Report for the Hearing in Case C-107/92

I — Legal background and summary of the facts

1. 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, hereinafter ‘the directive’), implemented in Italy by Law No 584 of 8 August 1977, coordinated the procedures for the award of public works contracts concluded in the Member States on behalf of the State, regional or local authorities or other legal persons governed by public law, on the basis of the following principles: prohibition of technical specifications that have a discriminatory effect, adequate advertising of contracts and the fixing of objective criteria for participation.

2. The directive, which applies to contracts of a value of ECU 1000000 or more, provides (in Article 12 et seq., Title III), for adequate advertising of invitations to tender, so that all interested parties in the Community are able to learn about tendering procedures and, possibly, take part. Pursuant to Article 12, notices of the intention to award contracts must be sent to the Office for Official Publications of the European Communities, which arranges for them to be published in the Official Journal of the European Communities. Article 15 provides for the possibility of an accelerated procedure under which the total length of the advertising procedure is reduced from a minimum of 42 days to a minimum of 22 days, in the case of restricted procedures under Article 14.

3. Article 9 of the directive provides for exceptions to the application of those rules regarding advertising. Article 9(d) provides for an exception:

‘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’.

4. On 18 June 1988, the Bolzano Ufficio del Genio Civile (Civil Engineering Department), attached to the Ministry of Public Works, having regard to a report from the Geological Department of the Italian Ministry of the Environment of 9 June 1988 (hereinafter ‘the Geological Department Report’) issued an invitation to tender, and awarded a public works contract to the Italian undertaking Collini e Rabbiosi SpA for the construction of an avalanche barrier in the locality of Colle Isarco, Brennero, and more particularly in the area known as ‘Alpe Gallina’ (‘Hühnerspiel’), for which the sum of LIT 10.5 thousand million (about ECU 7000000) had been set aside under the Italian Finance Law No 67 of 11 March 1988. awarded a public works contract to the Italian undertaking Collini e Rabbiosi SpA. The Trento Public Works Technical and Administrative Inspection Committee approved the plans for the works on 26 April 1988. The works form part of the general protection against avalanches in the region in question following the 1975 avalanche in which four people were killed.

5. The invitation to tender was never published in the Official Journal of the European Communities.

6. The works were scheduled to start on 21 September 1988. The order of 28 September 1988 by which the Municipality of Brennero halted the works was suspended by Decision No 733 of the Consiglio di Stato of 15 November 1988. The Corte Costituzionale confirmed the legality of the works on 10 April 1989. Work was resumed in April 1989 and was completed in October 1991.

7. By letter of 20 June 1989, the Commission sent the Italian authorities a request for information on the application of Articles 7 and 12 of the directive and of Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment. The procedure provided for by Article 169 of the EEC Treaty was initiated by a formal letter of 24 January 1990 in which the Italian Republic was called on to submit its observations within a period of one month on the Commission's view that non-publication in the Official Journal of the European Communities constituted an infringement of Articles 7 and 12 of Directive 71/305/EEC.

8. By telex of 15 March 1990, the Office of the Italian Permanent Representative to the European Communities replied to the formal letter. It contested the Commission's observations, contending that the directive was not applicable in view of the exceptional urgency and the impossibility of deferring the works, pursuant to Article 5(d) of Italian Law No 548 of 8 September 1977 implementing the directive and Article 41(5) and (6) of Royal Decree No 87 of 23 May 1924. Those reasons had been set out in a report of 4 March 1986 issued by the Bolzano Civil Engineering Department and had been accepted at a meeting of 3 April 1987 convened by the regional adviser. The were set out by the Mayor of Brennero in minutes of 22 January 1988 and then confirmed in the Geological Department Report of 9 June 1988.

9. Regarding those observations as unsatisfactory, on 13 February 1991 the Commission issued a reasoned opinion under Article 169 of the EEC Treaty, inviting the Italian Republic to take the necessary measures to comply with it within a period of one month after notification thereof.

