(Public works contracts – Directive 93/37/EEC – Procedure for the award of contracts – Negotiated procedure without prior publication of a contract notice – Calculation of the time-limit of three years from the conclusion of a first contract – Absence of an excusable error of law)








I –  Introduction

1.        In these Treaty-infringement proceedings, the Commission asserts that the Italian Republic, when awarding three public works contracts, failed to comply with Council Directive 93/37/EEC of 14 June 1993 concerning the coordination of procedures for the award of public works contracts (hereinafter: ‘Directive 93/37’).  (2)


2.        The central issue is whether, in the case of new works consisting of the repetition of similar earlier works, it is permissible – and if so, subject to what conditions – for a negotiated procedure to be conducted without prior publication of a contract notice. Directive 93/37 sets a three-year time-limit on such a procedure; how that time-limit should be calculated in the circumstances of this case forms the essential subject-matter of these proceedings. The Italian Republic maintains that, if it was indeed mistaken as to the method of calculation, any error was an excusable one.


II –  Legal framework

3.        The legislation governing these proceedings is contained in Article 7(3) and (4) of Directive 93/37. The relevant passages state:
‘3. The contracting authorities may award their public works contracts by negotiated procedure without prior publication of a contract notice, in the following cases:
...
(b) 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;

(c) insofar as is strictly necessary when, for reasons of extreme urgency brought about by events unforeseen by the contracting authorities in question, the time-limit laid down for the open, restricted or negotiated procedures referred to in paragraph 2 cannot be kept. The circumstances invoked to justify extreme urgency must not in any event be attributable to the contracting authorities;

...
(e) for new works consisting of the repetition of similar works entrusted to the undertaking to which the same contracting authorities awarded an earlier contact, provided that such works conform to a basic project for which a first contract was awarded according to the procedures referred to in paragraph 4.
As soon as the first project is put up for tender, notice must be given that this procedure might be adopted and the total estimated cost of subsequent works shall be taken into consideration by the contracting authorities when they apply the provisions of Article 6. This procedure may only be adopted during the three years following the conclusion of the original contract.



4. In all other cases, the contracting authorities shall award their public works contracts by the open procedure or by the restricted procedure’.


4.        The first and second recitals in the preamble to Directive 93/37 state:
‘Whereas Council Directive 71/305/EEC of 26 July 1971 concerning the coordination of procedures for the award of public works contracts has been amended substantially and on a number of occasions; whereas, for reasons of clarity and better understanding, the said Directive should be consolidated;
Whereas the simultaneous attainment of freedom of establishment and freedom to provide services in respect of public works contracts awarded in Member States on behalf of the State, or regional or local authorities or other bodies governed by public law entails not only the abolition of restrictions but also the coordination of national procedures for the award of public works contracts.’


5.        The eighth recital in the preamble to the Directive states:
‘Whereas the negotiated procedure should be considered to be exceptional and therefore only applicable in certain limited cases.’


6.        The first sentence of the tenth recital in the preamble states:
‘Whereas, to ensure development of effective competition in the field of public contracts, it is necessary that contract notices drawn up by the contracting authorities of Member States be advertised throughout the Community.’


III –  Facts and pre-litigation procedure

7.        Three public works contracts were awarded in 1997 by the Magistrato per il Pô di Parma, a local agency of the Italian Ministry of Public Works (now the Ministry for Infrastructure and Transport). (3) The contracts concerned additional lots in respect of work on the following flood protection projects:
– completion of the construction of an overflow basin for flood waters of the Parma watercourse in the area of Marano in the Parma commune;

– development and completion of an overflow basin for the Enza watercourse and

– retention of flood waters of the Terdoppio watercourse – Scolmatore canal south-west of Cerano.



8.        The parties agree that the value of the lots – ITL 37 000 million, ITL 21 000 million and ITL 19 500 million – exceeded the threshold of ECU 5 million laid down in Article 6 of Directive 93/37.


9.        The work was entrusted – by negotiated procedure, without prior publication of a contract notice – to the firms to which the previous lots had been awarded in the 1980s. These earlier lots related to:
– a works contract relating to the Parma watercourse, of 22 December 1988;

– a works contract relating to the Enza watercourse, of 26 October 1982, and

– a works contract relating to the Terdoppio watercourse, of 20 May 1988.



