Commission of the European Communities v Portuguese Republic. (Actions against Member States for failure to fulfil obligations) [1991] EUECJ C-247/89 (11 July 1991)

Judgment 1 By application lodged at the Court Registry on 4 August 1989, the Commission of the European Communities brought an action under Article 169 of the EEC Treaty for a declaration that, by not sending to the Official Publications Office of the European Communities, for the purposes of publication in the Official Journal of the European Communities, a notice of invitation to tender issued by the undertaking Aeroportos e Navegação Aérea with respect to the supply and assembly of a telephone exchange at Lisbon Airport, the Portuguese Government had failed to fulfil its obligations under Council Directive 77/62 of 21 December 1976 coordinating procedures for the award of public supply contracts, in particular Article 9 thereof (Official Journal 1977 L 13, p. 1). 2 Article 1(a) of Directive 77/62 defines public supply contracts as contracts for pecuniary consideration concluded in writing between a supplier (a natural or legal person) and a contracting authority for delivery of products. Article 1(b) defines contracting authorities as the State, regional or local authorities and the legal persons governed by public law or, in Member States where the latter are unknown, bodies corresponding thereto as specified in Annex I to the directive. 3 Article 26 of the Act concerning the conditions of accession of the Kingdom of Spain and the Portuguese Republic and the adjustments to the Treaties (hereinafter "the Act of Accession"), in conjunction with Section IX(D) of Annex I thereto (Official Journal 1985 L 302, pp. 21 and 139), made the following addition to the list, contained in Annex I to the directive, of legal persons governed by public law and corresponding bodies referred to in Article 1(b): ".... XIII In Portugal: other corporate bodies governed by public law subject to a procedure for the award of contracts". 4 Article 9 of Directive 77/62 stipulates that contracting authorities who wish to award a public supply contract must send the notice by which they make known their intention as soon as possible by the most appropriate channels to the Office for Official Publications of the European Communities for publication in the Official Journal. 5 Article 2(2)(a) of the directive excludes supply contracts awarded by bodies which administer transport services from the scope of the directive. 6 Pursuant to Articles 392 and 395 of the Act of Accession, the Portuguese State should have transposed the directive into national law by 1 January 1986. 7 The public undertaking Aeroportos e Navegação Aérea ("ANA-EP") is a legal person governed by public law established by Decree-Law No 246/79 of 25 July 1979 (Diario da Républica No 170, series I). Pursuant to the Decree-Law and the constitution of ANA-EP annexed thereto, the undertaking is responsible for operating and developing support activities in the field of civil aviation in order to guide, direct and control air traffic, and to enable aircraft to take off and land safely; it is also responsible for freight, embarcation and disembarcation, and the movement of passengers and mail. ANA-EP also performs the tasks and provides the services that form an integral part of the airport and air-navigation infrastructure at Lisbon Airport and elsewhere. Lastly it is responsible for the analysis, planning, construction and development of new civil-airport and air-navigation infrastructure. 8 In 1987 ANA-EP invited tenders for the supply and assembly of a telephone exchange at Lisbon Airport. Accordingly, it published an announcement in the Portuguese weekly "O Expresso" on 29 August 1987. 9 The announcement came to the notice of the Commission, which found that all the conditions for the application of Directive 77/62 were fulfilled and that none of the exceptions relating to the scope of the directive was applicable. 10 Having found that ANA-EP, being the contracting authority, had failed to comply with the requirement to send notice of the tendering procedure to the Office for Official Publications of the European Communities, as provided for in Article 9 of Directive 77/62, the Commission sent the Portuguese Government a letter of formal notice on 28 September 1987. 11 In its reply of 20 October 1987 the Portuguese Government denied that Directive 77/62 was applicable. 12 The Commission considered that the arguments adduced by the Portuguese Government were not capable of justifying the failure to publish notice of the tendering procedure in the Official Journal of the European Communities and, on 21 November 1988, issued the reasoned opinion provided for in the first paragraph of Article 169 of the Treaty, requesting the Portuguese Government to take the necessary steps to comply with the opinion within one month from the date of service. 13 In its reply to the reasoned opinion the Portuguese Government stated that it intended to amend Portuguese legislation. The Commission did not consider that an adequate response, and accordingly decided to institute these proceedings. 14 Reference is made to the Report for the Hearing for a fuller account of the facts of the case, the procedure and the submissions and arguments of the parties, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court. Admissibility 15 The Portuguese Government maintains that the action is inadmissible. It adduces a number of arguments, some founded on the contention that the alleged infringement could not be attributed to the Portuguese State; others, on the contradiction between the grounds of the reasoned opinion and those put forward in the application; the ambiguous nature of the Commission' s position; and the insufficiency of the period allowed in the reasoned opinion. 16 In regard to the contention that the alleged infringement could not be attributed to the Portuguese State, the Portuguese Government maintains that Article 9 of Directive 77/62 only requires a State to publish notices of tendering procedures in the Official Journal when the State itself is the contracting authority. ANA-EP being a legal person distinct from the State, a failure to publish notices of its tendering procedures could not be attributed to the State. The Portuguese Government adds that, since the directive has not been transposed into the national legal order, ANA-EP was under no obligation to publish notices of its public supply contracts. 