CELEX: 61994CC0057
Language: en
Date: 1995-03-28
Title: Opinion of Mr Advocate General Elmer delivered on 28 March 1995. # Commission of the European Communities v Italian Republic. # Action for failure to fulfil obligations - Public works contracts - Failure to publish a notice of invitation to tender. # Case C-57/94.

OPINION OF ADVOCATE GENERAL
      ELMER
      delivered on 28 March 1995 (
            *1
         )
      
               1. 
            
            
               In this action for infringement of the Treaty the Commission is seeking a declaration that the Italian Republic 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 (
                     1
                  ) inasmuch as the provincial administration of Ascoli Piceno awarded in 1990 a contract for the construction of a section of a rapid transit highway without putting the work out to tender and without publishing a notice of invitation to tender in the Official Journal of the European Communities.
               
            
         Facts
      
               2.
            
            
               The section in question was a part of the rapid transit highway ‘Ascoli-Mare’ which was to connect the town of Ascoli Piceno with the Adriatic coastal region, and the town was to be linked to the A 14 motorway and National Highway No 16, which runs along the coast, and to the coastal town of San Benedetto del Tronto.
               The first stretches of the rapid transit highway, Stages I to III, and the first part of Stage IV were put out to tender by restricted procedure and finished at the beginning of the 1970s. The work of constructing a 4.3 km stretch under Stage IV was awarded to the Rozzi Costantino undertaking. Stage IV, which concerned inter alia the links with the A 14 motorway and National Highway No 16, was extended in the following year by 12 ‘supplementary projects’, which entailed inter alia an extension of the original rapid transit highway so that Stage IV eventually comprised in all a stretch of 31.8 km.
               The execution of the first ten projects supplementing Stage IV were awarded to the undertaking which had executed the original part of Stage IV, the said undertaking Rozzi Costantino.
               This case concerns the eleventh and twelfth supplementary projects, which were amalgamated into one project. The purpose of the project was to overcome the physical obstacles — National Highway No 16 and the Bologna-Lecce railway — which stood in the way of a good connection between the port of San Benedetto on the one hand and the major traffic arteries and the industrial district of Ascoli Piceno on the other. The works therefore involved the construction of a viaduct over the Bologna-Lecce railway together with a section of road several kilometres long to connect the stretch of motorway included in the tenth supplementary project with a road which was being built simultaneously by the municipality of Ascoli Piceno into San Benedetto.
               On 28 March 1990 the eleventh and twelfth supplementary projects were approved by the ‘Agenzia per la Promozione dello Sviluppo del Mezzogiorno’ and responsibility for implementation was assigned to the provincial administration of Ascoli Piceno, which on 21 May 1990, without publishing an invitation to tender in the Official Journal, entered into a private contract with the undertaking Rozzi Costantino for the execution of the project for a total amount of roughly LIT 36000 million.
            
         
               3.
            
            
               When the Commission became aware of the circumstances concerning the construction of Stage IV of the Ascoli-Mare rapid transit highway it initiated against Italy proceedings for infringement of the Treaty under Article 169 regarding the procedure for the conclusion of the contract for the eleventh and twelfth supplementary projects.
               On 17 January 1991 the Commission sent its initial letter to the Italian Government and as it received no answer within the period prescribed it again put forward its views in a reasoned opinion of 1 August 1991, in which it stated that: ‘Inasmuch as the provincial administration of Ascoli Piceno has concluded a private contract for the construction of the “Ascoli-Mare” section of the rapid transit highway known as “Stage IV” and has not published an invitation to tender in the Official Journal of the European Communities, the Italian Republic has failed to fulfil its obligations under Directive 71/305/EEC’.
               Subsequently the Italian Government sent the Commission a series of particulars of the project and stated that the government was of the opinion that the contract could lawfully be awarded to the Rozzi Costantino undertaking in view of the derogation in subparagraph (b) of the first paragraph of Article 9 of Directive 71/305.
            
         The previous case before the Court
      
               4.
            
            
               The Commission regarded that information as insufficient and also took the view that it had been provided too late; accordingly on 6 July 1992 it brought before the Court an action against Italy under Article 169 for infringement of the Treaty.
               In its application the Commission claimed ‘a declaration that, by allowing the provincial administration of Ascoli Piceno to award a private contract... for the 11th and 12th supplementary reports for the completion of the section of rapid transit highway “Ascoli-Mare” ... and to fail to publish a notice of invitation to tender in the Official Journal of the European Communities, and by not taking steps to preclude at the outset the legal effects thereof which infringe Community law, the Italian Republic has failed to fulfil its obligations under Council Directive 71/305/EEC ... concerning the coordination of procedures for the award of public works contracts ...’
            
