Opinion of the Advocate-General
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Mr President,
Members of the Court,
1 . In this action the Commission is asking the Court for a declaration that by allowing the inclusion in the invitation to tender for a public works contract concerning the supply of water for Dundalk of a clause providing that the pipes to be used are to be certified as complying with an Irish standard and by refusing to consider a tender providing for the use of pipes not certified as complying with that standard, Ireland has failed to fulfil its obligations under Article 30 of the EEC Treaty and Article 10 of Council Directive 71/305/EEC of 26 July 1971 concerning the coordination of procedures for the award of public works contracts ( hereinafter referred to as "the directive "). ( 1 )
2 . The promoter of the project, called the "Dundalk Water Supply Augmentation Scheme", is the Dundalk Urban District Council . Within that project, the contract in question is contract No 4 . It concerns the construction of a water-main to transport water from the River Fane source to a treatment plant and thence into the existing supply system . In the contract specifications, Clause 4.29 provides that : "Asbestos cement pressure pipes shall be certified as complying with Irish Standard Specification 188:1975 in accordance with the Irish Standard Mark Licensing Scheme of the Institute for Industrial Research and Standards . All asbestos cement water-mains are to have a bituminous coating internally and externally . Such coatings shall be applied at the factory by dipping ". Following a complaint by an Irish public works undertaking, Walls, one of whose very competitively priced tenders was rejected because it envisaged the use of Spanish Uralita pipes that did not have the certification required, the Commission commenced the procedure provided for in Article 169 of the EEC Treaty .
3 . It is necessary first of all to describe the legal background to the arguments which will enable the Court to determine whether Ireland has failed to fulfil certain of its obligations under Community law .
4 . The Commission considers that the infringement must be considered in the light, in particular, of the obligations arising under Article 10 of the directive . Noting that, according to Article 3 ( 5 ) of the directive, its provisions do not apply in particular to public works contracts awarded by the production, distribution, transmission or transportation services for water, the Commission points out that, since Ireland referred to the compulsory notice provided for in the directive in order to publish a notice of the contract in question in the Official Journal of the European Communities, it is obliged to comply with all of the provisions of the directive, in particular Article 10 ( 2 ). That provision prohibits in principle, in clauses of contracts governed by the directive, "the indication of trade marks, patents, types, or of a specific origin or production"; however, it authorizes such an indication subject to certain conditions if it is accompanied by the words "or equivalent ".
5 . There is no doubt that the contract in question, which was one of a number of contracts for works designed to augment the Dundalk water supply, thus belonged to a category of contracts outside the scope of the directive and that, from that point of view, Ireland was not a priori obliged to comply with its provisions . It is contended, however, that Ireland voluntarily submitted itself to its application .
6 . Apparently, the publication of the notice of the contract in question in accordance with the conditions laid down in the directive was initially linked to Ireland' s plan to seek Community finance for the project . Its plan came to nothing but the Commission wishes the Court to declare that once a Member State publishes, on its own initiative, a notice of an invitation to tender in the form provided for in the directive, it must subsequently apply all the provisions of the directive, so that the apparent situation is complied with, as it were .
7 . With regard to that argument, which has been supported by Spain, I share the view of Ireland that the perfectly clear wording of the provisions excluding contracts relating to the production, distribution, transmission or transportation of water from the scope of the directive must prevail . To those provisions the Community legislature has added no qualification to the effect that authorities awarding contracts may voluntarily make their invitations to tender subject to a set of rules which is a priori inapplicable to them . I do not believe that in its judgment the Court may infer, from the form of the publication of a notice of invitation to tender, consequences which the Community legislature, which laid down those formal requirements, did not envisage .
8 . Neither the Commission nor Spain has truly explained how, as a matter of law, the Member States could unilaterally, in the absence of any supporting legal provision, override the effect of Article 3 ( 5 ) of the directive and no previous judgments of the Court have been cited in support of this view .
9 . Certainly, one cannot ignore the need to protect the interests of contractors who might draw certain conclusions from publication of the notice in the Official Journal of the European Communities . However, it seems to me that, given the Community legislature' s very clear position as regards the exclusion of certain contracts from the scope of the directive, a qualification added by a decision of the Court to the effect that a Member State may voluntarily submit itself to the application of the provisions of the directive would have the disadvantage of introducing ambiguity into the interpretation of the provisions of a directive where there is none at present . In several of its judgments the Court has emphasized in this regard the necessity for Member States not to place economic operators in a position of uncertainty through contradictions in legislation or regulations . ( 2 ) In my view, that principle applies a fortiori to strictly Community provisions and in the present circumstances prohibits the perfectly clear meaning of Article 3 ( 5 ) of the directive from being obscured .
