CELEX: 62003CC0525
Language: en
Date: 2005-06-02 00:00:00
Title: Opinion of Mr Advocate General Jacobs delivered on 2 June 2005. # Commission of the European Communities v Italian Republic. # Failure of a Member State to fulfil obligations - National rules ceasing to have any legal effect before the expiry of the period laid down in the reasoned opinion - Inadmissibility of the action. # Case C-525/03.

OPINION OF ADVOCATE GENERAL
      Jacobs
      delivered on 2 June 2005 (1)
      
      Case C-525/03
      Commission
      v
      Italy
      1.     In the present case, the Commission alleges that, by adopting certain provisions authorising recourse to a negotiated procedure
         without publication of a tender notice for the acquisition of forest firefighting equipment and services, the Italian Republic
         has failed to fulfil its obligations under Council Directive 93/36/EEC (2) and Articles 43 and 49 EC.
      
      
       Relevant legislation
       Community legislation
      2.     Directive 93/36 coordinates procedures for the award of public supply contracts, and Directive 92/50 (3) coordinates procedures for the award of public service contracts, by State, regional or local authorities, bodies governed
         by public law, associations formed by one or several of such authorities or bodies governed by public law. (4)
      
      3.     The directives provide for three types of procedure:
      –       ‘open procedures’, in which all interested suppliers may submit tenders; 
      –       ‘restricted procedures’, in which only those suppliers invited by the contracting authorities may submit tenders;  and
      –       ‘negotiated procedures’, in which contracting authorities consult suppliers of their choice and negotiate the terms of the
         contract with one or more of them. (5)
      
      4.     As a general rule, contracting authorities are to award supply and service contracts by an open or a restricted procedure. (6)
      
      5.     However, in a number of exceptional cases, they may award contracts by negotiated procedure, without prior publication of
         a tender notice.  
      
      6.     For supply contracts, those cases are set out in Article 6(3) of Directive 93/36 and include, in so far as is relevant: 
      ‘… 
      (c)      when, for technical or artistic reasons, or for reasons connected with protection of exclusive rights, the products supplied
         may be manufactured or delivered only by a particular supplier; 
      
      (d)      in so far as is strictly necessary when, for reasons of extreme urgency brought about by events unforeseeable by the contracting
         authorities in question, the time-limit laid down for the open, restricted or negotiated procedures referred to in paragraph
         2 [(7)] cannot be kept.  The circumstances invoked to justify extreme urgency must not in any event be attributable to the contracting
         authorities; 
      
      (e)      for additional deliver[ie]s by the original supplier which are intended either as a partial replacement of normal supplies
         or installations or as the extension of existing supplies or installations where a change of supplier would oblige the contracting
         authority to acquire material having different technical characteristics which would result in incompatibility or disproportionate
         technical difficulties in operation and maintenance.  The length of such contracts as well as that of recurrent contracts
         may, as a general rule, not exceed three years.’
      
      7.     For service contracts, they are set out in Article 11(3) of Directive 92/50, in slightly different terms: 
      ‘(b)      when, for technical or artistic reasons, or for reasons connected with the protection of exclusive rights, the services may
         be provided only by a particular service provider;
      
      …
      (d)      in so far as is strictly necessary when, for reasons of extreme urgency brought about by events unforeseeable by the contracting
         authorities in question, the time-limit for the open, restricted or negotiated procedures [(8)] referred to in Articles 17 to 20 cannot be kept.  The circumstances invoked to justify extreme urgency must not in any event
         be attributable to the contracting authorities;
      
      …
      (f)      for new services consisting in the repetition of similar services entrusted to the service provider to which the same contracting
         authorities awarded an earlier contract, provided that such services conform to a basic project for which a first contract
         was awarded according to the procedures referred to in paragraph 4.  As soon as the first project is put up for tender, notice
         must be given that the negotiated procedure might be adopted and the total estimated cost of subsequent services shall be
         taken into consideration by the contracting authorities when they apply the provisions of Article 7.  This procedure may be
         applied solely during the three years following the conclusion of the original contract.’
      
