Opinion of Mr Advocate General Lenz

Mr President,

Members of the Court,

This case concerns the implementation in Italy of 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).

That directive was also at issue in Case 10/76. On that occasion its contents were considered in detail so that it is sufficient for me here merely to refer to that case.

A first Law on the subject was adopted in Italy on 2 February 1973. That Law was at issue in the earlier proceedings, which culminated in a declaration that, by failing to adopt the measures necessary to comply with Directive 71/305 within the period of 12 months from its notification as laid down in Article 32, namely by 29 July 1972, the Italian Republic had failed to fulfil an obligation under the EEC Treaty.

A further law was adopted on 8 August 1977 which, according to the Commission, correctly implemented the directive in Italian law.

However, the matter did not rest there. On 10 December 1981, the legal position was altered by Law No 741 in such a way that the Commission, when it received notice thereof, came to the conclusion that various provisions of the Law were inconsistent with the aforementioned directive.

By a telex message dated 7 April 1982, the Commission notified its views to the Italian Government and asked it to submit its observations. Since no observations were submitted, the Commission, by a letter dated 17 December 1982, instituted proceedings under Article 169 of the EEC Treaty. The letter set out which provisions of the Italian Law of 10 December 1981 (namely Article 9, the first, third, fourth and fifth paragraphs of Article 10, Articles 11 and 13 and the second paragraph of Article 15 (2)) were allegedly contrary to which provisions of the directive and contended that, by failing to communicate the text of the aforementioned Law to the Commission, the Italian Government had failed to fulfil its obligations under Article 33 of Directive 71/305.

In a written reply dated 2 February 1983, the Italian Government accepted most of the Commission's allegations and pointed out that a draft law to amend the Law in question had already been prepared.

The Commission on examining a copy of that draft law sent to it, came to the conclusion that, if the draft law were adopted, it would meet some of its complaints but others would not be satisfactorily dealt with. In any event on 2 August 1983, it delivered a reasoned opinion under Article 169 of the EEC Treaty because at that time the legislative process had still not been completed. Furthermore, because the Italian legal provisions were not amended within the period laid down in that reasoned opinion, the Commission brought the matter before the Court of Justice on 10 December 1983 and sought a declaration that, by adopting certain provisions for the implementation of Directive 71/305 and by failing to notify the Commission of the main provisions of Italian law concerning the award of public works contracts, the Italian Republic had failed to fulfil its obligations under the EEC Treaty.

During the written procedure before the Court of Justice the defendant accepted that several of the complaints were justified (namely those relating to the third, fourth and fifth paragraphs of Article 10 and Article 13 of Law No 741). Conversely the Commission, after noting the Italian Government's explanations, conceded that some of its complaints could not be upheld (namely those relating to Article 11 and, in part, to Article 9 of the said Law).

During the oral procedure it was further learnt that Law No 687 amending Law No 741 and the provisions relating to provisional security and advertising had been adopted on 8 October 1984. Most of the remaining points in dispute have, according to the Commission, thereby been resolved. All that is now outstanding is the application for a declaration that the Italian Republic has failed to fulfil its obligations under the EEC Treaty as regards the criterion for the award of contracts (which was dealt with in the first paragraph of Article 10 of Law No 741 and which pursuant to Law No 687 was provided for in virtually identical terms in the amended version of subparagraph (b) of the first paragraph of Article 24 of the Law of 8 August 1977) and to its failure to comply with Article 33 of the directive after the adoption of Law No 741.

The Italian Government denies both those complaints.

It is that dispute which now falls to be considered.

1. Against the first of those complaints, the defendant relied during the oral procedure primarily on an objection of inadmissibility.

2. In view of that conclusion in relation to the first of the remaining two points at issue, I turn now to consider, as a secondary matter and fairly briefly, the question whether the Commission's objection in relation to the first paragraph of Article 10 of Law No 741 is justified or whether the Italian Government is correct in its view that the said provision (which was substantially retained in the Law of 8 October 1984 — a fact which is of course not now in dispute) is wholly in conformity with Article 29(1) of Directive 71/305.

3. The second remaining point at issue relates to Article 33 of the directive which provides that:

4. Finally, a few words must also be said with regard to the costs of the action.

5. In view of the foregoing, I propose that the Court should:

1 Translated from the German.

2 Judgment of 22 September 1976 in Case 10/76 Commission of the European Communities v Italian Republic [1976] ECR 1359.

3 Judgment of 3 October 1984 in Case 254/83 Commission of the European Communities v Italian Republic [1984] ECR 3395.

4 Judgment of 25 May 1982 in Case 96/81 Commission of the European Communities v Kingdom of the Netherlands [1982] ECR 1791.