| | ECT-228 & ECT-233Necessary measures to comply    
| ECT (2003) | Article 226 | 1. If the Court of Justice finds that a Member State has failed to fulfil an obligation under this Treaty, the State shall be required to take the necessary measures to comply with the judgment of the Court of Justice.
2. If the Commission considers that the Member State concerned has not taken such measures it shall, after giving that State the opportunity to submit its observations, issue a reasoned opinion specifying the points on which the Member State concerned has not complied with the judgment of the Court of Justice.
If the Member State concerned fails to take the necessary measures to comply with the Court's judgment within the time limit laid down by the Commission, the latter may bring the case before the Court of Justice. In so doing it shall specify the amount of the lump sum or penalty payment to be paid by the Member State concerned which it considers appropriate in the circumstances.
If the Court of Justice finds that the Member State concerned has not complied with its judgment it may impose a lump sum or penalty payment on it.
This procedure shall be without prejudice to Article 227. | | ECT | Article 233 | The institution or institutions whose act has been declared void or whose failure to act has been declared contrary to this Treaty shall be required to take the necessary measures to comply with the judgment of the Court of Justice.
This obligation shall not affect any obligation which may result from the application of the second paragraph of Article 288.
This Article shall also apply to the ECB. |
| Case | Pte | Ref | Text | C-70/06
Portugal | 16-24 | ECT-228 | 16. In point 1 of the operative part of the judgment in Commission v Portugal , the Court held that, by failing to repeal Decree-Law No 48 051, the Portuguese Republic had failed to fulfil its obligations under Article 1(1) and Article 2(1)(c) of Directive 89/665.
17. In the context of the present proceedings for failure to comply with obligations, in order to check whether the Portuguese Republic has adopted the measures necessary to comply with the judgment at issue, it needs to be determined whether Decree-Law No 48 051 has been repealed.
18. In that regard, according to settled caselaw, the reference date for assessing whether there has been a failure to fulfil obligations under Article 228 EC is the date of expiry of the period prescribed in the reasoned opinion issued under that provision (see Case C304/02 Commission v France [2005] ECR I6263, paragraph 30; Case C119/04 Commission v Italy [2006] ECR I6885, paragraph 27; and Case C503/04 Commission v Germany [2007] ECR I0000, paragraph 19).
19. In the present case, it is common ground that, on the date of expiry of the period laid down in the reasoned opinion addressed to it on 13 July 2005, the Portuguese Republic had not yet repealed Decree-Law No 48 051.
20. In the light of the above, it must be found that, by failing to adopt the measures necessary to ensure compliance with the judgment in Commission v Portugal , the Portuguese Republic has failed to fulfil its obligations under Article 228(1) EC.
21. That finding cannot be called into question by the argument raised by the Portuguese Republic that constitutional difficulties have prevented it from passing a definitive text repealing Decree-Law No 48 051 and, thus, from complying with the judgment in Commission v Portugal .
22. According to settled caselaw, a Member State cannot plead provisions, practices or situations prevailing in its domestic legal order to justify the failure to observe obligations arising under Community law (see Commission v Germany , paragraph 38 and the caselaw cited).
23. Similarly, the argument of the Portuguese Republic that State liability for damage caused by acts committed by its officials and agents is already laid down in other provisions of national law cannot be accepted. As the Court held in paragraph 33 of its judgment in Commission v Portugal , that fact has no bearing on the failure to fulfil obligations constituted by maintaining Decree-Law No 48 051 in force in the national legal system. The existence of such provisions cannot, therefore, ensure compliance with that judgment.