      8.     However, even where such exceptions apply, or where the value of contracts falls below the threshold for the application of
         the directives, (9) the Court has held that the procedure used must comply with the fundamental principles of Community law, in particular the
         principle of non-discrimination as it follows from the provisions of the Treaty on the right of establishment and the freedom
         to provide services, namely Articles 43 and 49 EC. (10)  That principle implies an obligation of transparency which in turn requires a degree of advertising sufficient to enable
         the market to be opened up to competition and the impartiality of procurement procedures to be reviewed. (11)
      
      
       National legislation
      9.     Article 23 quinquies of Law No 61 of 30 March 1998 (12) allocated certain sums for the Corpo Forestale dello Stato (National Forest Rangers, hereinafter ‘Corpo Forestale’) to purchase
         helicopters to combat forest fires in the years 1998 to 2000.
      
      10.   Article 5(1) of Law No 225 of 24 February 1992 on national service and civil protection (13) authorises the President of the Council of Ministers to declare a state of emergency in a specified area for a specified
         period in the case of natural calamities, catastrophes or other events of such magnitude and extent as to require exceptional
         measures and powers.  Article 5(2) allows ordinances to be adopted in such cases, derogating from provisions in force but
         in compliance with general principles of law, for the purpose of ensuring emergency intervention consequent upon such a declaration.
      
      11.   By decree of 28 June 2002, (14) taken on the basis of Article 5(1) of Law No 225 following the outbreak of numerous forest fires, the President of the Council
         of Ministers declared a state of emergency for the whole of Italy, for the purpose of aerial forest firefighting.  The state
         of emergency was to last until 31 October 2002.  By another decree of the same date, (15) a more limited state of emergency was declared in the province of Verbano-Cusio-Ossola, to last until 31 December 2002. 
         The latter state of emergency, but apparently not the former, was subsequently extended until 30 December 2003 (16) and again until 31 July 2004. (17)
      
      12.   On 24 July 2002, the President of the Council of Ministers adopted Ordinance No 3231 (‘the contested ordinance’), (18) concerning aerial forest firefighting, on the basis of:  Law No 225, in particular Article 5 thereof;  Decree-Law No 343
         of 7 September 2001, as converted into Law No 401 of 9 November 2001; (19)  and the two abovementioned Decrees of 28 June 2002. (20)
      
      13.   Articles 1(2) and 2(1), (2) and (3) of the ordinance (‘the contested provisions’) are the object of the present proceedings.
      14.   Article 1(2) reads as follows:
      ‘In order to improve the operational capacity of airborne units employed in forest firefighting, the Department of Civil Protection
         is authorised to draw up and implement a special emergency programme to reinforce its technological and computing resources,
         and may acquire necessary equipment by procedures including privately negotiated contracts.’
      
      15.   Article 2(1), (2) and (3) read as follows:
      ‘1.   In order to respond adequately and with the necessary immediacy to the forest fires occurring throughout the national territory,
         in pursuance of the aims set out in Article 7(2) of Law No 353 of 21 November 2000, [(21)] in a context of substantial and stable reinforcement of the fleet of aircraft at the disposal of the Department of Civil
         Protection, having regard to the great variety of emergency situations, and at the same time in order to meet the essential
         needs of preventing the possible spread of such fires, likely to endanger seriously both persons and property, the Department
         of Civil Protection is authorised to specify with the utmost urgency such aircraft as are deemed most suitable for the accomplishment
         of its tasks, concluding, by private negotiation, by derogation from the statutory provisions listed in Article 4 below, [(22)] contracts for the acquisition or implementation of aerial forest firefighting services.
      