10.      The Commission wrote to the Italian authorities on 27 September 2000, asking for detailed information concerning the procedure followed when the three lots were awarded in 1997. In their reply of 19 October 2000, the Italian authorities explained that they had applied the procedure pursuant to Article 7(3)(e) of Directive 93/37. The lots consisted in the repetition of similar works entrusted to the same undertakings to which the same contracting authorities had awarded an earlier contact; the works conformed to a basic project for which the first contract was awarded according to the procedures referred to in Article 7(4) of the Directive. As soon as the first project was put up for tender, notice had been given that the negotiated procedure without prior publication of a contract notice might later be adopted and the total estimated cost of the subsequent works was taken into consideration. The negotiated procedure was duly adopted within the three years following the conclusion of the original contract, that period having started to run when the previous works were handed over.


11.      The Commission sent a letter of formal notice on 23 April 2001 in which it rejected the Italian authorities’ interpretation of how the three-year time-limit should be calculated. The Italian Republic replied on 8 June 2001 and 17 December 2001, essentially reaffirming its position.


12.      On 28 October 2002, having received no reply to its reasoned opinion of 21 December 2001, the Commission brought the present action against the Italian Republic under the second paragraph of Article 226 EC.


IV –  Forms of order sought

13.      The Commission claims the Court should:
– Declare that the Italian Republic has failed to fulfil its obligations under Council Directive 93/37/EEC of 14 June 1993 concerning the coordination of procedures for the award of public works contracts, in particular Article 7(3) thereof, in that the Magistrato per il Pô di Parma, a local agency of the Ministry of Public Works (now the Ministry for Infrastructure and Transport), awarded the contracts concerning additional lots in respect of work on completion of the construction of an overflow basin for flood waters of the Parma watercourse in the area of Marano in the Parma commune, development and completion of an overflow basin for the Enza watercourse and retention of flood waters of the Terdoppio watercourse – Scolmatore canal south-west of Cerano by the negotiated procedure without prior publication of a contract notice, when the conditions for such a procedure were not satisfied;

– Order the Italian Republic to pay the costs.



14.      The Italian Republic is not claiming in terms that the action should be dismissed. However, it asks the Court, whatever its interpretation of Article 7(3) of Directive 93/37, to hold that the Italian version of that provision had led the Italian Government to commit an excusable error.


V –  Assessment

A – Admissibility

15.      The Court has consistently held that when the Commission exercises its powers under Article 226 EC, it does not have to show that there is a specific interest in bringing an action. The provision is not intended to protect the Commission’s own rights. The Commission, as guardian of the Treaties in the general interest of the Community, must ensure that Member States give effect to Community law, and must obtain a declaration of any infringement with a view to bringing it to an end. Hence it is for the Commission alone to assess whether it is appropriate to institute Treaty-infringement proceedings, and to determine the act or omission on which such proceedings should be based. Even where a Member State’s national legislation accords with Community law, the Commission may none the less seek a declaration that it has failed to fulfil its obligations, citing a specific instance in which Community rules were disregarded, and consequently, the result intended by a directive was not achieved.  (4)


16.      However, the subject-matter of an action brought under Article 226 EC is established by the Commission’s reasoned opinion. Such an action becomes devoid of purpose, and accordingly inadmissible, to the extent that the alleged infringement is eliminated before the time-limit set by the Commission expires. (5) The Treaty-infringement procedure has then achieved its purpose in the course of the pre-litigation procedure.


17.      In the present case, however, as the Italian Government acknowledges, it did nothing to eliminate the effects of any possible Treaty infringements in relation to the three public works contracts to which the Commission referred. While other award procedures were cancelled, technical considerations and the risks for public safety made it impossible to annul the award procedures at issue in these proceedings.


