CELEX: 62002CC0385
Language: en
Date: 2004-04-29 00:00:00
Title: Opinion of Advocate General Kokott delivered on 29 April 2004. # Commission of the European Communities v Italian Republic. # Failure of a Member State to fulfil its obligations - Directive 93/37/EEC - Public works contracts - Negotiated procedure without prior publication of a contract notice. # Case C-385/02.

OPINION OF ADVOCATE GENERALKOKOTTdelivered on 29 April 2004(1)
         Case C-385/02Commission of the European CommunitiesvItalian Republic
            (Public works contracts  –  Directive 93/37/EEC  –  Procedure for the award of contracts  –  Negotiated procedure without prior publication of a contract notice  –  Calculation of the time-limit of three years from the conclusion of a first contract  –  Absence of an excusable error of law)
            
      
         
      I –  Introduction
        1.        In these Treaty-infringement proceedings, the Commission asserts that the Italian Republic, when awarding three public works
      contracts, failed to comply with Council Directive 93/37/EEC of 14 June 1993 concerning the coordination of procedures for
      the award of public works contracts (hereinafter: ‘Directive 93/37’). 
         			(2)
         		
      
        2.        The central issue is whether, in the case of new works consisting of the repetition of similar earlier works, it is permissible
      – and if so, subject to what conditions – for a negotiated procedure to be conducted without prior publication of a contract
      notice. Directive 93/37 sets a three-year time-limit on such a procedure; how that time-limit should be calculated in the
      circumstances of this case forms the essential subject-matter of these proceedings. The Italian Republic maintains that, if
      it was indeed mistaken as to the method of calculation, any error was an excusable one.
      
      
      II –  Legal framework
        3.        The legislation governing these proceedings is contained in Article 7(3) and (4) of Directive 93/37. The relevant passages
      state: 
      ‘3. The contracting authorities may award their public works contracts by negotiated procedure without prior publication of
      a contract notice, in the following cases:
      ... 
      
      (b)
         when, for technical or artistic reasons or for reasons connected with the protection of exclusive rights, the works may only
            be carried out by a particular contractor; 
         
      
      
      (c)
         insofar 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 cannot be kept. The circumstances invoked to justify extreme urgency must not in any event be attributable to the contracting
            authorities; 
         
      
      ...
      
      (e)
         for new works consisting of the repetition of similar works entrusted to the undertaking to which the same contracting authorities
            awarded an earlier contact, provided that such works 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 this procedure might be adopted and the total
                  estimated cost of subsequent works shall be taken into consideration by the contracting authorities when they apply the provisions
                  of Article 6. This procedure may only be adopted during the three years following the conclusion of the original contract.
                  
               
               
            
      
      
      
       4. In all other cases, the contracting authorities shall award their public works contracts by the open procedure or by the
      restricted procedure’. 
      
      
        4.        The first and second recitals in the preamble to Directive 93/37 state:
      ‘Whereas Council Directive 71/305/EEC of 26 July 1971 concerning the coordination of procedures for the award of public works
      contracts has been amended substantially and on a number of occasions; whereas, for reasons of clarity and better understanding,
      the said Directive should be consolidated; 
       Whereas the simultaneous attainment of freedom of establishment and freedom to provide services in respect of public works
      contracts awarded in Member States on behalf of the State, or regional or local authorities or other bodies governed by public
      law entails not only the abolition of restrictions but also the coordination of national procedures for the award of public
      works contracts.’
      
      
        5.        The eighth recital in the preamble to the Directive states:
      ‘Whereas the negotiated procedure should be considered to be exceptional and therefore only applicable in certain limited
      cases.’
      
      
        6.        The first sentence of the tenth recital in the preamble states:
      ‘Whereas, to ensure development of effective competition in the field of public contracts, it is necessary that contract notices
      drawn up by the contracting authorities of Member States be advertised throughout the Community.’
      