      2.     In pursuance of the aims set out in Article 7(2) of Law No 353 of 21 November 2000, for the reinforcement of the operational
         capacity of the airborne units of the Corpo Forestale dello Stato employed in forest firefighting, and in subsequent action
         dealing with possible civil protection emergencies, the Corpo Forestale is authorised to specify with the utmost urgency such
         aircraft as are deemed most suitable for the accomplishment of its tasks and of other duties flowing from Article 11 of Law
         No 225/1992, [(23)] to be acquired by privately negotiated contract, by derogation from the statutory provisions listed in Article 4 below.
         For that purpose, the Corpo Forestale may also acquire and evaluate the results of tests performed by, and civil protection
         experience of, other State, regional or local entities, and of any technical research that may have been carried out, in order
         to achieve the most profitable functional and operational integration possible and the most economical management of the entire
         State fleet of forest firefighting aircraft.  For the acquisition of the aircraft referred to in this paragraph and by derogation
         from the general rules on government accounting, the Corpo Forestale may also enter into agreements for trading in aircraft
         in its possession which are intended to be but have not yet been sold.
      
      3.     In order to allow the chief fire officer to ensure coordination between ground teams and firefighting aircraft, the Corpo
         Forestale is authorised to acquire, also by privately negotiated contracts, such radio transceiving equipment and accessories
         as are necessary for ground-to-air communication with those aircraft when employed in firefighting operations.’
      
      16.   The preamble to the ordinance mentions as reasons for its adoption the climatic and meteorological conditions prevailing since
         the beginning of 2002, with exceptionally high temperatures in June, increasing the risk of forest fires, and the urgent need
         for aerial firefighting equipment.
      
      
       Procedure
      17.   In December 2000, pursuant to Article 23 quinquies of Law No 61/98, the Italian Ministry of Agriculture and Forestry issued
         two invitations to tender for the supply of a total of 49 helicopters.  Those procedures were subsequently suspended and then
         withdrawn, a matter which gave rise to a complaint to the Commission.  Questioned by the Commission, the Italian authorities
         replied that the step had been taken following the attack on the World Trade Centre in September 2001, since there was a need
         to ensure that the helicopters could be used in anti-terrorist as well as forest firefighting operations.  On 22 July 2002,
         the Italian authorities informed the Commission that they intended to purchase the helicopters in question, and considered
         that the contracts were not subject to Community law, being matters of national security.
      
      18.   The contested ordinance was adopted on 24 July 2002, and it appears to be common ground that the only relevant acquisition
         made pursuant to it was of two AB 412 helicopters, supplied by the Italian company Agusta Bell SpA (‘Agusta’) following a
         negotiated procedure culminating in a contract signed on 28 October and approved on 31 October 2002.
      
      19.   The Commission took the view however that the authorisations contained in the contested ordinance were contrary to Community
         law and, on 19 December 2002, sent the Italian Government a letter of formal notice, asking it to submit its observations
         in accordance with Article 226 EC.  The Government replied stressing the seriousness of the forest fires in Italy in 2002.
      
      20.   The Commission then, on 3 April 2003, sent the Italian Government a reasoned opinion pursuant to Article 226 EC, in which
         it concluded that the adoption of Articles 1(2) and 2(1), (2) and (3) of the contested ordinance was contrary to Community
         law.  It requested Italy to comply with the opinion within one month.
      
      21.   Although the Italian authorities made a number of replies after the expiry of that period, the Commission considers that it
         has not been informed of any measures taken to comply with the reasoned opinion.
      
      22.   It has therefore brought the present action, in which it asks the Court to:
      –       declare that, by adopting Articles 1(2) and 2(1), (2) and (3) of Ordinance No 3231 of the President of the Council of Ministers
         of 24 July 2002, which allow for private negotiations by way of derogation from the provisions of the Community directives
         on public supply and service contracts, and in particular, from the common rules on advertising and participation laid down
         by Titles III and IV of Directive 93/36 and III and V of Directive 92/50, for the acquisition of aircraft to combat forest
         fires and for the acquisition of firefighting services and which similarly allow for such negotiations for the acquisition
         of technical and computer equipment and two-way radios, without any of the lawful conditions for derogation from those common
         rules being satisfied and, in any event, without ensuring any form of direct advertising such as to permit a competitive comparison
         between potential tenderers, the Italian Republic has failed to fulfil its obligations under Council Directive 93/36 of 18
         June 1992 and Articles 43 and 49 EC;
      
      –       order the Italian Republic to pay the costs.
      23.   Italy contends that the Court should declare the proceedings devoid of purpose or should dismiss the action as unfounded.
      
