| | 32004L0018: c3-31.1.cExtreme urgency    
| 32004L0018 - Classic (3rd generation) | Article 31.1.c | | (c) insofar as is strictly necessary when, for reasons of extreme urgency brought about by events unforeseeable by the contracting authorities in question, the time limit for the open, restricted or negotiated procedures with publication of a contract notice as referred to in Article 30 cannot be complied with. The circumstances invoked to justify extreme urgency must not in any event be attributable to the contracting authority; | | 32004L0017 - Utilities (3rd generation) | Article 40.3.d | | (d) insofar as is strictly necessary when, for reasons of extreme urgency brought about by events unforeseeable by the contracting entities, the time limits laid down for open procedures, restricted procedures and negotiated procedures with a prior call for competition cannot be adhered to; | | 31993L0037 - Works (2nd generation) | Article 7.3.c | | (c) insofar as is strictly necessary when, for reasons of extreme urgency brought about by events unforeseen by the contracting authorities in question, the time limit laid down for the open, restricted or negotiated procedures referred to in paragraph 2 cannot be kept. The circumstances invoked to justify extreme urgency must not in any event be attributable to the contracting authorities; | | 31993L0036 - Goods (2nd generation) | Article 6.3.d | | (d) in so far as is strictly necessary when, for reasons of extreme urgency brought about by events unforeseeable by the contracting authorities in question, the time limit laid down for the open, restricted or negotiated procedures referred to in paragraph 2 cannot be kept. The circumstances invoked to justify extreme urgency must not in any event be attributable to the contracting authorities; | | 31992L0050 - Services (2nd generation) | Article 11.3.d | | (d) in so far as is strictly necessary when, for reasons of extreme urgency brought about by events unforeseeable by the contracting authorities in question, the time limit for the open, restricted or negotiated procedures referred to in Articles 17 to 20 cannot be kept. The circumstances invoked to justify extreme urgency must not in any event be attributable to the contracting authorities; | | 31993L0038 - Utilities (2nd generation) | Article 20.2.d | | (d) in so far as is strictly necessary when, for reasons of extreme urgency brought about by events unforeseeable by the contracting entities, the time limits laid down for open and restricted procedures cannot be adhered to; | | 31971L0305 - Works (1st generation) | Article 9.1.d | | (d) in so far as is strictly necessary when, for reasons of extreme urgency brought by events unforeseen by the authorities awarding contracts, the time limit laid down in other procedures cannot be kept; | | 31989L0440 - Fourth amendment of Works (1st generation) | Article 1.7=W1-5.3.c & 1.9=W1-9.1.d | (c) in so far as is strictly necessary when, for reasons of extreme urgency brought about by events unforeseen by the contracting authorities in question, the time limit laid down for the open, restricted or negotiated procedures referred to in paragraph 2 above cannot be kept. The circumstances invoked to justify extreme urgency must not in any event be attributable for the contracting authorities;
9. Article 7, 8 and 9 are hereby repealed. | | 31977L0062 - Goods (1st generation) | Article 6.1.d | | (d) in so far as is strictly necessary when, for reasons of extreme urgency brought about by events unforeseeable by the contracting authorities, the time limit laid down in the procedures covered by article 4 (1) and (2) cannot be kept; | | 31988L0295 - Second amendment of Goods (1st generation) | Article 7.4.d=G1-6.4.d | (d) in so far as is strictly necessary when, for reasons of extreme urgency brought about by events unforeseeable by the contracting authorities, the time limits laid down for the open and restricted procedures cannot be met.
The circumstances invoked to justify extreme urgency must not in any case be attributable to the contracting authorities; | | 31990L0531 - Utilities (1st generation) | Article 15.2.d | | (d) insofar as is strictly necessary when, for reasons of extreme urgency brought about by events unforeseeable by the contracting entities, the time limits laid down for open and restricted procedures cannot be adhered to; |
| 32002R2342 - Implementation of Community (4th generation) - Commission M4 | Article 126.1.c | 1. Contracting authorities may use the negotiated procedure without prior publication of a contract notice in the following cases:
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(c) in so far as is strictly necessary where, for reasons of extreme urgency brought about by unforeseeable events not attributable to the contracting authorities and likely to jeopardise the Communities' interests, it is impossible to comply with the time-limits set for the other procedures and laid down in Articles 140, 141 and 142; | | 32005R1261 - First amendment of implementation of Community (4th generation) - Commission M4A2 | Article 1.12.a.ii=M4-126.1.1.c | (ii) point (c) is replaced by the following:
(c) in so far as is strictly necessary where, for reasons of extreme urgency brought about by unforeseeable events not attributable to the contracting authorities, it is impossible to comply with the time limits set for the other procedures and laid down in Articles 140, 141 and 142 |
| Case | Pte | Ref | Text | T-148/04
TQ3 Travel Solutions | 95-103 | M4-126.1.c | 95. With regard to use of the negotiated procedure, Article 126(1)(c) of the detailed implementing rules states that [c]ontracting authorities may use the negotiated procedure without prior publication of a contract notice... in so far as is strictly necessary where, for reasons of extreme urgency brought about by unforeseeable events not attributable to the contracting authorities and likely to jeopardise the Communities' interests, it is impossible to comply with the time-limits set for the other procedures'.
