Commission of the European Communities v Kingdom of Spain.
Date: 1993-11-17
10 It is apparent from the ninth recital in the preamble to Directive 77/62 that:
"... provision must be made for exceptional cases where measures concerning the coordination of procedures may not necessarily be applied, but such cases must be expressly limited".
It follows that the only permitted exceptions to the application of Directive 77/62 are those which are exhaustively and expressly mentioned therein.
15 It is true that national rules applicable to trade in certain products, which are compatible with Community law by virtue of the aforementioned provisions of the Treaty, must also be observed in connection with the award of public supply contracts. However, that fact is not such as to justify a priori a general failure to apply the rules relating to the award of such contracts as far as those products are concerned.
16 The Spanish Government contends, in the third place, that the exclusion of certain contracts provided for in Article 2, point 3, of the LCE and the corresponding provision of the RGCE may be justified by Article 6(1)(b) of Directive 77/62, according to which authorities awarding contracts may award their supply contracts without applying the open or restricted procedures referred to in Article 4(1) and (2),
"when, for technical or artistic reasons, or for reasons connected with protection of exclusive rights, the goods supplied may be manufactured or delivered only by a particular supplier".
23 Moreover it follows that, as the Court has consistently held (see, in particular, the judgment in Case C-131/88 Commission v Germany [1991] ECR I-825, paragraph 6), the transposition of a directive into national law does not necessarily require that its provisions be incorporated formally and verbatim in express specific legislation; a general legal context may, depending on the content of the directive, be adequate for the purpose provided that it does indeed guarantee the full application of the directive in a sufficiently clear and precise manner so that, where the directive is intended to create rights for individuals, the persons concerned may ascertain the full extent of their rights and, where appropriate, rely on them before the national courts. Those requirements of clarity and precision are all the more imperative where, as in this case, exceptions to or derogations from the rules laid down by a directive are to be transposed into national law.
25 In those circumstances, the general exception laid down in Article 2, point 8, of the LCE and in Article 2, point 8, of the RGCE by reference to other unspecified laws does not constitute a transposition into national law corresponding fully to the requirements of clarity and certainty in legal situations which directives seek to fulfil (see, in particular, the judgment in Case 102/79 Commission v Belgium [1980] ECR 1473, paragraph 11).
36 It should be stressed first of all that the provisions of Article 9 of Directive 71/305 and of Article 6 of Directive 77/62, which authorize derogations from the rules intended to ensure the effectiveness of the rights conferred by the Treaty in the field of public works and supply contracts, must be strictly interpreted (see, as regards Article 9 of Directive 71/305, the judgment in Case 199/85 Commission v Italy [1987] ECR 1039, paragraph 14). For the same reasons, the abovementioned provisions specifying the cases in which privately negotiated contracts may be concluded must be regarded as exhaustive.
41 With regard to the complaint as thus clarified, it should be pointed out that in its judgment in Case 76/81 Transporoute v Minister of Public Works ([1982] ECR 417, paragraph 9) the Court has already stated that Directive 71/305 does not authorize the Member States to seek references other than those expressly mentioned in the directive except for the purpose of assessing the financial and economic standing of the contractors as provided for in Article 25 thereof. That finding applies by analogy to Directive 77/62, the relevant rules of which correspond in substance to those of Directive 71/305.
47 It follows that the Commission' s complaint alleging infringement of Directive 71/305 must be regarded as well founded and that consequently there is no need to inquire whether the provision at issue is also contrary to Article 59 of the Treaty.
Article 287, paragraph 2, of the RGCE