      
      III –  Facts and pre-litigation procedure
        7.        Three public works contracts were awarded in 1997 by the Magistrato per il Pô di Parma, a local agency of the Italian Ministry
      of Public Works (now the Ministry for Infrastructure and Transport). 
         			(3)
         		 The contracts concerned additional lots in respect of work on the following flood protection projects:
      
      –
         completion of the construction of an overflow basin for flood waters of the Parma watercourse in the area of Marano in the
            Parma commune;
         
      
      
      –
         development and completion of an overflow basin for the Enza watercourse and
      
      
      –
         retention of flood waters of the Terdoppio watercourse – Scolmatore canal south-west of Cerano.
      
      
      
        8.        The parties agree that the value of the lots – ITL 37 000 million, ITL 21 000 million and ITL 19 500 million – exceeded the
      threshold of ECU 5 million laid down in Article 6 of Directive 93/37.
      
      
        9.        The work was entrusted – by negotiated procedure, without prior publication of a contract notice – to the firms to which the
      previous lots had been awarded in the 1980s. These earlier lots related to:
      
      –
         a works contract relating to the Parma watercourse, of 22 December 1988;
      
      
      –
         a works contract relating to the Enza watercourse, of 26 October 1982, and
      
      
      –
         a works contract relating to the Terdoppio watercourse, of 20 May 1988.
      
      
      
        10.      The Commission wrote to the Italian authorities on 27 September 2000, asking for detailed information concerning the procedure
      followed when the three lots were awarded in 1997. In their reply of 19 October 2000, the Italian authorities explained that
      they had applied the procedure pursuant to Article 7(3)(e) of Directive 93/37. The lots consisted in the repetition of similar
      works entrusted to the same undertakings to which the same contracting authorities had awarded an earlier contact; the works
      conformed to a basic project for which the first contract was awarded according to the procedures referred to in Article 7(4)
      of the Directive. As soon as the first project was put up for tender, notice had been given that the negotiated procedure
      without prior publication of a contract notice might later be adopted and the total estimated cost of the subsequent works
      was taken into consideration. The negotiated procedure was duly adopted within the three years following the conclusion of
      the original contract, that period having started to run when the previous works were handed over.
      
      
        11.      The Commission sent a letter of formal notice on 23 April 2001 in which it rejected the Italian authorities’ interpretation
      of how the three-year time-limit should be calculated. The Italian Republic replied on 8 June 2001 and 17 December 2001, essentially
      reaffirming its position.
      
      
        12.      On 28 October 2002, having received no reply to its reasoned opinion of 21 December 2001, the Commission brought the present
      action against the Italian Republic under the second paragraph of Article 226 EC.
      
      
      IV –  Forms of order sought
        13.      The Commission claims the Court should:
      
      –
         Declare that the Italian Republic has failed to fulfil its obligations under Council Directive 93/37/EEC of 14 June 1993 concerning
            the coordination of procedures for the award of public works contracts, in particular Article 7(3) thereof, in that the Magistrato
            per il Pô di Parma, a local agency of the Ministry of Public Works (now the Ministry for Infrastructure and Transport), awarded
            the contracts concerning additional lots in respect of work on completion of the construction of an overflow basin for flood
            waters of the Parma watercourse in the area of Marano in the Parma commune, development and completion of an overflow basin
            for the Enza watercourse and retention of flood waters of the Terdoppio watercourse – Scolmatore canal south-west of Cerano
            by the negotiated procedure without prior publication of a contract notice, when the conditions for such a procedure were
            not satisfied;
         
      
      
      –
         Order the Italian Republic to pay the costs.
      
      
      
        14.      The Italian Republic is not claiming in terms that the action should be dismissed. However, it asks the Court, whatever its
      interpretation of Article 7(3) of Directive 93/37, to hold that the Italian version of that provision had led the Italian
      Government to commit an excusable error.
      