10 . For that reason I consider that in the present case the directive could not apply to the contract in question and consequently that it is unnecessary to consider how Ireland failed in this case to fulfil the obligations laid down therein .
11 . It would therefore appear that Ireland' s conduct may be assessed only in the light of the obligations arising under Article 30 of the Treaty .
12 . Here again, Ireland considers that the provisions of Article 30 cannot apply to the facts referred to by the Commission and that its reliance on Article 30 has no sound basis .
13 . That view is based on an apparently simple line of argument . Ireland is being challenged on an issue concerning the non-conformity with Community law of one aspect of the invitation to tender for a public works contract . Invitations to tender are governed by provisions which implement the articles of the Treaty relating to the freedom to provide services . Therefore, Ireland' s conduct cannot, according to the case-law of the Court, be assessed with reference to the provisions of the Treaty relating to the free movement of goods . Ireland relies in this connection on the judgment of the Court of 22 March 1977 in Ianelli v Meroni in which the Court stated that :
"however wide the field of application of Article 30 may be, it nevertheless does not include obstacles to trade covered by other provisions of the Treaty ". ( 3 )
14 . Before assessing the merits of Ireland' s point of view, it must be set out in somewhat greater detail . Invitations to tender for public works contract are governed by Directive 71/305 . That directive is based in particular on Article 59 ( 2 ) and Article 66 of the Treaty . A public works contract should therefore be regarded as a provision of services and any challenge to a clause in such a contract should be examined with reference to the requirements of the freedom to provide services . Each clause, whatever its subject-matter, is merely ancillary to the provision of the services . Therefore, in the case of obstacles covered by specific provisions of the Treaty, as referred to in the judgment in Ianelli, Article 30 cannot be relied upon .
15 . For the sake of completeness it must be noted that ultimately that line of argument would necessarily lead to the conclusion that any attempt to find an infringement of obligations arising under the Treaty would be futile in the present case . Besides the fundamental impossibility of relying on the obligations laid down in Article 30, there is the effect of the special provision of the directive, ( 4 ) which excludes from the scope of the directive in particular public works contracts relating to the supply of water . Such contracts, being governed ratione materiae by the rules of the Treaty relating to the freedom to provide services, fall outside the provisions of the directive implementing those Treaty rules by virtue of an exception provided for in the directive .
16 . Like the Commission and Spain, I am not convinced by that line of argument .
17 . First of all, it is necesary to recall how, according to the case-law of the Court, the scope of Article 30 is delimited in relation to that of other provisions of the Treaty . In its judgment of 3 March 1988 in Bergandi the Court stated that Article 30
"covers generally all measures impeding imports which are not already specifically covered by other provisions of the Treaty ". ( 5 )
This clearly shows that Article 30 must give way only to provisions specifically covering "measures impeding imports" in a given case . As Advocate General Sir Gordon Slynn observed in his Opinion in the case of Cinéthèque SA, the provisions of the Treaty relating to the freedom to provide services are all aimed at
"eliminating measures which impose on the national of one Member State more rigorous rules, or put him in law or in fact in an unfavourable position compared with the national of the Member State imposing the measure ". ( 6 )
They do not therefore specifically cover measures impeding imports . From that point of view, there are consequently already grounds for doubting whether the fact that a service is provided means in principle that Article 30 is inapplicable to measures which, in the context of the provision of that service, would impede imports .
18 . In actual fact, an examination of the case-law of the Court leads to the conclusion that in general the clear desire is for the maximum number of obstacles to the importation of goods to be caught through Article 30 .