24. Consequently, it must be found that, by failing to repeal Decree-Law No 48 051 making the award of damages to persons harmed by a breach of Community law relating to public contracts, or the national laws implementing it, conditional on proof of fault or fraud, the Portuguese Republic has failed to adopt the measures necessary to comply with the judgment in Commission v Portugal and has thereby failed to fulfil its obligations under Article 228(1) EC. | C-70/06
Portugal | 30-54 | ECT-228 | 30. Having recognised that the Portuguese Republic has not complied with its judgment in Commission v Portugal , the Court may, pursuant to the third subparagraph of Article 228(2) EC, impose a lump sum or penalty payment on it. 31. In that regard, it should be pointed out that it is for the Court to assess in each case, in the light of the circumstances of the case, the financial penalties to be imposed (Case C304/02 Commission v France , paragraph 86, and Case C177/04 Commission v France [2006] ECR I2461, paragraph 58) 32. In the present case, as pointed out in paragraph 25 of this judgment, the Commission suggests that the Court should impose a penalty payment on the Portuguese Republic. © An extract from a JUSTIS database 62006J0070 European Court reports 2008 Page 00000 6 33. That suggestion is based on the method of calculation which the Commission defined in its Communications of 1996 and 1997. It should also be made clear that those two communications were replaced by the Communication of 2005 which, pursuant to point 25 thereof, applies to decisions taken by the Commission from 1 January 2006 to refer a matter to the Court of Justice under Article 228 EC. 34. In that regard, it must, first, be pointed out that the Commission's suggestions cannot bind the Court and merely constitute a useful point of reference (see Commission v Greece , paragraph 80, and Commission v Spain , paragraph 41). Similarly, guidelines such as those contained in the communications of the Commission are not binding on the Court but contribute to ensuring that the action brought by that institution is transparent, foreseeable and consistent with legal certainty (see, to that effect, Case C304/02 Commission v France , paragraph 85, and Case C177/04 Commission v France , paragraph 70). 35. The Court has also stated that the order imposing a penalty payment and/or a lump sum is intended to place a defaulting Member State under economic pressure which induces it to put an end to the breach established. The financial penalties imposed must therefore be decided upon according to the degree of persuasion needed in order for the Member State in question to alter its conduct (see, to that effect, Case C304/02 Commission v France , paragraph 91, and Case C177/04 Commission v France , paragraphs 59 and 60). 36. It must be found, in the present case, that, during the hearing at the Court on 5 July 2007, the agent of the Portuguese Republic confirmed that DecreeLaw No 48 051 was still in force on that date. 37. Given that it must be considered that the failure to fulfil obligations at issue was still apparent when the Court examined the facts, it must be found that, as suggested by the Commission, the order imposing a penalty payment on the Portuguese Republic constitutes a means adapted in order to induce that Member State to take the measures necessary to ensure compliance with the judgment in Commission v Portugal (see, to that effect, Case C304/02 Commission v France , paragraph 31; Case C177/04 Commission v France , paragraph 21; and Commission v Italy , paragraph 33). 38. Next, as regards the method of calculation of the amount of such a penalty payment, it is for the Court, in exercising its discretion, to set the penalty payment so that it is appropriate to the circumstances and proportionate both to the breach that has been established and to the ability to pay of the Member State concerned (see, inter alia, Case C304/02 Commission v France , paragraph 103, and Case C177/04 Commission v France , paragraph 61). 39. In that light, the basic criteria which must be taken into account in order to ensure that penalty payments have coercive force and Community law is applied uniformly and effectively are, in principle, the duration of the infringement, its degree of seriousness and the ability of the Member State to pay. In applying those criteria, regard should be had in particular to the effects of failure to comply on private and public interests and to the urgency of inducing the Member State concerned to fulfil its obligations (see, inter alia, Case C304/02 Commission v France , paragraph 104, and Case C177/04 Commission v France , paragraph 62). 40. As regards, first, the seriousness of the infringement and, in particular, the consequences of the failure to comply with the judgment in Commission v Portugal on private and public interests, it should be pointed out that, pursuant to the third recital in the preamble to Directive 89/665, the opening-up of public procurement to Community competition necessitates a substantial increase in the guarantees of transparency and non-discrimination. In order for that opening-up to have tangible effects, effective and rapid remedies must be available in the case of infringements of Community law in the field of public procurement or national rules implementing that law. 41. To that end, Article 1(1) of that directive requires the Member States to ensure that unlawful © An extract from a JUSTIS database 62006J0070 European Court reports 2008 Page 00000 7 decisions taken by the contracting authorities may be reviewed effectively and as rapidly as possible, whereas Article 2(1)(c) thereof emphasis the fact that it is important that national procedures be laid down for awarding damages to persons harmed by such an infringement. 42. The failure by the Portuguese Republic to repeal Decree-Law No 48 051, which makes the award of damages to individuals subject to the furnishing of proof of fault or fraud on the part of the Portuguese State or public entities concerned, must be regarded as serious since, although it does not render it impossible for individuals to bring judicial actions, it would appear, none the less, as also pointed out by the Advocate General in paragraph 51 of his Opinion, to render those actions more difficult and costly, so impairing the full effectiveness of the Community's public procurement policy. 43. It must none the less be found that the coefficient of 11 (on a scale of 1 to 20) suggested by the Commission appears, in the present case, to be too severe; a coefficient of 4 would be more suited, by contrast, to the seriousness of the infringement at issue. 44. As regards, second, the coefficient relating to the duration of the infringement, the Commission's suggestion that it be set at 1 cannot be upheld. It is apparent from the documents before the Court that that coefficient was calculated on the basis of the time which elapsed between the date of delivery of the judgment in Commission v Portugal and the date on which the present action was brought. 45. It should be recalled that the duration of the infringement must be assessed by reference to the time when the Court assesses the facts, not the time at which the case is brought before it by the Commission (see, to that effect, Case C177/04 Commission v France , paragraph 71).
