Commission of the European Communities v Republic of Austria.
Date: 1999-10-28
34 According to settled case-law, the purpose of the pre-litigation procedure is to give the Member State concerned an opportunity, on the one hand, to comply with its obligations under Community law and, on the other, to avail itself of its right to defend itself against the complaints made by the Commission.  The subject-matter of an action brought under Article 169 of the Treaty is therefore delimited by the pre-litigation procedure provided for by that article.  Consequently, the action cannot be founded on any complaints other than those formulated in the reasoned opinion (Case C-206/96 Commission v Luxembourg [1998] ECR I-3401, paragraph 13).
38 The Commission maintains, however, that the fact that in its reasoned opinion it requested the Austrian Government to take `all appropriate measures to rectify  the infringement in question' was sufficient because, according to the case-law of the Court (Case C-247/89 Commission v Portugal [1991] ECR I-3659, paragraph 22), the Commission is not obliged to set out in its reasoned opinion the measures or steps to be taken to eliminate the infringement in question.  It also points out that, in its reply to the reasoned opinion, the Austrian Government devoted a section to the `contracts already awarded', which indicated that the government had already addressed itself, in the pre-litigation procedure, to that claim.
39 It must be observed in this regard that, although, according to the case-law of the Court, the Commission is not obliged to indicate in the reasoned opinion the measures or steps to be taken to eliminate the infringement in question (see the judgment in Case C-247/89 Commission v Portugal, cited above, paragraph 22), that does not mean that it is not obliged to indicate in its reasoned opinion the complaints which will be the subject of its application to the Court (see, to this effect, Commission v Luxembourg, cited above, paragraph 13).  Thus, the Commission must specifically indicate to the Member State concerned that it must adopt a certain measure if it intends to make the failure to adopt that measure the subject-matter of its infringement action.  That procedural requirement, specific to the proceedings brought before the Court, does not, however, limit the rights which individuals have under the Community legal order and which may be invoked directly before the national court.
43 Having regard to the findings in paragraphs 32 and 41 above, it must be determined whether, on the date on which the period set in the reasoned opinion expired, the Republic of Austria had brought to an end the alleged infringement arising from the breach of Community law affecting the contract-awarding procedures conducted under the version of the AAVB applying from 1 January 1995.
44 Although it is true that the Republic of Austria has, from 12 December 1995, amended the AAVB in the way indicated by the Commission and that, from 6 February 1996, it has applied the new version of the AAVB to all procedures already underway on that date, it is also established that it has done nothing in relation to the contract-awarding procedures conducted entirely under the version of the AAVB applying on 1 January 1995, so that any effects contrary to Community law produced by these procedures still subsisted on the date on which the period set in the reasoned opinion expired.
45 This objection of inadmissibility must therefore be dismissed.
Setting of excessively short periods in the pre-litigation procedure
51 It must be observed in this regard that, according to the case-law of the Court, the dual purpose of the pre-litigation procedure (see paragraph 34 above) requires the Commission to allow Member States a reasonable period to reply to letters of formal notice and to comply with reasoned opinions, or, where appropriate, to prepare their defence. In order to determine whether the period allowed is reasonable, account must be taken of all the circumstances of the case. Thus, very short periods may be justified in particular circumstances, especially where there is an urgent need to remedy a breach or where the Member State concerned is fully aware of the Commission's views long before the procedure starts (judgment in Case 293/85 Commission v Belgium [1988] ECR 305, paragraph 14).
57 As regards the argument which the Austrian Government bases on Article 3(3) of Directive 89/665, it is sufficient to reiterate that the special procedure under that directive is a preventive measure which can neither derogate from nor replace the powers of the Commission under Article 169 of the Treaty (see Case C-353/96 Commission v Ireland [1998] ECR I-8565, paragraph 22).  It follows that the detailed provisions to which that special procedure is subject cannot affect the admissibility of an action brought under Article 169 of the Treaty.