Court of Justice 12-06-1997 ECLI:EU:C:1997:299

Opinion of Advocate General

Lenz

delivered on 12 June 1997^(*)

In the present Treaty infringement proceedings, the Commission claims that the Italian Republic has failed to fulfil its obligations under Article 34(1) of Council Directive 93/36/EEC of 14 June 1993 coordinating procedures for the award of public supply contracts,^(*) in that it has failed to adopt within the prescribed period or, as the case may be, to give notification of the laws, regulations and administrative provisions necessary to comply with that directive.

Article 34(1) of Directive 93/36 requires Member States to bring into force the laws, regulations and administrative provisions necessary to comply with the directive before 14 June 1994 and immediately to inform the Commission thereof.

The defendant does not deny the failure of which the Commission complains. It submits, however, that such failure is of minor importance, since the basic Community provisions concerning procedures for the award of public supply contracts, laid down by Council Directive 77/62/EEC of 21 December 1976 coordinating procedures for the award of public supply contracts^(*) and by Directives 80/767/EEC of 22 July 1980^(*) and 88/295/EEC of 22 March 1988^(*) amending it, have been transposed into internal law.^(*) That, however, does not invalidate the Commission's complaint that Directive 93/36 has not been transposed.

The defendant further submits that under a draft law currently being debated by the Italian Parliament the Government will be empowered to transpose Directive 93/36 into internal law.

As the defendant does not thereby contest that the directive in issue has not been transposed into internal law within the prescribed period, the Court does not have to consider the Commission's complaint concerning failure to give notification of the measures taken to transpose the directive.

I therefore propose that the Court should declare that, by failing to adopt within the prescribed period the laws, regulations and administrative provisions necessary to comply with Council Directive 93/36/EEC of 14 June 1993 coordinating procedures for the award of public supply contracts, the Italian Republic has failed to fulfil its obligations under Article 34(1) of that directive. I further propose that the Italian Republic should be ordered to pay the costs of the case.