| | 32004L0018: c3-31.1.bTechnical, artistic, exclusive rights    
| 32004L0018 - Classic (3rd generation) | Article 31.1.b | | (b) when, for technical or artistic reasons, or for reasons connected with the protection of exclusive rights, the contract may be awarded only to a particular economic operator; | | 32004L0017 - Utilities (3rd generation) | Article 40.3.c | | (c) when, for technical or artistic reasons, or for reasons connected with the protection of exclusive rights, the contract may be executed only by a particular economic operator; | | 31993L0037 - Works (2nd generation) | Article 7.3.b | | (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; | | 31993L0036 - Goods (2nd generation) | Article 6.3.c | | (c) when, for technical or artistic reasons, or for reasons connected with protection of exclusive rights, the products supplied may be manufactured or delivered only by a particular supplier; | | 31992L0050 - Services (2nd generation) | Article 11.3.b | | (b) when, for technical or artistic reasons, or for reasons connected with the protection of exclusive rights, the services may be provided only by a particular service provider; | | 31993L0038 - Utilities (2nd generation) | Article 20.2.c | | (c) when, for technical or artistic reasons or for reasons connected with protection of exclusive rights, the contract may be executed only by a particular supplier, contractor or service provider; | | 31971L0305 - Works (1st generation) | Article 9.1.b | | (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; | | 31989L0440 - Fourth amendment of Works (1st generation) | Article 1.7=W1-5.3.b & 1.9=W1-9.1.b | (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;
9. Article 7, 8 and 9 are hereby repealed. | | 31977L0062 - Goods (1st generation) | Article 6.1.b | | (b) when, for technical or artistic reasons, or for reasons connected with protection of exclusive rights, the goods supplied may be manufactured or delivered only by a particular supplier; | | 31988L0295 - Second amendment of Goods (1st generation) | Article 7.4.c=G1-6.4.c | | (c) when, for technical or artistic reasons, or for reasons connected with protection of exclusive rights, the goods supplied may be manufactured or delivered only by a particular supplier; | | 31990L0531 - Utilities (1st generation) | Article 15.2.c | | (c) when, for technical or artistic reasons, or for reasons connected with protection of exclusive rights, the contract may be executed only by a particular supplier or contractor; |
| Case | Pte | Ref | Text | C-337/05
Italy | 55-60 | G2-6.3.c
G2-6.3.e | 55. To justify the use of the negotiated procedure, the Italian Republic also invokes Article 6(3)(c) and (e) of Directive 93/36. It maintains, first, that, having regard to their technical specificity, the manufacture of the helicopters in question could be entrusted only to Agusta and, second, that it was necessary to ensure the interoperability of its fleet of helicopters, in order, particularly, to reduce the logistic, operational and pilot-training costs.
56. As is clear, in particular, from the 12th recital in the preamble to Directive 93/36, the negotiated procedure is exceptional in nature and may be applied only in cases which are set out in an exhaustive list. To that end, Article 6(2) and (3) of Directive 93/36 exhaustively and expressly lists the only exceptions for which recourse to the negotiated procedure is allowed (see, to that effect, as regards Directive 77/62, Case C71/92 Commission v Spain [1993] ECR I5923, paragraph 10; as regards Directive 93/36, see Teckal , paragraph 43, and Case C84/03 Commission v Spain , cited above, paragraph 47).
57. According to settled case-law, the derogations from the rules intended to ensure the effectiveness of the rights conferred by the Treaty in connection with public contracts must be interpreted strictly (see Case C57/94 Commission v Italy [1995] ECR I1249, paragraph 23; Case C318/94 Commission v Germany [1996] ECR I1949, paragraph 13; and Case C394/02 Commission v Greece [2005] ECR I4713, paragraph 33). To prevent Directive 93/36 being deprived of its effectiveness, the Member States cannot, therefore, provide for the use of the negotiated procedure in cases not provided for by that directive, or add new conditions to the cases expressly provided for by the directive in question which make that procedure easier to use (see, to that effect, Case C84/03 Commission v Spain , paragraph 48).
58. In addition, it must be recalled that the burden of proving the existence of exceptional circumstances justifying the derogation from those rules lies on the person seeking to rely on those circumstances (see Case 199/85 Commission v Italy [1987] ECR 1039, paragraph 14, and Commission v Greece , cited above, paragraph 33).