      
      V –  Assessment
       A – Admissibility
        15.      The Court has consistently held that when the Commission exercises its powers under Article 226 EC, it does not have to show
      that there is a specific interest in bringing an action. The provision is not intended to protect the Commission’s own rights.
      The Commission, as guardian of the Treaties in the general interest of the Community, must ensure that Member States give
      effect to Community law, and must obtain a declaration of any infringement with a view to bringing it to an end. Hence it
      is for the Commission alone to assess whether it is appropriate to institute Treaty-infringement proceedings, and to determine
      the act or omission on which such proceedings should be based. Even where a Member State’s national legislation accords with
      Community law, the Commission may none the less seek a declaration that it has failed to fulfil its obligations, citing a
      specific instance in which Community rules were disregarded, and consequently, the result intended by a directive was not
      achieved. 
         			(4)
         		
      
        16.      However, the subject-matter of an action brought under Article 226 EC is established by the Commission’s reasoned opinion.
      Such an action becomes devoid of purpose, and accordingly inadmissible, to the extent that the alleged infringement is eliminated
      before the time-limit set by the Commission expires. 
         			(5)
         		 The Treaty-infringement procedure has then achieved its purpose in the course of the pre-litigation procedure.
      
      
        17.      In the present case, however, as the Italian Government acknowledges, it did nothing to eliminate the effects of any possible
      Treaty infringements in relation to the three public works contracts to which the Commission referred. While other award procedures
      were cancelled, technical considerations and the risks for public safety made it impossible to annul the award procedures
      at issue in these proceedings.
      
      
        18.      Although public procurement law does not require Member States to annul contracts which have already been concluded, any contract
      awarded in contravention of the relevant directive constitutes an ongoing infringement of Community law. 
         			(6)
         		 Moreover, it is consistent with the meaning and purpose of both Treaty-infringement proceedings and the public procurement
      directives for the Commission to be able to bring specific situations before the Community Courts to determine whether public
      procurement rules have been observed. From a finding against a Member State with regard to a specific case it may thus be
      deduced that the Member State, as addressee of the Directive, has failed to do everything necessary to implement it. 
         			(7)
         		
      
        19.      The Italian Government maintains that it is now guided solely by competition considerations when awarding public works contracts,
      pursuant to the most recent developments in Italian public procurement law and its own practice in making awards; the events
      which led to the infringement proceedings could never occur again.
      
      
        20.      However, merely claiming that award procedures will be conducted henceforth on the basis of competition criteria cannot itself
      preclude future procedural errors. As the Commission has pertinently observed, it is entirely possible that other contracting
      authorities in Italy might similarly misinterpret the three-year time-limit, particularly since the transfer of power to regional
      and local authorities has considerably increased the number of potential contracting authorities.
      
      
        21.      That risk of the infringement being repeated 
         			(8)
         		 constitutes a further reason why the action should be held to be admissible.
      
      
       B –  Substance
        22.      For the Commission’s action to be well founded, the Italian Republic must have failed to fulfil an obligation under the Treaty
      (Article 228(1) EC). The duty to implement Directive 93/37, which the Commission claims the Italian Republic has failed to
      discharge, follows from the first paragraph of Article 10 EC in conjunction with the third paragraph of Article 249 EC.
      
      
       1. Infringement of Directive 93/37
      
        23.      The three public works contracts in question were awarded in 1997 by negotiated procedure without prior publication of a contract
      notice. However, Article 7(4) of Directive 93/37 makes it clear that, in principle, public works contracts are to be awarded
      by the open procedure or the restricted procedure – and not, therefore, by the negotiated procedure. Only in exceptional cases is it permissible to use the negotiated procedure without
      prior publication of a contract notice. 
         			(9)
         		 These cases are listed exhaustively in Article 7(3) of the Directive. 
         			(10)
         		 The only conceivable basis for applying a negotiated procedure in the present case is Article 7(3)(b), (c) or (e); I shall
      consider them in turn.
      (a) Technical reasons under Article 7(3)(b) of Directive 93/37
      
      
        24.      The Italian Government submits first that technical reasons made it necessary to award the three works contracts to the contractor
      to whom the earlier work had been awarded. It is thus conceivable at first sight that Article 7(3)(b) is applicable.
      
