European Commission v Kingdom of the Netherlands.
Date: 2013-07-11
28. So far as concerns the first plea of inadmissibility, it must be recalled that, in accordance with settled case-law, the letter of formal notice sent by the Commission to the Member State and then the reasoned opinion issued by the Commission delimit the subject-matter of the dispute, so that it cannot thereafter be extended. The opportunity for the Member State concerned to be able to submit its observations, even if it chooses not to avail itself thereof, constitutes an essential guarantee intended by the Treaty, adherence to which is an essential formal requirement of the procedure for finding that a Member State has failed to fulfil its obligations. Consequently, the reasoned opinion and the action brought by the Commission must be based on the same complaints as those set out in the letter of formal notice initiating the pre-litigation procedure (Case C-186/06 Commission  v Spain  [2007] ECR I-12093, paragraph 15, and Case C-535/07 Commission  v Austria  [2010] ECR I-9483, paragraph 41).
29. Furthermore, the Court has also held that the production by the Commission of additional evidence intended, at the stage of proceedings before the Court, to support the proposition that the failure thus alleged is general and consistent cannot be ruled out in principle (Case C-494/01 Commission  v Ireland  [2005] ECR I-3331, paragraph 37, and judgment of 22 December 2008 in Case C-189/07 Commission  v Spain , paragraph 29).
32. In those circumstances, the Commission was entitled to use those documents to support the complaint, set out from the time of the letter of formal notice, relating to the existence of a contract for a public works concession, one of whose conditions was that it w as for pecuniary interest (see, to that effect, Commission  v Ireland , paragraph 36).
34. As regards the second plea of inadmissibility, admittedly, the subject‑matter of proceedings brought under Article 258 TFEU is circumscribed by the pre-litigation procedure provided for in that provision and, consequently, the Commission’s reasoned opinion and the application must be based on the same complaints, however that requirement cannot go so far as to mean that in every case exactly the same wording must be used in each, where the subject-matter of the proceedings has not been extended or altered (Case C‑229/00 Commission  v Finland  [2003] ECR I-5727, paragraphs 44 and 46; Case C‑433/03 Commission  v Germany  [2005] ECR I-6985, paragraph 28; and Case C‑195/04 Commission  v Finland [2007] ECR I-3351, paragraph 18).
35. Thus, in its application the Commission may clarify its initial complaints provided, however, that it does not alter the subject-matter of the proceedings ( Commission  v Ireland , paragraph 38, and Case C‑195/04 Commission  v Finland , paragraph 18).
40. In doing so, the Commission merely set out in detail the arguments supporting its conclusion as to the fact that the contract concluded between the municipality and Hurks was for pecuniary interest, arguments which had already been put forward in more general terms in the letter of formal notice and the reasoned opinion, and therefore did not alter the subject-matter of the proceedings (see, to that effect, Commission  v Germany , paragraph 29, and Commission  v Portugal , paragraph 47).
52. As the Advocate General pointed out in point 56 of his Opinion, the applicable directive is, as a rule, the one in force when the contracting authority chooses the type of procedure to be followed and decides definitively whether it is necessary for a prior call for competition to be issued for the award of a public contract (see, to that effect, Commission  v France , paragraphs 36 and 37).
53. It would be contrary to the principle of legal certainty to determine the applicable law by reference to the date of the award of the contract since that date marks the end of the procedure, while the decision of the contracting authority to proceed with or without a prior call for competition is normally taken at the initial stage of that procedure ( Commission  v France , paragraph 40).
54. Nevertheless, in that judgment the Court also stated that, where the negotiations opened after that decision are substantially different in character from those already conducted and are, therefore, such as to demonstrate the intention of the parties to renegotiate the essential terms of the contract, the application of the provisions of a directive with a time-limit for implementation which expired after the date of that decision, might be justified (see, to that effect, Commission  v France , paragraph 44).
58. The decision approving the opinion of 23 April 2002 thus constitutes, in principle, the decision which is alleged to have infringed EU law and whose date determines the law applicable to such a claim (see, to that effect, Case C-138/08 Hochtief and Linde-Kca-Dresden  [2009] ECR I-9889, paragraph 29).
61. Thirdly, as the Advocate General observed in points 70 and 71 of his Opinion, the fact that the allocation of the financial risks for certain parts of the SPILcentrum project and responsibility for the development of public spaces could have been finally decided after the opinion of 23 April 2002 is not crucial. In the light of the Court’s case-law, neither of those two specific features of the Doornakkers centre project can be regarded as substantially different in character from those initially envisaged (see, to that effect, Commission  v France , paragraph 44, and Case C‑454/06 pressetext Nachrichtenagentur  [2008] ECR I-4401, paragraphs 34 to 37).