18.      Although public procurement law does not require Member States to annul contracts which have already been concluded, any contract awarded in contravention of the relevant directive constitutes an ongoing infringement of Community law.  (6) Moreover, it is consistent with the meaning and purpose of both Treaty-infringement proceedings and the public procurement directives for the Commission to be able to bring specific situations before the Community Courts to determine whether public procurement rules have been observed. From a finding against a Member State with regard to a specific case it may thus be deduced that the Member State, as addressee of the Directive, has failed to do everything necessary to implement it.  (7)


19.      The Italian Government maintains that it is now guided solely by competition considerations when awarding public works contracts, pursuant to the most recent developments in Italian public procurement law and its own practice in making awards; the events which led to the infringement proceedings could never occur again.


20.      However, merely claiming that award procedures will be conducted henceforth on the basis of competition criteria cannot itself preclude future procedural errors. As the Commission has pertinently observed, it is entirely possible that other contracting authorities in Italy might similarly misinterpret the three-year time-limit, particularly since the transfer of power to regional and local authorities has considerably increased the number of potential contracting authorities.


21.      That risk of the infringement being repeated (8) constitutes a further reason why the action should be held to be admissible.


B – Substance

22.      For the Commission’s action to be well founded, the Italian Republic must have failed to fulfil an obligation under the Treaty (Article 228(1) EC). The duty to implement Directive 93/37, which the Commission claims the Italian Republic has failed to discharge, follows from the first paragraph of Article 10 EC in conjunction with the third paragraph of Article 249 EC.


1. Infringement of Directive 93/37

23.      The three public works contracts in question were awarded in 1997 by negotiated procedure without prior publication of a contract notice. However, Article 7(4) of Directive 93/37 makes it clear that, in principle, public works contracts are to be awarded by the open procedure or the restricted procedure – and not, therefore, by the negotiated procedure. Only in exceptional cases is it permissible to use the negotiated procedure without prior publication of a contract notice.  (9) These cases are listed exhaustively in Article 7(3) of the Directive.  (10) The only conceivable basis for applying a negotiated procedure in the present case is Article 7(3)(b), (c) or (e); I shall consider them in turn.
(a) Technical reasons under Article 7(3)(b) of Directive 93/37


24.      The Italian Government submits first that technical reasons made it necessary to award the three works contracts to the contractor to whom the earlier work had been awarded. It is thus conceivable at first sight that Article 7(3)(b) is applicable.


25.      However, it is clear from the plain terms of that provision that it applies only when the works “may only be carried out by a particular contractor”.  (11) According to the Court’s case-law, that constitutes a derogation which must be interpreted strictly and therefore applies only where there exist exceptional circumstances.  (12)


26.      More specifically, merely deeming it expedient to award a follow-up contract to the contractor who had performed earlier work cannot suffice to justify application of Article 7(3)(b) of Directive 93/37, just as it is not sufficient to invoke technical constraints in formulaic and non-specific terms. A contracting authority must explain in detail why, in the circumstances of the case, technical reasons made it absolutely necessary for the contract to be awarded to the very contractor to whom the previous works had been entrusted, and to none other. In the absence of such a requirement, contracting authorities might abuse Article 7(3)(b) of Directive 93/37, invoking the situation described therein so as to avoid calls for tender, and thus subverting the general purpose of the Directive, which is to promote competition in the field of public procurement.  (13)


27.      The burden of proving the existence of exceptional circumstances lies on the person seeking to rely on them.  (14) In the present case, the Italian Government merely stated that the competent authority wished to forestall any damage to or deterioration of the works already completed, and to avoid difficult questions as to the respective liability of a number of contractors. Hence even if it may have seemed expedient to re-commission the contractor responsible for the first tranche of works, no compelling technical reasons required the selection of that particular contractor. It was therefore not possible to base application of the negotiated procedure on Article 7(3)(b) of Directive 93/37.


28.      At the hearing, the Italian Government stated in addition that when the three contracts were awarded, no other potential contractors were discernible; at least in that particular instance, therefore, competition had not been impaired. I do not find that argument convincing. The whole point of prior publication of a contract notice is to ensure that as many potential tenderers as possible know that a contract is about to be awarded. It is quite possible that, if a notice had been duly published, other prospective contractors might have come forward.
(b) Urgency under Article 7(3)(c) of Directive 93/37


29.      The Italian Government further contends that the three contracts had to be awarded as a matter of particular urgency. It is thus conceivable that Article 7(3)(c) of Directive 93/37 might apply.