       Admissibility
      24.   Italy points out in its written pleadings that the contested ordinance related to a limited period, defined by the duration
         of the state of emergency which was declared until 31 October 2002.
      
      25.   That factor gave rise to some discussion at the hearing as to whether the Commission’s action could be regarded as admissible,
         since the reasoned opinion was not sent until 3 April 2003, and it might be questioned whether the alleged infringement was
         still in existence at the end of the period of one month laid down for compliance in that opinion.  
      
      26.   The Commission argued, first, that the contested ordinance did not contain any provision limiting its effects in time or expire
         by operation of any other legal rule;  second, that one of the measures on which it was based, namely the decree declaring
         a state of emergency in the province of Verbano-Cusio-Ossola, was extended until 31 July 2004;  third, that the contract for
         the supply of two helicopters, concluded on the basis of the contested ordinance, had not been completed by the end of that
         period, since technical verifications were still being carried out;  and, fourth, that if the Court were to find the action
         inadmissible on the ground envisaged Member States could adopt temporary measures authorising unjustified derogations from
         the Community procurement rules but escape censure by ensuring that they lapsed or were repealed before the Commission could
         take legal action.
      
      27.   The agent for the Italian Republic agreed that the action was admissible.  He expressly acknowledged that, if that were not
         so, there would be no way of obtaining the requisite judicial scrutiny in cases of this kind.
      
      28.   In those circumstances I do not propose to examine the question of the expiry of the contested ordinance as a factor affecting
         the admissibility of the action.  I agree however with both parties that short-term infringements of Community law, of the
         kind alleged in the present case, should not be immune from the procedure laid down in Article 226 EC merely because of their
         limited duration.
      
      29.   In any event, whether the contested ordinance was still in force or not at the end of the period laid down for compliance
         in the reasoned opinion, and whatever the situation as regards the procedures commenced on the basis of the ordinance, it
         is clear that no step was taken by Italy to remedy the alleged infringement, the existence of which it continues to deny.
      
      30.   In those circumstances, Italy cannot be considered to have complied with the reasoned opinion and the action cannot be held
         inadmissible. (24)
      
      
       The declaration sought
      31.   The Commission seeks a declaration that by adopting Articles 1(2) and 2(1), (2) and (3) of the contested ordinance, Italy
         has failed to fulfil its obligations under Directive 93/36 and Articles 43 and 49 EC.
      
      32.   That delimitation of the scope of the application gives rise to two preliminary remarks.
      33.   First, the Commission has referred to supply procedures commenced and withdrawn before the adoption of the contested ordinance. (25)  Those circumstances may explain the Commission’s specific interest in the ordinance, and they may be relevant to some of
         the Commission’s arguments concerning the existence of urgency.
      
      34.   Second, the discussion in the pleadings has dwelt to some extent on the acquisition of two Agusta AB 412 helicopters on the
         basis of the contested ordinance.  The circumstances of those purchases may throw some light on the circumstances of the adoption
         of the ordinance.  
      
      35.   It must however be remembered in both regards that the declaration sought relates solely to the adoption of specific provisions
         of that ordinance, and not to any actual procurement procedures whenever initiated and on whatever basis.
      
      36.   The wording of the declaration sought also gives rise to some rather more substantial observations.
      37.   That declaration asserts that the contested provisions authorise negotiated procedures ‘by way of derogation from the provisions
         of the Community directives on public supply and service contracts, and in particular, from the common rules on advertising
         and participation laid down by Titles III and IV of Directive 93/36/EEC and III and V of Directive 92/50/EEC … without any
         of the lawful conditions for derogation from those common rules being satisfied and, in any event, without ensuring any form
         of direct advertising such as to permit a competitive comparison between potential tenderers’.
      
      38.   From that, it concludes that Italy has failed to fulfil its obligations under Directive 93/36 and Articles 43 and 49 EC –
         but not Directive 92/50. 
      
      39.   That approach, whilst perfectly coherent with regard to supply contracts governed by Directive 93/36, seems more puzzling
         where service contracts are concerned.
      