         
               5.
            
            
               By a judgment of 12 January 1994 in Case C-296/92 (
                     2
                  ) the Court dismissed the action as inadmissible on the ground that an action could not be founded on complaints other than those formulated in the reasoned opinion. That was the case, the Court held, because in the reasoned opinion the Commission had claimed that the Italian Republic had failed to fulfil its obligations under Directive 71/305 in so far as the provincial administration of Ascoli Piceno had awarded the contract in question by the procedure of a private contract, whereas in its application the Commission had claimed that the infringement of the Treaty consisted in the fact that the Italian Republic, instead of taking steps to preclude an infringement of Community law, had allowed the provincial administration of Ascoli Piceno to follow that procedure.
            
         Forms of order sought by the parties in this case
      
               6.
            
            
               Subsequently the Commission brought this action against the Italian Republic by a fresh application lodged on 9 February 1994, in which it claimed that the Court should:
               ‘Declare that, inasmuch as the provincial administration of Ascoli Piceno awarded ... a private contract for the eleventh and twelfth supplementary projects for the completion of the section of rapid transit highway “Ascoli-Mare”’ (from Ascoli to the sea) ‘entitled “Stage IV-Project 5134” and failed to publish a notice of invitation to tender in the Official Journal of the European Communities, the Italian Republic 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.’
            
         
               7.
            
            
               The Italian Republic has contended that the Court should ‘dismiss the application as inadmissible or alternatively as unfounded’.
            
         The relevant provisions of the directive on public contracts
      
               8.
            
            
               Article 2 of Council Directive 71/305/EEC of 26 July 1971 provides as follows:
               ‘In awarding public works contracts, the authorities awarding contracts shall apply their national procedures adapted to the provisions of this directive.’
               Article 9 of the directive provides as follows:
               ‘Authorities awarding contracts may award their works contracts without applying the provisions of this directive, except those of Article 10, 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;
                        ...
                     
                  
                        (d)
                     
                     
                        in so far as is strictly necessary when, for reasons of extreme urgency brought by events unforeseen by the authorities awarding contracts, the time limit laid down in other procedures cannot be met;
                     
                  ...’
               Finally Article 12 of the directive provides that:
               ‘Authorities awarding contracts who wish to award a public works contract by open or restricted procedure shall make known their intention by means of a notice.
               Such notice shall be sent to the Official Publications Office of the European Communities and shall be published in the Official Journal of the European Communities in the official languages of the Communities, the original text alone being authentic.’
            
         Procedure
      
               9.
            
            
               The Italian Republic bases its claim of inadmissibility on the fact that the decision in Case C-296/92 concerned the functional connection between the claim in the reasoned opinion and the original application. For that reason the Italian Government's view is that the Commission ought to have repeated the whole administrative procedure prescribed in Article 169 of the Treaty or should at least have sent a supplementary reasoned opinion before it started the proceedings now pending. As that was not done, the Court must dismiss the action as inadmissible.
               The Italian Republic has further stated that in its initial letter and in the reasoned opinion the Commission stated that the situation could not be regarded as being covered by subparagraph (d) of the first paragraph of Article 9 of Directive 71/305, whereas in the application of 4 February 1994 it stated that the situation could not be regarded as being covered by subparagraph (b) of that paragraph.
            
         
               10.
            
            
               According to the Commission it is clear from the Court's judgment in Case C-296/92 that that earlier case was dismissed as inadmissible solely on the ground that there was a discrepancy between the claim in the reasoned opinion and that in the application. Accordingly it is the Commission's view that it is sufficient to remedy the procedural defect in the previous case by submitting a fresh application in which the claim is altered in such a way as now to correspond to the claim in the reasoned opinion.
               As the judgment in the previous case censured only certain procedural defects in the original application of 6 July 1992 without in any way calling in question the prior administrative procedure, in which the Italian Republic was apprised of the same criticisms as the Commission has advanced in this case, and since it had the opportunity to express its point of view thereon, there is no need for the Commission to repeat the previous administrative procedure under Article 169 in order to respect the Italian Republic's right to defend itself.
            
         
               11.
            
