Avis juridique important

Order of the President of the Court of 27 September 1988. - Commission of the European Communities v Italian Republic. - Award of a public works contract - Incinerator. - Case 194/88 R. European Court reports 1988 Page 05647

Parties Grounds Operative part

++++

Application for interim measures - Interim measures - Conditions for granting - Prima-facie case - Weighing up all the interests involved

( EEC Treaty, Art . 186; Rules of Procedure, Art . 83 ( 2 ) )

In Case 194/88 R

Commission of the European Communities, represented by Guido Berardis, a member of its Legal Department, acting as agent, with an address for service in Luxembourg at the office of Georgios Kremlis, Jean Monnet Building, Kirchberg,

applicant,

v

Italian Republic, represented by Luigi Ferrari Bravo, Head of the Department for Contentious Diplomatic Affairs, acting as Agent, assisted by Ivo Braguglia and Pier Giorgio Ferri, avvocati dello Stato, with an address for service in Luxembourg at the Italian Embassy, 5, rue Marie-Adelaïde,

defendant,

APPLICATION for interim measures for the suspension of the award by the Consorzio per la costruzione e la gestione di un impianto per l' incenerimento e trasformazione dei rifiuti solidi urbani ( Consortium for the construction and management of the incinerator and processing plant for solid urban refuse ), whose headquarters are at the offices of the City of La Spezia, of a public-works contract in connection with the consortium' s incinerator,

Judge Koopmans, acting for the President of the Court in accordance with the second paragraph of Article 85 and Article 11 of the Rules of Procedure,

makes the following

Order

1 By an application lodged at the Court Registry on 18 July 1988, the Commission of the European Communities brought an action before the Court under Article 169 of the EEC Treaty for a declaration that as a result of the failure of the Consorzio per la costruzione e la gestione di un impianto per l' incenerimento e trasformazione dei rifiuti solidi urbani ( hereinafter referred to as "the Consortium "), whose headquarters are at the Town Hall of La Spezia, to publish in the Official Journal of the European Communities a notice concerning the award of a contract for works connected with the Consortium' s incinerator, the Italian Republic had failed to fulfil its obligations under Council Directive 71/305/EEC of 26 July 1971 concerning the coordination of procedures for the award of public works contracts ( Official Journal, English Special Edition 1971 ( II ), p . 682 ).

2 By an application lodged at the Court Registry on the same date, the Commission also applied, under Article 186 of the EEC Treaty and Article 83 of the Rules of Procedure, for an interim order requiring the Italian Republic to adopt all the necessary measures to suspend the award of the contract in question in this case until the Court has given judgment in the main action . In the alternative, should the contract already have been awarded, the Court is requested to order the Italian Republic to adopt all the measures which are appropriate in order to cancel the award of the contract or, at the very least, to preserve the status quo until final judgment is given .

4 The Italian Republic submitted its written observations on 2 September 1988 . The parties' oral submissions were heard on 23 September 1983 .

5 The Consortium is an association of municipalities situated in the province of La Spezia, in Liguria, which is responsible for the disposal of solid urban waste . For that purpose, it operates an incinerator in Boscalino di Arcola . On 31 December 1986, the Pretore ( Magistrate ) of La Spezia ordered the incinerator to be closed down and made its reopening subject to its renovation . The disputed contract relates to the carrying out of that renovation work .

6 The burden of the Commission' s charge against the Italian Republic is that in the course of awarding the contract the Consortium infringed the advertising rules laid down in Directive 71/305/EEC by failing to publish a contract notice in the Official Journal of the European Communities, without providing evidence of circumstances of such a nature as to justify a derogation under the provisions of the directive, in particular Article 9 thereof . It requests that the award of the contract be suspended immediately in order to prevent it causing immediate and serious damage to the Commission, as protector of the Community' s interests, and to the undertakings which would have been able to take part in the tendering procedure had a contract notice been published in accordance with the directive .

7 It is an established and undisputed fact that no notice of the contract in question was published in the Official Journal of the European Communities .

8 Article 186 of the Treaty provides that the Court may prescribe any interim measures requested in cases before it . In order for such a measure to be granted, an application for interim measures must, according to Article 83 ( 2 ) of the Rules of Procedure, state the circumstances giving rise to urgency and the factual and legal grounds establishing a prima-facie case for the interim measure applied for .

9 First of all, the Italian Government takes the view that there is no prima-facie case for granting the interim measure sought, since Directive No 71/305/EEC does not apply to the contract in question . In the first place, the contract is only exploratory and does not come within the definition of public works contracts laid down in Article 1 of the directive . Secondly, should that not be the case, the directive itself states in Article 9 ( d ) that the provisions relating to advertising do not apply when extreme urgency prevents the time-limit from being adhered to . The Italian Government goes on to dispute the urgency of the interim measure applied for, since in its view the start of renovation work on the incinerator is much more urgent that any compliance with the formal requirements laid down by the directive . Finally, the balance of interests tilts in favour of having a rapid start made on the works, given the public health interests at stake when solid refuse can no longer be satisfactorily disposed of .

