
                  Sevón
               
               
                  Wathelet 
               
               
                  
               
            
                  
               
               
                  
               
               
                  
               
            
                  
               
               
                  
               
               
                  
               
            
                  
               
               
                  
               
               
                  
               
            
            
            
            
            
            
            
            
         
         
         Delivered in open court in Luxembourg on 28 March 1996. 
         
         
         
         
                  R. Grass 
               
               
                  D.A.O. Edward  
               
            
         
         
         
                  Registrar
               
               
                  President of the Fifth Chamber
               
            
      
      
          1 –
            
             Language of the case: German.