OPINION OF MR ADVOCATE-GENERAL REISCHL

DELIVERED ON 13 JULY 1976 ( 1 )

Mr President,

Members of the Court,

Several Community measures were adopted in 1971 to further the implementation of the important principle of the right of establishment and of freedom to provide services in respect of public works contracts. I may mention on the one hand Council Directive No 71/304 of 26 July 1971 (OJ, English Special Edition, 1971 (II), p. 678), which relates to the abolition of restrictions on freedom to provide services in respect of public works contracts. Next Council Directive No 71/305 of 26 July 1971 (OJ, English Special Edition, 1971 (II), p. 682), issued on the same day, ‘concerning the coordination of procedures for the award of public works contracts’ has to be considered. Finally reference must be made to the Council Decision which was also made on 26 July 1971‘setting up an Advisory Committee for Public Works Contracts.’

It is the second mentioned directive which is at issue in the present case. Under its Article 32 Member States had to adopt the measures necessary to comply with the Directive within a period which expired on 29 July 1972. The Commission takes the view that the Italian Republic has not fulfilled this obligation. It is true that a law was passed in Italy on 2 February 1973 for the purpose of carrying out the directive. But the Commission has submitted that this measure is inadequate in many respects — I will mention them presently.

The Commission therefore introduced against the Italian Republic a procedure under Article 169 of the EEC Treaty for failure to comply with the Treaty. In a letter of 10 June 1974 the Italian Government was requested to submit its observations on the representations made by the Commission. A reasoned opinion within the meaning of Article 169 with a request that the necessary measures be adopted within the period of one month was despatched on 1 April 1975. The Commission felt itself compelled to do this, because Italy's Permanent Representative only handed over on 5 July 1974 the preliminary draft of a law prepared by the Italian Ministry for Construction, whereas up till then there had been no mention of the passing of this law which was apparently to take into account to a great extent Directive No 71/305. Finally proceedings were commenced in this Court on 5 February 1976, since at that time, as Italy's Permanent Representative informed the Commission on 29 April 1975, a bill corresponding to the preliminary draft had only been introduced in the Italian Chamber of Deputies on 13 August 1974, while the end of the legislative procedure was not in sight

Allow me to begin my evaluation of the facts of this case by indicating briefly in what respects the present legal position in Italy is, in the opinion of the Commission, incompatible with the said Council directive.

According to Article 5 the directive applies to all procedures for the award of public works contracts, that is both to ‘open procedures’, whereby any interested contractor may tender, and also to ‘restricted procedures’ whereby tenders may only be submitted by contractors who have been invited to do so by the authorities awarding contracts. The Italian law of 2 February 1973 does not cover all this, because it only applies to the restricted tendering procedures and completely disregards the so-called open procedures.

Under Article 29 of the directive the Italian anonymous envelope procedures is to be discontinued after 29 May 1975 or 29 May 1979 according to the estimated value of the respective contracts. The Italian law of 2 February 1973 has made no arrangements whatever to that effect.

Under Article 12 of the directive the intention to award a public works contract must be made known and published in the Official Journal of the European Communities. The Italian law in contrast only provides for publication in the Official Journal of the Italian Republic.

According to Articles 16 (d) and 17 (a) of the directive any time-limit for the completion of the works has to be published. In this respect also the Italian law does not contain the requisite provisions.

Articles 20, 24, 25 and 26 of the directive refer to the definition of the criteria for qualitative selection, which apply to contractors who are eligible to participate and must be applied by the authorities awarding contracts. As the Italian law does not contain any corresponding provisions, Article 89 of the Royal Decree of 23 May 1924 according to which invitations to tender are sent to persons or contractors, who appear to be suitable, is still valid in Italy; there is accordingly a very wide discretion.

Under Article 15 of the directive requests for participation in contracts and invitations to tender may also be made by telegram, telex message or telephone. The Italian law by comparison does not provide for such alternatives. On the contrary, the prohibition on the submission of tenders by telegram contained in Article 72 of the Royal Decree is still in force.

Article 14 of the directive provides that the time-limit for the receipt of requests to participate shall be fixed at not less than 21 days from the date of sending the notice. In contrast under the Italian law there is a minimum time-limit of only ten days from publication of the notice.

Finally Article 29 (5) of the directive is important. It imposes on the authority awarding contracts the duty to justify to the Advisory Committee, mentioned at the beginning of my opinion, rejection of tenders because they are too low. The Italian law on the other hand only insists on such justification in the case of the annulment of the document containing the award, but does not provide for any communication to the Advisory Council for Public Works Contracts.

The Italian Republic against which these proceedings have been taken does not dispute any of these findings. We can therefore proceed on the basis that, although the time-limit prescribed by the Council directive and in the opinion given under Article 169 of the EEC Treaty has expired, the legal situation in Italy has not so far conformed to the provisions of the directive.

Under the system of the Treaty and the relevant case-law — for example in Case 52/75 (Judgment of 26 February 1976, Commission of the European Communities v Italian Republic — it is on the other hand clear that directives impose clear-cut obligations on Member States to bring about a particular legal situation. Under Article 189 of the EEC Treaty only the choice of form and methods for the implementation of directives is left to national authorities. The case-law in particular emphasizes the importance of complying with time-limits prescribed by directives (Judgment of 21 June 1973 in Case 79/72, Commission v Italian Republic, [1973] ECR 667). If some Member States do not comply with these time-limits after they have expired the legal situation lacks uniformity — a particularly serious matter; in other words the directives are then deprived of their efficacy. Therefore in the field of public works contracts the essential aim of the creation of a uniform market, which would have produced competition between all undertakings in the Community, could not be attained at the prescribed time. The Commission has shown in its pleadings by reference to statistical surveys the effect that this has had in practice.

Furthermore there is in my opinion no doubt at all that the need in Italy to set in motion time-consuming legislative proceedings in order to implement Directive No 71/305 — which are necessary because the subject-matter is already governed by statute — is no justification for the delay which has occurred. A reference to the dates in question shows this to be true: it is known that the Commission initiated the procedure under Article 169 on 10 June 1974; the Italian bill for the implementation of the directive was introduced in the Chamber of Deputies on 13 August 1974. Until the delivery of the reasoned opinion which was not until 1 April 1975 there would have been sufficient time for the completion of the legislative procedure. Furthermore it must be borne in mind that in proceedings aimed at finding that there has been an infringement of the Treaty, in which the issue is whether a Member State has fulfilled its obligations under the Treaty, it is irrelevant which agency of the State, even if it be one that is constitutionally independent, was responsible for the infringement. The Court laid particular emphasis on this point in Case 77/69 (Judgment of 5 May 1970, Commission of the European Communities v Kingdom of Belgium, [1970] ECR 243).

Without its being necessary therefore to go into the question whether the said bill can lead to a proper and complete implementation of the Council's directive — it appears that another problem exists with regard to the Italian Law of 10 February 1962 which may be the subject-matter of further proceedings — it may be declared that the application lodged by the Commission is well founded.

Accordingly the Court can only find that since the Italian Republic did not implement the Council Directive of 26 July 1971 in due time, it is, for the reasons mentioned in the Commission's application, in breach of its obligations under the EEC Treaty. Furthermore the costs are to be borne by the defendant.

( 1 ) Translated from the German.