| | ECT-249Legislative acts    
| ECT (2003) | Article 249 | In order to carry out their task and in accordance with the provisions of this Treaty, the European Parliament acting jointly with the Council, the Council and the Commission shall make regulations and issue directives, take decisions, make recommendations or deliver opinions.
A regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States.
A directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods.
A decision shall be binding in its entirety upon those to whom it is addressed.
Recommendations and opinions shall have no binding force. |
| Case | Pte | Ref | Text | T-202/08-R
Centre de langues | 47-48 | ECT-242-impl
ECT-243-impl
ECT-249-impl | 47 Il en va de même pour ce qui est du grief tiré d’une violation de l’obligation de motivation, en ce que, dans la décision attaquée, la Commission n’indiquerait pas pour quelle raison elle s’est abstenue de faire usage de son pouvoir d’admettre la demande de participation du requérant et elle se serait fondée sur une disposition non pertinente, à savoir l’article 143, paragraphe 1, du règlement d’exécution. Ainsi qu’il vient d’être exposé, d’une part, ledit article apparaît tout à fait pertinent dans le présent contexte et, d’autre part, rien ne semble a priori permettre de conclure que la Commission aurait omis de faire usage de son prétendu pouvoir d’appréciation en rejetant la candidature du requérant.
48 Dans la mesure où le requérant fait encore grief à la Commission de ne pas avoir indiqué, dans la décision attaquée, les voies de recours qui lui étaient ouvertes, il suffit de relever qu’aucune disposition expresse du droit communautaire n’impose aux institutions une obligation générale d’informer les destinataires de leurs actes des recours juridictionnels ouverts ni des délais dans lesquels ils peuvent être exercés (ordonnance de la Cour du 5 mars 1999, Guérin automobiles/Commission, C-153/98 P, Rec. p. 1441, points 13 et 15 ; arrêt du Tribunal du 24 février 2000, ADT Projekt/Commission, T-145/98, Rec. p. II-387, point 210). En tout état de cause, l’avis de marché en cause mentionne, au point VI.4.1, l’instance chargée des procédures de recours. | C-6/05
Medipac-Kazantzidis | 41-49 | ECT-249 | 41. The Court finds as a preliminary point that the file does not show that, in the main proceedings, the contracting authority imposed particular requirements going beyond the minimum required by Community law.
42. It follows from the provisions referred to in paragraphs 5 to 19 of this judgment that Directive 93/42 harmonises the essential requirements to be met by medical devices falling within its scope of application. Once those devices comply with the harmonised standards and are certified in accordance with the procedures provided for by that directive, they must be presumed to comply with those essential requirements and therefore be deemed to be appropriate for the use for which they are intended. Those medical devices must also be allowed to circulate freely throughout the Community.
43. It follows from the Court's settled case-law that the obligations arising from Community directives are binding, inter alia, on bodies or entities which are subject to the authority or control of a public authority or the State (see, to that effect, Case 152/84 Marshall [1986] ECR 723, paragraph 49; Case 103/88 Fratelli Costanzo [1989] ECR 1839, paragraphs 30 and 31; Case C188/89 Foster and Others [1990] ECR I-3313, paragraph 18; order in Case C297/03 Sozialhilfeverband Rohrbach [2005] ECR I4305, paragraph 27). Consequently, the obligation to presume that medical devices which meet the harmonised standards and bear the CE marking comply with the requirements of Directive 93/42 extends to VenizelioPananio in its capacity as a body governed by public law.
44. The Court notes, however, as pointed out by the Advocate General in point 92 of her Opinion, that the presumption of compliance of medical devices may be rebutted. In that respect, Directive 93/42 provides for the implementation of safeguard measures where a finding is made that certain medical devices bearing the CE marking may nevertheless pose risks for patients or users.
45. Article 10 of that directive provides that Member States are to take the necessary steps to ensure that information relating to incidents occurring after the placing on the market of medical devices which may pose a risk for the health of a patient or a user are recorded and evaluated centrally. If, following such an evaluation, Member States take or contemplate taking measures, they must inform the Commission immediately.