            
               The Court has repeatedly declared, for example in the judgment in Case 51/83, Commission v Italy (
                     3
                  ) that the initial letter is designed to define the subject-matter of the dispute and to give the Member State concerned the necessary information to enable it to prepare its defence. That right for the Member State to submit observations and prepare its defence constitutes an essential guarantee required by the Treaty and its observance is a condition for the legality of the action against the Member State concerned for infringement of the Treaty.
               It may moreover be seen from the Court's consistent case-law (as mentioned for example in the judgment in Case C-234/91 Commission v Denmark (
                     4
                  )) that the subject-matter of an action under Article 169 of the Treaty is defined during the preceding administrative procedure. Thus the Commission's reasoned opinion and the proceedings before the Court must be based on the same reasoning and arguments.
            
         
               12.
            
            
               It may be seen from the documents before the Court that in its initial letter of 17 January 1991 to the Italian Government the Commission stated that in its view the Italian Republic had failed to comply with its obligations under Directive 71/305 owing to the fact that the provincial administration of Ascoli Piceno had concluded a private contract for the construction of the eleventh and twelfth supplementary projects without publishing a notice of invitation to tender in the Official Journal of the European Communities, and that the Commission asked to receive the Italian Government's observations on the matter within a given period. As the Italian Government did not answer the initial letter within the period prescribed, the Commission reiterated its views in a reasoned opinion. In that connection the Commission mentioned in both communications that it was not thought that the procedure could be regarded as justified by reasons of extreme urgency under subparagraph (d) of the first paragraph of Article 9.
               In the Italian Government's combined reply to the Commission's initial letter and to the reasoned opinion, the Italian Republic stated that it agreed with the Commission that subparagraph (d) of the first paragraph of Article 9 was inapplicable in this case but that instead the government regarded the project as being covered by subparagraph (b) of that paragraph.
               During the administrative procedure the Commission had mentioned possible reliance on subparagraph (d) of the provision in question as a ground for deviating from the procedures prescribed in Directive 71/305 because the government did not answer the initial letter at the right time, so that the Commission knew only after receiving the Italian Government's reply to the reasoned opinion that the derogation on which the government was relying was subparagraph (b) of the paragraph in question and not subparagraph (d) as the Commission had assumed. Thus the Commission was able to see only after the reply to the reasoned opinion exactly what provisions of the directive the government was relying on and so could only then concentrate its arguments on the question of the application of subparagraph (b) of the first paragraph of Article 9.
               The Italian Government failure to reply to the Commission's initial letter and thus to state from the outset the provisions on which it was relying ought not to place the government in a better position than if it had replied at the right time. That part of the government's objection of inadmissibility cannot therefore be upheld.
            
         
               13.
            
            
               In my view the Commission, both in the initial letter and in the reasoned opinion, specified in uniform and sufficiently precise terms what it regarded as constituting the infringement of the Treaty and that must be considered to have been clear to the Italian Government, which also had the opportunity to put forward its observations, before the application to the Court was made, on the Commission's claim that the Treaty had been infringed. Moreover the claim made by the Commission in this case corresponds exactly to the claim of infringement of the Treaty made by the Commission in its initial letter and in the reasoned opinion.
            
         
               14.
            
            
               This case also involves the question of a possible infringement of the Treaty as a result of events which have actually taken place, inasmuch as the contract was awarded and the project completed, according to the information, long ago. In any case therefore it cannot be argued that a repetition of the administrative procedure would give Italy the opportunity to comply with its obligations and thus avoid a judgment in a subsequent action as might otherwise often happen in proceedings for infringement of the Treaty.
            
         
               15.
            
            
               Moreover, even were the Italian Republic's claim to be upheld, there would be nothing to stop the Commission from starting again from the beginning with an entirely identical initial letter, reasoned opinion and so on. There is thus hardly any reason for believing that a fresh administrative procedure would have thrown any further light on this case. It would therefore simply have shown an unnecessary formalism to require the Commission to repeat the administrative procedure before starting proceedings. Such a requirement would really result only in a further delay in any finding that the Italian Republic had infringed the Treaty.
            
         
               16.
            
            
               In these circumstances my conclusion is that the Italian Republic's objection of inadmissibility must be entirely rejected.
            
         The substance of the case
      
               17.
            