59. In this case, the Italian Republic has not discharged the burden of proof as regards the reason for which only helicopters produced by Agusta would be endowed with the requisite technical specificities. In addition, that Member State has confined itself to pointing out the advantages of the interoperability of the helicopters used by its various corps. It has not however demonstrated in what respect a change of supplier would have constrained it to acquire material manufactured according to a different technique likely to result in incompatibility or disproportionate technical difficulties in operation and maintenance.
60. Having regard to all the foregoing, it must be declared that, by adopting a procedure, which has been in existence for a long time and is still followed, of directly awarding to Agusta contracts for the purchase of Agusta and Agusta Bell helicopters to meet the requirements of several military and civilian corps of the Italian State, without any competitive tendering procedure, and, in particular, without complying with the procedures provided for by Directive 93/36 and, previously, by Directive 77/62, the Italian Republic has failed to fulfil its obligations under those directives. | | C-394/02 | 33-39 | U2-20.2.c | 33. In this respect, it should, as a preliminary point, be noted that, as derogations from the rules relating to procedures for the award of public procurement contracts, the provisions of Article 20(2)(c) and (d) of Directive 93/38 must be interpreted strictly. Also, the burden of proof lies on the party seeking to rely on them (see, to that effect, in the context of Directives 71/305 and 93/37, Case 199/85 Commission v Italy [1987] ECR 1039, paragraph 14; Case C-57/94 Commission v Italy [1995] ECR I-1249, paragraph 23; and Case C-385/02 Commission v Italy [2004] ECR I8121, paragraph 19).
34. As regards, first of all, Article 20(2)(c) of Directive 93/38, it follows from the caselaw that the application of that provision is subject to two cumulative conditions, namely, first, that there are technical reasons connected to the works which are the subjectmatter of the contract and, second, that those technical reasons make it absolutely necessary to award that contract to a particular contractor (see, to that effect, in the context of Directives 71/305 and 93/37, Case C57/94 Commission v Italy , paragraph 24, and Case C385/02 Commission v Italy , paragraphs 18, 20 and 21).
35. In this case, as the Advocate General noted in paragraphs 40 to 45 of his Opinion, while the works in question involve technical reasons in the sense of Article 20(2)(c) of Directive 93/38, the Greek Government has not convincingly shown that the Koch/Metka consortium was alone in a position to carry them out and that it was, as a result, absolutely necessary to award it the contract.
36. Neither the particular characteristics of the product to be transported, nor the instability of the subsoil and the need to attach the system of conveyor belts to the existing one proves, by itself, that that consortium of companies was the only contractor in the Community with the necessary expertise to carry out the works in question.
37. Moreover, since it also invited Dosco to tender, DEI itself considered that a contractor other than the Koch/Metka consortium was, in principle, also capable of carrying out the works.
38. In addition, it is clear from the Court file that, as regards similar works to be carried out on the same site, DEI had, in the past, initiated public procurement procedures by publication of a contract notice.
39. It cannot therefore be maintained that, because of technical reasons, the contract at issue could be performed only by the Koch/Metka consortium. | C-385/02
Italy | 18-24 | W2-7.3.b | 18. That first defence plea must be understood as being based on Article 7(3)(b) of the Directive, inasmuch as that provision authorises the use of the negotiated procedure without prior publication of a contract notice for works which, for technical reasons, may only be carried out by a particular contractor.
19. The provisions of Article 7(3) of the Directive, which authorise derogations from the rules intended to ensure the effectiveness of the rights conferred by the EC Treaty in relation to public works contracts, must be interpreted strictly and the burden of proving the existence of exceptional circumstances justifying a derogation lies on the person seeking to rely on those circumstances (see, to that effect, Case C57/94 Commission v Italy [1995] ECR I-1249, paragraph 23, and Case C318/94 Commission v Germany [1996] ECR I-1949, paragraph 13).
20. Accordingly, the Italian authorities must prove that technical reasons made it necessary to award the relevant contracts to the contractor who was entrusted with the original contract (see, to that effect, Commission v Italy , paragraph 24).