      
        25.      However, it is clear from the plain terms of that provision that it applies only when the works “may only be carried out by a particular  contractor”. 
         			(11)
         		 According to the Court’s case-law, that constitutes a derogation which must be interpreted strictly and therefore applies
      only where there exist exceptional circumstances. 
         			(12)
         		
      
        26.      More specifically, merely deeming it expedient to award a follow-up contract to the contractor who had performed earlier work
      cannot suffice to justify application of Article 7(3)(b) of Directive 93/37, just as it is not sufficient to invoke technical
      constraints in formulaic and non-specific terms. A contracting authority must explain in detail why, in the circumstances
      of the case, technical reasons made it absolutely necessary for the contract to be awarded to the very contractor to whom
      the previous works had been entrusted, and to none other. In the absence of such a requirement, contracting authorities might
      abuse Article 7(3)(b) of Directive 93/37, invoking the situation described therein so as to avoid calls for tender, and thus
      subverting the general purpose of the Directive, which is to promote competition in the field of public procurement. 
         			(13)
         		
      
        27.      The burden of proving the existence of exceptional circumstances lies on the person seeking to rely on them. 
         			(14)
         		 In the present case, the Italian Government merely stated that the competent authority wished to forestall any damage to
      or deterioration of the works already completed, and to avoid difficult questions as to the respective liability of a number
      of contractors. Hence even if it may have seemed expedient to re-commission the contractor responsible for the first tranche
      of works, no compelling technical reasons required the selection of that particular contractor. It was therefore not possible
      to base application of the negotiated procedure on Article 7(3)(b) of Directive 93/37.
      
      
        28.      At the hearing, the Italian Government stated in addition that when the three contracts were awarded, no other potential contractors
      were discernible; at least in that particular instance, therefore, competition had not been impaired. I do not find that argument
      convincing. The whole point of prior publication of a contract notice is to ensure that as many potential tenderers as possible
      know that a contract is about to be awarded. It is quite possible that, if a notice had been duly published, other prospective
      contractors might have come forward.
      (b) Urgency under Article 7(3)(c) of Directive 93/37
      
      
        29.      The Italian Government further contends that the three contracts had to be awarded as a matter of particular urgency. It is
      thus conceivable that Article 7(3)(c) of Directive 93/37 might apply.
      
      
        30.      However, the very terms in which subparagraph (c) is couched – ‘strictly necessary’, ‘extreme urgency’, ‘events unforeseen’
      – attach strict conditions to any reliance on it; moreover, as it constitutes a derogation it must be construed narrowly. 
         			(15)
         		 That is the only way to prevent abuse by contracting authorities and to serve the purpose of the directive, the development
      of effective competition in the field of public contracts. 
         			(16)
         		
      
        31.      It is moreover clear from the second sentence of Article 7(3)(c) that a contracting authority may not seek to justify alleged
      urgency on the basis of circumstances attributable to themselves. In the present case, planning of the flood-protection measures
      had been in hand at least since the 1980s when the lots were awarded for the first tranche of work. Moreover, the work to
      which the present proceedings relate had been contemplated from the very beginning, as the Italian Government itself stated,
      and was only kept back to be the subject of a second, separate, contract for budgetary reasons. These facts suggest that the
      contracting authority was actuated not by any particular urgency, but by purely internal and organisational considerations.
      
      
        32.      The burden of proving urgency lies on the person seeking to rely on it. 
         			(17)
         		 In the present case the Italian Government has merely alleged that there was an urgent need to award the public works contracts
      since the previous works had – they say – increased the danger of flooding. Yet I am not aware of any factors which would
      have prevented the competent authorities from foreseeing such an increased flood-risk, especially as, under their original
      plans, flood-protection measures were to be carried out in various stages. Hence the conditions for the application of Article
      7(3)(c) were not met.
      (c) Repetition of similar works within three years under Article 7(3)(e) of Directive 93/37
      
      
        33.      The Italian Government finally invokes Article 7(3)(e) of Directive 93/37. It is common ground between the parties that, when
      the contracts were awarded, all the conditions for the application of this subparagraph were met, save for the three-year
      time-limit. What is at issue between the parties is solely when that three-year period starts to run; whether or not it was
      open to the contracting authority to conduct a negotiated procedure without prior publication of a contract notice depends
      on how that issue is resolved.
      
      
        34.      The Italian Government’s understanding is that the period in question starts to run only on completion of the works covered
      by the first contract. It bases this interpretation on the Italian version of Directive 93/37, which uses the phrase ‘conclusione
      dell’appalto iniziale’ to indicate when the period starts to run, in contrast to the form of words in the earlier directive 
         			(18)
         		 (‘aggiudicazione dell’appalto iniziale’), which plainly referred to the award of the original contract.
      