      40.   It is true that the Court has held that, even where there is no requirement to comply with the provisions of the services
         directive, public procurement procedures must comply with the fundamental principles which flow from Articles 43 and 49 EC,
         in particular the principle of non-discrimination, which implies an obligation of transparency and thus in turn a degree of
         advertising sufficient to enable the market to be opened up to competition and the impartiality of procurement procedures
         to be reviewed. (26)
      
      41.   Consequently, it may be reasoned, recourse to a privately negotiated procedure where such recourse is not authorised by Directive
         92/50 must also offend against those principles, since by definition there will be no advertising.
      
      42.   However, that seems an unduly circuitous route to take, particularly when a perfectly straightforward approach is available
         – and is taken in the strictly parallel context of supply contracts governed by Directive 93/36.  
      
      43.   The Commission does not offer any direct explanation for the approach it has taken, but one might infer from a passage in
         the application (27) that it intended to cater for a defence – which the Italian Government has not in fact advanced – to the effect that the
         service contracts concerned fell below the value threshold for the application of Directive 92/50.
      
      44.   However, since the case is concerned with the authorising provisions and not with any procedures carried out under them, even
         that consideration would be relevant only if those provisions applied expressly and exclusively to contracts whose value was
         below the threshold, whereas in fact they make no reference to any value whatever.
      
      45.   Another point is that the form of order sought refers to the authorisation of recourse to negotiated procedures without any
         of the conditions for derogation being satisfied ‘and, in any event [comunque], without ensuring any form of direct advertising such as to permit a competitive comparison between potential tenderers’.
      
      46.   Yet it cannot be the case that the absence of publicity can infringe Community law in any event.
      
      47.   If the conditions for derogation are satisfied, and a negotiated procedure without prior publication of an invitation to tender
         is thus justified, there can be no requirement for advertising.  The principles which flow from the Treaty cannot impose a
         requirement of publicity which has to be satisfied even when the directives expressly provide for a derogation, or that derogation
         would be nugatory.
      
      48.   That must in my view apply by analogy even if the value of a particular contract is below the threshold for application of
         the relevant directive. (28)  Where circumstances would normally justify recourse to a negotiated procedure, it would be absurd for that justification
         to be lost where the value of the contract falls below the threshold laid down in the directive.
      
      49.   Consequently, the separate reference to a lack of publicity, in the context of Articles 43 and 49 EC, could be relevant only
         in cases where a particular contract fell outside the scope of the relevant directive and there were no circumstances which would have justified a derogation of the kind authorised by the directive.  
      
      50.   In the present case, however, the authorisation contained in the contested provisions is in no way confined to such situations.
      51.   Overall, the formulation of the declaration sought does not appear particularly consistent or clear, a circumstance which
         does not assist the Court in its assessment.
      
      52.   However, on analysis the issue is simply whether any of the lawful conditions for derogation from the common rules in Directive
         93/36 or, as the case may be, Directive 92/50 are present.
      
      
       Substance
      53.   The authorisation contained in the contested provisions can be legitimate only if justified by one of the derogations in Article
         6(3) of Directive 93/36, or Article 11(3) of Directive 92/50.
      
      54.   Italy does not in fact specifically invoke Directive 92/50.  That may be due to an excessive concern with the two contracts
         actually concluded under the authorisation, which were supply contracts governed by Directive 93/36.  However, since the relevant
         derogations are substantially the same in the two directives, whatever view is reached with regard to one directive will be
         valid with regard to the other.
      
      55.   Italy relies principally on Article 6(3)(d) of Directive 93/36, (29) which allows recourse to a negotiated procedure in situations of extreme urgency brought about by events unforeseeable by
         the contracting authorities.  The urgent need to combat forest fires during the state of emergency declared in July 2002 constitutes,
         it claims, such a situation.
      
      56.   It also invokes, secondarily, Article 6(3)(c) and (e) of the same directive, (30) which allow such a procedure, respectively, where for technical reasons the products must come from a particular supplier
         and where it is necessary to continue to deal with the same supplier in order to ensure homogeneity of supply.  Those conditions,
         Italy argues, are fulfilled by the need for the Corpo Forestale to maintain a homogenous fleet of AB412 helicopters, which
         only Agusta could supply.
      