17 The Commission asserts that, in view of the degree of control which the Portuguese State exerts over ANA-EP' s award of public contracts, the latter is a contracting authority within the meaning of Directive 77/62. Accordingly the Portuguese State is answerable for ANA-EP' s failure to publish its tendering procedures in the Official Journal; the fact that the Directive has still not been transposed into national legislation does not negate that interpretation. 18 On that point it is sufficient to note that determining whether ANA-EP' s conduct may properly be attributed to the Portuguese Republic involves a factual appraisal forming part of the examination of the merits of the application rather than its admissibility. 19 The question should therefore be considered in connection with the examination of the merits of the application. 20 In regard to the contradiction between the reasons set out in the reasoned opinion and those advanced in the application, the Portuguese Government claims that in the reasoned opinion the Commission had described ANA-EP as a contracting authority within the meaning of Directive 77/62, because the award by it of public contracts was subject to approval or authorization by the Portuguese Government; however, in the application, the Commission had stated that abolishing the approval or authorization procedure for public contracts would have no effect on ANA-EP' s status as a contracting authority within the meaning of the directive. The Government further maintains that the Commission' s position was ambiguous inasmuch as it had never specified what sort of measures would need to be taken to terminate the infringement. It emphasizes that the Commission had not opposed its stated intention to repeal the requirement for State authorization or approval for some public contracts. Finally, the time allowed in the reasoned opinion was not sufficient for it to amend the legislation concerned. 21 The Commission argues that none of these arguments is well founded. It states there had not been any change in the description of the impugned conduct on the part of the Portuguese State: both the reasoned opinion and the application stated that the charge concerned the tendering procedure launched by ANA-EP. The Commission maintains that it never asked for the Portuguese legislation to be amended. It also denies that there was a duty to state, in the reasoned opinion, what steps should be taken to eliminate the impugned conduct. Finally it affirms that the period prescribed in the reasoned opinion was reasonable and sufficient, since the Commission' s first communication to the Portuguese State, the letter of formal notice, was dated 28 September 1987. 22 In that connection, it should be noted that, according to the Court' s case-law, the reasoned opinion must contain a coherent and detailed statement of the reasons which persuaded the Commission that the State concerned had failed to fulfil one of its obligations under the Treaty (judgment in Case 274/83 Commission v Italy [1985] ECR 1077). However, the Commission cannot be required to indicate in the reasoned opinion what steps should be taken to eliminate the impugned conduct. 23 It appears from the text of the reasoned opinion in the file that it fulfils the requirements laid down in the case-law: the Commission set out therein a sufficiently detailed statement of the context, facts and legal background, and of the arguments which had persuaded it that the Portuguese Republic had failed to fulfil the obligation imposed by Article 9 of Directive 77/62. At no stage - neither in the pre-litigation procedure, nor during the litigation itself - did the Commission alter that line of argument, which consequently cannot be deemed ambiguous. 24 Moreover, the reasoning in the reasoned opinion is essentially the same as that in the application. In both the charge is the same: infringement of Article 9 of Directive 77/62. 25 As for the period prescribed in the reasoned opinion, it should be emphasized that the charge against the Portuguese Government was brought to the latter' s attention by the letter of formal notice of 28 September 1987, hence more than a year before the reasoned opinion of 21 November 1988. It should also be pointed out that, from the start of the pre-litigation procedure, the Portuguese Government disputed the charge against it, arguing both that Directive 77/62 was inapplicable to the facts of the case, and that the infringement could not properly be attributed to the Portuguese State. In those circumstances, the period of one month prescribed in the reasoned opinion for the Portuguese Government to comply with its obligations must be deemed to be both reasonable and sufficient. 26 It follows from the foregoing that the pleas concerning the inadmissibility of the application must be rejected. The substance 27 The Commission maintains that, under Article 9 of Directive 77/62, ANA-EP was bound to send a notice of the tendering procedure in question to the Office for Official Publications of the European Communities for publication in the Official Journal, since all the requirements necessary for Article 9 to apply were fulfilled, and the situation was not covered by any of the exceptions listed in the Directive. 28 The Portuguese Government takes the view that the provisions of Directive 77/62 did not apply to the award of the contract in question. 29 It supports that plea first by stating that ANA-EP' s activities (defined by the aforementioned Decree-Law No 246/79 and by ANA-EP' s constitution) and air-transport services complemented each other and were indissolubly linked: ANA-EP should therefore be deemed to be a body which administers transport services within the meaning of Article 2(2)(a) of Directive 77/62, and whose awards of public supply contracts fall outside the scope of the directive. 