10. The Italian Republic did not respond to the reasoned opinion.

II — Written procedure and forms of order sought

11. The Commission's application was received at the Court Registry on 1 April 1992. The written procedure followed the normal course.

12. Upon hearing the report of the Judge-Rapporteur and the views of the Advocate General, the Court decided to open the oral procedure without any preparatory inquiries.

13. The Commission claims that the Court should: find that, by failing to send to the Office for Official Publications of the European Communities for publication in the Official Journal of the European Communities a notice of the invitation to tender for construction of an avalanche barrier in the locality of Colle Isarco and Brennero, the Italian Republic has 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; order the Italian Republic to pay the costs.

14. The Italian Republic contends that the Court should: dismiss the action; order the Commission to pay the costs.

III — Pleas in law and arguments of the parties

The exception provided for in Article 9(d) of Directive 71/305/EEC

15. The Commission and the Italian Republic both agree that the exception must be interpreted strictly and that the burden of proving the actual existence of exceptional circumstances justifying a derogation lies on the person seeking to rely on those circumstances (Case 199/85 Commission ν Italy [1987] ECR 1039, paragraph 14). They agree that the conditions in Article 9(d) of the directive, and more particularly the existence of unforeseen events and extreme urgency, are concurrent (Case C-24/91 Commission ν Spain [1992] ECR I-1989, paragraph 13).

16. The Commission maintains that the Italian contracting authorities did not furnish evidence that the conditions justifying application of Article 9(d) of the directive were met. The Italian Republic, on the other hand, contends that they were fulfilled.

The unforeseeable event

17. The Commission does not deny that an avalanche may in itself be an ‘unforeseeable event’ if it has already occurred or is imminent. However, the Commission considers that in this case there was no imminent risk of an avalanche or land slip in 1988 or the following years.

18. In its reply, the Commission maintains that the term ‘unforeseeable event’ inherently relates to dynamic aspects. The term is essentially concerned with movement, affecting a pre-existing state of affairs, in this case a rapid displacement of snow. Thus, the description in the Geological Department Report of 9 June 1988 of a mountain site that was particularly dangerous owing to its configuration concerns a static aspect, which has nothing to do with ‘unforeseeable events’.

19. The Commission doubts that a past event, in this case the last big avalanche in the region in 1975, can be regarded as unforeseeable (see the order of the Court of 27 September 1988 in Case 194/88 R Commission v Italian Republic [1988] ECR 5647, paragraph 14).

20. The Commission observes that, if a general risk of natural catastrophe justified a derogation from the directive, the directive would never apply in mountainous regions and would not be interpreted restrictively.

21. The Italian Republic states that a technical study by the Geological Department of 9 June 1988 had shown that the geological characteristics of the region, which had not been previously known and were not foreseeable, made the danger of avalanches highly probable, real and imminent and that that Department had recommended ‘urgent action’.

22. According to the Italian Republic, the concept of an unforeseeable event docs not involve the obligation to wait for the damage caused by an avalanche to occur. An imminent and sufficiently probable danger of avalanches, which is a static factor, as indicated by the Geological Department Report, constitutes an unforeseeable event.

23. The Italian Republic contends that the Commission did not consider — or at least did not state that it had considered — whether such a danger of avalanches might constitute an unforeseeable event.

24. The Italian Republic considers that, in view of the Geological Department Report, which represents a new fact, any reference to the 1975 avalanche is irrelevant

The extreme urgency

25. After referring to the 1975 avalanche, the Commission observes that the Italian authorities waited more than 13 years before constructing an avalanche barrier. The period prescribed by Article 12 et seq. of the directive or by Article 15, which provides for the accelerated procedure, is only about 40 and 22 days respectively (see Case C-24/91 Commission v Spain, cited above, paragraph 15) and does not involve an excessive delay compared with a wait of 13 years.