            
               It is common ground that the relevant project is covered by the directive concerning the coordination of procedures for the award of public works contracts. The parties also agree that the procedure selected for the award of the contract involves an infringement of the directive unless the special derogation in subparagraph (b) of the first paragraph of Article 9 is applicable, that is, unless the project concerns works which, for technical reasons, may be carried out only by a particular contractor.
               The question is thus whether the construction of the disputed section of road, including the viaduct over the railway, could, for technical reasons, be awarded only to the contractor who was in charge of the construction of the stretch of motorway which was to be extended by means of the project at issue here (the tenth supplementary project), or whether others too could perform that work.
            
         
               18.
            
            
               The Italian Government has contended that in this case there were ‘technical reasons’ as referred to in subparagraph (b) of the first paragraph of Article 9 of the directive inasmuch as it was impossible:
               
                        —
                     
                     
                        to complete the work covered by the tenth supplementary project before certain of the structures covered by the project at issue were put in place;
                     
                  
                        —
                     
                     
                        to begin work at two different places because of the very cramped nature of the site place the works; and
                     
                  
                        —
                     
                     
                        to carry out the work in progress separately from the work at issue here because of the close structural connection of the foundations.
                     
                  
         
               19.
            
            
               The Commission has replied that those circumstances do not in themselves constitute such technical reasons as to imply that the work could be awarded only to the contractor in charge of the construction of the stretch of road covered by the tenth supplementary project.
               In this connection the Commission has referred to a report of 2 April 1993 which it obtained from an expert engineer, Claude Mathurin, after a perusal of the documents in the case. It is stated therein (point 6) that:
               ‘To sum up, the three arguments are only an expression of the same technical requirements, namely planning, coordinating and supervising the works.
               This planning is imperative from the point of view of both the timing and location of the work. In particular regard must be had to the safety of the workers in pursuance of the new Community rules. That is also a requirement even if only one firm is working on the two stretches of road.’
               It is also stated in point 7 that:
               ‘It is accordingly impossible to assert that work on projects 11 and 12 can be assigned “for technical reasons” only to a single contractor, namely the one engaged on project 10. Coordination between project 10 on the one hand and projects 11 and 12 on the other remains essential and possible and in the view of an objective and independent technical expert no serious reasoning can justify the choice adopted by the Italian authority awarding contracts.’
               It may be noted that all the circumstances mentioned by the Italian Government during the previous case C-296/92 are considered in the expert's report, which was also produced by the Commission in those proceedings.
            
         
               20.
            
            
               As regards the question of the circumstances in which the derogation in subparagraph (b) of the first paragraph of Article 9 of Directive 71/305 may apply, the Court declared in the judgment in Case 199/85 (Commission v Italy [1987] ECR 1039 at paragraph 14), in accordance with its consistent case-law regarding a strict interpretation of derogations, that:
               ‘Those provisions, which authorize derogations from the rules intended to ensure the effectiveness of the rights conferred by the Treaty in the field of public works contracts, must be interpreted strictly and the burden of proving the actual existence of exceptional circumstances justifying a derogation lies on the person seeking to rely on those circumstances.’
            
         
               21.
            
            
               It must first be discussed whether the expression ‘technical reasons’ in subparagraph (b) of the first paragraph of Article 9 may be assumed to cover specific conditions of the kind relied on here by the Italian Government. Then it must be decided whether the government has discharged the burden of proof as to the presence of those conditions.
            
         
               22.
            
            
               The said subparagraph (b) expressly excludes from the duty to invite tenders cases in which the execution of the work is ‘connected with the protection of exclusive rights’.
            
         
               23.
            
            
               Apart from such cases the assessment of an authority awarding contracts as to whether firms have the ‘technical knowledge’ to carry out a given project and the subsequent selection as to which of such firms is to receive the award of the contract will in general be made on the basis of an invitation to tender arranged in accordance with the procedures prescribed in Directive 71/305, inasmuch as the authority will describe in the tender documents the nature of the project and will in accordance with Article 26 of Directive 71/305 request the contractors tendering to prove their technical knowledge or ability to carry out the project in question.
               For those reasons it may be assumed that objective conditions, of significance for the execution of the work in a specific situation, such that the project in question may be awarded, by reason of those specific conditions, only to a particular contractor, as alleged by the Italian Government, are covered by the expression ‘works which “for technical reasons ... may only be carried out by a particular contractor”’.
            
         
               24.
            