      
        35.      As the Court has consistently held, 
         			(19)
         		 all language versions of a Community provision must, in principle, be recognised as having the same weight. It follows that
      the proper starting-point for the three-year period referred to in Article 7(3)(e) of Directive 93/37 should be determined
      not by considering a single language version in isolation, but on the basis of an overview of all language versions.
      
      
        36.      Alas, some language versions of the directive are not as clear as one would wish. The German version, for example, refers
      to the ‘Abschluss des ersten Auftrags’ and the French to the ‘conclusion du marché initial’, while the Dutch simply refers
      to the ‘oorspronkelijke opdracht’. However, a number of other language versions clearly tell against the interpretation supported
      by the Italian Government, and support the Commission’s position, namely the English (‘conclusion of the original contract’),
      the Danish (indgåelsen af den oprindelige kontrakt’), the Spanish (‘celebración de contrato inicial’), and the Portuguese
      (‘celebração do contrato inicial’).
      
      
        37.      What is also noteworthy is that the change in the text of Article 7(3)(e) of Directive 93/37, to which the Italian Government
      refers, occurs solely in the Italian version – ‘conclusione’ replacing ‘aggiudicazione’ – whereas the other versions retain
      the text of the preceding directive 
         			(20)
         		 unchanged. That alone suggests that the change was a drafting amendment to the Italian text rather than a substantive modification
      of the provision itself. That conclusion is supported by the first recital in the preamble to Directive 93/37, which speaks
      of the previous directive being consolidated for reasons of clarity and better understanding.
      
      
        38.      Ultimately, though, what matters is not the text on its own, but the context of the provision and the purpose it was intended
      to achieve. 
         			(21)
         		
      
        39.      On the issue, first, of how the disputed time-limit provision relates to Directive 93/37 as a whole, I would point out that
      Article 1(a) of the directive uses the term contracts (and not, say, works) to define public works contracts, not least in the Italian version: ‘gli “appalti pubblici di lavori”
      sono contratti  a titolo oneroso ...’. 
         			(22)
         		
      
        40.      Moreover, it follows a contrario from Article 7(4), which describes the procedures which would ordinarily fall to be applied, that Article 7(3)(e) deals with
      a derogation, and should ipso facto  be construed narrowly.
      
      
        41.      As to the purpose of the three-year time-limit, that has a crucial part to play in assisting the achievement of freedom of
      establishment and the freedom to provide services in the field of public works contracts, by promoting increased competition. 
         			(23)
         		 That consideration, too, must make the negotiated procedure, less advantageous for competitors, the exception – only permitted
      to be used in certain limited cases. 
         			(24)
         		
      
        42.      Accordingly, both the context and the purpose of Article 7(3)(e) of Directive 93/37 tell in favour of a narrow interpretation
      of the three-year time-limit: time starts to run from the conclusion of thecontract  for the first works. To defer the starting-point until the first works had been completed would broaden the scope of the negotiated procedure, and work against the aim of creating competition in the field of public
      works contracts. It would also, as the Commission correctly observes, be detrimental to legal certainty: there is no compelling
      reason why the completion of construction work should be equated with acceptance by the principal – other events could conceivably
      be considered, such as the laying of the last stone, the dismantling of scaffolding, the closure of the site or the payment
      of the (outstanding) price. The date of conclusion of the contract, by contrast, can generally be determined unequivocally.
      
      
        43.      Thus on a proper construction of Article 7(3)(e) of Directive 93/37, the three-year time-limit referred to in the last sentence
      of that provision starts to run on the conclusion of the contract for the first works – not later, when work on the first
      tranche is completed. Thus the Italian Republic misinterpreted and misapplied Directive 93/37 with regard to the three public
      works contracts at issue in these proceedings.
      (d) Interim conclusion
      
      
        44.      Since none of the derogating conditions prescribed in Article 7(3)(e) of Directive 93/37 obtains, it follows that the Italian
      Republic, in awarding the three public works contracts in question by the negotiated procedure without prior publication of
      a contract notice, failed to fulfil its obligations under the Treaty.
      