46. Article 8(1) of Directive 93/42 requires Member States which have found there to be risks linked to medical devices which have been certified as being in compliance with that directive to take all appropriate interim measures to withdraw those medical devices from the market or prohibit or restrict their being placed on the market or put into service. In those circumstances, the Member State concerned is required by that same provision to notify the Commission immediately of the measures taken, indicating in particular the reasons for the measures. Under Article 8(2) of Directive 93/42, the Commission must in turn examine whether those interim measures are justified and, if so, inform immediately the Member State which initiated such measures and the other Member States.
47. Under Article 8(3) of Directive 93/42, where a medica l device bearing the CE marking nevertheless does not comply with the essential requirements provided for by that directive, the Member State concerned is to take appropriate action and to inform the Commission and the other Member States. Moreover, Article 18 of that same directive provides that where a Member State establishes that the CE marking has been affixed unduly, the manufacturer or his authorised representative established within the Community is to be obliged to end the infringement under conditions imposed by the Member State.
48. It is clear from the wording of Article 8(1) of that directive that the obligations provided for therein are imposed on a body on which the Member State has conferred competence to ascertain the risks which devices which comply with that directive may nevertheless pose for public health and/or safety and to take, where necessary, measures of general application provided for by that article in order to deal with the situation.
49. Since Venizelio-Pananio clearly was not given such competence by the Greek State, it is not entitled to implement on its own the safeguard measures referred to in Article 8 of Directive 93/42. It follows that, once that hospital had doubts as to the technical reliability of the surgical sutures proposed by Medipac, it was required, by virtue of the obligation imposed on it as an entity governed by public law, to assist in the correct application of Directive 93/42, to inform the competent national authority so that the latter could conduct its own checks and, where necessary, implement such safeguard measures. The file shows that in the main proceedings Venizelio-Pananio did refer the question of the appropriateness of the sutures for their intended use to the Greek national body overseeing medicinal products and that the latter confirmed that they complied with the standards in force. That reference was made only on 5 May 2004, however, that is, after the hospital had rejected Medipac's tender. Venizelio-Pananio thus rebutted the presumption of compliance of its own motion, without following the safeguard procedure introduced by the abovementioned directive. | C-412/04
Italy | 65-69 | ECT-43
ECT-49
ECT-249 | 65. First of all, the Community legislature expressly made a policy choice to exclude contracts under a certain threshold from the advertising regime which it introduced and therefore did not impose any specific obligation with respect to them.
66. Furthermore, where it is established that such a contract is of certain cross-border interest, the award, in the absence of any transparency, of that contract to an undertaking located in the same Member State as the contracting authority amounts to a difference in treatment to the detriment of undertakings which might be interested in the contract but which are located in other Member States. Unless it is justified by objective circumstances, such a difference in treatment, which, by excluding all undertakings located in another Member State, operates mainly to the detriment of the latter undertakings, amounts to indirect discrimination on the basis of nationality, prohibited under Articles 43 EC and 49 EC (see, to that effect, as regards Directive 92/50, Case C507/03 Commission v Ireland [2007] ECR I0000, paragraphs 30 and 31 and the case-law cited).
67. Since, as the Advocate General has observed, in point 56 of his Opinion, under Article 249 EC directives are binding as to the result to be achieved upon each Member State to which they are addressed and since the Community legislature excluded certain contracts from the scope of Directive 93/37, in particular by laying down thresholds, the Member States are not required to adopt, in the legislation transposing that directive, provisions recalling the obligation to comply with Articles 43 EC and 49 EC, which is applicable only in the circumstances set out in paragraph 66 of this judgment.
68. The fact that the Italian legislature did not adopt such provisions with respect to public contracts for infrastructure works executed by the holder of a building permit or an approved estate plan the value of which is below the threshold for application of Directive 93/37, for cases where the existence of a certain cross-border interest is established, does not call into question the applicability of Articles 43 EC and 49 EC to those contracts.
69. Therefore, the second complaint, in so far as it is based on the infringement of fundamental rules of the Treaty, must be dismissed. | C-412/04
Italy | 81-82 | ECT-43
ECT-49
ECT-249 | 81. It is settled caselaw, as stated in paragraph 66 of this judgment, that public service contracts falling outside the scope of Directive 92/50 which have been shown to be of certain cross-border interest remain subject to the fundamental freedoms laid down by the Treaty in the circumstances specified in the case-law set out in that paragraph.