21. It is true that the aim of ensuring the continuity of works under complex projects which relate to the flood safety of an area is a technical reason which must be recognised as being important. However, merely to state that a package of works is complex and difficult is not sufficient to establish that it can only be entrusted to one contractor, particularly where the works are subdivided into lots which will be carried out over many years.
22. In the present case, the Italian Government has confined itself to referring in general terms to the contents of an opinion of the Public Works Authority, without providing the detailed explanations on which the need to use a single contractor could be based.
23. With respect to the Italian Government's argument that the use of the negotiated procedure without prior publication of a contract notice for the award of the relevant contracts represents the implementation of a contractual obligation, even assuming it to be relevant, it must be held that that Government has failed to establish that such an obligation exists. On the contrary, according to the information provided to the Court, the Magistrato per il Po di Parma was not obliged to award subsequent lots to the contractors undertaking the original lots of work, but merely had the option of doing so.
24. It follows that the defence plea based on Article 7(3)(b) of the Directive is not well founded and must be rejected. | C-20/01 & C-28/01
Germany | 56-67 | S2-11.3.b | 56 In Case C-28/01 Directive 92/50 was evidently applicable and was indeed applied by the City of Braunschweig. However, the latter, relying on Article 11(3)(b) of the directive, used a negotiated procedure without prior publication of a contract notice.
57 Although it admitted during the administrative procedure that the conditions on which Article 11(3)(b) applies were not met, the German Government argues that BKB was actually the only undertaking to which the contract could be awarded and that a further award procedure would not affect that outcome.
58 In that regard, it should be stated at the outset that the provisions of Article 11(3) of Directive 92/50, which authorise derogations from the rules intended to ensure the effectiveness of the rights conferred by the Treaty in relation to public service contracts, must be interpreted strictly and that the burden of proving the existence of exceptional circumstances justifying a derogation lies on the person seeking to rely on those circumstances (Case C-318/94 Commission v Germany [1996] ECR I-1949, paragraph 13).
59 Article 11(3)(b) of Directive 92/50 cannot apply unless it is established that for technical or artistic reasons, or for reasons connected with the protection of exclusive rights, only one undertaking is actually in a position to perform the contract concerned. Since no artistic reason, nor any reason connected with the protection of exclusive rights, has been put forward in this instance, it is appropriate solely to ascertain whether the reasons relied on by the German Government are capable of constituting technical reasons for the purposes of Article 11(3)(b).
60 A contracting authority may take account of criteria relating to environmental protection at the various stages of a procedure for the award of public contracts (see, as regards the use of such criteria as criteria for awarding a contract relating to the management of the operation of a route in the urban bus network, Case C-513/99 Concordia Bus Finland [2002] ECR I-7213, paragraph 57).
61 Therefore, it is not impossible that a technical reason relating to the protection of the environment may be taken into account in an assessment of whether the contract at issue may be awarded to a given supplier.
62 However, the procedure used where there is a technical reason of that kind must comply with the fundamental principles of Community law, in particular the principle of non-discrimination as it follows from the provisions of the Treaty on the right of establishment and the freedom to provide services (see, to that effect, Concordia Bus Finland, paragraph 63).
63 The risk of a breach of the principle of non-discrimination is particularly high where a contracting authority decides not to put a particular contract out to tender.
64 In this instance, the Court notes, first, that in the absence of any evidence to that effect the choice of thermal waste treatment cannot be regarded as a technical reason substantiating the claim that the contract could be awarded to only one particular supplier.
65 Second, the German Government's submission that the proximity of the waste disposal facility is a necessary consequence of the City of Braunschweig's decision that residual waste should be treated thermally is not borne out by any evidence and cannot therefore be regarded as a technical reason of that kind. More specifically, the German Government has not shown that the transport of waste over a greater distance would necessarily constitute a danger to the environment or to public health.
66 Third, the fact that a particular supplier is close to the local authority's area can likewise not amount, on its own, to a technical reason for the purpose of Article 11(3)(b) of Directive
67 It follows that the Federal Republic of Germany has not established that the use of Article 11(3)(b) of Directive 92/50 was justified in this instance. Consequently, the Commission's application in Case C-28/01 must also be upheld. | C-399/98
Ordine degli Architetti | 99-103 | W2-3.4
W2-7.3.b | 99 Consequently, the municipal authorities are under an obligation to comply with the procedures laid down in the Directive whenever they award a public works contract of that nature.