      
       2. No excusable error of law
      
        45.      The Italian Government finally argues that, in the light of the Italian version of Article 7(3)(e) of Directive 93/37, the
      contracting authority’s application of the Government’s own interpretation of the starting-point for the three-year period
      constituted an ‘errore scusabile’ – an excusable error.
      
      
        46.      The concept of excusable error is indeed not entirely unknown to Community law, more particularly in the field of State liability.
      For although fault is in principle not a precondition for a Member State’s liability in damages, 
         			(25)
         		 whether or not an error of law is excusable may be a factor in determining whether a national authority manifestly and gravely
      disregarded the limits on its discretion and consequently committed a sufficiently serious breach of a rule of Community law. 
         			(26)
         		 In the field of non-contractual liability, it is accepted that a Member State, or a Community institution, will not automatically
      incur financial liability vis-à-vis an individual every time it is in breach of the law: whether or not damages are awarded
      will turn on the nature of the infringement of Community law. 
         			(27)
         		
      
        47.      These aspects of State liability law cannot, however, be transposed to Treaty-infringement proceedings. The purpose of the
      latter is to ensure that Community law is applied correctly and uniformly in all Member States, and that any infringements
      are brought to an end: 
         			(28)
         		 such infringements being established entirely objectively, with no reference to what prompted them, or to the nature or seriousness of their consequences. 
         			(29)
         		
      
        48.      Furthermore, each Member State is entirely responsible to the Community for ensuring that all State authority is exercised
      in a manner consistent with Community law. That responsibility includes a duty to take all appropriate steps to comply with
      obligations arising under Community law and to refrain from any act or omission which might threaten their fulfilment (Article
      10 EC). It applies irrespective of fault.
      
      
        49.      Thus in Treaty-infringement proceedings – if only to preclude any possibility of abuse – there must be severe restrictions
      on the defences available to Member States. Accordingly, the Court only allows one defence unrelated to fault – the absolute
      impossibility of complying with obligations under Community law. 
         			(30)
         		
      
        50.      By contrast, an error of law is not a permissible defence to a Treaty-infringement action. Thus the Court has held that a
      Member State may not rely on difficulties relating to the interpretation of a directive in order to delay transposing it until
      after the prescribed period has expired. 
         			(31)
         		
      
        51.      Nor may a Member State plead that its infringement of Community law was only minor, or that no damage flowed from it. 
         			(32)
         		
      
        52.      Moreover, it is settled case-law that Community law should not be interpreted and applied with reference to one single language
      version (as occurred here); but on the basis of an overall view of all language versions, mindful of the sense, purpose and
      context of the provision in question. 
         			(33)
         		 Any uncertainties should be taken up with the Commission, in accordance with the principle of cooperation in good faith established
      in Article 10 EC.
      
      
        53.      Only if the Commission itself has raised a legitimate expectation on the part of a Member State (perhaps in an opinion addressed
      to it) that that State’s rights and duties under Community law should be interpreted in a particular way may such an expectation
      be subsequently pleaded in defence to Treaty-infringement proceedings. The Commission itself has very fairly pointed to cases
      where a Community institution’s conduct caused a party to form an incorrect impression, or at least contributed significantly
      to that occurring. 
         			(34)
         		
      
        54.      In the light of all the foregoing, the Italian Government cannot therefore succeed in its defence based on the assertion that
      the contracting authority committed an excusable error in determining when the period stipulated in Article 7(3)(e) of Directive
      93/37 started to run.
      
      
       3. Conclusion
      
        55.      It follows from the foregoing that the Italian Republic failed to fulfil its obligations under the Treaty in that it awarded
      the three public works contracts in question by negotiated procedure without prior publication of a contract notice, when
      the requirements set out for that purpose in Directive 93/37, particularly Article 7(3) thereof, were not fulfilled.
      
      
      VI –  Costs
        56.      Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been
      applied for in the successful party’s pleadings. As is apparent from the foregoing, I consider that the Commission’s action
      should succeed. Accordingly, since the Commission has applied for costs, and the Italian Republic has been unsuccessful, the
      latter must be ordered to pay the costs.
      