96. As regards the unforeseeable nature of the event and whether or not it was attributable to the contracting authority, it should be noted that it was following the withdrawal of other institutions that the Commission published the contract again on 29 July 2003, resulting in the timetable being put back. The Commission explained, in its reply to a written question put by the Court, that, after giving its agreement to the publication of the contract notice, the Parliament expressed reluctance, at a meeting held on 3 June 2003, to participate in the invitation to tender. It had reservations inter alia about awarding the contract on the basis of one lot per city. By note of 11 June 2003, the Parliament's DirectorGeneral of Personnel stated that it would be impossible for the Parliament to finalise the contract document before 30 October 2003. Compliance with the timelimit proposed by the Parliament would have jeopardised the progress of the invitation to tender in relation to the maximum duration of the current contract, namely, expiring on 31 March 2004. On 8 July 2003, the Parliament announced its withdrawal, also resulting in that of other institutions. The Commission also explained that it had been unable to specify a date of commencement of the services in the invitation to tender, but merely a deadline, since each lot had specific characteristics of its own, inter alia different expiry dates, which made it impossible to set a single start date for provision of the services for all the lots. Furthermore, it was only at the meeting on 8 March 2004 that the Commission became aware of the fact that the procedure for obtaining the IATA licence, which was required in order to provide the services in-plant', was timeconsuming and could thus result in some delay in the performance of the services.
97. Consequently, in order to overcome that difficulty resulting from the original withdrawal of the institutions, the Commission asked the applicant to provide the service for a transitional period of six to eight weeks, which it refused to do.
98. The Court therefore takes the view that the timetable, disrupted by the unforeseeable withdrawal of certain institutions and the applicant's refusal to provide the services for a transitional period, did not enable the Commission to maintain the continuity of the travel agency services without resorting to the signing of an addendum allowing WT to provide the services ex-plant' from 1 April to 19 May 2004, in order to cope with the situation of extreme urgency with which it was faced.
99. Moreover, it is apparent that the Commission had no part in the withdrawals in question, given that they were not attributable to it and were unforeseeable, since the Parliament's reservations emerged only after the initial publication of the contract notice.
100. With regard to jeopardising the Community's interests, it must be held that the importance of the continuity of the services at issue in this case, involving nearly 57 000 missions per year, is such that the Commission was obliged to ensure their continuity, and to do so by using the negotiated procedure.
101. The Court notes that the negotiated procedure was not used at all in the invitation to tender. It was used only in order to sign an addendum to the main contract, which arises from the tendering procedure and was signed on 31 March 2004. Consequently, the sole purpose of that addendum was to allow the provision ex-plant' of the services in question during the period from 1 April to 19 May 2004, in the light of the applicant's refusal to provide the services for a transitional period.
102. The Court also considers, on the basis of the contract document, that the tenderer was required to be in a position to provide the services inhouse not on the date of submission of the tender, but on 1 July 2004. Because of the applicant's refusal to extend the contract beyond the expiry of the framework contract on 31 March 2004, the Commission was forced to come to a contractual arrangement with WT in order to ensure the continuity of the services. It seems legitimate that early performance of the services on 1 April 2004 should require a contractual adjustment, allowing inter alia temporary provision of the services explant'. In that regard, it must also be pointed out that WT was in a position to meet the requirements laid down by the contract document, since it was able to provide the services in-house from 24 May 2004, that is, more than a month before the deadline set by that document.