30.      However, the very terms in which subparagraph (c) is couched – ‘strictly necessary’, ‘extreme urgency’, ‘events unforeseen’ – attach strict conditions to any reliance on it; moreover, as it constitutes a derogation it must be construed narrowly.  (15) That is the only way to prevent abuse by contracting authorities and to serve the purpose of the directive, the development of effective competition in the field of public contracts.  (16)


31.      It is moreover clear from the second sentence of Article 7(3)(c) that a contracting authority may not seek to justify alleged urgency on the basis of circumstances attributable to themselves. In the present case, planning of the flood-protection measures had been in hand at least since the 1980s when the lots were awarded for the first tranche of work. Moreover, the work to which the present proceedings relate had been contemplated from the very beginning, as the Italian Government itself stated, and was only kept back to be the subject of a second, separate, contract for budgetary reasons. These facts suggest that the contracting authority was actuated not by any particular urgency, but by purely internal and organisational considerations.


32.      The burden of proving urgency lies on the person seeking to rely on it.  (17) In the present case the Italian Government has merely alleged that there was an urgent need to award the public works contracts since the previous works had – they say – increased the danger of flooding. Yet I am not aware of any factors which would have prevented the competent authorities from foreseeing such an increased flood-risk, especially as, under their original plans, flood-protection measures were to be carried out in various stages. Hence the conditions for the application of Article 7(3)(c) were not met.
(c) Repetition of similar works within three years under Article 7(3)(e) of Directive 93/37


33.      The Italian Government finally invokes Article 7(3)(e) of Directive 93/37. It is common ground between the parties that, when the contracts were awarded, all the conditions for the application of this subparagraph were met, save for the three-year time-limit. What is at issue between the parties is solely when that three-year period starts to run; whether or not it was open to the contracting authority to conduct a negotiated procedure without prior publication of a contract notice depends on how that issue is resolved.


34.      The Italian Government’s understanding is that the period in question starts to run only on completion of the works covered by the first contract. It bases this interpretation on the Italian version of Directive 93/37, which uses the phrase ‘conclusione dell’appalto iniziale’ to indicate when the period starts to run, in contrast to the form of words in the earlier directive  (18) (‘aggiudicazione dell’appalto iniziale’), which plainly referred to the award of the original contract.


35.      As the Court has consistently held,  (19) all language versions of a Community provision must, in principle, be recognised as having the same weight. It follows that the proper starting-point for the three-year period referred to in Article 7(3)(e) of Directive 93/37 should be determined not by considering a single language version in isolation, but on the basis of an overview of all language versions.


36.      Alas, some language versions of the directive are not as clear as one would wish. The German version, for example, refers to the ‘Abschluss des ersten Auftrags’ and the French to the ‘conclusion du marché initial’, while the Dutch simply refers to the ‘oorspronkelijke opdracht’. However, a number of other language versions clearly tell against the interpretation supported by the Italian Government, and support the Commission’s position, namely the English (‘conclusion of the original contract’), the Danish (indgåelsen af den oprindelige kontrakt’), the Spanish (‘celebración de contrato inicial’), and the Portuguese (‘celebração do contrato inicial’).


37.      What is also noteworthy is that the change in the text of Article 7(3)(e) of Directive 93/37, to which the Italian Government refers, occurs solely in the Italian version – ‘conclusione’ replacing ‘aggiudicazione’ – whereas the other versions retain the text of the preceding directive  (20) unchanged. That alone suggests that the change was a drafting amendment to the Italian text rather than a substantive modification of the provision itself. That conclusion is supported by the first recital in the preamble to Directive 93/37, which speaks of the previous directive being consolidated for reasons of clarity and better understanding.


38.      Ultimately, though, what matters is not the text on its own, but the context of the provision and the purpose it was intended to achieve.  (21)


39.      On the issue, first, of how the disputed time-limit provision relates to Directive 93/37 as a whole, I would point out that Article 1(a) of the directive uses the term contracts (and not, say, works) to define public works contracts, not least in the Italian version: ‘gli “appalti pubblici di lavori” sono contratti a titolo oneroso ...’.  (22)


40.      Moreover, it follows a contrario from Article 7(4), which describes the procedures which would ordinarily fall to be applied, that Article 7(3)(e) deals with a derogation, and should ipso facto be construed narrowly.