100 That does not mean that, in cases concerning the execution of infrastructure works, the Directive is complied with only if the municipal authorities themselves apply the award-of-contract procedures laid down therein. The Directive would still be given full effect if the national legislation allowed the municipal authorities to require the developer holding the building permit, under the agreements concluded with them, to carry out the work contracted for in accordance with the procedures laid down in the Directive so as to discharge their own obligations under the Directive. In such a case, the developer must be regarded, by virtue of the agreements concluded with the municipality exempting him from the infrastructure contribution in return for the execution of public infrastructure works, as the holder of an express mandate granted by the municipality for the construction of that work. Article 3(4) of the Directive expressly allows for the possibility of the rules concerning publicity to be applied by persons other than the contracting authority in cases where public works are contracted out.
101 With regard to the procedures laid down by the Directive, it is clear from Articles 7(4) and 11(2) and (9), read together, that contracting authorities which wish to award a public works contract must advertise their intention by publishing a notice in the Official Journal of the European Communities, except in any of the cases exhaustively listed in Article 7(3) of the Directive where the contracting authority is authorised to use the negotiated procedure without first publishing a contract notice.
102 In the present case, there is nothing in the documents before the Court to suggest that the direct execution of infrastructure works under the conditions laid down by the Italian legislation on urban development is capable of falling within one of the cases contemplated in Article 7(3).
103 It should therefore be stated in answer to the first question that the Directive precludes national urban development legislation under which, without the procedures laid down in the Directive being applied, the holder of a building permit or approved development plan may execute infrastructure works directly, by way of total or partial set-off against the contribution payable in respect of the grant of the permit, in cases where the value of that work is the same as or exceeds the ceiling fixed by the Directive. | C-57/94
Italy | 21-23 | W1-9.1.b | 23 It follows from the Court' s judgment in Case 199/85 Commission v Italy [1987] ECR 1039, at paragraph 14, that the provisions of Article 9 of Directive 71/305, which authorize derogations from the rules intended to ensure the effectiveness of the rights conferred by the Treaty in connection with public works contracts, must be interpreted strictly and the burden of proving the actual existence of exceptional circumstances justifying a derogation lies on the person seeking to rely on those circumstances.
24 In view of the wording of Article 9(b) of Directive 71/305, the Italian Government was obliged, in order to justify recourse to a private contract procedure for the works in question, not only to establish the existence of "technical reasons" within the meaning of that provision, but also to prove that those "technical reasons" made it absolutely essential that the contract in question be awarded to the undertaking Rozzi Costantino, which was responsible for the works in progress.
25 Even assuming that the circumstances relied on by the Italian Government could constitute "technical reasons" within the meaning of Article 9(b) of Directive 71/305, it is clear that the Italian Government has not adduced proof that those circumstances made it absolutely essential that the contract at issue be awarded to the undertaking in question. | C-324/93
Evans Medical | 47-49 | G1-6.1.g
A2G1-6.4.c | With regard to those arguments the Court recalls that it has held (see, most recently, the judgment in Case C-328/92 Commission v Spain [1994] ECR I-1569, paragraph 15) that Article 6 of the directive, as amended, which authorizes derogations from the rules intended to ensure effectiveness of rights conferred by the Treaty in the public supply contracts sector, must be interpreted strictly.
The information provided to the Court does not at this stage warrant the conclusion that the special nature of diamorphine and the security measures to be taken in order to prevent its diversion make it impossible to have an open or restricted invitation to tender. On the contrary, a tenderer' s ability to implement proper security measures could be taken into account as a criterion for the award of a contract, in accordance with Article 25 of the directive. | C-328/92
Spain | 15-16
17 [G1-6.1.b] | G1-6.1.a
G1-6.1.b
G1-6.1.c
G1-6.1.d
G1-6.1.e
G1-6.1.f
G1-6.1.g
G1-6.1.h
ECT-EffUtil | In that regard, Article 6 of Directive 77/62, which authorizes derogations from rules intended to ensure the effectiveness of rights conferred by the Treaty in the public supply contracts sector, must be interpreted strictly (see the judgment in Commission v Spain, cited above, paragraph 36).