103. Accordingly, it must be held that the conditions set out in Article 126(1)(c) of the detailed implementing rules were met and use of the negotiated procedure was justified. | C-126/03
Germany | 23 | S2-11.3.d | 23. The German Government maintains that the contract at issue could, by reason of Article 11(3)(d) of Directive 92/50, have been awarded using a negotiated procedure without prior publication of a contract notice. It should be pointed out in that regard that, as a derogation from the rules intended to ensure the effectiveness of the rights conferred by the EC Treaty in relation to public service contracts, Article 11(3)(d) of Directive 92/50 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 (see Joined Cases C-20/01 and C-28/01 Commission v Germany [2003] ECR I-3609, paragraph 58). The application of Article 11(3) of the directive is thus subject to three cumulative conditions. It requires the existence of an unforeseeable event, extreme urgency rendering the observance of time-limits laid down by other procedures impossible, and a causal link between the unforeseeable event and the extreme urgency resulting therefrom (see, in relation to Council Directive 71/305/EEC of 26 July 1971 concerning the coordination of procedures for the award of public works contracts (OJ, English Special Edition 1971 (II), p. 682), Case C-107/92 Commission v Italy [1993] ECR I-4655, paragraph 12, and Case C-318/94 Commission v Germany [1996] ECR I-1949, paragraph 14). In the present case, as was held in paragraph 22 of this judgment, it would have been possible for the City of Munich to undertake an accelerated restricted procedure (see, in relation to Directive 71/305, Case C-24/91 Commission v Spain [1992] ECR I-1989, paragraph 14, and Commission v Italy, paragraph 13). It follows that the Federal Republic of Germany has not shown that a situation of extreme urgency existed. | | C-394/02 | 40-45 | U2-20.2.d | 40. As regards, secondly, the derogation under Article 20(2)(d) of Directive 93/38, the caselaw has made it subject to three cumulative conditions, namely an unforeseeable event, extreme urgency rendering impossible the observance of the timelimits laid down for calls for tenders, and a causal link between the unforeseeable event and the extreme urgency resulting therefrom (see, to that effect, in the context of Directive 71/305, Case C-107/92 Commission v Italy [1993] ECR I-4655, paragraph 12, and Case C318/94 Commission v Germany [1996] ECR I-1949, paragraph 14).
41. The Greek Government has not shown that those conditions were met in this case.
42. The need to carry out the works in question within the timelimits imposed by the competent authority for the environmental impact assessment cannot be regarded as extreme urgency resulting from an unforeseeable event.
43. The fact that an authority which must approve the project concerned may impose timelimits is a foreseeable part of the procedure for approving that project (see, to that effect, in the context of Directive 71/305, Case C318/94 Commission v Germany , cited above, paragraph 18).
44. Also, DEI could, as regards the contract at issue, have launched the contract award procedure with publication of a contract notice when the procedure for the environmental impact assessment started, that is about three years prior to the expiry of the timelimits imposed.
45. It can therefore be no better maintained that extreme urgency resulting from events unforeseeable by DEI did not enable the timelimits laid down for calls for tenders to be observed. | C-385/02
Italy | 27-29 | W2-7.3.c | 27. In the present case, the original contracts relating to the flood protection works had been awarded in the 1980s. Furthermore, it had been anticipated from the start that the works would be carried out in lots as and when funding became available.
28. Those matters do not establish any extreme urgency. On the contrary, they arise out of the arrangements put into place by the contracting authority.
29. It follows that the second defence plea, based on Article 7(3)(c) of the Directive, is not well founded and must be rejected. | | C-318/94 | 12-19 | W1A4-5.3.c | 12 In so far as Article 5(3)(c) of the Directive reproduces the wording of the former Article 9(d), those provisions must be given the same interpretation.
13 The Court has held in this regard 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 relation to public works 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-57/94 Commission v Italy [1995] ECR I-1249, paragraph 23).
14 The Court has also held that, according to Article 9(d) of Directive 71/305, the derogation for which it provides, namely exemption from the obligation to publish a notice of a call for tenders, is available only if three conditions are fulfilled concurrently. That derogation requires the existence of an unforeseeable event, extreme urgency, rendering the observance of time-limits laid down by other procedures impossible, and, finally, a causal link between the unforeseeable event and the extreme urgency resulting therefrom (Case C-107/92 Commission v Italy [1993] ECR I-4655, paragraph 12). If one of those conditions is not satisfied, use of the negotiated procedure will not be justified.
15 According to the German Government, the event which the contracting authorities could not have foreseen was the totally unexpected refusal by the Weser-Ems Regional Authority to grant its approval following its deliberation.
16 That argument cannot be accepted.
17 It must be stressed that, in order to take account of the public and private interests concerned in procedures for approving public works projects, Member States may confer on natural or legal persons potentially concerned by a project certain rights which the competent authorities must respect.