       
      VII –  Conclusion
        57.      For the reasons set out above, I propose that the Court should
      
      1.
         Declare that the Italian Republic has failed to fulfil its obligations under the Treaty in that, through the Magistrato per
            il Pô di Parma, it awarded public works contracts by negotiated procedure without prior publication of a contract notice,
            when the requirements set out for that purpose in Council Directive 93/37/EEC of 14 June 1993 concerning the coordination
            of procedures for the award of public works contracts, in particular Article 7(3) thereof, were not fulfilled, for the following
            additional lots :
         
      
      
         
            –
               completion of the construction of an overflow basin for flood waters of the Parma watercourse in the area of Marano in the
                  Parma commune;
               
            
      
      
      
         
            –
               development and completion of an overflow basin for the Enza watercourse and
            
      
      
      
         
            –
               retention of flood waters of the Terdoppio watercourse –Scolmatore canal south-west of Cerano;
            
      
      
      
      2.
         Order the Italian Republic to pay the costs.
      
      
      
       1 –
         
         Original language: German.
      
      2 –
         
         OJ 1993 L 199, p. 54.
            
         
      
      3 –
         
         The relevant contracts were approved by the Magistrato per il Pô di Parma by Decrees Nos 11414 and 11416 of 9 October 1997
            and Decree No 11678 of 15 October 1997.
            
         
      
      4 –
         
         See Joined Cases C-20/01 and C-28/01 Commission  v Germany [2003] ECR I-3609, paragraphs 29 and 30, with further references.
            
         
      
      5 –
         
         Settled case-law: see for example Case C-209/02 Commission  v Austria [2004] ECR I-0000, paragraphs 16 to 18, with further references, and Commission  v Germany (cited in footnote 4), paragraph 32 et seq., with further references. In the older case-law the concept of the ‘Rechtsschutzinteresse’
            (the ‘interest in pursuing the action’) is admittedly sometimes used, though to no different effect: see, for example, Case
            240/86 Commission  v Greece [1988] ECR 1835, paragraphs 14 to 16.
            
         
      
      6 –
         
         .Commission v Germany (cited in footnote 4), paragraph 39.
            
         
      
      7 –
         
         Similarly Advocate General Geelhoed in his Opinion in Commission  v Germany (cited in footnote 4), especially points 50, 53 and 54.
            
         
      
      8 –
         
         On that point see, for example, Case 26/69 Commission  v France [1970] ECR 565, paragraphs 12 and 13; likewise Advocate General Lenz’s Opinion of 13 January 1988 in Commission  v Greece (cited in footnote 5), point 13.
            
         
      
      9 –
         
         See, too, the eighth recital in the preamble to Directive 93/37.
            
         
      
      10 –
         
         To that effect also Case C-323/96 Commission v Belgium [1998] ECR I-5063, paragraph 34.
            
         
      
      11 –
         
         My emphasis.
            
         
      
      12 –
         
         Case C-57/94 Commission v Italy [1995] ECR I-1249, paragraph 23. Although that judgment concerns Article 9(b) of Council Directive 71/305/EEC of 26 July
            1971 concerning the co‑ordination of procedures for the award of public works contracts (OJ, English Special Edition 1971
            (II), p. 682, hereinafter: ‘Directive 71/305’), that provision is a textually identical precursor of the provision at issue
            here, Article 7(3)(b) of Directive 93/37. See also Case C-318/94 Commission v Germany [1996] ECR I-1949, paragraph 13. Similarly Advocate General Jacobs at paragraph 64 of his Opinion of 23 March 2000 in Case
            C-337/98 Commission v France [2000] ECR I-8377, 8379.
            
         
      
      13 –
         
         See the first sentence of the tenth recital in the preamble to Directive 93/37.
            
         
      
      14 –
         
         .Commission v Italy (cited in footnote 12), paragraph 23.
            
         
      
      15 –
         
         Case 199/85 Commission  v Italy [1987] ECR 1039, paragraph 14. Although the judgment deals with Article 9(d) of Directive 71/305, that provision is a textually
            essentially identical precursor of the provision at issue here, Article 7(3)(c) of Directive 93/37. See also Commission  v Germany (cited in footnote 12), paragraph 13. Similarly Advocate General Jacobs at paragraph 64 of his Opinion in Commission  v France (cited at footnote 12).
            
