Opinion of Advocate General Tesauro delivered on 17 November 1992

1 Original language: Italian.

2 OJ, English Special Edition 1971 (II), p. 682.

3 See, most recently, the judgment in Case C-52/90 Commission v Denmark [1992] ECR I-2187, paragraph 23.

4 See the judgment in Case 42/82 Commission v France [1983] ECR 1013 and in Case 113/86 Commission v Italy [1988] ECR 607.

5 See page 44 of the rejoinder. In fact, the Danish Governmen expressly recognized that some provisions of the contract described as being of secondary importance, still contain Danish content specifications.

6 Of course, the observations which I have just made hold true in this case, too: it would at the very least be illogical if the Danish Government, having recognized the incompatibility of the Danish content clause with Community law and therefore requested its removal, were then to allow unlawful requirements of the same kind to be included in the final version of the contract.

7 See the judgment in Commission v Italy [1992] ECR I-2353.

8 See the judgment in Case C-362/90, cited above, at paragraph 12.

9 See the judgment in Case 121/84 Commission v Italy [1986] ECR 107, paragraph 10.

10 Sec, most recently, the judgment in Case C-29/90 Commission v Greece [1992] ECR I-1971, paragraph 12.

11 On that point, it is sufficient to note that the Court has never questioned the Commission's interest in obtaining a declaration that a Member State has failed to fulfil its obligations, even when the default in question was fully acknowledged by the Member State and where there was obviously no problem regarding compensation for damage.

12 See judgment in Case 167/73 Commission v France [1974] ECR 359, paragraph 15.

13 In its reply the Commission no longer referred exclusively to the negotiations concerning the reservation made by ESG with respect to Condition 3, Clause 3, of the general tender conditions, but also referred to negotiations allegedly conducted on the unit price of embankment sand, penalties and making up of delays, the contribution of support for the employment market, the price-adjustment formula and so on.

14 See, for instance, the judgment in Case 278/85 Commission v Denmark [1987] ECR 4069.

15 In order to show that the tender submitted by ESG, in the form described at paragraph 6.2, in no way influenced the result of the negotiations, Storebælt states in that note that it had not accepted the proposal put forward by ESG in terms of which the contracting authority would have borne le risque lié à la conception du projet et aux quantités, même si l'entrepreneur effectuait cette conception (the risks linked to the design of the project and the quantities involved, even if the tendering company undertook the design).

16 The grounds for the refusal being (a) the documents concerned were confidential, and (b) Storebælt was under no obligation, in any case, to determine the price of the reservations in question.

17 Sec page 54 of the Danish Government's rejoinder.

18 OJ 1989 L 210, p. 22.

19 Directive of 18 July 1989 amending Directive 71/305/EEC concerning coordination of procedures for the award of public works contracts (OJ 1989 L 210, p. 1).

20 Judgment in Case C-292/89 Antonissen [1991] ECR I-745.