18 The possibility that a body which must approve a project might, before expiry of the period laid down for this purpose, raise objections for reasons which it is entitled to put forward is, consequently, something which is foreseeable in plan approval procedure.
19 The refusal of the Weser-Ems Regional Authority to approve the project for dredging the lower Ems, thereby obliging the competent authorities to amend that project, cannot therefore be regarded as an event unforeseen by the contracting authorities within the meaning of Article 5(3)(c) of the Directive. | C-328/92
Spain | 15-16
18 [G1-6.1.d] | 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 | 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).
The position is the same with regard to Article 6(1)(d). Admittedly, having regard to the freedom of doctors to prescribe pharmaceutical products, to which the Spanish Government refers, an urgent need for a particular pharmaceutical speciality may well arise in a hospital pharmacy; however, that freedom to prescribe pharmaceutical products cannot justify a priori systematic recourse to the single-tender procedure for all supplies of pharmaceutical products and specialities to hospitals. Moreover, even if the requirement of urgency were considered to have been satisfied in a particular case, Article 6(1)(d) would not necessarily apply. The Court has consistently held that, in order to rely on the derogation provided by that provision, all the conditions it lays down must be satisfied cumulatively (see, with respect to the corresponding provision applicable to public works contracts, the judgment in Case C-24/91 Commission v Spain [1992] ECR I-1989, paragraph 13). | C-107/92
Italy | 12 | W1-9.1.d | According to Article 9(d) of the directive, the derogation for which it provides, namely exemption from the obligation to publish a notice of a call for tenders, is available only if three conditions are fulfilled concurrently. That provision requires the existence of an unforeseeable event, extreme urgency rendering the observance of time-limits laid down by other procedures impossible and, finally, a casual link between the unforeseeable event and the extreme urgency resulting therefrom. | C-71/92
Spain | 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 | 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. | C-24/91
Spain | 13-14 | W1-9.1.d
W1-15.1 | It should first be observed that the conditions for the application of Article 9(d) are concurrent. Consequently, if one of those conditions is not satisfied, the authorities awarding contracts may not derogate from the provisions of the directive, in particular those relating to advertising.
In the present case the extreme urgency relied on by the Spanish Government was not incompatible with the time-limits provided for in the context of the accelerated procedure under Article 15 of the directive. | 194/88-R
Italy | 14 | W1-9.1.d | The chronology of the facts shows first that, however urgent the works to be undertaken may be, that urgency is not due to unforeseeable events, since the Consortium has known since 1982 that the renovation of the incinerator was necessary. In order that the exception provided for in Article 9 (d) of Directive 71/305/EEC may be relied on, the "extreme urgency" brought about by events unforeseen by the authorities awarding contracts must prevent the time-limit laid down for the application of the directive from being kept. There are, therefore, sufficient factual and legal elements for assuming that, prima facie, the directive applies. | 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. | 274/83
Italy | 34 | W1-9.1.d | The commission maintains that article 13 of law no 741, in so far as it permits, by reference to article 41 (5) of the regolamento (regulation) approved by regio decreto (royal decree) no 827 of 23 may 1924, the award of private contracts ' when the urgency of the works, purchases, transport and materials is such that there must be no delay', is incompatible with article 9 (d) of the directive to the extent to which it permits urgency to be relied upon in circumstances which do not correspond to the conditions provided for expressly in article 9 (d). |
| Case | Pte | Ref | Text | N-030502
L.R. Service | 3+K2 | S2-11.3.d-impl | 3. For så vidt angår indklagedes forhold fra den 21. januar 1999 til den 29. april 2002, hvor klageskrift i denne sag blev indgivet til Klagenævnet, lægger dette til grund, at indklagede har anerkendt, at ville efterleve, den af Europa-Kommissionen, Generaldirektoratet for Det Indre marked anlagte fortolkning. Klagenævnet lægger endvidere indklagedes oplysninger om baggrunden for den indtrufne forsinkelse til grund. Indklagede har herefter haft saglig grund til indtil videre at undlade at iværksætte EU-udbud. Som følge af det anførte tages den del af klagen, der vedrører tiden fra den 21. januar 1999 til den 29. april 2002 ikke til følge.
.....
K2. For så vidt angår tiden fra den 21. januar 1999 til den 29. april 2002 tages klagen ikke til følge.