19 . One illustration is to be found in the judgments in cases concerning processes for the manufacture of physical articles where the Court relies on Article 60 of the Treaty so as to let classification as the provision of a service operate only in subordination to classification as supply of goods . ( 7 )
20 . An even more convincing illustration of the "attractive effect" of Article 30 is afforded by the case-law of the Court concerning the applicability of Article 30 to operations covered by the provisions on State aids . In its judgment in Ianelli, cited above, the Court ruled :
"the aids referred to in Articles 92 and 93 of the Treaty do not as such fall within the field of application of the prohibition of quantitative restrictions on imports and measures having equivalent effect laid down by Article 30 but the aspects of aid which are not necessary for the attainment of its object or for its proper functioning and which contravene this prohibition may for that reason be held to be incompatible with this provision ". ( 8 )
21 . The possibility of applying Article 30 to certain aspects of aid is expressed even more clearly in recent judgments . In the aforementioned judgment of 7 May 1985 in Commission v France the Court pointed out that
"Articles 92 and 94 cannot ... be used to frustrate the rules of the Treaty on the free movement of goods"
and that
"the mere fact that a national measure may possibly be defined as aid within the meaning of Article 92 is therefore not an adequate reason for exempting it from the prohibition contained in Article 30 ". ( 9 )
Similar words are to be found in the Court' s judgment of 5 June 1986 in Commission v Italy . ( 10 )
22 . In fact, the only cases in which the Court has in the past considered that the application of certain provisions of the Treaty precludes reliance on Article 30 are those concerning "obstacles which are of a fiscal nature or have equivalent effect", ( 11 ) which corresponds closely to the abovementioned passage from the Bergandi judgment . ( 12 )
23 . It may therefore be deduced from the case-law of the Court that the fact that a given situation is, as a whole, governed by certain provisions of the Treaty does not in all cases prevent a particular aspect of that situation from giving rise to the application of Article 30 . More precisely, the fact that a service is provided would not appear to exclude an assessment of the compatibility of certain aspects of the provision of that service with Article 30 .
24 . That impression can only be reinforced by a reading of the judgment of 30 April 1974 in Sacchi in which the Court ruled that, although
"the transmission of television signals, including those in the nature of advertisements, comes, as such, within the rules of the Treaty relating to services",
"trade in material, sound recordings, films, apparatus and other products used for the diffusion of television signals is subject to the rules relating to freedom of movement for goods ". ( 13 )
25 . The case-law of the Court, in the light of that judgment, therefore gives grounds for considering that, although a public works contract constitutes a provision of services, the materials used to perform it are covered by the provisions of Article 30 .
26 . In support of that view, which, I believe, simply takes account of the principles laid down in the judgments of the Court, I would like to put forward a consideration prompted by the particular legal factors of this case . In my opinion, Ireland' s argument leads to a considerable weakening of the effectiveness of certain fundamental rules of the Treaty, those relating to the free movement of goods . To say that all the aspects of a public works contract are covered exclusively by the provisions of the Treaty concerning the freedom to provide services when the directive implementing those provisions in the field of public works contracts excludes from its scope contracts relating to energy and water would ultimately render the principle of free movement ineffective as regards materials of considerable importance . I do not believe that such a situation could have been envisaged by the authors of the Treaty . Nor can I imagine that the Community legislature, which drafted the directive, had the intention or even the power to frustrate to some extent the application of the fundamental provisions of the Treaty on freedom of movement in that way .
27 . I therefore consider that the interpretation of the rules of the Treaty relating to the free movement of goods and the freedom to provide services, as regards the relation between their respective fields of application, must not entail the ineffectiveness, with regard to major areas of trade, of a fundamental provision which has been recognized by the Court as having direct effect ( 14 ) or the invalidity of a set of Community rules .
28 . Incidentally, it may also be noted that certain provisions of the directive, for example Article 10, essentially implement the principle of the free movement of goods . This well illustrates that not all the aspects of a public works contract are covered exclusively by the rules relating to the freedom to provide services .
29 . I am therefore satisfied that there are no grounds for accepting Ireland' s argument and that it is now necessary to consider the conduct which the Commission regards as a breach of Ireland' s obligations under Article 30 of the EEC Treaty . In other words, the question is whether Ireland' s conduct in this case meets the classic definition of a measure having equivalent effect given in the judgment in Dassonville . ( 15 )
30 . At the centre of the argument is the inclusion in the contract specification in question of Clause 4.29 in so far as it provides that the pipes are to be certified as complying with Irish Standard Specification 188:1975 . The standard in question, IS 188, was adopted in 1975 by the Institute for Industrial Research and Standards ( IIRS ), a multi-disciplinary technical body created in Ireland by an Act of 1961 in order, in particular, to lay down and publish standards and apply certification schemes . From 1 January 1985 the latter two activities were taken over by another body acting on behalf of the IIRS, the National Standards Authority of Ireland ( NSAI ). Compliance with a standard is usually certified by a mark called the "Irish Standard Mark" and it is the issue by the NSAI of an "Irish Standard Mark Licence" that authorizes a manufacturer to attach the mark to his products .
31 . According to a document dated 27 October 1986 originating from the NSAI and annexed to Ireland' s defence, the geometrical characteristics of IS 188 distinguish pipes manufactured according to that standard from other pipes which, like those of Uralita, comply with the specifications of the international standard, ISO 160; the physical and mechanical characteristics are not therefore in question . More precisely, IS 188 refers to the "outside" diameter, including the wall of the pipes, whereas ISO 160 refers to the "internal" diameter, not including the wall of the pipes .