82. Since the obligations arising from primary law that relate to equal treatment and transparency are therefore automatically applicable to those contracts - which are nevertheless excluded from the scope of Directive 92/50 on account of their value - in so far as the conditions laid down by that case-law are satisfied, there is no requirement for the national legislation transposing the directive to recall them expressly. | C-412/04
Italy | 94 | ECT-43
ECT-49
ECT-249 | 94. In the second place, in the case of contracts in respect of which the value of the services concerned is below the threshold for application of Directives 92/50 and 93/38, as stated in paragraphs 68 and 82 of this judgment the absence from the applicable national provisions of any express reference to the application of the obligations arising from the Treaty does not mean that there is no need to comply with the principle of equal treatment and the obligation of transparency when awarding those contracts in so far as the conditions laid down by the case-law recalled in paragraph 66 of this judgment are satisfied. | C-15/04
Koppensteiner | 35-39 | RC1A1-41=RC1-1.1
ECT-234
ECT-249 | 35. In this case it is not disputed that under the applicable national law the Bundesvergabeamt has jurisdiction to hear applications for review relating to decisions' within the meaning of Article 1(1) of Directive 89/665 taken by contracting authorities in procedures for the award of public service contracts.
36. In addition, the national court stated (see paragraph 20 of this judgment) that the applicable national legislation precludes the examination and, where appropriate, the setting aside in review proceedings before the Bundesvergabeamt of decisions which withdraw an invitation to tender after the opening of tenders in an open contract award procedure.
37. As stated in paragraph 30 of this judgment, the Court has already held that precluding that possibility is contrary to Articles 1(1) and 2(1)(b) of Directive 89/665.
38. Those provisions of Directive 89/665 are unconditional and sufficiently clear to create rights for individuals on which they may rely, where necessary, against contracting authorities such as BIG.
39. In those circumstances, the court or tribunal having jurisdiction is required to disapply national rules which prevent compliance with the obligation arising from Articles 1(1) and 2(1)(b) of Directive 89/665. | T-495/05
Belfass | 39-44 | ECT-230
ECT-249 | 39 The fourth paragraph of Article 230 EC provides that any natural or legal person may institute proceedings against a decision addressed to that person or against a decision which, although in the form of a regulation or a decision addressed to another person, is of direct and individual concern to the former.
40 According to settled case-law, natural or legal persons other than the person to whom a measure is addressed can claim to be individually concerned, for the purposes of the fourth paragraph of Article 230 EC, only if they are affected by the measure in question by reason of certain attributes peculiar to them, or by reason of a factual situation which differentiates them from all other persons and distinguishes them individually in the same way as the addressee (Case 25/62 Plaumann v Commission [1963] ECR 95, 107; Case C-50/00 P Unión de Pequeños Agricultores v Council [2002] ECR I-6677, paragraph 36; and Case C-263/02 P Commission v Jégo-Quéré [2004] ECR I-3425, paragraph 45).
41 In the present case, the Court finds that it is not possible to take the view that the specifications in question are of individual concern to the applicant.
42 First, contrary to what the Council submits, the fact that the specifications were sent individually to preselected tenderers, and thus to the applicant, on 23 June 2004, under the restricted procedure, cannot distinguish the applicant individually for the purposes of the fourth paragraph of Article 230 EC. The specifications, like each of the other documents relating to the call for tenders issued by the Council in the present case and of which the specifications form part, apply to objectively determined situations and produce legal effects with respect to categories of persons envisaged generally and in the abstract. They are therefore of a general nature and it cannot be held that their communication to each of a number of undertakings preselected by the contracting authority allows each of those undertakings to be distinguished individually from all other persons for the purposes of the fourth paragraph of Article 230 EC.
43 Secondly, the Council is wrong to rely on the judgment in Grossmann Air Service, cited in paragraph 30 above, in order to establish that it was open to the applicant to challenge the specifications in question. It must be pointed out that that judgment was delivered by the Court of Justice in response to a question referred for a preliminary ruling relating to the interpretation of Article 1(3) and Article 2(1)(b) of Directive 89/665. The Council did not deny that the provisions of Directive 89/665, as amended, are therefore binding only on the Member States and not on the Community institutions. Furthermore, as the Council acknowledged at the hearing, it is clear that the Community legislation relating to the award of public service contracts by the Community institutions which is applicable in the present case contains no provision similar to those which are set out in Directive 89/665. Lastly, contrary to the situation which gave rise to the judgment in Grossmann Air Service, cited in paragraph 30 above, the criterion which features in the specifications and is challenged by the applicant did not prevent it from participating effectively in the contract award procedure in question. On the contrary, the documents before the Court show that the applicant, like the other tenderers included in the list drawn up after the preselection stage, was able to submit a tender for Lot No 2. Consequently, the interpretation given by the Court of Justice in the judgment in Grossmann Air Service, cited in paragraph 30 above, of the provisions of Directive 89/665, as amended, cannot be applied, by way of analogy, for the purposes of determining the admissibility of the present action in so far as it relates to Lot No 2.