[Indklagede har i en redegørelse af 3. juni 2002 oplyst:
»L.R. Service ApS anlagde i 1998 sag mod en række kommuner for ikke at have overholdt EU direktivet om fremgangsmåden ved indgåelser af offentlige tjenesteydelsesaftaler. Herunder blev der anlagt sag mod Sorø Kommune for så vidt angår rengøringen ved Frederiksberg Skole og på Rådhuset.
Sagen blev behandlet i Klagenævnet for Udbud, der traf afgørelse i sagen mod Sorø Kommune den 21. januar 1999, hvori Klagenævnet for Udbud ikke fandt at Sorø Kommune i det pågældende tilfælde havde handlet i strid med udbudsreglerne.
……
Klagenævnets afgørelse gav L.R. Service Aps anledning til at rette en henvendelse til Europa-Kommissionen, Generaldirektoratet for Det Indre Marked (herefter GD) vedr. fortolkning og forståelse af direktivet.
GD konstaterede i skrivelse af 23.02.01, at Klagenævnet for udbud, havde anvendt en anden fortolkning af bestemmelserne vedrørende beregningen af tærskelbeløb end den Kommissionens tjenestegrene anvender.
Derefter rettede GD henvendelser til de danske myndigheder, som svarede, at de danske myndigheder var fuldt ud enige i den fortolkning af de relevante bestemmelser i direktivet, som Kommissionens tjenestegrene gav udtryk for. Samtidig anførte de danske myndigheder desuden, at de »uden ugrundet ophold…..[vil] tage yderligere tiltag til at informere om Kommissionens og den danske opfattelse af beregningsgrundlaget over for de offentlige ordregivere«.
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Sorø Kommune skal ikke anfægte GD’s udlægning af direktivet, men anerkender, at kommunen skal og vil lægge denne forståelse til grund ved fremtidige udbudssager.
Foranlediget bl.a. af Europa Kommissionens skrivelse af 23.02.01 traf Sorø Kommunes Byråd i budgetbemærkningerne til budget 2001/2002 følgende beslutning vedrørende rengøring i kommunen:
»Som et led i den løbende budgetlægning gennemføres – under ledelse af et konsulentfirma – en undersøgelse af rengøringsniveau og rengøringspris i samtlige institutioner i Sorø Kommune med henblik på en vurdering af opgavens kvalitetsmæssige niveau og placering.«
……
Hensigten med undersøgelsen skulle bl.a. være at afdække og klart synliggøre de interne sammenhænge mellem institutionerne og centraladministrationen, herunder graden af selvforvaltning i kommunen, med henblik på at sende rengøring i udbud i en anerkendt form.
Udskydelsen beror i høj grad på, at kommunens 5 skoler i disse år gennemgår store om- og tilbygninger for at gøre dem tidssvarende og bringe dem i overensstemmelse med lovgivningen. På Borgerskolen slutter arbejderne først ved skoleårets start (august 2002). Udarbejdelsen af udbudsmateriale vil først kunne gennemføres fyldestgørende, når arbejderne er tilendebragt.
Til orientering kan oplyses, at gennemførelse af udbud på Frederiksberg skole fandt sted inden igangsættelse af ombygning.
Når den føromtalte undersøgelse er afsluttet vil tidsplan for gennemførelse af EU-udbud blive fremsendt til L.R. Service.«
I en skrivelse af 25. oktober 2002 har indklagede endvidere oplyst:
»Indledningsvis kan oplyses at Sorø Kommune i foråret 2002 har indhentet flere oplæg fra et antal firmaer, der foretager de nævnte analyser af rengøringen samt modtaget flere uopfordrede tilbud om rengøring i kommunen.
På baggrund af en gennemgang af materialet overvejer kommunen at samle rengøringen i kommunen i én afdeling. Denne afdeling vil skulle kunne byde ind på rengøringen på lige fod med rengøringsfirmaer.
Det er en politisk beslutning, som har været drøftet blandt byrådets partier uden at der på nuværende tidspunkt har kunnet opnås enighed om en endelig beslutning. Sorø Kommune håber på at der kan træffes beslutning i første kvartal af 2003, hvorefter der vil kunne træffes foranstaltninger til gennemførelse af beslutningen.
Såfremt ovennævnte proces med henblik på samlet rengøring i Sorø Kommune strækker sig ud over udløbet af de allerede indgåede kontrakter, vil der naturligvis blive foretaget fornyet udbud for de pågældende institutioner.
Derudover skal det oplyses at ombygningen af Sorø Borgerskole af forskellige årsager er blevet forsinket og forventes færdigt i andet kvartal 2003.«] |
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