32 . It is necessary to add that ISO 160, with which the pipes manufactured by Uralita comply, was adopted by the International Organization for Standardization, which is a world-wide federation of national standards institutes . It was approved, within that organization, by the member committees of nine countries now belonging to the EEC : Denmark, France, the Federal Republic of Germany, Greece, Italy, the Netherlands, Portugal, Spain and the United Kingdom . As regards the United Kingdom, however, it must be noted that it applies standard BS 486 which the Irish authorities, and in particular the NSAI, regard as equivalent to IS 188 .
33 . Conformity with IS 188 was stipulated in the clause in question and if that requirement was not met tenders were inadmissible, as is quite clear from the answer given by Ireland to the first question addressed to it by the Court . Ireland stated that, in accordance with "standard practice", Dundalk Urban District Council' s consulting engineer had rejected Walls' tender based on the use of Uralita pipes at the end of a meeting from which it emerged that "the proposed pipes were not in conformity with Clause 4.29 of the specifications" and those pipes "were not examined at that stage ". Ireland explained to the Court that the "standard practice" consisted in "specifying the standards according to which the materials must be made, ... those conditions (( being )) set out in specifications before the invitation to tender is made . When the tenders are then examined, the consulting engineer requires proof that the conditions are satisfied ".
34 . The content of IS 188 and the part which it plays through its insertion in public works contracts show quite clearly that the insertion of such a clause is likely to impede imports of pipes into Ireland . If, as the Commission and Spain rightly point out, account is taken of the fact that public works contracts are the main, if not exclusive, outlet for pipes of the type in question in this case, it becomes clear that the requirement of conformity with a national standard laid down in a Member State which, if not complied with, entails the inadmissibility of tenders, is likely to obstruct the importation into that State of pipes manufactured in other Member States . That assessment is reinforced by the fact that the approval procedure in Ireland for pipes manufactured in another Member State is not a mere procedural requirement . A manufacturer of pipes cannot obtain the licence authorizing him to attach the Irish Standard Mark certifying conformity with IS 188 unless he manufactures his products in accordance with the specifications of that standard, as is shown by the NSAI' s refusal to grant Uralita approval in December 1986 . Consequently, pipes lawfully manufactured and marketed in a Member State and also complying with an international standard cannot be marketed in Ireland . In order to have access to the Irish market, manufacturers must modify their products .
35 . Consequently, in my view, the insertion in an invitation to tender for a public works contract of a clause requiring pipes to conform with a national standard such as IS 188 indirectly, but undoubtedly, impedes imports of pipes manufactured in other Member States .
36 . Ireland puts forward a number of arguments in order to show that the requirement of compliance with IS 188 specified in the invitation to tender for a public works contract cannot be a barrier to imports of pipes . It states that that requirement does not constitute a "trading rule" within the meaning of the Court' s judgment in Dassonville ( supra ), and that pipe manufacturers in other Member States had every opportunity to obtain a licence from the NSAI to apply the Irish Standard Mark to their products to show that they complied with IS 188 .
37 . It may be countered, first, that according to the Court' s judgment of 20 May 1976 in de Peijper ( 16 ) a practice may also be covered by the prohibition laid down in Article 30 . But in reality Ireland' s argument is that clauses in invitations to tender for public works contracts cannot, by definition, be regarded as relating to imports, and that a manufacturer' s right to import its products into a Member State cannot be affected by the content of such clauses . However, it is clear that there is practically no opening for the sale of products such as pipes other than for use in works, and essentially public works . Accordingly, the requirement of compliance with IS 188, which deters contractors from providing in their tenders for the use of materials not complying with that standard, impedes the importation of such materials, indirectly admittedly, yet virtually absolutely .
38 . With regard to the possibility for manufacturers from other Member States to comply with IS 188, as I have already pointed out, that in fact amounts to an obligation to modify their products and hence to forgo selling in Ireland pipes lawfully produced and marketed in their country of origin . Consequently, that possibility is the proof rather than the negation of the existence of the barrier to imports, and the situation seems, when analysed in this way, to be completely comparable to the situations which, according to the Court' s "Cassis de Dijon" case-law, are covered by Article 30 .
