In Case C-362/90,
Commission of the European Communities, represented initially by Guido Berardis and subsequently by Antonio Aresu, members of its Legal Service, acting as Agents, with an address for service in Luxembourg at the Chambers of Roberto Hayder, representative of the Legal Service, Wagner Centre, Kirchberg,
Italian Republic, represented by Professor Luigi Ferrari Bravo, Head of the Department for Contentious Diplomatic Affairs, acting as Agent, assisted by Ivo M. Braguglia, Awocato dello Stato, with an address for service at Luxembourg at the Italian Embassy, 5 Rue Marie-Adélaide,
APPLICATION for a declaration that, since the Unita Sanitaria Locale (Local Health Authority) XI, Genoa 2, imposed the condition that 50% of the minimum amount of supplies made over the preceding three years and required for admission to participate in a public supply contract had to be made up of supplies should have been supplied to public administrative authorities, the Italian Republic has failed to fulfil its obligations under Directive 77/62/EEC of 21 December 1976 coordinating procedures for the award of public supply contracts (Official Journal 1977 L 13, p. L),
composed of: O. Due, President, R. Joliet, FA. Schockweiler and P.G. Kapteyn (Presidents of Chambers), G.F. Mancini, C.N. Kakouris, G.C. Rodriguez Iglesias, M. Diez de Velasco and J.L. Murray, Judges,
Advocate General: C.O. Lenz,
Registrar: J.A. Pompe, Deputy Registrar,
having regard to the Report for the Hearing,
after hearing oral argument from the parties at the hearing on 16 January 1992,
after hearing the Opinion of the Advocate General at the sitting on 26 February 1992,
gives the following
By application received at the Court on 1 December 1990, the Commission of the European Communities brought an action pursuant to Article 169 of the EEC Treaty for a declaration that, since the Unita Sanitaria Locale XI (Local Health Authority, hereinafter referred to as the "USL"), Genoa 2, imposed the requirement that 50% of the minimum amount of supplies required to have been made over the preceding three years in order to enable tenderers to participate in a public supply contract should have been supplied to public administrative authorities, the Italian Republic has failed to fulfil its obligations under Directive 77/62/EEC of 21 December 1976 coordinating procedures for the award of public supply contracts (Official Journal 1977 L 13, p. 1).
USL published in the Gazzetta Ufficiale della Reppublica Italiana, Part II, No 238, of 10 October 1988, a contract notice for the supply of several products, including in particular fresh beef valued at LIT 5 800 000 000. That notice laid down as a condition for admittance to participate in the contract that, during the three previous years (1985/1986/1987), the potential tenderer should have supplied identical products to the value of at least six times the value of each supply for which they proposed to tender, 50% of that amount to be made up of supplies to public administrative authorities.
The Commission considered that that condition, in so far as it concerned supplies of 50% of the products in question to public administrative authorities, was contrary to Article 23 of Directive 77/62, which had to be regarded as listing exhaustively the means of proof of the suppliers’ technical capacity which the contracting authorities could demand and that, by virtue of Article 14(d), this condition should not have been inserted in the contract notice published by the USL.
In accordance with Article 169 of the Treaty, the Commission, by letter of 10 February 1989, formally requested the Italian Government to submit within 15 days its observations on the breach of obligations with which it was charged. Since the Commission considered that the explanations which the Italian Government had sent to it by letter of 30 June 1989 were not satisfactory, it called upon the Italian Republic, by reasoned opinion of 27 March 1990, to adopt the measures required to comply with that opinion within 15 days from the notification thereof.
Reference is made to the Report for the Hearing for a fuller account of the facts of the case, the procedure and the submissions and arguments of the parties, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court.
In its defence the Italian Government contended that the action brought by the Commission had become devoid of purpose, since the effects of the supply contract which followed the contract notices in question became exhausted in their entirety on 31 December 1989 and the contract notices for 1990 and 1991, published in Official Journal $ 213 and 216, did not contain the condition at issue. Consequently, it asked the Commission to discontinue its action and, should the Commission not do so, requested the Court to dismiss it. In its rejoinder it added that the infringement complained of had ceased to exist even before the expiry of the 15-day period which the Commission had allowed to it in the reasoned opinion of 27 March 1990 and, in the face of the Commission’ s refusal to discontinue the proceedings, contended that the action should be dismissed as inadmissible.
In its reply, the Commission denied that its action was devoid of purpose, since, taking into account the arguments put forward by the Italian Government as to the substance of the case, it was not at all established that the conditions at issue would not be included in another contract notice in the future. At the hearing the Commission again pointed out that it had issued the first reasoned opinion on 17 August 1989 and that it had only issued the reasoned opinion of 27 March 1990 in order to take account of the response of the Italian Government to its letter of formal notice, which it received on 6 July 1989.
As a preliminary point, it should be noted that the fact that the Italian Government formally pleaded the inadmissibility of the action only in its rejoinder cannot prevent the Court from examining this issue. The arguments relied upon in that respect by the Italian Government had already been submitted in its defence, in which it had formally contended that the action be dismissed. The Commission therefore had the opportunity to answer those arguments in its reply. Furthermore, and in any event, the Court may of its own motion examine the question whether the conditions laid down in Article 169 of the Treaty for the bringing of an action for failure to fulfil an obligation are satisfied.
In that respect it should first be noted that it follows from the very terms of the second paragraph of Article 169 of the Treaty that the Commission may bring an action for failure to fulfil obligations before the Court only if the Member State concerned does not comply with the opinion within the period laid down by the Commission for that purpose.
Secondly, the Court has consistently held that the action brought under the second paragraph of Article 169 is for a declaration that the State concerned has failed to fulfil an obligation under the Treaty and that it has not put an end to that infringement within the time laid down to that effect by the Commission in its reasoned opinion (judgment in Case C-347/88 Commission v Greece  ECR I-4747, paragraph 40). The Court has consistently held that the question whether there has been a failure to fulfil obligations must be examined on the basis of the position in which the Member State found itself at the end of the period laid down in the reasoned opinion (judgment in Case C-200/88 Commission v Greece  ECR I-4299, paragraph 13).
In the present case it is common ground that, first of all, the effects of the contract notice at issue had been exhausted on 31 December 1989, that is to say, before the issue of the reasoned opinion of 27 March 1990. Secondly, the contract notices for 1990 and 1991, published, respectively, on 4 November 1989, that is to say before the issue of the reasoned opinion, and on 3 November 1990, that is to say before the present action was brought, no longer contained the condition at issue.
It should be stated, moreover, that the Commission did not act in good time in order to prevent, by means of procedures available to it, the infringement complained of from producing effects and did not even invoke the existence of circumstances preventing it from concluding the pre-litigation procedure laid down in Article 169 of the Treaty before the infringement ceased to exist. The fact, alleged at the hearing, that the Commission had already issued a first reasoned opinion on 17 August 1989 is irrelevant in that respect, since it was not referred to in the course of the proceedings and that the application is not based on it. Furthermore, that circumstance cannot constitute a matter of law or fact which has come to light in the course of the procedure, for the purposes of Article 42(2) of the Rules of Procedure, so that any plea based on it must be regarded as out of time and, consequently, be dismissed as inadmissible.
It follows from the foregoing considerations that, at the date of expiry of the period laid down in the Commission s reasoned opinion of 27 March 1990, the infringement complained of no longer existed. Consequently, the action brought by the Commission must be dismissed as inadmissible.
Decision on costs
Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs. Since the Commission has been unsuccessful, it must be ordered to pay the costs.
On those grounds,
Dismisses the application as inadmissible;
Orders the Commission to pay the costs.