46. In the present case, the failure of the Portuguese Republic to comply with the judgment in Commission v Portugal has persisted for more than three years in the light of the considerable period of time which has elapsed since the date of delivery of that judgment, namely 14 October 2004.
47. In those circumstances, a coefficient of 2 (on a scale of 1 to 3) would appear to be more appropriate to take account of the duration of the infringement.
48. As regards, third, the Commission's suggestion of multiplying a basic amount by a coefficient based on the gross domestic product of the Member State concerned and on the number of votes which it has in the Council, that suggestion is an appropriate way, in principle, of reflecting that Member State's ability to pay, while keeping the variation between Member States within a reasonable range (see, to that effect, Commission v Greece , paragraph 88; Commission v Spain , paragraph 59; and Case C304/02 Commission v France , paragraph 109).
49. However, in the present case, the coefficient of 3.9 suggested by the Commission does not adequately reflect the evolution of the factors which are at the basis of the evaluation of the Portuguese Republic's ability to pay, in particular, as regards the growth of its gross domestic product. Therefore, as is apparent from point 18.1 of the Communication of 2005, that coefficient must be raised from 3.9 to 4.04.
50. Similarly, the basic amount to which the multiplier coefficients are applied must be fixed at EUR 600, in accordance with the indexing of the amount of EUR 500 set by the Commission in point 15 of that communication, in order to take account of movements in inflation since the publication of the Communication of 1997.
51. In the light of all the above, the multiplication of the basic amount of EUR 600 by coefficients, set at 4 for the seriousness of the infringement, by 2 for the duration of that infringement, and at 4.04 for the ability to pay of the Member State concerned, amounts, in the present case, to a total of EUR 19 392 per day of delay. That amount must be regarded as adequate in the light of the purposes of the penalty payment as referred to in paragraph 35 above.
52. As regards the frequency of the penalty payment, in a case such as the present one concerning compliance with a judgment of the Court which involves the adoption of a legislative amendment, a penalty imposed on a daily basis should be chosen (see, to that effect, Case C177/04 Commission v France , paragraph 77).
53. Finally, the Portuguese Republic's arguments claiming that it is possible for the Court to order, in the present case, the suspension of the penalty payment within the meaning of point 13.4 of the Communication of 2005 cannot be upheld. Irrespective of the fact that, as was pointed out in paragraph 34 of the present judgment, that communication is not binding on the Court, it is sufficient to point out that, in any event, contrary to what is required in point 13.4 of that communication for such a suspension to be granted, the measures necessary to comply with the judgment in Commission v Portugal have not been adopted.
54. In the light of all of the foregoing, it is necessary to order the Portuguese Republic to pay to the Commission, into the account European Community own resources', a penalty payment of EUR 19 392 for every day of delay in implementing the measures necessary to comply with the judgment in Commission v Portugal , from the day of delivery of judgment in the present case until the day on which the judgment in Commission v Portugal is complied with. | T-406/06
Evropaïki Dinamiki | 42-43 | ECT-233-impl | 42 The Court observes, as a preliminary point, that the applicant is seeking the annulment of the decision of 19 October 2006 to reject its tender and of the decision of 14 November 2006 to award the contract to another tenderer.