39 . The subsidiary argument that compliance with IS 188 is required irrespective of the geographical origin of the materials can be dismissed in the light of that same case-law, according to which measures applicable without distinction to national and imported products may be prohibited under Article 30 . Consequently, as Sir Gordon Slynn stated in his Opinion in the Cinéthèque case ( cited above ), a measure is in breach of Article 30 if,
"although not directed to importation as such but covering both national goods and imports, it requires a producer or distributor to take steps additional to those which he would normally and lawfully take in the marketing of his goods, which thereby render importation more difficult, so that imports may be restricted and national producers be given protection in practice ".
40 . The words used there seem to fit the facts in this case precisely .
41 . Lastly in this first limb of its defence, Ireland claims that public works contracts are characterized by a sort of indivisibility which precludes the assessment of the compatibility of a particular clause with Article 30 in so far as this could affect the internal consistency of all the clauses of the contract in question . In fact, that reasoning overlaps with the argument that Article 30 does not apply to an aspect of the provision of services, which I have already considered, and it does not seem necessary to return to that point .
42 . At this juncture it is necessary to consider whether the requirement to comply with standard IS 188 is justified by "mandatory requirements" within the meaning of the "Cassis de Dijon" case-law .
43 . Ireland argues essentially that "the interest or value" which the standard serves to protect is "a high standard and uniformity of design in such piping and a capacity to cope efficiently with Irish conditions and pre-existing services ". ( 17 )
44 . Does that constitute grounds for considering that the measure in question is justified because it serves a purpose which is in the general interest?
45 . Due regard being had to the technical problems of compatibility between the water supply systems to be built and existing systems or between the piping used and accessories ( fittings for example ) it seems to me that such problems - assuming that they satisfy the test of the general interest laid down in the Court' s case-law - do not warrant a measure which is as restrictive of imports as the requirement that the pipe must comply with IS 188 .
46 . Indeed, and this observation seems to me to hold good for most of the technical objections raised in this case, the actual award procedure itself, with its detailed perusal of tenders, is sufficient to enable any technical shortcomings of particular aspects of a tender and their economic ramifications to be assessed, and to identify incompatibilities in materials . I would observe that in this case the Dundalk Urban District Council made use of a procedure which enabled the advantages and shortcomings of the tenders to be assessed from various points of view . The notice of invitation to tender published in the Official Journal of the European Communities stated that the contract would be awarded to the contractor who submitted the tender "adjudged to be the most economically advantageous ... in respect of price, period of completion, technical merit and running costs ". This clearly shows that use of an award procedure which enables tenders to be assessed from various points of view is enough to protect the interests invoked by Ireland .
47 . Accordingly, the requirement for the pipe to comply with IS 188 goes far beyond what is necessary in order to protect interests which could be safeguarded without taking a measure impeding imports, in the normal course of an award procedure of the type to which I have just adverted, and which was indeed applicable in the case at issue .
48 . In the alternative, Ireland raises reasons which, in its view, justify, under Article 36 of the EEC Treaty, the restriction on imports resulting from the measure in question . More specifically, Ireland claims in the first place that it was imperative for the protection of the health of the people of Dundalk and the surrounding area that there be no delay in improving their water supply .
49 . In order to assess that argument it must be observed that according to the case-law of the Court,
"National rules or practices do not fall within the exception specified in Article 36 if the health and life of humans can as effectively be protected by measures which do not restrict intra-Community trade so much ". ( 18 )
50 . Here again, it is clear that in the course of the award procedure Dundalk Urban District Council could perfectly well have taken account, in choosing the "most economically advantageous tender", of requirements of protection of public health connected with the period of completion of the work and not taken up tenders which, for one reason or another, would not have allowed work to be completed in good time . Consequently, the desire to avoid delay in the completion of the work did not warrant a measure as restrictive on imports as the requirement of compliance with IS 188, and the derogation set out in Article 36 may not therefore be validly invoked with regard thereto .
51 . Ireland also contends that the requirements of standard IS 188 relative to bitumen coating are based upon the need to ensure the health and safety of persons using drinking water flowing through the pipes in question, since the bitumen coating ensures that there is no contact between the water and the asbestos fibres of the concrete piping .
52 . The Commission stated that only white asbestos fibres were used in the manufacture of the pipes and that, in contrast to blue asbestos, white asbestos does not pose any health risk . It added that the bitumen coating was separately specified in the contract specification and Uralita quoted for pipes on that basis .
