Commission of the European Communities v Federal Republic of Germany.
Date: 1995-08-11
13 In their pleadings, the parties dealt essentially with the question whether the measures envisaged and subsequently adopted by the German Government for the purpose of giving effect to the "budgetary solution" properly transposed Directives 88/295 and 89/440 into national law.
15 According to settled case-law (see the judgment in Case C-80/92 Commission v Belgium [1994] ECR I-1019, paragraph 19), amendments made to national legislation are irrelevant for the purpose of giving judgment on the subject-matter of an action for failure to fulfil obligations if they have not been implemented before the expiry of the period set by the reasoned opinion.
18 It should first be pointed out that the Court has consistently held (see, in particular, the judgment in Case C-361/88 Commission v Germany [1991] ECR I-2567, paragraph 15) that the transposition of a directive into domestic law does not necessarily require that its provisions be incorporated formally and verbatim in express, specific legislation, and that 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 can ascertain the full extent of their rights and, where appropriate, rely on them before the national courts.
19 Next, it should be noted that the rules regarding participation and advertising in directives coordinating procedures for the award of public contracts are intended to protect tenderers against arbitrariness on the part of the contract-awarding authority (see the judgment in Case 31/87 Beentjes v Netherlands [1988] ECR 4635, paragraph 42). Such protection cannot be effective if a tenderer is not able to rely on those rules as against the contract awarder and, if necessary, to plead a breach of those rules before national courts.
23 In any event, the adoption of Directive 89/665 has no bearing on the transposition of Directives 88/295 and 89/440. As is clear from the first and second recitals in the preamble to Directive 89/665, this directive is confined to reinforcing existing arrangements at both national and Community levels for ensuring effective application of Community directives on the award of public contracts, in particular at the stage where infringements can still be rectified.
24 Nor can the argument based on the direct effect of Directives 88/295 and 89/440 be accepted. The effect of the third paragraph of Article 189 is that Community directives must be implemented by appropriate implementing measures taken by the Member States. Only in specific circumstances, in particular where a Member State has failed to take the implementing measures required or has adopted measures which do not conform to a directive, has the Court recognized the right of persons affected thereby to rely in law on a directive as against a defaulting Member State. This minimum guarantee, arising from the binding nature of the obligation imposed on the Member States by the effect of the directives under the third paragraph of Article 189, cannot justify a Member State' s absolving itself from taking in due time implementing measures sufficient to meet the purpose of each directive (see, in particular, the judgment in Case 102/79 Commission v Belgium [1980] ECR 1473, paragraph 12).