26. Nor does the Commission sec for what reason the works were commenced in September 1988 without following the normal procedure giving notice of the contract, particularly since the works went on until October 1991. Thus, in its view, the Italian Republic has not proved the existence of the extreme urgency referred to in Article 9(d) of the directive.

27. In its reply, the Commission maintains that a period of more than three months elapsed between the forwarding of the Geological Department Report, on 10 June 1988, and the date fixed for commencement of the works, 21 September 1988. Moreover, the works were completed and underwent trials three years and four months after the Geological Department Report was presented. The Commission infers from this, first, that if the Italian authorities had been convinced of the extreme urgency of undertaking the works, they ought to have started them immediately, and, secondly, having waited three months for the requisite national administrative procedure to be followed, they cannot refuse to follow the advertising procedure under the directive, which does not involve excessive delay, particularly the accelerated procedure under Article 15 which is appropriate where extreme urgency is claimed.

28. The Italian Republic contends that the results of the Geological Department Report proved the existence of extreme urgency and justified commencement of the works in September 1988. The prescribed national administrative procedure took about three months. A delay, even if of only 40 or 22 days, would not therefore have been consistent with the commencement of work before the onset of the 1988/1989 winter or compliance with the provisions of the directive concerning advertising.

29. In its rejoinder, the Italian Republic contends that the national procedure, taking three months and usually longer, proves that it was extremely urgent to proceed with the works before the onset of the 1988/1989 winter. Moreover, the commencement of the works would inevitably have been postponed beyond mid-October 1988, at which time it was virtually impossible to work, if the Italian authorities had observed the rules of the directive on advertising. Because of the exceptional urgency it was therefore impossible to comply with the directive.

30. According to the Italian Republic, the events occurring after the award of contract or during the execution of the works are not relevant.

IV — Replies to the questions put by the Court

31. The Court asked the Italian Government to reply in writing to the following questions: As regards the scheduling of construction of the avalanche barrier, why was it necessary for the works to be started as a matter of urgency before winter 1988/1989 when it was envisaged that they would last for more than three years? Were the works planned for autumn 1988 inextricably linked with the later works? To what extent would the additional protection against avalanches been constructed before the 1988/1989 winter if the works in question had continued between 21 September and the onset of winter?

32. The Italian Government replied as follows: (a) Between the award of contract (21 September 1988) and the interruption caused by the onset of winter (4 November 1988), the following works were carried out: construction and laying of three initial rows of bridging structures of F and Β 37 steel between the altitudes of 2350 and 2400 metres; construction and laying of two series of anti-avalanche structures lower down; construction and laying of two rows of anti-avalanche structures along the steepest slope. Those works cost in all LIT 2466516201, representing 28% of the estimated cost of the project, namely LIT 8 789 590 000. (b) Execution of the first works before the 1988/1989 winter was necessary to enable data to be compiled concerning wind patterns between the altitudes of 2030 and 2400 metres and the behaviour of snowfalls after the general works had been carried out. Data were collected between 1 December 1988 and 30 April 1989. On the basis of that information, the initial project underwent the following modifications: reduction of the size of the highest row of defences, repositioning of the one located at 2030 metres, and reduction of the area covered by the defences and of the cost thereof. (c) If the works undertaken before winter had not been completed, it would not have been possible to obtain the information which had to be collected during the winter. That explains why the works had to be commenced with the greatest urgency before the 1988/1989 winter and also shows that the works carried out in autumn 1988 were essential in order to obtain information on wind patterns and the behaviour of the snow cover and were therefore necessary for the proper execution of the subsequent works. (d) In the contract, the duration of the works was estimated as 440 consecutive days, and thus not as ‘more than three years’. (e) The works described in paragraph (a) were executed between 21 September 1988 (award of contract) and 4 November 1988 (interruption for winter). The hypothetical case referred to in the second question in paragraph 1 docs not therefore arise.

D. A. O. Edward

Judge-Rapporteur

1 Language of the case: Italian.