53 . In that connection, I would observe that in the standard in question the specification of bitumen coating is optional . According to Specification 2.3 of IS 188 ( Annex II to the Commission' s application ) pipes are to be coated with a solution of bitumen "if required by the purchaser at the time of ordering ". It also provides that "alternative coatings as agreed between the purchaser and the manufacturer may be used ". Clause 4.29 of the contract specification itself is made up of three parts . It stipulates first that asbestos cement pipes must comply with IS 188, secondly that all the pipes are to have a "bituminous coating internally and externally", and thirdly that such coatings are to be applied at the factory by dipping .
54 . Without entering into a discussion of the comparative merits of white and blue asbestos, I consider that Ireland' s argument cannot be accepted . In the first place, I would point out that the Commission criticized Clause 4.29 only in so far as it required the pipes to comply with IS 188 and not because it specified the need for a bituminous coating . Secondly, the Irish Government' s answer to the first question put by the Court in the written procedure, as seen in the light of the minutes - unofficial but not contested by Ireland - of the meeting held on Tuesday 24 June 1986 ( 19 ) at which Dundalk Urban District Council' s consulting engineers rejected Walls' s tender, establishes that the question whether or not the Uralita pipes were coated with bitumen was not at issue in the discussions on compliance with the standard . The tender providing for the use of Uralita pipes was plainly rejected on the basis of the purely formal finding that the manufacturer was not among those authorized to use the Irish Standard Mark and that hence its products did not comply with IS 188, irrespective of the question of the coating . Lastly, I would observe that according to the NSAI the differences between pipes complying with IS 188 and those complying with ISO 160 are purely geometrical . Consequently, I consider that, as conceived and put into effect by Ireland, the requirement of compliance with standard IS 188 as criticized by the Commission is distinct from the nature of the coating of the pipes, and it is therefore unnecessary to take into consideration justifications relating to the importance of that coating for public health .
55 . It follows from the foregoing that the obligation to comply with IS 188 is not based on mandatory requirements within the meaning of the Court' s "Cassis de Dijon" case-law and cannot be justified under Article 36 . But before it can be held that Ireland has failed to fulfil its obligations under Article 30 two points raised at the hearing have to be resolved .
56 . The first point relates to whether the measure is a "State" measure .
57 . The case-law of the Court affords a number of illustrations of instances where Member States have been held to have failed to fulfil their obligations on account of acts or omissions attributable to local authorities . For example, Italy was held to have failed to fulfil its obligations because the region of Sicily adopted legislation incompatible with a Community regulation ( 20 ) and also because the municipality of Milan failed to publish a contract notice in the Official Journal of the European Communities, contrary to Directive 71/305/EEC . ( 21 ) Likewise, Belgium was held to have failed to fulfil its obligations because the municipalities of Brussels and Auderghem made Belgian nationality a condition of entry for certain municipal posts contrary to Article 48 of the EEC Treaty, ( 22 ) and because several municipalities adopted tax by-laws contrary to the Protocol on the Privileges and Immunities of the European Communities . ( 23 )
58 . However, I have found no trace in the case-law of instances where Member States have been held to have failed to fulfil their obligations under Article 30 on account of the conduct of a local authority . On the other hand, in one case the Court did find that Ireland was in breach of its obligations under Article 30 owing to the activity of a body governed by private law acting on behalf of the Government . ( 24 ) Moreover, in a preliminary ruling the Court has held in connection with the definition of the kindred concept of charges having equivalent effect to customs duties that the fact that a duty was levied by an independent institution governed by public law rather than the State did not affect the definition of that duty as such a charge "since the prohibition under Article 13 ( 2 ) (( of the EEC Treaty )) attaches solely to the effect of such charges and not to the manner in which they are imposed ". ( 25 )
59 . Despite the lack of a precedent in the case-law I can see no reason in principle why a Member State should not be answerable, in proceedings for failure to fulfil obligations under Article 30, for measures implemented by one of its local authorities . The classic principle set out in the Court' s judgment of 5 May 1970 in Commission v Belgium ( 26 ) according to which "the liability of a Member State under Article 169 arises whatever the agency of the State whose action or inaction is the cause of the failure to fulfil its obligations" should, it seems, be interpreted as being of general application .
60 . Moreover, the State' s involvement has not really been challenged in these proceedings . The Commission' s claim that the Irish Minister for the Environment has to approve the award of contracts was confirmed at the hearing by the Irish Government' s representative, who added that, from that point of view, there was State "involvement ". But perhaps the best illustration of the active role played by the State in the situation at issue is provided by the uncontested information given at the hearing by the representative of the Kingdom of Spain to the effect that the Irish Minister for the Environment sent a circular to local authorities on 1 July 1987 setting out instructions on the drafting of invitations to tender for public works contracts . The existence of such a circular - the content of which is doubtless not unrelated to these proceedings - clearly establishes the power of initiative preserved by the State .
