CJEC, August 2, 1993, No C-107/92

THE COURT,

1 By application lodged at the Court Registry on 1 April 1992, the Commission of the European Communities brought an action under Article 169 of the EEC Treaty for a declaration that, by failing to send to the Office for Official Publications of the European Communities for publication in the Official Journal of the European Communities a contract notice for the construction of an avalanche barrier in the locality of Colle Isarco/Brennero, the Italian Republic has failed to fulfil its obligations under Council Directive 71-305-EEC of 26 July 1971 concerning the coordination of procedures for the award of public works contracts (OJ, English Special Edition 1971 (II), p. 682).

2 Title III of the directive includes rules on adequate advertising of invitations to tender to ensure that all interested undertakings in the Community can learn of tendering procedures and, if they so wish, take part in them.

3 According to Article 12 of the directive, notices of tendering procedures are to be sent to the Office for Official Publications of the European Communities, which publishes them in the Official Journal of the European Communities not later than nine days after the date of dispatch. The fourth paragraph of Article 12 provides, however, that, under the accelerated procedure provided for in Article 15, the notice will be published not later than five days after the date of dispatch.

4 Under Article 14 of the directive, the time-limits for receipt of requests to participate and for the receipt of tenders which the selected candidates are invited to submit are each not less than 21 days as from, respectively, the date of dispatch of the notice and the date of sending the written invitation to candidates. Article 15 provides, however, that in cases where urgency renders impracticable the time-limits laid down in Article 14, the authority awarding contracts may apply shorter time-limits, namely 12 days as from the date of dispatch of the notice for requests to participate and 10 days as from the written invitation for tenders. That accelerated procedure thus reduces the total duration of the advertising procedure from a minimum of 42 days to a minimum of 22 days.

5 Article 9 of the directive grants exemption from application of the provisions on advertising in a number of cases. More specifically, Article 9(d) provides for an exception "in so far as is strictly necessary when, for reasons of extreme urgency brought by events unforeseen by the authorities awarding contracts, the time-limit laid down in other procedures cannot be kept".

6 On 18 June 1988, the Bolzano Ufficio del Genio Civile (Civil Engineering Department), a department of the Italian Ministry of Public Works, awarded a public works contract to the Italian undertaking Collini e Rabbiosi SpA for the construction of an avalanche barrier in the Alpe Gallina region near Colle Isarco/Brennero, without prior publication of a notice of an invitation to tender in the Official Journal of the European Communities.

7 Regarding that omission as an infringement of the directive, the Commission, by letter of 24 January 1990, formally called upon the Italian Republic to submit its observations within a month.

8 The Italian Government' s reply of 15 March 1990 to that letter prompted the Commission to send it a reasoned opinion on 13 February 1991. In the absence of any response thereto, the Commission brought this action.

9 The Commission considers that the Italian Government has not demonstrated the existence of extreme urgency resulting from unforeseeable events, as provided for in Article 9(d) of the directive. It states, first, that more than three months elapsed between the presentation to the competent national authorities on 10 June 1988 of the report from the Geological Department of the Ministry of the Environment recommending urgent action and the commencement of the works on 21 September 1988 and that, during that period, the Italian Government could have set in motion the 22-day accelerated procedure provided for by the directive. It also maintains that the last avalanche recorded in the Brenner region, in 1975, could not justify urgent action.

10 According to the Italian Government, the Commission' s view takes no account of the new situation resulting from the abovementioned geological report regarding the unforeseeable and imminent risk of avalanches in the region. It contends that, in view of the urgency indicated by the report, the Italian authorities considered that the works had to be commenced without fail before the end of autumn 1988, that the administrative procedure therefore had to be completed during the brief period of the three summer months and that, in consequence, compliance with the directive had proved impossible.

11 Reference is made to the Report for the Hearing for a fuller account of the facts, the procedure and the pleas in law and arguments of the parties, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court.

12 According to Article 9(d) of the directive, the derogation for which it provides, namely exemption from the obligation to publish a notice of a call for tenders, is available only if three conditions are fulfilled concurrently. That provision requires the existence of an unforeseeable event, extreme urgency rendering the observance of time-limits laid down by other procedures impossible and, finally, a casual link between the unforeseeable event and the extreme urgency resulting therefrom.

13 The sequence of events analysed in detail by the Advocate General in paragraphs 8 and 13 of his Opinion shows that there was nothing to prevent the Italian Government in this case from complying with the time-limits of the accelerated procedure provided for by the directive.

14 Consequently, it must be recognized that, as the Commission claims, the Italian Government has not demonstrated the existence of extreme urgency within the meaning of Article 9(d) of the directive.

15 Therefore, without there being any need to consider whether the other two conditions for the exemption were fulfilled in this case, it must be held that, by failing to send to the Office for Official Publications of the European Communities for publication in the Official Journal of the European Communities a contract notice for the construction of an avalanche barrier in the locality of Colle Isarco/Brennero, the Italian Republic has failed to fulfil its obligations under the directive.

Costs

16 Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs. Since the Italian Republic has been unsuccessful, it must be ordered to pay the costs.

On those grounds,

THE COURT

hereby:

1. Declares that, by failing to send to the Office for Official Publications of the European Communities for publication in the Official Journal of the European Communities a contract notice for the construction of an avalanche barrier in the locality of Colle Isarco/Brennero, the Italian Republic has failed to fulfil its obligations under Council Directive 71-305-EEC of 26 July 1971 concerning the coordination of procedures for the award of public works contracts;

2. Orders the Italian Republic to pay the costs.