43 Having regard to the close connection between those two decisions and inasmuch as the applicant’s arguments concern the decision to reject its tender, the Court is of the opinion that it is appropriate to examine first the lawfulness of the second of those decisions (‘the contested decision’). | T-406/06
Evropaïki Dinamiki | 119-120 | Q4-100.2
M4A1-1.32.a=M4-149.3.1-3
M4A1-1.32.a=M4-149.3.4
ECT-233-impl | 119 It follows from the foregoing that the second plea must be rejected.
120 As regards the application for annulment of the decision awarding the contract to a third party, it must be rejected as a consequence of the rejection of the application for annulment of the preceding decision with which it is closely connected (Case T-195/05 Deloitte Business Advisory v Commission [2007] ECR II-0000, paragraph 113). | T-272/06
Evropaïki Dinamiki | 44-45 | Q4-100.2
ECT-233-impl
ECT-253 | 44 It follows from the above findings that the decision rejecting the applicant’s bid disregarded the obligation to state reasons and that in consequence it is necessary to annul that decision, as communicated to the applicant by the letter of 20 July 2006.
45 As regards the applicant’s claim for annulment of the decision awarding the contract to the two successful tenderers, the Court finds it impossible to judge whether it is well founded because, as the obligation to state reasons was disregarded, no examination of the evaluation of the award criteria could take place in the present action. | T-114/06-R
Globe SA | 150-152 | ECT-233
ECT-243-impl | 150. Secondly, there are serious grounds for believing that IGN's tender did not comply with the specifications laid down in the Instructions to tenderers and should have been rejected by the Commission. Contrary to the latter's contention at the hearing, the lawfulness of the contested decision and the lawfulness of the contract entered into on the basis of it are not separate from each other; if the contested decision is annulled by the Court in the main proceedings and performance of the contract is suspended, the annulment decision could lead the Commission to terminate its contract with IGN.
151. Accordingly, IGN, as the Commission has pointed out, would probably be entitled to sue the Commission for damages arising out of the fault it had committed, bringing their action in the Belgian courts, which, according to the Commission, have jurisdiction under a choice of jurisdiction clause in the contract. It must therefore be concluded that IGN's interests could be protected by legal proceedings.
152. Consequently, the balance of interests cannot be in IGN's favour and to the applicant's disadvantage. There are serious grounds for believing that IGN's tender did not comply with the specifications laid down in the invitation to tender, whereas the Commission does not deny that the applicant's tender did comply with those specifications. Under those circumstances, IGN's interest in carrying on with the contract cannot take precedence over the applicant's interest in being awarded that contract, which would be possible, at least in part, if the contract was suspended until judgment has been delivered in the main proceedings. | T-195/05-R
Deloitte | 126-128 | ECT-233
ECT-243-impl
ECT-288 | 126. First of all, the applicant claims that its exclusion from the tendering procedure harms its reputation. In that regard, the Commission rightly points out that participation in a public tender procedure, by nature highly competitive, involves risks for all the participants and the elimination of a tenderer under the tender rules is not in itself in any way prejudicial (orders in CMC v Commission , cited in paragraph 71 above, paragraph 51, and in European Dynamics v Commission , cited in paragraph 67 above, paragraph 82). Furthermore, the applicant's argument that this case-law does not apply where the tenderer has been unlawfully eliminated cannot be accepted. The case-law in question concerns cases where, like the applicant in the present case, the applicants were contesting the lawfulness of the act(s) contested in the main proceedings. In addition, where an undertaking has been unlawfully eliminated from a tendering procedure, there is even less reason to believe that it is liable to suffer serious and irreparable harm to its reputation, since its exclusion is unconnected with its competences and the subsequent annulling judgment will in principle allow any harm to its reputation to be made good.
127. Second, the applicant claims that, if the contested decisions are annulled and interim measures are not adopted, it will no longer be possible for it to be awarded the contract covered by the tendering procedure and then to perform the contract and, as a result, to derive certain benefits in terms of prestige, experience and revenue.
128. It should be noted in that regard that if the contested decisions were annulled by the Court, it would be for the Commission, under the first paragraph of Article 233 EC, to take the necessary measures to comply with the judgment, without prejudice to the obligations stemming from the application of the second paragraph of Article 288 EC. | T-195/05-R
Deloitte | 129-131 | ECT-233
ECT-243 | 129. It should also be noted that, under Article 233 EC, it is the institution whose act has been declared void that is required to take the necessary measures to comply with the Court's judgment. It follows that the Court hearing annulment proceedings is not competent to indicate to the institution whose act has been declared void the manner in which its ruling is to be complied with (order of the Court of Justice in Joined Cases C-199/94 P and C-200/94 P Pevasa and Inpesca v Commission [1995] ECR I3709, paragraph 24) and that the judge hearing the application for interim measures may not prejudice the measures that might be taken following any annulling judgment. The manner in which an annulling judgment is complied with depends not only on the annulled provision and the scope of the judgment, which is to be assessed with reference to its grounds (Joined Cases 97/86, 99/86, 193/86 and 215/86 Asteris and Others v Commission [1988] ECR 2181, paragraph 27, and Joined Cases T305/94 to T307/94, T313/94 to T316/94, T318/94, T325/94, T328/94, T329/94 and T335/94 Limburgse Vinyl Maatschappij and Others v Commission [1999] ECR II931, paragraph 184), but also on the specific circumstances of each case, such as the time within which the contested act is annulled or third-party interests.
130. In the present case, if the contested decisions were annulled, the Commission would therefore have to adopt the necessary measures for ensuring appropriate protection of the applicant's interests, having regard to the specific circumstances of this case (see, to that effect, the orders of the President of the Court of First Instance in Case T108/94 R Candiotte v Council [1994] ECR II249, paragraph 27, and in Case T447/04 R Capgemini Nederland v Commission [2005] ECR II-257, paragraph 96).
131. It is not therefore for the President to prejudice measures which might be taken by the Commission in order to comply with any annulment judgment. | C-503/04
Germany | 13-16 | ECT-226
ECT-228 | 13. The Federal Republic of Germany alleges, firstly, that the Commission has no interest in bringing proceedings because of its failure to submit an application for interpretation within the meaning of Article 102 of the Rules of Procedure. According to that Member State, the dispute relating to the consequences which follow from the judgment in Commission v Germany could and should have been resolved by way of an application for interpretation of that judgement and not by way of an action based on Article 228 EC.
14. However, that argument cannot be accepted.
15. In proceedings for failure to fulfil obligations under Article 226 EC, the Court is required to find only that a provision of Community law has been infringed. Pursuant to Article 228(1) EC, the Member State concerned is required to take the measures necessary to comply with the judgment of the Court (see, to that effect, Case C-126/03 Commission v Germany [2004] ECR I-11197, paragraph 26). Since a question concerning the measures required for the implementation of a judgment establishing a failure to fulfil obligations under Article 226 EC does not form part of the subject-matter of such a judgment, such a question cannot form the subject-matter of an application for interpretation of a judgment (see also, to that effect, order in Joined Cases 146/85 INT and 431/85 INT Maindiaux and Others v ESC and Others [1988] ECR 2003, paragraph 6).
16. Furthermore, it is precisely at the stage of an action under Article 228(2) EC that it is for the Member State, whose responsibility it is to draw the conclusions to which the judgment establishing the failure to fulfil obligations appears to it to give rise, to justify the validity of those conclusions, should they be criticised by the Commission. | C-503/04
Germany | 17-22 | ECT-226
ECT-228
ECJR-92.2 | 17. Secondly, in its rejoinder, the Federal Republic of Germany, supported by the Kingdom of the Netherlands, requests the Court to close the procedure by application of Article 92(2) of the Rules of Procedure, as the action has become devoid of purpose since, with effect from 10 July 2005, the contract concluded by the City of Brunswick concerning waste disposal has also been rescinded.
18. The Commission responds, in its observations relating to the statements in intervention of the French Republic, the Kingdom of the Netherlands and of the Republic of Finland, that it retains an interest in obtaining from the Court a ruling on whether, on expiry of the period laid down in the reasoned opinion issued under Article 228 EC, the Federal Republic of Germany had already complied with the judgment of 10 April 2003 in Joined Cases C20/01 and C28/01 Commission v Germany . The Commission states, however, that an order for payment of a periodic penalty payment is no longer necessary.
19. In that regard, it should be recalled that, according to settled case-law, the reference date for assessing whether there has been a failure to fulfil obligations under Article 228 EC is the date of expiry of the period prescribed in the reasoned opinion issued under that provision (see Case C119/04 Commission v Italy [2006] ECR I6885, paragraph 27, and case-law cited).
20. In the present case, the period referred to in the reasoned opinion which, as is apparent from the receipt stamp, was received by the German authorities on 1 April 2004, was one of two months. The reference date for assessing whether there has been a failure to fulfil obligations under Article 228 EC is therefore 1 June 2004. At that date, the contract concluded by the City of Brunswick for waste disposal had not yet been terminated.
21. Nor, moreover, is the action inadmissible contrary to the Federal Republic of Germany's submissions at the hearing, on the ground that the Commission is no longer requesting the imposition of a periodic penalty payment.
22. Since the Court has jurisdiction to impose a financial penalty not suggested by the Commission (see, to that effect, Case C-304/02 Commission v France [2005] ECR I-6263, paragraph 90), the action is not inadmissible simply because the Commission takes the view, at a certain stage of the procedure before the Court, that a penalty is no longer necessary. | C-503/04
Germany | 23 | RC1-3
ECT-226
ECT-228
| 23. With regard, thirdly, to the plea of inadmissibility based on Article 3 of Directive 89/665, to which the Advocate General refers in point 44 of her Opinion, it is appropriate to note that the particular procedure laid down in that provision constitutes a preventive measure which can neither derogate from nor replace the powers of the Commission under Articles 226 EC and 228 EC (see, to that effect, Case C-394/02 Commission v Greece [2005] ECR I4713, paragraph 27, and case-law cited). | C-503/04
Germany | 27-30+42 | ECT-228 | 27. In that regard, it should be recalled that, as is apparent from paragraph 12 of the judgment in Joined Cases C20/01 and C28/01 Commission v Germany , the City of Brunswick and Braunschweigsche Kohlebergwerke (BKB') concluded a contract under which BKB was made responsible for residual waste disposal by thermal processing for a period of 30 years from June/July 1999.
28. As the Advocate General observes in point 72 of her Opinion, the measures mentioned by the German Government in its letter of 23 December 2003 were intended exclusively to prevent the conclusion of new contracts which would constitute failures to fulfil obligations similar to those found in that judgment. However, they did not prevent the contract concluded by the City of Brunswick from continuing to have full effect on 1 June 2004 [the date set laid down the reasoned opinion].
29. Accordingly, since that contract had not been terminated on 1 June 2004, the failure to fulfil obligations continued on that date. The adverse effect on the freedom to provide services arising from the disregard of the provisions of Directive 92/50 subsists throughout the entire performance of the contracts concluded in breach thereof (Joined Cases C20/01 and C28/01 Commission v Germany , paragraph 36). Furthermore, at that date, the failure to fulfil obligations was to continue for decades, given the long period for which the contract in question had been concluded.
30. Having regard to all those facts, the view cannot be taken, in a situation such as that of the present case, that, with regard to the contract concluded by the City of Brunswick, the Federal Republic of Germany had adopted, as at 1 June 2004, measures implementing the judgment in Joined Cases C20/01 and C28/01 Commission v Germany.
.....
42. Accordingly, it must be held that, by having failed, at the date on which the period laid down in the reasoned opinion issued by the Commission pursuant to Article 228 EC, to adopt all the necessary measures to comply with the judgment in Joined Cases C20/01 and C28/01 Commission v Germany regarding the conclusion of a contract for waste disposal by the City of Brunswick, the Federal Republic of Germany has failed to fulfil its obligations under that article. | C-503/04
Germany | 31-35 | RC1-2.6.2
ECT-228 | 31. However, the Federal Republic of Germany, supported by the French Republic, the Kingdom of the Netherlands and the Republic of Finland, submits that the second subparagraph of Article 2(6) of Directive 89/665, which allows Member States to provide in their legislation that, after the conclusion of a contract following the award of a public contract, the bringing of an action can give rise only to an award of damages and, thus, to exclude any possibility of rescission of that contract, precludes a finding of failure to fulfil obligations within the meaning of Article 226 EC with regard to such a contract entailing the obligation to rescind it. According to those Member States, the principles of legal certainty and of the protection of legitimate expectations, the principle pacta sunt servanda , the fundamental right to property, Article 295 EC and the case-law of the Court regarding the limitation in time of the effects of a judgment also preclude such a result.
32. However, such arguments cannot be upheld.
33. With regard, firstly, to the second subparagraph of Article 2(6) of Directive 89/665, the Court has already held that, although that provision permits the Member States to preserve the effects of contracts concluded in breach of directives relating to the award of public contracts and thus protects the legitimate expectations of the parties thereto, its effect cannot be, unless the scope of the EC Treaty provisions establishing the internal market is to be reduced, that the contracting authority's conduct vis-à-vis third parties is to be regarded as in conformity with Community law following the conclusion of such contracts (Joined Cases C20/01 and C28/01 Commission v Germany , paragraph 39).
34. If the second subparagraph of Article 2(6) of Directive 89/665 does not affect the application of Article 226 EC, nor can it affect the application of Article 228 EC, without, in a situation such as that in the present case, reducing the scope of the Treaty provisions establishing the internal market.
35. Furthermore, the second subparagraph of Article 2(6) of Directive 89/665, which has the objective of guaranteeing the existence, in all Member States, of effective remedies for infringements of Community law in the field of public procurement or of the national rules implementing that law, so as to ensure the effective application of the directives on the coordination of public procurement procedures (Case C470/99 Universale-Bau and Others [2002] ECR I11617, paragraph 71), relates, as is apparent from its wording, to the compensation which a person harmed by an infringement committed by a contracting authority may obtain from it. That provision, because of its specific nature, cannot be regarded also as regulating the relations between a Member State and the Community in the context of Articles 226 EC and 228 EC. | C-503/04
Germany | 36 | ECT-228-impl | 36. With regard, secondly, even if it were to be accepted that the principles of legal certainty and of the protection of legitimate expectations, the principle pacta sunt servanda and the right to property could be used against the contracting authority by the other party to the contract in the event of rescission, Member States cannot rely thereon to justify the non-implementation of a judgment establishing a failure to fulfil obligations under Article 226 EC and thereby evade their own liability under Community law (see, by analogy, Case C470/03 AGM.-COS.MET [2007] ECR I-0000, paragraph 72). | C-503/04
Germany | 37-38 | ECT-228-impl
ECT-295 | 37. With regard, thirdly, to Article 295 EC, according to which this Treaty shall in no way prejudice the rules in Member States governing the system of property ownership', it should be recalled that that article does not have the effect of exempting the Member States' systems of property ownership from the fundamental rules of the Treaty (see Case C463/00 Commission v Spain [2003] ECR I4581, paragraph 67, and case-law cited). The particular features of the system of property ownership in a Member State cannot therefore justify the continuation of a failure to fulfil obligations which consists of an obstacle to the freedom to provide services in disregard of the provisions of Directive 92/50.
38. Moreover, it should be recalled that a Member State cannot plead provisions, practices or situations prevailing in its domestic legal order to justify the failure to observe obligations arising under Community law (see Commission v Italy , paragraph 25, and case-law cited). | C-503/04
Germany | 39 | ECT-228-impl | 39. Fourthly, with regard to the Court's case-law on the limitation in time of the effects of a judgment, it is sufficient to state that, in any event, that case-law does not justify the non-implementation of a judgment establishing a failure to fulfil obligations under Article 226 EC. | C-503/04
Germany | 40-41 | ECT-228-impl | 40. Although, with regard to the contract concluded by the City of Brunswick, it must therefore be held that the Federal Republic of Germany had not, as at 1 June 2004, adopted the measures to implement the judgment in Joined Cases C20/01 and C28/01 Commission v Germany , the same is not, however, true at the date of examination of the facts by the Court. It follows that the imposition of the periodic penalty payment, which the Commission is in fact no longer requesting, is not justified.