44 It follows from the above that, since the specifications in question were not of individual concern to the applicant, it had no right to bring an action for annulment against the specifications under the fourth paragraph of Article 230 EC. Accordingly, there is no basis on which the Council can plead that the applicant had the right to challenge those specifications as a basis for opposing the incidental challenge by the applicant in these proceedings to the lawfulness of that document. | C-212/02
Austria | 25-26 | ECT-249 | 25 The Federal Circular subsequent to Alcatel Austria and Others invoked by the Austrian Government cannot be considered adequate transposition, even if its content might have influenced certain decrees issued in two Länder, since those decrees were issued after the time-limit laid down in the reasoned opinion. Since circulars are administrative practices which by their nature are alterable at will by the authorities and are not given the appropriate publicity, they cannot be regarded as constituting the proper fulfilment of Treaty obligations or as an adequate means to remedy, if necessary, the incompatibility of national legislative provisions with Community law (Commission v Italy, paragraphs 11 and 13; Commission v Germany, paragraph 18; and Commission v France, paragraph 37). Those circulars are merely provisional in nature, as the Austrian Government admitted in its observations on the Commission’s reasoned opinion and letter of formal notice.
26 Transposition of a directive in a national legal order requires the definitive elimination of incompatibility through binding national provisions which have the same legal value as those which must be amended (see to that effect Case C-152/00 Commission v France [2002] ECR I-6973, paragraph 19). The Member State must establish a specific legal framework in the area in question, since the implementation of Community Directives must be ensured by adequate measures of implementation (Case C-339/87 Commission v Netherlands [1990] ECR I-851). | C-493/00
France | 2
4-6 | U2A1-2.1
ECT-249 | 2 Under Article 2(1) of Directive 98/4 Member States were to bring into force the laws, regulations and administrative measures necessary to comply with the directive by 16 February 1999 and to inform the Commission thereof forthwith.
.....
4 Pointing out the obligations of the Member States under the third paragraph of Article 249 EC, the Commission submits that the French Republic was required to take the measures necessary to comply with Directive 98/4 within the prescribed period.
5 The French Republic, which does not deny the failure, states that Directive 98/4 is in the course of transposition.
6 Since the directive has thus not been transposed within the prescribed period, the Commission's action must be regarded as well founded. | C-97/00
France | 2
7-10 | C2A1-4.1
ECT-10
ECT-249 | 2 As provided by the first subparagraph of Article 4(1) of the Directive, the Member States were to bring into force the laws, regulations and administrative provisions necessary to comply with the Directive by 13 October 1998 and forthwith to inform the Commission thereof.
.....
7 In its defence the French Government does not deny the infringement alleged against it. However, it asks the Court to find that the process for transposition of the Directive is in the course of being completed.
8 In this connection, the French Government points out, first, that the Directive has already been partly transposed by the Order of 22 April 1998 referred to in paragraph 5 of this judgment. Second, it states that a draft decree is undergoing interdepartmental examination and will be submitted to the Conseil d'Etat very shortly.
9 It should be remembered that, under the first paragraph of Article 10 EC, the Member States are to take all appropriate measures, whether general or particular, to ensure fulfilment of the obligations arising out of the EC Treaty or resulting from action taken by the institutions of the Community. Such action includes directives which, pursuant to the third paragraph of Article 249 EC, are binding as to the result to be achieved upon each Member State to which they are addressed. That obligation involves, for each Member State to which a directive is addressed, the adoption, within the framework of its national legal system, of all the measures necessary to ensure that the directive is fully effective, in accordance with the objective which it pursues (see Case C-336/97 Commission v Italy [1999] ECR I-3771, paragraph 19).
10 In the present case, since the Directive was not fully transposed within the period set by it, the Commission's action must be considered well founded. | C-27/98
Metalmeccanica | 35-37 | ECT-249 [ex 189] | 35 By the second part of the question, the national court is asking whether Article 18(1) of Directive 93/37 can be relied on before the national courts.