41.      As to the purpose of the three-year time-limit, that has a crucial part to play in assisting the achievement of freedom of establishment and the freedom to provide services in the field of public works contracts, by promoting increased competition.  (23) That consideration, too, must make the negotiated procedure, less advantageous for competitors, the exception – only permitted to be used in certain limited cases.  (24)


42.      Accordingly, both the context and the purpose of Article 7(3)(e) of Directive 93/37 tell in favour of a narrow interpretation of the three-year time-limit: time starts to run from the conclusion of thecontract for the first works. To defer the starting-point until the first works had been completed would broaden the scope of the negotiated procedure, and work against the aim of creating competition in the field of public works contracts. It would also, as the Commission correctly observes, be detrimental to legal certainty: there is no compelling reason why the completion of construction work should be equated with acceptance by the principal – other events could conceivably be considered, such as the laying of the last stone, the dismantling of scaffolding, the closure of the site or the payment of the (outstanding) price. The date of conclusion of the contract, by contrast, can generally be determined unequivocally.


43.      Thus on a proper construction of Article 7(3)(e) of Directive 93/37, the three-year time-limit referred to in the last sentence of that provision starts to run on the conclusion of the contract for the first works – not later, when work on the first tranche is completed. Thus the Italian Republic misinterpreted and misapplied Directive 93/37 with regard to the three public works contracts at issue in these proceedings.
(d) Interim conclusion


44.      Since none of the derogating conditions prescribed in Article 7(3)(e) of Directive 93/37 obtains, it follows that the Italian Republic, in awarding the three public works contracts in question by the negotiated procedure without prior publication of a contract notice, failed to fulfil its obligations under the Treaty.


2. No excusable error of law

45.      The Italian Government finally argues that, in the light of the Italian version of Article 7(3)(e) of Directive 93/37, the contracting authority’s application of the Government’s own interpretation of the starting-point for the three-year period constituted an ‘errore scusabile’ – an excusable error.


46.      The concept of excusable error is indeed not entirely unknown to Community law, more particularly in the field of State liability. For although fault is in principle not a precondition for a Member State’s liability in damages,  (25) whether or not an error of law is excusable may be a factor in determining whether a national authority manifestly and gravely disregarded the limits on its discretion and consequently committed a sufficiently serious breach of a rule of Community law.  (26) In the field of non-contractual liability, it is accepted that a Member State, or a Community institution, will not automatically incur financial liability vis-à-vis an individual every time it is in breach of the law: whether or not damages are awarded will turn on the nature of the infringement of Community law.  (27)


47.      These aspects of State liability law cannot, however, be transposed to Treaty-infringement proceedings. The purpose of the latter is to ensure that Community law is applied correctly and uniformly in all Member States, and that any infringements are brought to an end:  (28) such infringements being established entirely objectively, with no reference to what prompted them, or to the nature or seriousness of their consequences.  (29)


48.      Furthermore, each Member State is entirely responsible to the Community for ensuring that all State authority is exercised in a manner consistent with Community law. That responsibility includes a duty to take all appropriate steps to comply with obligations arising under Community law and to refrain from any act or omission which might threaten their fulfilment (Article 10 EC). It applies irrespective of fault.


49.      Thus in Treaty-infringement proceedings – if only to preclude any possibility of abuse – there must be severe restrictions on the defences available to Member States. Accordingly, the Court only allows one defence unrelated to fault – the absolute impossibility of complying with obligations under Community law.  (30)


50.      By contrast, an error of law is not a permissible defence to a Treaty-infringement action. Thus the Court has held that a Member State may not rely on difficulties relating to the interpretation of a directive in order to delay transposing it until after the prescribed period has expired.  (31)


51.      Nor may a Member State plead that its infringement of Community law was only minor, or that no damage flowed from it.  (32)


52.      Moreover, it is settled case-law that Community law should not be interpreted and applied with reference to one single language version (as occurred here); but on the basis of an overall view of all language versions, mindful of the sense, purpose and context of the provision in question.  (33) Any uncertainties should be taken up with the Commission, in accordance with the principle of cooperation in good faith established in Article 10 EC.