      
       Technical requirements and homogeneity of supply
      57.   These criteria may be dealt with very simply.
      58.   Whatever reasons may or may not have given rise to the alleged need to acquire Agusta AB 412 helicopters, they are relevant
         only to the actual procedures carried out under the authorisations conferred by the contested ordinance.
      
      59.   The alleged infringement however concerns the contested provisions of that ordinance, and not the negotiated contracts themselves.
         Nothing in those provisions, or in the context of the contested ordinance, indicates any limitation to a particular supplier
         on whatever grounds.
      
      60.   The contested provisions therefore cannot be justified on the basis of Article 6(3)(c) or (e) of Directive 93/36, or of Article
         11(3)(b) or (f) of Directive 92/50.
      
      
       Urgency
      61.   As a general proposition, it seems incontrovertible that widespread outbreaks of forest fires may be reasons of extreme urgency
         giving rise to a need for the acquisition of firefighting services and equipment if they are not already sufficiently available.
      
      62.   The Commission does not argue against that proposition as such, but submits that not all the conditions for the application
         of the derogation are satisfied.  On the one hand, outbreaks of forest fires in summer are a regularly recurring event throughout
         southern Europe;  they are thus foreseeable, and any urgency in the need to acquire means to combat them is attributable to
         the Italian authorities.  On the other hand, the contested ordinance remained valid after the end of the national state of
         emergency on 31 October 2002, and could thus be used to authorise recourse to negotiated procedures after any situation of
         urgency had disappeared.
      
      63.   I agree that regular seasonal occurrences cannot be considered unforeseeable events.
      64.   However, it cannot be denied that even such occurrences may in some years be of such exceptional intensity or extent as to
         be legitimately regarded as unforeseeable.  
      
      65.   Both the decree declaring the national state of emergency and the contested ordinance itself speak, in their preambles, of
         exceptional meteorological conditions giving rise to drought and an increased risk of forest fires.  The latter mentions such
         conditions in the early part of the year, giving rise to exceptional intervention by forest firefighting units and a need
         to increase capacity, followed by a long period of unseasonably high temperatures in June with a consequent increase in the
         risk of the outbreak and spread of forest fires.  In its pleadings, the Italian Republic asserts that in the summer of 2002
         such fires exceeded the worst forecasts.
      
      66.   The Commission however has not addressed the question of the exceptional nature of the meteorological conditions or of the
         outbreaks of forest fires in the summer of 2002.  Its arguments are directed solely to the foreseeability of summer forest
         fires in general and to the mechanisms whereby the Italian authorities could legitimately have acquired the necessary means
         to combat such fires in good time and without recourse to any urgent procedure.  And even in the latter regard, it refers
         extensively to the actual acquisition of two AB 412 helicopters rather than to the authorisations which are at issue.  
      
      67.   It may be accepted that forest fires in summer are foreseeable in Italy, so that the authorities cannot rely on their own
         failure to provide in advance for such fires in order to justify recourse to a negotiated procedure under Article 6(3)(d)
         of Directive 93/36.  
      
      68.   Exceptional forest fires due to exceptional weather conditions are however by definition not foreseeable as such and may provide
         reasons of extreme urgency for the purposes of that provision.  
      
      69.   The Commission has not sought to disprove or deny the exceptional nature of the circumstances on which the contested ordinance
         was based. 
      
      70.   I therefore consider that Italy has made an adequate prima facie case for the existence of urgency as a ground for authorising
         recourse to negotiated procedures without prior publication of an invitation to tender, and that the Commission has not rebutted
         that case.
      
      71.   But the Commission further objects that the authorisation in that ordinance cannot be covered by the derogation for urgent
         situations because it was not limited to the specific period of emergency.  
      
      72.   It puts forward two arguments:  first, the contested ordinance did not contain any provision limiting its effects in time
         or expire by operation of any other legal rule;  second, the Ministry of Agriculture and Forestry, in a letter of 21 May 2003, (31) undertook not to use the contested ordinance for any future acquisition of supplies – demonstrating that the ordinance had
         not lapsed with the national state of emergency on 31 October 2002.
      