61 . The second point to be clarified relates to some of the characteristics which a State practice must exhibit in order to be caught by Article 30 . In the judgment of 9 May 1985 in Commission v France the Court emphasized that
"for an administrative practice to constitute a measure prohibited under Article 30 that practice must show a certain degree of consistency and generality ". ( 27 )
62 . It may be asked whether the inclusion in a given contract specification of a clause requiring pipes to comply with IS 188 exhibits the characteristics required according to that judgment in order for it to constitute a measure prohibited by Article 30 . On the face of it, by referring in its application to Clause 4.29 of the contract specification for the Dundalk Water Supply Augmentation Scheme : Contract No 4, the Commission has asked the Court to rule on a specific measure rather than on a practice showing a sufficient measure of consistency and generality . Consequently, on a very strict interpretation of some of the conditions laid down by the Court' s case-law, there might be a temptation to hold that the application should be dismissed .
63 . However, in my view such a conclusion would amount to a formal, but incorrect, application of those conditions . The Court' s requirement that a practice must show a degree of consistency and generality for it to be caught by Article 30 means that a Member State must not have to answer for an isolated measure . This may, moreover, explain the absence of decisions in which the Court has declared that there has been a failure to fulfil obligations under Article 30 on account of activities of local authorities . It is not usually within the powers of local authorities to adopt rules or practices affecting imports . At the most, local authorities are capable of isolated acts, which, as a general rule, cannot constitute failures to fulfil obligations under Article 30 .
64 . In this case, however, the Court is confronted with a very different situation . The requirement of compliance with IS 188 does indeed show the characteristics of consistency and generality in Ireland, as the Irish Government admitted when it stated that this was "in accordance with the usual practice followed in relation to public works contracts in Ireland ". ( 28 ) Hence the inclusion of the contested clause was not an isolated act, but constituted a specific manifestation of a general practice and, in addition, brought that practice to the attention of the Community institutions .
65 . It is for that reason that I consider that it is possible to hold that there has been a failure to fulfil obligations in this case, moreover, without really straining the terms of the Court' s case-law .
66 . Indeed, after setting out the requirement for "a certain degree of consistency and generality", the Court' s abovementioned judgment of 9 May 1985 goes on to say that that generality must be
"assessed differently according to whether the market concerned is one on which there are numerous traders or whether it is a market ... on which only a few undertakings are active",
in which case
"a national administration' s treatment of a single undertaking may constitute a measure incompatible with Article 30 ". ( 29 )
67 . It appears to me to be possible to take a lead in this case from that relaxation of the requirements of consistency and generality . As I have already stated, it can be considered that public works contracts of the type at issue afford the main commercial outlet for asbestos cement pipes . It is not an everyday occurrence for sizeable contracts to be put out to tender, and each such contract has major commercial consequences in two respects . Each contract represents in itself a commercial project for manufacturers and, depending on the size of the contract, a barrier to imports erected with respect to a given contract may have significant consequences immediately . But it must be borne in mind that a barrier set up with respect to a particular contract also has implications for later contracts, and hence future commercial projects, in so far as in the light of their first experience public works contractors will tend not to provide for the use of imported material in their tenders .
68 . Accordingly, in view of the magnitude of the potential short - and medium-term effects on imports of a single public works contract, I consider that a barrier to imports in connection with such a contract is capable of constituting a failure to fulfil obligations under Article 30 . The particulars of the case before the Court seem to me to fit perfectly within this analytical framework and justify the Court' s granting the Commission' s application .
69 . This would establish an infringement in respect of a situation which seems, in very tangible terms, to be completely alien to the principles underlying the EEC . For as there are only two firms which have been granted the Irish Standard Mark Licence in respect of IS 188, namely an Irish firm, for all sizes of pipe, and a German firm, for a particular size of pipe, in most cases the Irish firm is predestined to be the supplier of the pipes before the tenders are even considered .
70 . In its application the Commission asks the Court to declare that Ireland has failed to fulfil its obligations by allowing the inclusion of the contested clause in the Dundalk contract "and consequently refusing to consider ( or rejecting without adequate justification )" a tender providing for the use of asbestos cement pipes manufactured to an alternative standard affording equivalent guarantees . It has not been possible to determine as clearly as could be wished from the Commission' s answers to the questions put by the Court both during the written procedure and at the hearing the nature of the claim relating to the refusal to consider the offer or its rejection without adequate justification .