53.      Only if the Commission itself has raised a legitimate expectation on the part of a Member State (perhaps in an opinion addressed to it) that that State’s rights and duties under Community law should be interpreted in a particular way may such an expectation be subsequently pleaded in defence to Treaty-infringement proceedings. The Commission itself has very fairly pointed to cases where a Community institution’s conduct caused a party to form an incorrect impression, or at least contributed significantly to that occurring.  (34)


54.      In the light of all the foregoing, the Italian Government cannot therefore succeed in its defence based on the assertion that the contracting authority committed an excusable error in determining when the period stipulated in Article 7(3)(e) of Directive 93/37 started to run.


3. Conclusion

55.      It follows from the foregoing that the Italian Republic failed to fulfil its obligations under the Treaty in that it awarded the three public works contracts in question by negotiated procedure without prior publication of a contract notice, when the requirements set out for that purpose in Directive 93/37, particularly Article 7(3) thereof, were not fulfilled.


VI –  Costs

56.      Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. As is apparent from the foregoing, I consider that the Commission’s action should succeed. Accordingly, since the Commission has applied for costs, and the Italian Republic has been unsuccessful, the latter must be ordered to pay the costs.


VII –  Conclusion

57.      For the reasons set out above, I propose that the Court should
1. Declare that the Italian Republic has failed to fulfil its obligations under the Treaty in that, through the Magistrato per il Pô di Parma, it awarded public works contracts by negotiated procedure without prior publication of a contract notice, when the requirements set out for that purpose in Council Directive 93/37/EEC of 14 June 1993 concerning the coordination of procedures for the award of public works contracts, in particular Article 7(3) thereof, were not fulfilled, for the following additional lots :
– completion of the construction of an overflow basin for flood waters of the Parma watercourse in the area of Marano in the Parma commune;

– development and completion of an overflow basin for the Enza watercourse and

– retention of flood waters of the Terdoppio watercourse –Scolmatore canal south-west of Cerano;


2. Order the Italian Republic to pay the costs.


1 – Original language: German.
2 – OJ 1993 L 199, p. 54.

3 – The relevant contracts were approved by the Magistrato per il Pô di Parma by Decrees Nos 11414 and 11416 of 9 October 1997 and Decree No 11678 of 15 October 1997.

4 – See Joined Cases C-20/01 and C-28/01 Commission v Germany [2003] ECR I-3609, paragraphs 29 and 30, with further references.

5 – Settled case-law: see for example Case C-209/02 Commission v Austria [2004] ECR I-0000, paragraphs 16 to 18, with further references, and Commission v Germany (cited in footnote 4), paragraph 32 et seq., with further references. In the older case-law the concept of the ‘Rechtsschutzinteresse’ (the ‘interest in pursuing the action’) is admittedly sometimes used, though to no different effect: see, for example, Case 240/86 Commission v Greece [1988] ECR 1835, paragraphs 14 to 16.

6 – .Commission v Germany (cited in footnote 4), paragraph 39.

7 – Similarly Advocate General Geelhoed in his Opinion in Commission v Germany (cited in footnote 4), especially points 50, 53 and 54.

8 – On that point see, for example, Case 26/69 Commission v France [1970] ECR 565, paragraphs 12 and 13; likewise Advocate General Lenz’s Opinion of 13 January 1988 in Commission v Greece (cited in footnote 5), point 13.

9 – See, too, the eighth recital in the preamble to Directive 93/37.

10 – To that effect also Case C-323/96 Commission v Belgium [1998] ECR I-5063, paragraph 34.

11 – My emphasis.

12 – Case C-57/94 Commission v Italy [1995] ECR I-1249, paragraph 23. Although that judgment concerns Article 9(b) of Council Directive 71/305/EEC of 26 July 1971 concerning the co‑ordination of procedures for the award of public works contracts (OJ, English Special Edition 1971 (II), p. 682, hereinafter: ‘Directive 71/305’), that provision is a textually identical precursor of the provision at issue here, Article 7(3)(b) of Directive 93/37. See also Case C-318/94 Commission v Germany [1996] ECR I-1949, paragraph 13. Similarly Advocate General Jacobs at paragraph 64 of his Opinion of 23 March 2000 in Case C-337/98 Commission v France [2000] ECR I-8377, 8379.