36 In that connection, it need merely be observed that, since no specific implementing measure is necessary for compliance with the requirements listed in Article 18(1) of Directive 93/37, the resulting obligations for the Member States are therefore unconditional and sufficiently precise (see, to that effect, on the subject of Article 20 of Directive 71/305, essentially reproduced in Article 18(1) of Directive 93/37, Beentjes, cited above, paragraph 43).
37 The answer to the second part of the question is, therefore, that Article 18(1) of Directive 93/37 can be relied on by an individual before the national courts. | C-258/97
Hospital Ingenieure Hospital Ingenieure | 26 | S2-41
ECT-249 [ex 189] | 26 In paragraphs 44 and 26 respectively of its judgments in Dorsch Consult and Tögel, cited above, the Court also pointed out that the question of the designation of a body competent to hear appeals in relation to public service contracts is relevant even where Directive 92/50 has not been transposed. Where a Member State has failed to take the implementing measures required or has adopted measures which do not conform to a directive, the Court has recognised, subject to certain conditions, the right of individuals to rely in law on a directive as against a defaulting Member State. Although this minimum guarantee cannot justify a Member State in absolving itself from taking in due time implementing measures sufficient to meet the purpose of each directive (see, in particular, the judgment in Case C-253/95 Commission v Germany [1996] ECR I-2423, paragraph 13), it may nevertheless have the effect of enabling individuals to rely, as against a Member State, on the substantive provisions of Directive 92/50. | C-258/97
Hospital Ingenieure Hospital Ingenieure | 33-39 | ECT-249 [ex 189] | 33 By its fifth question the referring body seeks essentially to ascertain whether Directive 92/50 may be relied on by individuals before national courts.
34 As the Court held in paragraph 42 of Tögel, cited above, it is settled case-law (see the judgment in Case 31/87 Beentjes v Netherlands State [1988] ECR 4635, paragraph 40) that whenever the provisions of a directive appear, as far as their subject-matter is concerned, to be unconditional and sufficiently precise, those provisions may be relied on by individuals against the State where that State fails to implement the directive in national law within the prescribed period or where it fails to implement it correctly.
35 It is therefore necessary to consider whether the relevant provisions of Directive 92/50 appear, as regards their content, to be unconditional and sufficiently precise to be relied on by an individual against the State.
36 It was held in paragraph 44 of Tögel, cited above, that the provisions of Title I, concerning the matters and persons covered by the directive, and of Title II, on the procedures applicable to contracts for the services listed in Annexes I A and I B, are unconditional and sufficiently precise to be relied on before a national court.
37 It was also held, in paragraph 45 of Tögel, that under Articles 8 and 10, which form part of Title II, the awarding authorities are required, in unconditional and precise terms, to award public contracts for services in accordance with national procedures in conformity with the provisions of Titles III to VI in the case of services coming wholly or mainly under Annex I A and with the provisions of Articles 14 and 16 in the case of services coming wholly or mainly under Annex I B. Article 14 constitutes Title IV whilst Article 16 appears under Title V.
38 Finally, the Court held in paragraph 46 of Tögel that the detailed provisions of Titles III to VI of Directive 92/50 on the choice of award procedures and the rules applicable to competitions, common technical and advertising rules, and participation and selection and award criteria, are, subject to exceptions and qualifications which are apparent from their terms, unconditional and sufficiently clear and precise to be relied on by service providers before national courts.
39 The answer to the fifth question must therefore be that the provisions of Titles I and II of Directive 92/50 may be relied on directly by individuals before national courts. As regards the provisions of Titles III to VI, they may also be relied on by an individual before a national court if it is clear from an individual examination of their wording that they are unconditional and sufficiently clear and precise. | C-76/97
Tögel | 26 | S2-41
ECT-249 [ex 189] | 26 At paragraph 44, the Court went on to point out that the question of the designation of a body competent to hear appeals in relation to public service contracts is relevant even where Directive 92/50 has not been transposed. Where a Member State has failed to take the implementing measures required or has adopted measures which do not conform to a directive, the Court has recognised, subject to certain conditions, the right of individuals to rely in law on a directive as against a defaulting Member State. Although this minimum guarantee cannot justify a Member State in absolving itself from taking in due time implementing measures sufficient to meet the purpose of each directive (see, in particular, the judgment in Case C-253/95 Commission v Germany [1996] ECR I-2423, paragraph 13), it may nevertheless have the effect of enabling individuals to rely, as against a Member State, on the substantive provisions of Directive 92/50. | C-76/97
Tögel | 41-47 | ECT-249 [ex 189] | 41 By the second part of the third question the national court is essentially seeking to ascertain whether the provisions of Titles I to VI of Directive 92/50 may be relied on by individuals before national courts.