71 . If that limb of the claim is separate from and subsidiary to the claim concerning the inclusion of the contested clause, the Court should rule on it only if it holds that there has been no failure to fulfil obligations with respect to the first limb . In that regard, the failure to fulfil obligations appears to me to be sufficiently clear-cut as to make it unnecessary to consider that alternative limb of the claim, and I further take the view that if the Court were to hold that there has been no failure to fulfil obligations in respect of the first limb, it would have to reach the same conclusion for the same reasons as regards the second, since the same Community rules are alleged to have been infringed in each case .
72 . If the second part of the Commission' s claim is in fact directed at the mere implementation of the measure complained of in the first part, the Court may refer to the solution adopted in its aforementioned judgment of 18 March 1986 in Commission v Belgium, ( 30 ) and hold that separate complaints are not involved and that therefore a separate decision is not called for .
73 . I therefore propose that the Court should
( 1 ) Declare that, by including in the contract specification for the Dundalk Water Supply Augmentation Scheme : Contract No 4, Clause 4.29 requiring asbestos cement pressure pipes to be certified as complying with Irish Standard Specification IS 188:1975, Ireland has failed to fulfil its obligations under Article 30 of the EEC Treaty;
( 2 ) Order Ireland to pay the costs .
(+) Translated from the French .
( 1 ) OJ, English Special Edition 1971 ( II ), p . 682 .
( 2 ) See in particular the judgment of 4 April 1974 in Case 167/73 Commission v France (( 1974 )) ECR 359, and the judgment of 25 October 1979 in Case 159/78 Commission v Italy (( 1979 )) ECR 3247 .
( 3 ) Case 74/76 Ianelli v Meroni (( 1977 )) ECR 557, paragraph 9 .
( 4 ) Article 3 ( 5 ), cited above .
( 5 ) Case 252/86 Bergandi (( 1988 )) ECR , paragraph 33 .
( 6 ) Judgment of 11 July 1985 in Joined Cases 60 and 61/84 Cinéthèque SA and Others v Fédération nationale des cinémas français (( 1985 )) ECR 2605, at p . 2615 .
( 7 ) Judgement of 7 May 1985 in Case 18/84 Commission v France (( 1985 )) ECR 1339, paragraph 12, and Joined Cases 60 and 61/84, cited above, paragraph 10 .
( 8 ) Case 74/76 Ianelli v Meroni, cited above, paragraph 2 of the operative part .
( 9 ) Case 18/84 Commission v France, cited above, paragraph 13 .
( 10 ) Case 103/84 Commission v Italy (( 1986 )) ECR 1759, paragraph 19 .
( 11 ) Case 74/76 Ianelli v Meroni, cited above, paragraph 9 .
( 12 ) Case 252/86 Bergandi, cited above, paragraph 33 .
( 13 ) Case 155/73 Sacchi (( 1974 )) ECR 409, paragraph 1 of the operative part .
( 14 ) Case 74/76 Ianelli v Meroni, cited above, paragraph 1 of the operative part .
( 15 ) Judgment of 11 July 1974 in Case 8/74 Procureur du Roi v Dassonville (( 1974 )) ECR 837, at p . 852, paragraph 5 .
( 16 ) Case 104/75 (( 1976 )) ECR 613 .
( 17 ) Defence, pp . 22 and 23 .
( 18 ) Case 104/75 de Peijper, cited above, paragraph 17 .
( 19 ) Annex III to the Commission' s application .
( 20 ) Judgment of 27 March 1984 in Case 169/82 Commission v Italy (( 1984 )) ECR 1603 .
( 21 ) Judgment of 10 March 1987 in Case 199/85 Italy v Commission (( 1987 )) ECR 1039 .
( 22 ) Judgment of 26 May 1982 in Case 149/79 Commission v Belgium (( 1982 )) ECR 1845 .
( 23 ) Judgment of 18 March 1986 in Case 85/85 Commission v Belgium (( 1986 )) ECR 1149 .
( 24 ) Judgment of 24 November 1982 in Case 249/81 Commission v Ireland (( 1982 )) ECR 4005 .
( 25 ) Judgment of 18 June 1975 in Case 94/74 IGAV v ENCC (( 1975 )) ECR 699 .
( 26 ) Judgment of 5 May 1970 in Case 77/69 (( 1970 )) ECR 237 .
( 27 ) Case 21/84 (( 1985 )) ECR 1355 .
( 28 ) Defence, p . 16 .
( 29 ) Case 21/84, cited above, paragraph 13 .
( 30 ) Case 85/85, cited above, paragraph 28 .
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