| | 31989L0665: rc1-5.s1Shall take before    
| 31989L0665 - Remedies Classic (1st generation) | Article 5.s1 | Article 5
Member States shall bring into force, before 1 December 1991, the measures necessary to comply with this Directive. | | 31992L0050 - First amenment of Remedies Classic (1st generation) | Article 44 | Article 44
1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive before 1 July 1993. They shall forthwith inform the Commission thereof.
When Member States adopt these provisions, they shall contain a reference to this Directive or shall be accompanied by such reference on the occasion of their official publication. The methods of making such a reference shall be laid down by the Member States.
2. Member States shall communicate to the Commission the texts of the main provisions of national law which they adopt in the field governed by this Directive. | | 31992L0013 - Remedies Utilities (1st generation) | Article 13.1.1.s1 | Article 13
1. Member States shall take, before 1 January 1993, the measures necessary to comply with this Directive. |
| Case | Pte | Ref | Text | C-21/03
Fabricom | 41-46 | RC1-2.1.a
RC1-5.s1
RU-1.1
RU-2.1.1.a | 41. By the third question referred in Cases C-21/03 and C-34/03, the national court is seeking essentially to ascertain whether Directive 89/665 and, more particularly, Articles 2(1)(a) and 5 thereof, and also Directive 92/13 and, more particularly, Articles 1 and 2 thereof, preclude the contracting entity from being able to refuse, until the end of the procedure for the examination of tenders, to allow an undertaking connected with any person who has carried out certain preparatory works from participating in the procedure or from submitting a tender, even though, when questioned on that point by the awarding authority, the undertaking states that it has not thereby obtained an unfair advantage capable of distorting the normal conditions of competition.
42. In that regard, it should be borne in mind that, since the issue in the case relates to detailed procedural rules governing the remedies intended to protect rights conferred by Community law on candidates and tenderers harmed by decisions of contracting authorities, those rules must not compromise the effectiveness of Directive 89/665 (Case C-470/99 Universale-Bau and Others [2002] ECR I11617, paragraph 72).
43. Furthermore, the provisions of Directives 89/665 and 92/13, which are intended to protect tenderers against arbitrary decisions by the contracting authority, seek to reinforce existing arrangements for ensuring effective application of Community directives on the award of public contracts, in particular where infringements can still be rectified. Such protection cannot be effected if the tenderer is not able to rely on those rules against the contracting authority (Case C-212/02 Commission v Austria , not published in the European Court Reports, paragraph 20 and the case-law cited there).
44. The possibility that the contracting authority might delay, until the procedure has reached a very advanced stage, taking a decision as to whether an undertaking connected with a person who has carried out certain preparatory works may participate in the procedure or submit a tender, when that authority has before it all the information which it needs in order to take that decision, deprives that undertaking of the opportunity to rely on the Community rules on the award of public contracts as against the awarding authority for a period which is solely within that authority's discretion and which, where necessary, may be extended until a time when the infringements can no longer be usefully rectified.
45. Such a situation is capable of depriving Directives 89/665 and 92/13 of all practical effect as they are susceptible of giving rise to an unjustified postponement of the possibility for those concerned to exercise the rights conferred on them by Community law. It is also contrary to the objectives of Directives 89/665 and 92/13, which seek to protect tenderers vis-à-vis the awarding authority.
46. The answer to the third question referred in Cases C-21/03 and C-34/03 must therefore be that Directive 89/665 and, more particularly, Articles 2(1)(a) and 5 thereof, and also Directive 92/13 and, more particularly, Articles 1 and 2 thereof, preclude the contracting authority from being able to refuse, up to the end of the procedure for the examination of tenders, to allow an undertaking connected with any person who has been instructed to carry out research, experiments, studies or development in connection with works, supplies or services from participating in the procedure or submitting an offer, even though, when questioned on that point by the awarding authority, that undertaking states that it has not thereby obtained an unfair advantage capable of distorting the normal conditions of competition. | C-236/95
Greece | 8-9 + 18 | RC1-5.s1 | 8 The Hellenic Republic admits that it failed to adopt within the prescribed period the measures necessary formally to transpose the directive in the field of public supply contracts. It argues nevertheless that the Greek legislation in force on public works and supply contracts, considered together with the provisions of the Code of Civil and Administrative Procedure and the Statutes of the Council of State, more particularly Article 52 of Presidential Decree No 18/89 entitled "Codification of legislative provisions relating to the Council of State", already affords sufficient judicial protection to meet the requirements of the directive, bearing in mind that that protection has been further reinforced by recent case-law of the Council of State. In addition, the Greek Government states that a draft presidential decree was drawn up and notified to the Commission on 22 July 1994 and is now at the stage of final signature. The subsequent delay in adopting the draft decree is attributable to formal and procedural difficulties and to recent changes in the case-law of the judicial division of the Council of State.
9 That argument cannot be accepted.
18 Lastly, as regards the formal and procedural difficulties referred to by the Hellenic Republic in order to justify the delay in adopting the draft presidential decree, it should be observed that, as the Court has repeatedly held, a Member State may not plead provisions, practices or circumstances existing in its internal legal system in order to justify a failure to comply with the obligations and time-limits laid down in a directive (see, in particular, Case C-147/94 Commission v Spain [1995] ECR I-1015, paragraph 5, Case C-259/94 Commission v Greece [1995] ECR I-1947, paragraph 5, and Case C-253/95 Commission v Germany [1996] ECR I-0000, paragraph 12). |
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