Case C-390/02: Action brought on 6 November 2002 by the Commission of the European Communities against the Hellenic Republic
Date: 2002-12-21
Institutions: Court of Justice
Subjects: European Commission, Greece, action for failure to fulfil an obligation, mutual recognition principle, national implementing measure, professional experience, professional qualifications, recognition of diplomas

C 323/26

EN

Official Journal of the European Communities

21.12.2002

municipal district, for the completion of an expansion
basin for the River Enza and for controlling spate
waters in the river Terdoppio-Canale Scolmatore to the
southwest of Cerano by means of a negotiated procedure
which was not preceded by the publication of a tender
notice when there no budgetary resources were available;

— Order the Italian Republic to pay the costs.

Action brought on 6 November 2002 by the Commission
of the European Communities against the Hellenic Repub-
lic

(Case C-390/02)

(2002/C 323/38)

Pleas in law and main arguments

According to the Commission the negotiated procedure, which
was not preceded by the publication of a tender notice,
adopted by the Magistrato del Po di Parma when awarding
contracts relating to the completion of the abovementioned
work, does not conform with the requirements of Directive
93/37/EC.

First, the Commission points out that the aforementioned
awards, although described by the awarding authority as
‘concessions solely for construction work’, must in actual fact
be regarded as public works contracts.

Article 1(d) of the directive defines ‘public works concession’
as a public works contract except for the fact that
the
consideration for the works to be carried out consists either
solely in the right to exploit the construction or in this right
together with payment.

In the present case, however, the persons undertaking the
works have not been accorded any rights in the exploitation
of those works, so that the awards in question must be
regarded as public works contracts, which is not disputed by
the Italian authorities.

Secondly, the Commission points out that Article 6 of the
directive provides that it applies to public works contracts
whose estimated value, including VAT, is EUR 5 000 000 or
greater. Thus, in view of the fact that the value of the contracts
in question exceeds the abovementioned threshold, they were
subject to the requirements of the directive.

( 1) OJ 1993 L 199, p. 54 .

An action against the Hellenic Republic was brought before the
Court of Justice of the European Communities on 6 November
2002 by the Commission of the European Communities,
represented by Georgios Zavvos, of its Legal Service.

The Commission claims that the Court should:

— declare that, by failing to adopt or, in the alternative, to
notify to the Commission, within the time-limit laid
down, the laws, regulations and administrative provisions
necessary to comply fully with Directive 99/42/EC (1) of
the European Parliament and of the Council of 7 June
1999 establishing a mechanism for the recognition of
qualifications in respect of the professional activities
covered by the directives on liberalisation and transitional
measures and supplementing the general systems for the
recognition of qualifications, the Hellenic Republic has
failed to fulfil its obligations under the EC Treaty;

— order the Hellenic Republic to pay the costs.

Pleas in law and main arguments

In accordance with the third paragraph of Article 249 EC,
directives are binding, as to the result to be achieved, upon
each Member State to which they are addressed.

Under the first paragraph of Article 10 EC, Member States are
to take all appropriate measures, whether general or particular,
to ensure fulfilment of the obligations arising out of the Treaty
or resulting from action taken by the institutions of the
Community.

It is not disputed by the Hellenic Republic that it must adopt
measures to comply with the abovementioned directive.

The Commission records that until now the Hellenic Republic
has not adopted the appropriate measures for the full incorpor-
ation of the directive at issue into Greek law or, of course,
notified such measures to the Commission.

(1) OJ L 201, 31.7.1999, p. 77.