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	Číslo (Kód CELEX): Number (CELEX Code):		61993J0433

	Název: Title:		JUDGMENT OF THE COURT OF 11 AUGUST 1995. COMMISSION OF THE EUROPEAN COMMUNITIES V FEDERAL REPUBLIC OF GERMANY. ACTIONS AGAINST MEMBER STATES FOR FAILURE TO FULFIL OBLIGATIONS - PUBLIC WORKS AND PUBLIC SUPPLY CONTRACTS. CASE C-433/93.

	Publikace: Publication:		European Court Reports 1995 page I-2303

	Předmět (klíčová slova): Keywords

	Související předpisy: Corresponding acts:

	Odkaz na souvisejicí judikáty: Corresponding Judgements:		Case 80/92 Commission v Belgium [1994] ECR I-1019 · Case C-361/88 Commission v Germany [1991] ECR I-2567 · Beentjes Case 31/87 Beentjes v Netherlands [1988] ECR 4635 · Case 102/79 Commission v Belgium [1980] ECR 1473 · Case C-253/95 Commission v Germany [1996] ECR I-2423


	Plný text: Fulltext:		Ne

Fakta:
The Commission under Article 169 of the EC Treaty brought an action against the Federal Republic of Germany claiming that by failing fully transpose into national law Council Directive 88/298/EEC
Of 22 March 1988 amending Directive 77/62/EEC relating to the coordination of procedures on the award of public supply contracts and repealing certain provisions of Directive 80/767/EEC (OJ 1988 L 127, p. 1).
and under Council Directive 89/440/EEC
Of 18 July 1989 amending Directive 71/305/EEC concerning coordination of procedures for the award of public works contracts (OJ 1989 L 210, p. 1).
Germany had failed to fulfil its obligations under the EEC Treaty, now the EC Treaty.
Said directives, which concern public works and supply contracts, were to be transposed into national law by 1 January 1989
Article 20 of Directive 88/298.
and 19 July 1990
Article 3 of Directive 89/440.
respectively. By that time, however, the German Government had merely added ‘a’ paragraphs to the Verdingungsordnung für Leistungen - ausgenommen Bauleistungen - Teil A
Contracting Rules for the Award of Supply Contracts, with the Exception of Building Contracts, Part A.
and to the Verdingungsordnung für Bauleistungen, Teil A
Contracting Rules for the Award of Building Contracts, Part A.
(hereinafter “the Contracting Rules”). These Contracting Rules are being negotiated by private bodies that do not form part of the public administration. According to the Commission, the Contracting Rules are therefore purely private procedural rules which are not binding on contact awarding authorities. Even assuming that those rules took the form of administrative provisions which heads of administration declared to be applicable for those working under them, they would not amount to legal rules and would not - as the directives require - give rise to an subjective rights for individuals outside the administrative departments.
In its defence, the German Government for one thing pointed out that it had in the meantime adopted a number of further legislative measures intended to transpose the directives.
The Federal Republic amended the Haushaltsgrundsätzegesetz (Law on the Principles of Budgetary Law) in order to provide for a legal basis for the adoption of a regulation relating to the provisions governing the award of contracts applicable to public contracts, in which the Verdingungsordnungen (Contracting Rules) were incorporated. On the basis of this law, the German Government adopted the Verordnung über die Vergabebestimmungen für öffentliche Aufträge - Vergabeverordnung (Regulation on Provisions for the Award of Public Contracts) and the Nachprüfungsverordnung (Regulation on Control Procedures).
However, in its view, also the Contracting Rules were, as administrative directions, binding on the contract-awarding authorities. Furthermore, it contends that protection to individuals was in any event ensured by the case-law of the Court of Justice which had consistently held that directives may be directly applicable and can then be relied upon by individuals before the national courts.

Názor soudu a komentář:
The Court first addresses the question of which set of rules was at issue in the present proceedings. In its defence, Germany had also relied on legislative measures adopted after the expiry of the transitional period and after the present proceedings had been initiated. These measures, however, could not have any bearing on the present proceedings because, according to the Court’s case law, “amendments made to national legislation are irrelevant for the purpose of giving judgement 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” ( Case C-80/92). The Court therefore only ruled on the question whether the ‘a’ paragraphs added to the Contracting Rules adequately transformed the directives.
At the outset, the Court restates its general principles on the requirements for the transposition of a directive: “[T]he 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” (see also Case C-361/88).
In fact, the Court finds that directives are intended to create individual rights and have thsu to be implemented into national law in a “sufficiently clear and precise manner”: The rules regarding participation and advertising in directives coordinating procedures for the award of public contracts are, as the Court has already ruled in its
Beentjes
judgement () “intended to protect tenderers against arbitrariness on the part of the contract-awarding authority”. “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 the national courts.”
The Contracting Rules do not afford this protection because they do not confer rights on individuals which could be relied upon before the national courts. In particular, the Court rejects the argument that this deficit was made up for by the rules on the direct effect of Community law as established in the Court’s case-law. These rules merely apply in certain circumstances where a Member State has failed to adopt the implementing measures required. Furthermore, they merely grant a “minimum guarantee”. The direct effect cannot, however, “justify a Member State’s absolving itself from taking in due time implementing measures sufficient to meet the purpose of each directive” ( Case 102/79). In fact, the direct effect cannot be accepted as an equivalent to the adequate transposition of Community law. Firstly, the direct effect takes place only where the directive is “sufficiently clear and precise”. Secondly, the direct effect does not satisfy the requirement that the individual rights be apparent from the national law so that the persons concerned can ascertain their scope and content. And finally, it appears to be a general principle that a person who violates the law cannot - as a justification - rely on his own wrong. (See also Case C-253/95)

Shrnutí (Summary of the Judgment):

Plný text judikátu (Entire text of the Judgment):