13 – See the first sentence of the tenth recital in the preamble to Directive 93/37.

14 – .Commission v Italy (cited in footnote 12), paragraph 23.

15 – Case 199/85 Commission v Italy [1987] ECR 1039, paragraph 14. Although the judgment deals with Article 9(d) of Directive 71/305, that provision is a textually essentially identical precursor of the provision at issue here, Article 7(3)(c) of Directive 93/37. See also Commission v Germany (cited in footnote 12), paragraph 13. Similarly Advocate General Jacobs at paragraph 64 of his Opinion in Commission v France (cited at footnote 12).

16 – See the first sentence of the tenth recital in the preamble to Directive 93/37.

17 – .Commission v Italy (cited in footnote 15), paragraph 14.

18 – Article 5(3)(e) of Directive 71/305, as amended by 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).

19 – See, among many others, Cases C-296/95 EMU Tabac and Others [1998] ECR I-1605, paragraph 36, and C-257/00 Givane and Others [2003] ECR I-345, paragraph 36.

20 – Article 5(3)(e) of Directive 71/305 as amended by Directive 89/440.

21 – See (among many others) Cases C-373/00 Truley [2003] ECR I-1931, paragraph 35; C-294/01 Granarolo [2003] ECR I-0000, paragraph 43; C-497/01 Zita Modes [2003] ECR I-0000, paragraph 34; and Givane (cited in paragraph 19), paragraphs 38 and 39.

22 – My emphasis.

23 – See the second recital, and the first sentence of the tenth recital, in the preamble to Directive 93/37.

24 – See the eighth recital in the preamble to Directive 93/37.

25 – Joined Cases C-46/93 and C-48/93 Brasserie du PêcheurandFactortame [1996] ECR I-1029, paragraphs 79 and 80; also Joined Cases C-178/94, C-179/94, C-188/94, C-189/94 and C‑190/94 Dillenkoferand Others [1996] ECR I-4845, paragraph 28.

26 – .Brasserie du PêcheurandFactortame (cited in footnote 25), paragraphs 55, 56 and 78; also Case C‑224/01 Köbler [2003] ECR I-0000, paragraphs 53 to 55.

27 – .Dillenkofer (cited in footnote 25), paragraph 20; Brasserie du PêcheurandFactortame (cited in footnote 25), paragraph 38.

28 – The lump sum and the periodic penalty payments which a Member State may be ordered to pay (Article 228(2) EC) should be viewed in that context.

29 – Advocate General Tizzano, too, underscores the objective nature of infringement proceedings at point 14 of his Opinion of 18 January 2001 in Case C-316/99 Commission v Germany [2001] ECR I-2037, 2038.

30 – Case 52/84 Commission v Belgium [1986] ECR 89, paragraph 16; Case 213/85 Commission v Netherlands [1988] ECR 281, paragraph 22, and Case C-404/00 Commission v Spain [2003] ECR I-6695, paragraph 45, with further references.

31 – Case C-135/01 Commission v Germany [2003] ECR I-2837, paragraph 25, and Case C-316/99 Commission v Germany [2001] ECR I-2037, paragraph 9. Advocate General Tizzano quite properly states: ‘given the objective nature of infringement proceedings, the good will of the government of the Member State concerned, albeit helpful and valuable, is not capable of expunging the fact of the infringement, if an infringement there has been.’ (point 14 of his Opinion in Case C-316/99, cited at footnote 29).

32 – Case C-263/96 Commission v Belgium [1997] ECR I-7453, paragraph 30, and Commission v Germany (cited at footnote 4), paragraph 42.

33 – See inter alia Case 283/81 C.I.L.F.I.T. [1982] ECR 3415, paragraphs 16 to 20; also point 35 of the present Opinion and the case-law cited in footnote 19.

34 – Case C-285/93 Dominikanerinnen-Kloster Altenhohenau [1995] ECR I-4069, paragraph 27, with further references.


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