42 It must be recalled here that the Court has consistently held (see the judgment in Case 31/87 Beentjes v Netherlands State [1988] ECR 4635, paragraph 40) that whenever the provisions of a directive appear, as far as their subject-matter is concerned, to be unconditional and sufficiently precise, those provisions may be relied on by individuals against the State where that State fails to implement the directive in national law within the prescribed period or where it fails to implement it correctly.
43 The question is, therefore, whether the relevant provisions of Directive 92/50 appear to be, as regards their content, unconditional and sufficiently precise to be relied on by an individual as against the State.
44 It should be observed first of all here that the provisions of Title I, concerning the matters and persons covered by the directive, and of Title II, on the procedures applicable to contracts for the services listed in Annexes I A and I B, are unconditional and sufficiently precise to be relied on before a national court. 45 Under Articles 8 and 10, which form part of Title II, the awarding authorities are required, in unconditional and precise terms, to award public contracts for services in accordance with national procedures in conformity with the provisions of Titles III to VI in the case of services coming wholly or mainly under Annex I A and with the provisions of Articles 14 and 16 in the case of services coming wholly or mainly under Annex I B. Article 14 appears under Title IV whilst Article 16 appears under Title V.
46 As Advocate General Fennelly observes at paragraph 57 of his Opinion, the detailed provisions of Titles III to VI of the directive, on the choice of award procedures and the rules applicable to competitions, common technical and advertising rules, and participation and selection and award criteria, are, subject to exceptions and qualifications which are apparent from their terms, unconditional and sufficiently clear and precise to be relied on by service providers before national courts.
47 The reply to be given to the second part of the third question must therefore be that the provisions of Titles I and II of Directive 92/50 may be relied on directly by individuals before national courts. As regards the provisions of Titles III to VI, these may also be relied on by an individual before a national court if it is clear from an individual examination of their wording that they are unconditional and sufficiently clear and precise. | C-54/96
Dorsch Consult | 44 | S2-41
EFT-249 [ex 189] | 44 Secondly, the question of the designation of a body competent to hear appeals in relation to public service contracts is relevant even where Directive 92/50 has not been transposed. Where a Member State has failed to take the implementing measures required or has adopted measures which do not conform to a directive, the Court has recognized, subject to certain conditions, the right of individuals to rely in law on a directive as against a defaulting Member State. Although this minimum guarantee cannot justify a Member State absolving itself from taking in due time implementing measures sufficient to meet the purpose of each directive (see, in particular, the judgment in Case C-253/98 Commission v Germany [1996] ECR I-2423, paragraph 13), it may nevertheless have the effect of enabling individuals to rely, as against a Member State, on the substantive provisions of Directive 92/50. | C-253/95
Germany | 10 + 13 | ECT-249 [ex 189] | 10 The German Government does not deny the infringement. It submits, however, that, immediately after the expiry of the time-limit for transposition of the directive into national law, the Federal Ministry of Economic Affairs indicated to the relevant contracting authorities that, as from 1 July 1993, the directive was directly applicable to the award of service contracts.