10 The argument that the contested invitation to tender was exploratory must be rejected straight away . The Italian Government explained in this respect that, under Italian legislation, works contracts may be awarded on the basis of exploratory invitations to tender intended to identify the economically and technically most advantageous tender, in accordance with predetermined conditions; in such a case, the public authorities are not in fact required to award the contracts so that the invitation to tender cannot be regarded as relating to a "public works contract" within the meaning of the directive . This argument must be rejected since, as the Commission has rightly stated, the directive governs the procedure for awarding contracts for certain works whenever such contracts are awarded by public authorities; the scope of the directive does not, and cannot, depend on the particular rules laid down by national legislation as regards the duties of the awarding authorities .

11 Consequently, the Italian Government' s other arguments should be examined together; they are all based on the urgency of the renovation works on the incinerator in question and on the emergency situation which the Consortium was in at the time when the invitation to tender was issued . In order to weigh the importance of these arguments for the purposes of these interlocutory proceedings, they must be considered with reference to the chronological order of the facts underlying the dispute in the main proceedings .

12 The documents and oral explanations provided by both parties enable the Court to regard the following facts as agreed for the purpose of the interlocutory proceedings :

( a ) on 15 December 1982, a presidential decree was brought into force relating to waste disposal; the Consortium was aware of the fact that the incinerator at Boscalino di Arcola did not comply with the technical specifications laid down in that decree;

( b ) in May and June 1986, the Consortium approved plans for renovating the incinerator;

( c ) meanwhile, the Regional Council of Liguria gave its authorization, on 26 April 1984, for the opening of a dump at Vallescura, in the municipality of Riccò del Golfo, for the disposal of solid urban refuse from a number of municipalities in the province of La Spezia;

( d ) in December 1986, the Pretore of La Spezia ordered the incinerator at Boscalino di Arcola to be closed down, making its reopening subject to renovation; in July 1987, the Pretore stated that the technical requirements had to be met in full;

( e ) during the first few months of 1987, the Ligurian regional authorities found that the dumping of waste in Vallescura had led to seepage into a stream situated below the tip; in July, the Vallescura dump was closed; an old dump in Saturnia was temporarily used, but with great hygiene problems and dangers to public health; a second tip in Vallescura was brought into use, at first for a few months;

( f ) on 27 November 1987, the Consortium applied for a loan from theCassa Depositi e Prestiti in order to finance the works for renovating the incinerator;

( g ) in December 1987, the Consortium decided to issue an exploratory invitation to tender for the award of a contract for the renovating work; the award was subject to the grant of a loan by the Cassa; the Consortium expressly stated that shortness of time did not allow another system of awarding contracts to be used, which would necessarily have taken longer; the Consortium sent a letter to seven Italian undertakings, appearing on national lists of specialized construction companies, and invited them to submit tenders;

( h ) in February 1988, work was started on a third dump at Vallescura;

( i ) on 2 June 1988, a ministerial decree was adopted which included the renovation of the incinerator in Boscalino di Arcola among the 17 priority projects for which the Cassa Depositi e Prestiti was authorized to grant loans;

( j ) on 15 July 1988, an order made by the Ligurian regional authorities laid down the conditions for the tipping of refuse on the second and third dumps at Vallescura; the limits set for the use of the second dump were almost reached .

13 To complete this summary of the facts, it should be added that, on the day of the hearing, the loan for the financing of the renovation work on the incinerator had still not been granted by the Cassa Depositi e Prestiti .

14 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 .

15 At the interlocutory hearing, the argument between the parties in fact concentrated mainly on the urgency relied on by the Commission, on the one hand, and the urgent need to complete the renovation of the incinerator quickly, on the other . The Commission argued that the length of time needed in order to comply with the advertising requirements of the directive was quite relative, since compliance with the advertising rules laid down in Article 12 et seq . of the directive requires a period of only about 40 days, and in urgent cases 25 days, whereas the invitation to tender itself dated from December 1987 . The Italian Government emphasized the serious risks to public health which additional delays would entail, particularly in view of the uncertainty about the future possibility of using the tip at Vallescura .

17 Whilst being aware of the difficulties in which the Consortium now finds itself, the Court considers that the Commission has established the urgency of the interim measure applied for and that in the final analysis the balance of interests tilts in its favour . In this regard, the Court has taken into account in particular the fact that the dumping of refuse at Vallescura must continue for quite a considerable period in any case . In fact, the Italian legislation laying down urgent provisions governing the disposal of waste, which is applicable in this case, allows a period of 120 days between the grant of the loan and the beginning of the works, which must be completed within the ensuing 18 months . In comparison with those periods, those entailed in complying with the directive appear to be negligible .

18 Consequently, the suspension already ordered must be extended until the date of delivery of the judgment in the main action .

On those grounds,

Judge Koopmans, replacing the President of the Court in accordance with the second paragraph of Article 85 ( 2 ) and Article 11 of the Rules of Procedure,

by way of interlocutory decision,

hereby orders :

( 1 ) The Italian Republic shall adopt all the necessarymeasures to suspend the award of a public works contract by the Consorzio per la costruzione e la gestione di un impianto per l' incenerimento e trasformazione dei rifiuti solidi urbani, whose headquarters are at the offices of the City of La Spezia, until the date of delivery of the judgment determining the main action .

( 2 ) Costs are reserved .

Luxembourg, 27 September 1988 .