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	Číslo (Kód CELEX): Number (CELEX Code):		61994J0057

	Název: Title:		JUDGMENT OF THE COURT OF 18 MAY 1995. COMMISSION OF THE EUROPEAN COMMUNITIES V ITALIAN REPUBLIC. ACTION FOR FAILURE TO FULFIL OBLIGATIONS - PUBLIC WORKS CONTRACTS - FAILURE TO PUBLISH A NOTICE OF INVITATION TO TENDER. CASE C-57/94.

	Publikace: Publication:		European Court Reports 1995 page I-1249

	Předmět (klíčová slova): Keywords

	Související předpisy: Corresponding acts:

	Odkaz na souvisejicí judikáty: Corresponding Judgements:		Case C-296/92 Commission v Italy [1994] ECR I-1 · Case 199/85 Commission v Italy [1987] ECR 1039


	Plný text: Fulltext:		Ne

Fakta:
At the beginning of the 1970s, the provincial administration of Ascoli Piceno awarded various public works contracts relating to the construction of a transit highway to link the town of Ascoli Piceno to the A 14 motorway and national highway No 16, which runs along the Adriatic coast. The work was divided into four stages. Stage IV was awarded to the undertaking Rozzi Costantino. Twelve supplementary reports were subsequently produced on the work relating to that stage, which involved a substantial prolongation of the route as initially conceived. The work envisaged by those reports was awarded to Rozzi Costantino. On 21 May 1990 the provincial administration of Ascoli Picenon awarded to that undertaking a private contract for work envisaged by the eleventh and twelfth reports for a total amount of LIT 36 250.
The Commission considered that the award of those contracts fell within the scope of Council Directive 71/305
Of 26 July 1971 concerning the coordination of procedures for the award of public works contracts (OJ English Special Edition 1971 (II), p. 682) ; now superseded by Council Directive 93/37/EEC of 14 June 1993 concerning the coordination of procedures for the award of public works contracts (OJ L 199, p. 54).
and, since it was not covered by any of the derogations provided for in Article 9 of the Directive, the tender should have been published in the
Official Journal of the European Communities
in accordance with the requirements of the directive. The Court therefore commenced a pre-litigation procedure under Article 169 of the Treaty, asking Italy by letter to submit its observations on the matter. When Italy did not respond within the set period, the Commission reiterated its views in a reasoned opinion. Since in the view of the Commission the reply forwarded by the Italian government was not satisfactory, it brought an action under Article 169 of the Treaty.
This action was dismissed as in inadmissible ( Case C-296/92). The Court reasoned that the Commission had in that procedure founded its action on a basis different from that formulated in the reasoned opinion. Thereupon, the Commission instituted the present proceedings.

Názor soudu a komentář:
Before addressing the substantive questions, the Court first deals with the question of admissibility of the present action which (again) had been challenged by the Italian Government. The Court points out that the Commission did not have to recommence the pre-litigation procedures but could remedy the defects found by the Court in the first proceedings by instituting a new action in which the application corresponded to the issues raised in the reasoned opinion. Italy had also objected that while the Commission had in the reasoned opinion stated that the award-procedure was not justified by the extreme urgency of the project (cf. Article 9 (d) of the Directive), in its action the Commission maintained that the procedure could not be founded on “technical reasons” (cf. Article 9 (b)). The Court points out that this difference had primarily been provoked by Italy’s initial failure to answer the Commissions first letter. “It should, moreover, be noted that, in view of the Italian Government’s failure to adduce any justification within the prescribed period, the Commission would have been entitled to confine itself, both during the pre-litigation procedure and in its application initiating proceedings, to stating that the case did not fall within any of the exceptional circumstances capable of justifying, under Article 9 of the Directive 71/305, recourse to a private procedure, without examining in detail either circumstance, which, it appeared, given the lack of adequate information, might be relied on in particular.” The Court thus establishes an adequate and effective sanction for the Member States’ duty to cooperate in proceedings under Article 169.
As to the merits of the case, the only question at issue was whether the recourse to the private contract procedure in awarding the contract could be justified under Article 9 (b) of the Directive. “Pursuant to that provision, authorities awarding works contracts may do so without applying the provisions of the directive, in particular those providing for publication of an invitation to tender in the
Official Journal of the European Communities
, ‘when, for technical or artistic reasons or for reasons connected with the protection of exclusive rights, the works may only be carried out by a particular contractor’. According to the case-law of the Court, the provisions of Article 9, which constitute exceptions from the general principle, are to be construed narrowly. Furthermore, the burden of proof for the actual existence of the exceptional circumstances justifying a derogation is on the person who invokes the exception. ( Case 199/85). This burden of proof requires that not only the existence of “technical reasons” be established but also that those “technical reasons” “made it absolutely essential that the contract in question be awarded to the undertaking”. Italy had argued
inter alia
that the award to Rozzi Costantino was necessary because it was essential that the same undertaking already engaged in the work also performed additional because of the technical interplay between the work in progress and the work involved in the contract. The Commission contended that the resulting difficulties could be surmounted. The Court found that the Italian Government had not satisfied the burden of proof: “Even assuming that the circumstances relied on by the Italian Government could constitute ‘technical reasons’ within the meaning of Article 9 (b) of Directive 71/305, it is clear that the Italian Government has not adduced proof that those circumstances made it absolutely essential that the contract at issue be awarded to the undertaking in question.”

Shrnutí (Summary of the Judgment):

Plný text judikátu (Entire text of the Judgment):