            
               The question is, however, whether the Italian Government has discharged the burden of proof with regard to the difficulties it quotes and therefore with regard to the need to award the project to the Rozzi Costantino undertaking.
               In this case the Italian Government has put forward only arguments in general terms regarding the difficulties of applying the said subparagraph (b), just as it has produced only working drawings of the project and a series of photographs and has claimed, on the basis of a technical statement from the chief engineer of the provincial administration of Ascoli Piceno, that the aforementioned serious difficulties would arise from entrusting the construction of the disputed section of road to a contractor other than Rozzi Costantino.
               In addition the Italian Government has put forward various comments with regard to the expert's report produced by the Commission, and with regard to the drafting of the report it has alleged that the expert who composed it cannot be regarded as impartial.
               On the other hand the Italian Government has not itself produced any corresponding report from an independent expert which might lend plausibility to the mention by the Italian Republic of serious difficulties in awarding the contract to a contractor other than Rozzi Costantino, just as the government has not asked the Court in pursuance of Article 49 of the Rules of Procedure to appoint a surveyor or valuer so as to obtain a report from an impartial expert which might help to make the claim plausible.
            
         
               25.
            
            
               As I have already mentioned, it is for the Italian Government to establish that with reference to the derogation in subparagraph (b) of the first paragraph of Article 9 it was necessary to award the contract at issue to a particular contractor. If only on the ground that the Italian Republic has put forward only quite general observations and has not itself attempted to give any further evidence for its arguments, I feel the conclusion must be reached that the Italian Republic has not discharged the burden of proof.
            
         
               26.
            
            
               That might be sufficient in itself to bring the issue to a close without going further into the Italian Government's objections with regard to the content of the report produced by the Commission. However, I think it is appropriate to comment briefly on the government's observations on the report.
               I must naturally agree with the Italian Government that the report produced by the Commission with regard to the difficulties of entrusting the project at issue in this case to a contractor other than Rozzi Costantino is a unilateral report, but that can if necessary be taken into account in assessing the evidence.
               It must however be emphasized that the expert report deals with all the serious difficulties alleged by the Italian Government in manner which carries immediate conviction but leaves the impression that it is not very likely that such difficulties existed. For example it seems directly logical, as stated in the report, that the works covered by the tenth project and those covered by the eleventh and twelfth projects needed to be coordinated in all circumstances, irrespective of whether the work was to be performed by the one contractor or two different contractors.
               I cannot agree that it appears from the wording of the report that the expert was incompetent. The expression relied upon by the government: ‘The arguments put forward by the Italian Government in an attempt to justify...’ (my emphasis) seems to me to be in itself quite precise and to the point. The expression is no less to the point when the conclusions in the expert report are taken into account, namely that the expert considered that the government's arguments were not tenable. Furthermore the report is written by a technical expert who might well be allowed a greater latitude for his choice of wording than for example an official or a diplomat and it would be unreasonable to cast aspersions on the integrity of the person concerned on those grounds. The government has not contested his expert knowledge.
            
         
               27.
            
            
               As the Italian Government has not discharged the burden of proof that technical reasons made it necessary to award the contract at issue to the Rozzi Costantino undertalcing, it may be accepted that in concluding a private contract with the Rozzi Costantino undertaking for the execution of the eleventh and twelfth supplementary projects the provincial administration of Ascoli Piceno was acting in contravention of Directive 71/305. The Commission's claim must therefore be upheld.
            
         Costs
      
               28.
            
            
               The Commission has claimed that the Italian Republic should be ordered to pay the costs. 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.
            
         Opinion
      
               29.
            
            
               On the foregoing grounds I shall suggest that the Court give judgment as follows:
               
                        —
                     
                     
                        Inasmuch as the provincial administration of Ascoli Piceno awarded a private contract for the construction of the ‘Ascoli-Mare’ section of rapid transit highway, known as ‘Stage IV, supplementary projects 11 and 12’, and failed to publish a notice of invitation to tender in the Official Journal of the European Communities, the Italian Republic 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;
                     
                  
                        —
                     
                     
                        The Italian Republic is ordered to pay the costs of the proceedings.
                     
                  
         (
            *1
         )	Original language: Danish.
      (
            1
         )	OJ. English Special Edition 1971 (II), p. 682, corrected in Supplement to the OJ, English Special Edition 1952-1972, p. 13.
      (
            2
         )	[1994] ECR I-8.
      (
            3
         )	[1984] ECR 2793 at paragraphs 3, 4 and 5.
      (
            4
         )	[1993] ECR I-6273.