13 Secondly, the effect of the third paragraph of Article 189 of the Treaty is that Community directives must be implemented by appropriate implementing measures taken by the Member States. Only in specific circumstances, in particular where a Member State has failed to take the implementing measures required or has adopted measures which do not conform to a directive, has the Court recognized the right of persons affected thereby to rely in law on a directive as against a defaulting Member State. This minimum guarantee, arising from the binding nature of the obligation imposed on the Member States by the effect of directives under the third paragraph of Article 189, cannot justify a Member State absolving itself from taking in due time implementing measures sufficient to meet the purpose of each directive (see, in particular, Case C-433/93 Commission v Germany [1995] ECR I-2303, paragraph 24). The German Government' s argument based on the direct effect of the directive cannot therefore be accepted either. | C-433/93
Germany | 24 | ECT-249 [ex 189] | 24 Nor can the argument based on the direct effect of Directives 88/295 and 89/440 be accepted. The effect of the third paragraph of Article 189 is that Community directives must be implemented by appropriate implementing measures taken by the Member States. Only in specific circumstances, in particular where a Member State has failed to take the implementing measures required or has adopted measures which do not conform to a directive, has the Court recognized the right of persons affected thereby to rely in law on a directive as against a defaulting Member State. This minimum guarantee, arising from the binding nature of the obligation imposed on the Member States by the effect of the directives under the third paragraph of Article 189, cannot justify a Member State' s absolving itself from taking in due time implementing measures sufficient to meet the purpose of each directive (see, in particular, the judgment in Case 102/79 Commission v Belgium [1980] ECR 1473, paragraph 12). | 31/87
Beentjes | 38 + 40-44 | W1-20
W1-26.1.a-b
W1-26.1.c-e
W1-26.2
W1-29.1
W1-29.2
W1-29.3
W1-29.4
W1-29.5.1-2
W1-29.5.3
ECT-249 [ex 189] | 38 The third question seeks in substance to establish whether Articles 20, 26 and 29 of Directive 71/305 may be relied upon by individuals before the national courts.
40 Furthermore, the Court has consistently held (see most recently the judgment of 26 February 1986 in Case 152/84 Marshall v Southampton and South-West Hampshire Health Authority (( 1986 )) ECR 723 ) that where the provisions of a directive appear, as far as their subject-matter is concerned, to be unconditional and sufficiently precise, those provisions may be relied on by individuals against the State where that State fails to implement the directive in national law within the prescribed period or where it fails to implement the directive correctly.
41 It is therefore necessary to consider whether the provisions of Directive 71/305 in question are, as far as their subject-matter is concerned, unconditional and sufficiently precise to be relied on by an individual against the State.
42 As the Court held in its judgment of 10 February 1982 in Case 76/81 Transporoute v Minister for Public Works (( 1982 )) ECR 417, in relation to Article 29, the directive' s rules regarding participation and advertising are intended to protect tenderers against arbitrariness on the part of the authority awarding contracts.
43 To this end, as has been stated in relation to the reply to the second question, the rules in question provide inter alia that in checking the suitability of contractors the awarding authorities must apply criteria of economic and financial standing and technical knowledge and ability, and that the contract is to be awarded either solely on the basis of the lowest price or on the basis of several criteria relating to the tender. They also set out the requirements regarding publication of the criteria adopted by the awarding authorities and the references to be produced. Since no specific implementing measure is necessary for compliance with these requirements, the resulting obligations for the Member States are therefore unconditional and sufficiently precise.
44 In reply to the third question it should therefore be stated that the provisions of Articles 20, 26 and 29 of Directive 71/305 may be relied on by an individual before the national courts. |
| Case | Pte | Ref | Text | N-961009
ELFO | 5-6 | U2-na [U3-49.2.1-2]
ECT-249 [ex 189] | 5. Der har mellem parterne været enighed om, at det har påhvilet indklagede efterfølgende at give de virksomheder, som ikke blev prækvalificeret, en begrundelse for sin afgørelse. Klagerne har imidlertid gjort gældende, at den begrundelse, som indklagede gav i sin skrivelse af 15. februar 1996 ikke opfylder de krav med hensyn til detaljeringsgrad, som følger af almindelige EU-retlige regler vedrørende offentlige myndigheders pligt til at begrunde deres afgørelser. Den fortolkning af Forsyningsvirksomhedsdirektivets artikel 31, som Klagenævnet har lagt til grund for sin afgørelse vedrørende påstand 1, får betydning også ved Klagenævnets vurdering af, hvilke krav der kan stilles til en ordregivers begrundelse for, at en virksomhed alene på grund af en begrænsning af det antal virksomheder, der skal prækvalificeres, ikke er blevet prækvalificeret. Det er på denne baggrund Klagenævnets vurdering, at den begrundelse, som indklagede gav ved sin skrivelse af 15. februar 1996, opfylder de krav, der efter udbudsreglerne kan stilles til en ordregivende myndighed vedrørende afgørelser af denne beskaffenhed.
6. Klagenævnet tager derfor heller ikke klagernes påstand 2 til følge. |
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