Commission of the European Communities v Italian Republic.
Date: 2008-04-08
19. It is settled case-law that 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 objections formulated by the Commission (see, among others, Case C-152/98 Commission  v Netherlands  [2001] ECR I-3463, paragraph 23; Case C-439/99 Commission  v Italy  [2002] ECR I-305, paragraph 10; and Case C‑185/00 Commission  v Finland  [2003] ECR I‑14189, paragraph 79).
20. The proper conduct of that procedure thus constitutes an essential guarantee required by the EC Treaty in order to protect the rights of the Member State concerned. It is only when that guarantee is observed that the contentious procedure before the Court can enable it to judge whether that State has in fact failed to fulfil the obligations which the Commission alleges it has breached (see, in particular, Case C-145/01 Commission  v Italy  [2003] ECR I-5581, paragraph 17).
22. First, as regards the alleged divergences between the complaints made during the pre-litigation procedure and those formulated before the Court, it suffices to state that the reasoned opinion and the application commencing the proceedings, which are in almost identical terms, are based on the same complaints. Therefore, the Italian Republic’s argument to show that the complaints raised in the course of the pre-litigation procedure do not correspond to those developed in that application cannot be accepted.
23. Secondly, as regards the alleged lack of clarity and precision in the definition of the complaints made against the Italian Republic in the pre-litigation procedure, it must be observed that, while the reasoned opinion referred to in Article 226 EC must contain a coherent and detailed statement of the reasons which led the Commission to conclude that the State in question has failed to fulfil one of its obligations under the Treaty, the letter of formal notice cannot be subject to such strict requirements of precision, since it cannot, of necessity, contain anything more than an initial brief summary of the complaints (see, in particular, Case 274/83 Commission  v Italy  [1985] ECR 1077, paragraph 21; Case C‑279/94 Commission  v Italy  [1997] ECR I‑4743, paragraph 15; and Case C‑221/04 Commission  v Spain  [2006] ECR I‑4515, paragraph 36).
36. According to the Court’s settled case-law, a call for tenders, under the directives relating to public procurement, is not compulsory, even if the contracting party is an entity legally distinct from the contracting authority, where two conditions are met. First, the public authority, which is a contracting authority, must exercise over the distinct entity in question a control which is similar to that which it exercises over its own departments and, second, that entity must carry out the essential part of its activities with the local authority or authorities which control it (see Teckal , cited above, paragraph 50; Case C‑26/03 Stadt Halle and RPL Lochau  [2005] ECR I‑1, paragraph 49; Case C‑84/03 Commission  v Spain  [2005] ECR I‑139, paragraph 38; Case C‑29/04 Commission  v Austria  [2005] ECR I‑9705, paragraph 34; Case C‑340/04 Carbotermo and Consorzio Alisei  [2006] ECR I‑4137, paragraph 33; and Case C‑295/05 Asemfo  [2007] ECR I‑2999, paragraph 55).
38. As regards the first condition, relating to the public authority’s control, it is important to note that the participation, even as a minority, of a private undertaking in the capital of a company in which the contracting authority in question is also a participant excludes in any event the possibility of that contracting authority exercising over that company a control similar to that which it exercises over its own departments (see Stadt Halle and RPL Lochau , cited above, paragraph 49).
42. It should be noted at the outset that measures adopted by the Member States in connection with the legitimate requirements of national interest are not excluded in their entirety from the application of Community law solely because they are taken in the interests of public security or national defence (see, to that effect, Case C‑186/01 Dory  [2003] ECR I‑2479, paragraph 30).
43. As the Court has already held, the Treaty provides for derogations applicable in situations which may involve public safety, in particular, in Articles 30 EC, 39 EC, 46 EC, 58 EC, 64 EC, 296 EC and 297 EC, which deal with exceptional and clearly defined cases. It cannot be inferred from those articles that the Treaty contains an inherent general exception excluding all measures taken for reasons of public security from the scope of Community law. The recognition of the existence of such an exception, regardless of the specific requirements laid down by the Treaty, would be liable to impair the binding nature of Community law and its uniform application (see, to that effect, Case 222/84 Johnston  [1986] ECR 1651, paragraph 26; Case C‑273/97 Sirdar  [1999] ECR I‑7403, paragraph 16; Case C‑285/98 Kreil  [2000] ECR I‑69, paragraph 16; and Dory , cited above, paragraph 31).
44. In that regard, it is for the Member State which seeks to rely on those exceptions to furnish evidence that the exemptions in question do not go beyond the limits of such exceptional cases (see, to that effect, Case C‑414/97 Commission  v Spain  [1999] ECR I‑5585, paragraph 22).
46. First, it is important to point out that, under Article 296(1)(b) EC, any Member State may take such measures as it considers necessary for the protection of the essential interests of its security and which are connected with the production of or trade in arms, munitions and war materials, provided, however, that such measures do not alter the conditions of competition in the common market regarding products which are not intended for specifically military purposes.
48. It is established that the helicopters in question, as the Italian Republic admits, are certainly for civilian use and possibly for military use.
49. Consequently, Article 296(1)(b) EC, to which Article 3 of Directive 93/36 refers, cannot properly be invoked by the Italian Republic to justify recourse to the negotiated procedure for the purchase of those helicopters.
52. In that regard, the requirement to impose an obligation of confidentiality in no way prevents the use of a competitive tendering procedure for the award of a contract.
53. Therefore, resort to Article 2(1)(b) of Directive 93/36 to justify the purchase of the helicopters in question by the negotiated procedure seems to be disproportionate as regards the objective of preventing the disclosure of sensitive information relating to their production. The Italian Republic has not shown that such an objective was unattainable within a competitive tendering procedure such as that specified by the same directive.
56. As is clear, in particular, from the 12th recital in the preamble to Directive 93/36, the negotiated procedure is exceptional in nature and may be applied only in cases which are set out in an exhaustive list. To that end, Article 6(2) and (3) of Directive 93/36 exhaustively and expressly lists the only exceptions for which recourse to the negotiated procedure is allowed (see, to that effect, as regards Directive 77/62, Case C‑71/92 Commission  v Spain  [1993] ECR I‑5923, paragraph 10; as regards Directive 93/36, see Teckal , paragraph 43, and Case C‑84/03 Commission  v Spain , cited above, paragraph 47).
57. According to settled case-law, the derogations from the rules intended to ensure the effectiveness of the rights conferred by the Treaty in connection with public contracts must be interpreted strictly (see Case C‑57/94 Commission  v Italy  [1995] ECR I‑1249, paragraph 23; Case C‑318/94 Commission  v Germany  [1996] ECR I‑1949, paragraph 13; and Case C‑394/02 Commission  v Greece  [2005] ECR I‑4713, paragraph 33). To prevent Directive 93/36 being deprived of its effectiveness, the Member States cannot, therefore, provide for the use of the negotiated procedure in cases not provided for by that directive, or add new conditions to the cases expressly provided for by the directive in question which make that procedure easier to use (see, to that effect, Case C‑84/03 Commission  v Spain , paragraph 48).
58. In addition, it must be recalled that the burden of proving the existence of exceptional circumstances justifying the derogation from those rules lies on the person seeking to rely on those circumstances (see Case 199/85 Commission  v Italy  [1987] ECR 1039, paragraph 14, and Commission  v Greece , cited above, paragraph 33).