         
      
      16 –
         
         See the first sentence of the tenth recital in the preamble to Directive 93/37.
            
         
      
      17 –
         
         .Commission v Italy (cited in footnote 15), paragraph 14.
            
         
      
      18 –
         
         Article 5(3)(e) of Directive 71/305, as amended by Council Directive 89/440/EEC of 18 July 1989 amending Directive 71/305/EEC
            concerning coordination of procedures for the award of public works contracts (OJ 1989 L 210, p. 1).
            
         
      
      19 –
         
         See, among many others, Cases C-296/95 EMU Tabac and Others [1998] ECR I-1605, paragraph 36, and C-257/00 Givane and Others [2003] ECR I-345, paragraph 36.
            
         
      
      20 –
         
         Article 5(3)(e) of Directive 71/305 as amended by Directive 89/440.
            
         
      
      21 –
         
         See (among many others) Cases C-373/00 Truley [2003] ECR I-1931, paragraph 35; C-294/01 Granarolo [2003] ECR I-0000, paragraph 43; C-497/01 Zita Modes [2003] ECR I-0000, paragraph 34; and Givane (cited in paragraph 19), paragraphs 38 and 39.
            
         
      
      22 –
         
         My emphasis.
            
         
      
      23 –
         
         See the second recital, and the first sentence of the tenth recital, in the preamble to Directive 93/37.
            
         
      
      24 –
         
         See the eighth recital in the preamble to Directive 93/37.
            
         
      
      25 –
         
         Joined Cases C-46/93 and C-48/93 Brasserie du PêcheurandFactortame [1996] ECR I-1029, paragraphs 79 and 80; also Joined Cases C-178/94, C-179/94, C-188/94, C-189/94 and C‑190/94 Dillenkoferand Others [1996] ECR I-4845, paragraph 28.
            
         
      
      26 –
         
         .Brasserie du PêcheurandFactortame (cited in footnote 25), paragraphs 55, 56 and 78; also Case C‑224/01 Köbler [2003] ECR I-0000, paragraphs 53 to 55.
            
         
      
      27 –
         
         .Dillenkofer (cited in footnote 25), paragraph 20; Brasserie du PêcheurandFactortame (cited in footnote 25), paragraph 38.
            
         
      
      28 –
         
         The lump sum and the periodic penalty payments which a Member State may be ordered to pay (Article 228(2) EC) should be viewed
            in that context.
            
         
      
      29 –
         
         Advocate General Tizzano, too, underscores the objective nature of infringement proceedings at point 14 of his Opinion of
            18 January 2001 in Case C-316/99 Commission v Germany [2001] ECR I-2037, 2038.
            
         
      
      30 –
         
         Case 52/84 Commission v Belgium [1986] ECR 89, paragraph 16; Case 213/85 Commission v Netherlands [1988] ECR 281, paragraph 22, and Case C-404/00 Commission v Spain [2003] ECR I-6695, paragraph 45, with further references.
            
         
      
      31 –
         
         Case C-135/01 Commission  v Germany [2003] ECR I-2837, paragraph 25, and Case C-316/99 Commission v Germany [2001] ECR I-2037, paragraph 9. Advocate General Tizzano quite properly states: ‘given the objective nature of infringement
            proceedings, the good will of the government of the Member State concerned, albeit helpful and valuable, is not capable of
            expunging the fact of the infringement, if an infringement there has been.’ (point 14 of his Opinion in Case C-316/99, cited
            at footnote 29).
            
         
      
      32 –
         
         Case C-263/96 Commission v Belgium [1997] ECR I-7453, paragraph 30, and Commission v Germany (cited at footnote 4), paragraph 42.
            
         
      
      33 –
         
         See inter alia Case 283/81 C.I.L.F.I.T. [1982] ECR 3415, paragraphs 16 to 20; also point 35 of the present Opinion and the case-law cited in footnote 19.
            
         
      
      34 –
         
         Case C-285/93 Dominikanerinnen-Kloster Altenhohenau [1995] ECR I-4069, paragraph 27, with further references.