      73.   Before dealing with those arguments, however, it may be useful to point out that the fact that the decree declaring a state
         of emergency in the province of Verbano-Cusio-Ossola was extended until 31 July 2004 (32) is not relevant to this issue.  The application seeks a declaration that by adopting the contested provisions Italy failed to fulfil its obligations.  There is no indication or allegation that at the time of
         that adoption any extension of the legal basis for it was contemplated, and the declaration sought does not refer to any such
         extension or to the maintenance in force of the contested ordinance beyond any specified date.
      
      74.   Nor is it relevant that performance of the contract for the purchase of two AB 412 helicopters was not completed until after
         the end of the national state of emergency.  What matters is whether the authorisation to initiate a negotiated procedure
         could still be relied upon after that period.
      
      75.   Turning now to the Commission’s first argument, the Italian Government responds that the contested ordinance logically lapsed
         with the expiry of the state of emergency on which it was based.
      
      76.   That seems a credible contention.  
      77.   Where an executive ordinance is adopted on the basis of a declaration of a state of emergency, it appears reasonable to suppose
         that its effects and validity will lapse when the state of emergency legally comes to an end.  In the present case, the preamble
         to the contested ordinance does not merely mention the declaration of a national state of emergency but specifies that it
         is to come to an end on 31 October 2002.  I note also that Article 5(2) of Law No 225 of 24 February 1992, which is one of
         the legal bases for the contested ordinance, specifies that measures derogating from rules in force may be adopted ‘for the
         purpose of ensuring emergency intervention consequent upon’ a declaration of a state of emergency, a detail which strongly
         suggests that no such measures can be valid if adopted outside that context.
      
      78.   It certainly seems likely that any negotiated procedure concluded on the basis of the authorisation contained in the contested
         ordinance after the end of the state of emergency could be challenged on that ground.  However, and in any event, there is
         no indication or allegation that the relevant authorities have attempted to initiate any such procedure since that date. 
         It is moreover consistent with Italy’s contention, and possibly suggestive of an assumption that the authorisation must lapse
         with the national state of emergency, that the contract for the purchase of two AB 412 helicopters, the only contract apparently
         negotiated under the authorisation, was approved on 31 October 2002, the last day of that state of emergency.
      
      79.   However, the undertaking given on 21 May 2003, not to use the contested ordinance for any future acquisition of supplies,
         could well seem in contradiction with the view that the ordinance was no longer valid by that date.
      
      80.   The Italian Government accepts the difficulty, but contends that the ministry’s undertaking merely expresses the fact that
         it was no longer possible legally to rely on the contested ordinance, and does not indicate that it had any choice in the
         matter.
      
      81.   A reading of the relevant passage of the letter – which deals also with other matters and seems intended to demonstrate that
         the Commission’s allegations are unfounded over a range of issues – shows that the undertaking follows an assertion that the
         acquisition of the two AB412 helicopters was in any event in compliance with Community law and that the contested ordinance
         was relied upon simply as a ‘reinforcing measure’.
      
      82.   In those circumstances, I do not consider that the letter is sufficient to establish that the contested ordinance was still
         in force on 21 May 2003.
      
      83.   I thus reach the view that the Commission has not established that the contested provisions could have been relied upon in
         order to acquire supplies or services after the end of the state of emergency for which they were adopted or, in general,
         that the reasons of extreme urgency on which the Italian Government credibly relies were absent or were attributable to the
         Italian authorities.
      
      
       Costs
      84.   The Italian Republic has not asked for costs in its pleadings;  consequently, pursuant to Article 69(2) of the Rules of Procedure,
         the parties should be ordered to bear their own costs.
      
      
       Conclusion
      85.   In the light of all the foregoing considerations, I am of the opinion that the Court should:
      –       dismiss the application;
      –       order the parties to bear their own costs.
      1 –	Original language: English.
      
      2 –	Of 14 June 1993 coordinating procedures for the award of public supply contracts (OJ 1993 L 199, p. 1).
      