41. In the same way, the facts of the present case are such that it does not appear necessary to order payment of a lump sum. | T-447/04-R
Capgemini | 94-97 | ECT-233
CFIR-104.2 | 94. It must first be noted that it is not correct to assert that compensation constitutes the sole means of compliance with an annulment judgment.
95. Under Article 233 EC it is the institution whose act has been declared void which is required to take the measures necessary for compliance with the judgment of the Court of First Instance. It follows, first, that the court annulling an act has no jurisdiction to direct the institution whose act it has annulled as to the manner in which a judgment is to be complied with (order of the Court of Justice of 26 October 1995 in Joined Cases C-199/94 P and C-200/94 P Pevasa and Inpesca v Commission [1995] ECR I-3709, paragraph 24). Secondly, the judge hearing the interim application cannot prejudge the measures which might be adopted following a judgment annulling an act. The manner in which a judgment annulling an act may be complied with depends not only on the provision annulled and the scope of the judgment in question, which must be appraised by reference to the grounds thereof (Joined Cases 97/86, 193/86, 99/86 and 215/86 Asteris and Others v Commission [1988] ECR I-2181, paragraph 27, and Joined Cases T305/94, T-306/94, T-307/94, T-313/94 to T-316/94, T-318/94, T-325/94, T328/94, T-329/94 and T-335/94 Limburgse Vinyl Maatschappij and Others v Commission [1999] ECR II-931, paragraph 184), but also on other factors specific to each case such as the period within which the annulment of the contested act comes into effect or the interests of third parties concerned.
96. In the present case in the event of annulment of the decision of 13 September 2004 and of the decision of 22 October 2004, it would be for the Commission, in light of the specific circumstances of this case, to adopt the necessary measures for ensuring appropriate protection of the applicant's interests (order of the President of the Court of First Instance in Case T-108/94 R Candiotte v Council [1994] ECR II-249, paragraph 27; and orders in Esedra v C ommission, paragraph 51, and TQ3 Travel Solutions Belgium v Commission, paragraph 55).
97. In that context it is important to emphasise the fact that the applicant brought its main application and its application for interim measures after the conclusion of the contract at issue and that therefore the application for interim measures did not enable the President of the Court of First Instance to prevent signature of the contract, whereas the applicant could have brought an action for annulment of the decision of 13 September 2004, at the same time as an application for interim measures, within the period of three weeks which elapsed between the date on which the Commission communicated to it the evaluation report (30 September 2004) and the date of signature of the contract (22 October 2004). It is none the less pointed out, first, that the stay ordered by way of a protective measure by the President (see paragraph 15 above) had the effect of suspending the operation of the contract at issue. Second, the Court of First Instance agreed to adjudication of the main action under the expedited procedure (see paragraph 18 above). Consequently, judgment will be given within a short period of time (see, in regard to an analogous situation, the judgment in Case T-211/02 Tideland Signal v Commission [2002] ECR II-3781). In those circumstances it can in no way be precluded that the Commission may be directed to bring the contract at issue to an end and to organise a fresh procedure for the award of the public contract at issue in which the applicant could take part.
| C-414/03
Germany | 11 | ECT-228.1 | 11 À cet égard, il suffit de rappeler que, si, dans le cadre de la procédure en manquement au titre de l’article 226 CE, la Cour est uniquement tenue de constater qu’une disposition du droit communautaire a été violée, il ressort de l’article 228, paragraphe 1, CE que l’État membre concerné est tenu de prendre les mesures que comporte l’exécution de l’arrêt de la Cour (voir arrêt du 18 novembre 2004, Commission/Allemagne, C‑126/03, non encore publié au Recueil, point 26). | C-126/03
Germany | 25-26 | ECT-226
ECT-228.1 | 25. The German Government submits that, should there be a finding of failure to fulfil obligations, the Federal Republic of Germany would not be obliged to terminate the contract which has already been entered into.
26. In that regard, it is sufficient to reply that while, in proceedings for failure to fulfil obligations under Article 226 EC, the Court is only required to find that a provision of Community law has been infringed, it is clear from Article 228(1) EC that the Member State concerned is required to take the measures necessary to comply with the judgment of the Court. |
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