Furthermore, the burden of proving the actual existence of exceptional circumstances justifying a derogation lies on the person seeking to rely on those circumstances (see, with regard to public works contracts, the judgment in Case 199/85 Commission v Italy [1987] ECR 1039, paragraph 14).
If Article 6(1)(b) is to apply, it is not sufficient for the pharmaceutical products and specialities in question to be protected by exclusive rights; they must also be capable of being manufactured or delivered only by a particular supplier. Since that requirement is satisfied only with respect to those products and specialities for which there is no competition in the market, Article 6(1)(b) cannot in any way justify general and indiscriminate recourse to the single-tender procedure for all supplies of all pharmaceutical products and specialities. | C-71/92
Spain | 17 [G1]
36 | W1-9.1.a
W1-9.1.b
W1-9.1.c
W1-9.1.d
W1-9.1.e
W1-9.1.f
W1-9.1.g
G1-6.1.a
G1-6.1.b
G1-6.1.c
G1-6.1.d
G1-6.1.e
G1-6.1.f
G1-6.1.g
G1-6.1.h
ECT-EffUtil | In that respect it is sufficient to note that the contracts covered by that provision [6.1.b], even though they need not be awarded according to the open or restricted procedures, are not excluded from the field of application of the directive but remain subject, in accordance with Article 4(3) thereof, to Article 7 on common rules in the technical field.
It should be stressed first of all that the provisions of Article 9 of Directive 71/305 and of Article 6 of Directive 77/62, which authorize derogations from the rules intended to ensure the effectiveness of the rights conferred by the Treaty in the field of public works and supply contracts, must be strictly interpreted (see, as regards Article 9 of Directive 71/305, the judgment in Case 199/85 Commission v Italy [1987] ECR 1039, paragraph 14). For the same reasons, the abovementioned provisions specifying the cases in which privately negotiated contracts may be concluded must be regarded as exhaustive. | 199/85
Italy | 14 | W1-9.1.b
W1-9.1.d
ECT-EffUtil | Those provisions, which authorize derogations from the rules intended to ensure the effectiveness of the rights conferred by the treaty in the field of public works contracts, must be interpreted strictly and the burden of proving the actual existence of exceptional circumstances justifying a derogation lies on the person seeking to rely on those circumstances. |
| Case | Pte | Ref | Text | N-990609
Humus | 1 | G2-6.1-impl
G2-6.3.c-impl
G2-6.3.e-impl | 1. Idet det af indklagede skete beholderindkøb allerede i 1993 var i EU–udbud i forbindelse med et af indklagede foretaget »systemvalg«, da indklagede allerede i forbindelse med de indgåede kontrakter forpligtede sig til flerårige aftaler, og da indklagede i hvert fald ikke med de nu påklagede dispositioner har handlet i strid med Indkøbsdirektivet (direktiv 93/36), tages klagerens påstand ikke til følge.
[Sagsfremstillingen: Klageren har nedlagt påstand om, at Miljøteam Århus skal tilpligtes at anerkende, at indkøb af affaldsbeholdere i 1996 og 1997 er sket i strid med gældende udbudsregler i henhold til Indkøbsdirektivet (direktiv 93/36 EØF).
.....
Indklagede har til støtte for frifindelsespåstanden bl.a. anført, at Århus Renholdningsselskab rent faktisk i sommeren 1993 afholdt udbud og derfor har opfyldt de betingelser, der er foreskrevet i Indkøbsdirektivet.
Indklagede har ikke ved sin efterfølgende indkøb været forpligtet til at foretage udbud, idet indkøbet alene kan betragtes som en opfølgning/ supplement af det indkøb, der fandt sted i forbindelse med udbuddet i 1993.
Indklagede har yderligere anført, at der i forbindelse med det udbud, der blev gennemført i 1993, fra indklagedes side er foretaget et egentligt systemvalg af beholdere. Dette valg blev understøttet af en materieludviklingsgruppe med repræsentanter fra Århus Kommune, Miljøstyrelsen og Arbejdsmarkedets Parter. Denne gruppe fandt frem til de beholdere, der var mest velegnede i Århus. Gruppens vurdering dannede grundlag for det i 1993 gennemførte udbud.] |
|
|