      3 –	Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service
         contracts (OJ 1992 L 209, p. 1).
      
      4 –	See Article 1(b) of each directive.
      
      5 –	Article 1(d), (e) and (f), respectively, of each directive.
      
      6 –	Articles 6(4) of Directive 93/36 and 11(4) of Directive 92/50.
      
      7 –      The negotiated procedures are those carried out following a difficulty with an open or restricted procedure and either preceded
         by a tender notice or open to all those who submitted tenders in the prior procedures.
      
      8 –      The latter are certain negotiated procedures with prior publication of a tender notice except in cases analogous to those
         referred to in the previous footnote.
      
      9 –	That is to say, pursuant to Article 5(1)(a) of Directive 93/36 and Article 7(1) of Directive 92/50, where the estimated
         value of the contract net of VAT is at least 200 000 special drawing rights (SDR) or, for central government authorities and
         in the context of Directive 93/36, 130 000 SDR– equivalent in 2002 to EUR 249 681 and EUR 162 293 respectively – see OJ 2001
         C 332, p. 21.
      
      10 –	See Joined Cases C-20/01 and C-28/01 Commission  v Germany [2003] ECR I-3609, paragraph 62.
      
      11 –	See Case C-324/98 Telaustria and Telefonadress [2000] ECR I-10745, paragraph 62.
      
      12 –	GURI, 31 March 1998.
      
      13 –	GURI, 17 March 1992.
      
      14 –	GURI, 11 July 2002.
      
      15 –	GURI, 10 July 2002.
      
      16 –	Decree of the President of the Council of Ministers of 20 December 2002, GURI, 27 December 2002.
      
      17 –	Decree of the President of the Council of Ministers of 24 October 2003, GURI, 4 November 2003.
      
      18 –	GURI, 30 July 2002.
      
      19 –	GURI, 10 November 2001;  Law introducing urgent provisions to ensure operational coordination of  civil protection agencies.
      
      20 –	The reference to the second state of emergency, in the province of Verbano-Cusio-Ossola, seems puzzling, at least in the
         context of the contested provisions, which all deal with forest firefighting.  That state of emergency in fact relates apparently
         not to the whole province named but to a small part of it, and concerns an increase in the volume of melted glacier water,
         a matter which may be linked to unusually hot weather but not obviously to forest fires.  However, it appears as one of the
         legal bases for the contested ordinance, and is referred to by the Commission.
      
      21 –	Framework law concerning forest firefighting, GURI, 30 November 2000;  Article 7(2) requires the relevant authorities to
         ensure effective firefighting and to improve and modernise the national fleet of firefighting aircraft.
      
      22 –	The list includes, in addition to legislation transposing Community procurement directives, Article 23 quinquies of Law
         No 61/98.
      
      23 –	This article lays down the general duties of all the civil protection agencies, including the Corpo Forestale.
      
      24 –	See Case 199/85 Commission  v Italy [1987] ECR 1039, at paragraphs 7 to 9 of the judgment and points 19 and 20 of the Opinion of Advocate General Lenz.  See
         also Advocate General Lenz’s Opinions in Case C-110/89 Commission  v Greece [1991] ECR I-2659, at point 10;  in Case 103/84 Commission  v Italy [1986] ECR 1759, at point 1(c);  and in Case C-247/89 Commission  v Portugal [1991] ECR I-3659, at point 36 (here, see also paragraph 25 of the judgment);  in all those cases the application was accepted
         as admissible.
      
      25 –	See point 17 above.
      
      26 –	See point 8 above.
      
      27 –	Paragraph 48.
      
      28 –	In contrast to a situation such as that in, for example, Telaustria, cited above in footnote 11, where a contract falls below the threshold, but would not have qualified for a derogation if
         it had been covered by the directive.
      
      29 –	Equivalent to Article 11(3)(d) of Directive 92/50. 
      
      30 –	Equivalent to Article 11(3)(b) and (broadly) (f) of Directive 92/50.
      
      31 –	Annex 8 to the application.
      
      32 –	See point 11 above.