30 The Portuguese Government then refers to Council Directive 90/531/EEC of 17 September 1990, on the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors (Official Journal 1990 L 297, p. 1). That directive, it contends, covers inter alia public contracts in sectors excluded from the scope of Directive 77/62, as last amended by Council Directive 88/295/EEC of 22 March 1988 (Official Journal 1988 L 127, p. 1); it concludes that the fact of ANA-EP' s being included among the bodies subject to the rules laid down in Directive 90/531 proves that ANA-EP is not covered by Directive 77/62. 31 The Portuguese Government also emphasizes that the meaning of Article 2(2)(a) of Directive 77/62, which excludes from the scope of the Directive "bodies which administer transport services", is broader than that of the new text as amended by Article 3 of Directive 88/295: the new text only excludes "carriers by land, air, sea and inland waterway". The difference demonstrates that Article 2(2)(a) of Directive 77/62, in the version in force at the time of the tendering procedure, covered bodies which, like ANA-EP, administered ground services. 32 The Commission' s view is that ANA-EP is not a body which administers transport services within the meaning of Directive 77/62. Citing the Guide to Public Contracts in the Community (Official Journal 1987 C 358, p. 1) the Commission maintains that Article 2(2)(a) of the directive should be interpreted restrictively: it only covered organizations carrying passengers or goods between two points. The Commission adds that the new text of Article 2(2)(a) resulting from Directive 88/295 is intended to clarify, not amend, the scope of the provision concerned. Finally, the Commission states that the reference to ANA-EP in the text of Directive 90/531 is an expression of the aim of the directive, which is to place on an equal footing public bodies which administer airports, and their private sector counterparts. 33 It should be pointed out first of all that, according to Article 2(2)(a) of Directive 77/62, in the version in force at the time the notice of invitation to tender was issued, the directive does not apply to public supply contracts awarded by bodies which administer transport services. 34 The reasons for that exclusion are set out in the sixth and seventh recitals in the preamble to Directive 77/62, which state: "... the bodies currently administering transport services in the Member States are governed in some cases by public law, in others by private law; ... in accordance with the objectives of the common transport policy equality of treatment should be ensured not only between separate undertakings concerned with the same mode of transport but also between such undertakings and undertakings concerned with other modes of transport; ... pending the drafting of measures for the coordination of procedures applicable to transport bodies and in view of the said special circumstances, those authorities referred to above, which by reason of their status would fall within it, should be excluded from the scope of the Directive". 35 It should be noted further that the concept of bodies which administer transport services, mentioned in Article 2(2)(a) of Directive 77/62, in the version in force at the material time, refers to the transport-services sector in general. 36 ANA-EP' s activities pursuant to Decree-Law No 246/79 and to its own constitution are associated closely with the carriage by air of passengers and freight, which is impossible without the requisite infrastructure and airport services. 37 It should also be emphasized that the common transport policy referred to in the recitals quoted at paragraph 34 above includes activities associated with the operation of the requisite infrastructure, and that the need for equality of treatment referred to there also relates to bodies which carry out the functions and provide the services which are intrinsically associated with airport and air navigation infrastructure in Member States, some being governed by public, others by private law. 38 It follows from the foregoing that a body which, like ANA-EP, carries out the activities and provides the services described above must be deemed to be a body which administers transport services within the meaning of Article 2(2)(a) of Directive 77/62, in the version in force at the time of the tendering procedure concerned. 39 The above conclusion is borne out by the provisions and scope of Directive 90/531 on the procurement procedures in the water, energy, transport and telecommunications sectors, adopted by the Council on 17 September 1990. 40 By virtue of Article 2(2)(b)(ii) of Directive 90/531, whose purpose is, inter alia, to establish rules governing procedures for the award of contracts in the transport sector, the directive applies to the exploitation of a geographical area for the purpose of the provision of airports to carriers by air. ANA-EP is listed in Annex VIII to that directive as a contracting entity which fulfils the criteria set out in Article 2(6) of the Directive. 41 It appears clearly from the sixth and seventh recitals in the preamble to Directive 90/531 that the transport sector is one of the sectors excluded from the scope of Directive 77/62, as last amended by Directive 88/295. 42 It is therefore not possible to accept the Commission' s argument, based on Article 2(2)(a) of Directive 77/62, that the concept of body which administers transport services should be interpreted restrictively. 43 In the light of all the foregoing considerations, and without its being necessary to rule on the other pleas in law advanced by the Portuguese Government in its defence, it must be held that ANA-EP, being a body which administers transport services within the meaning of Article 2(2)(a) of Directive 77/62, did not, at the time of the tendering procedure in issue, come within the scope of the directive and that accordingly the action for a declaration that Portugal has failed to fulfil its obligations under the Treaty is unfounded. Costs 44 Under Article 69(2) of the Rules of Procedure the unsuccessful party is to be ordered to pay the costs. Since the Commission has failed in its submissions, it must be ordered to pay the costs. On those grounds, THE COURT hereby: 1. Dismisses the application; 2. Orders the Commission to pay the costs. © European Communities, 2001 All rights reserved BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII