Keywords
Summary

Keywords

1. Approximation of laws - Public procurement procedures in the water, energy, transport and telecommunications sectors - Directive 93/38 - Effects of the directive on decisions of the contracting authority adopted before expiry of the period for transposition - None

(Council Directive 93/38)

2. Actions for failure to fulfil obligations - Proof of failure - Burden on Commission - Submission of evidence that the obligation has not been fulfilled

(EC Treaty, Art. 169 (now Art. 226 EC))

Summary

1. In the area of public procurement, Community law does not require an awarding authority in a Member State to intervene, at the request of an individual, in existing legal relations established for an indefinite period or for several years where those relations came into being before expiry of the period prescribed for transposition of the directive in question. That general principle can be applied to all the stages of a procedure for the award of a contract which are completed before the expiry of the period prescribed for transposition of a directive but form part of a procedure which ended after that date. Accordingly, Directive 93/38 coordinating the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors is not applicable to the choice made by the contracting entity's decision to use a negotiated procedure without a prior call for competition to award a contract, made before the expiry of the period prescribed for transposing that directive and forming part of an award procedure which was not completed until after the expiry of the period prescribed.

( see paras 38-39, 41-42 )

2. In proceedings under Article 169 of the Treaty (now Article 226 EC) for failure to fulfil an obligation, it is incumbent on the Commission to prove that the obligation has not been fulfilled and to place before the Court the evidence necessary to enable it to determine whether that is the case.

( see para. 45 )