Court of Justice of the European Communities (including Court of First Instance Decisions)

Approximation of laws - Public procurement procedures in the water, energy, transport and telecommunications sectors - Directive 93/38 - Complaint by a tenderer alleging that the conduct of the contracting entity infringes the directive and restricts competition and constitutes an obstacle to the free movement of goods - Examination by the Commission under the procedure applicable to failure by a Member State to fulfil its obligations - Permissibility - Failure to initiate the procedure under Regulation No 17 - Abuse of procedure - None - Distinct and independent character of the two procedures
(EC Treaty, Art. 169; Council Regulation No 17; Council Directive 93/38)

It is proper for the Commission to examine under the procedure established by Article 169 of the Treaty a complaint in which a tenderer for a procurement contract alleges that the conduct of the contracting entity constitutes an infringement of Directive 93/38 coordinating the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors, and serves to restrict competition and constitutes an obstacle to the free movement of goods. Recourse to that procedure is no less justified by the fact that the complaint related exclusively to conduct by the contracting entity and did not comprise any criticism of the relevant national legislation or the conduct of the government concerned since, in the application of the Community rules on public procurement, the acts of contracting entities must be imputed to the Member States to which those entities belong.
In so far as such a complaint does not contain any specific indication which would enable it to be characterized as a request submitted under Article 3(2)(b)of Regulation No 17, the Commission does not, therefore, commit any abuse of procedure by not examining it in the light of competition law.
Furthermore, and even supposing that the complainant did properly request the Commission to initiate the procedure under Regulation No 17, that procedure remains independent of the procedure for a finding that the conduct of a Member State infringes Community law and for termination of that conduct. The two procedures serve different purposes and are governed by different rules. The fact that the Commission decides not to initiate a procedure for a declaration of failure to fulfil obligations or decides to discontinue such a procedure, cannot therefore imply that it is prevented from finding that the conduct of the contracting entity at issue constitutes an infringement of the competition rules and ordering termination of the infringement. It follows that a decision to close the file, adopted in the context of a procedure for a declaration of failure to fulfil obligations, relates exclusively to that procedure and does not constitute an implied rejection of a complaint submitted under Regulation No 17, meaning that it does not affect the complainant's legal position in the context of a possible procedure in application of the competition rules.