Case C-407/02: Action brought on 15 November 2002 by the Commission of the European Communities against the Hellenic Republic
Date: 2003-01-25
Institutions: Court of Justice
Subjects: European Commission, Greece, action for failure to fulfil an obligation, award of contract, provision of services, public contract, works contract

C 19/14

EN

Official Journal of the European Communities

25.1.2003

Reference for a preliminary ruling by the Tribunale di
Milano, Sezione IV Penale by order of that Court of
29 October 2002 in the criminal proceedings against
Marcello Dell’Utri, Romano Luzi and Romano Comincioli

(Case C-403/02)

(2003/C 19/24)

interest may assume a Community dimension, to provide
in respect of offences under Article 2622(1) of the Civil
Code (those committed in regard to companies not listed
on the stock exchange) that proceedings may only be
brought upon a complaint by members of the company
concerned or by its creditors?

(1) First Council Directive 68/151/EEC of 9 March 1968 on co-
ordination of safeguards which, for the protection of the interests
of members and others, are required by Member States of
companies within the meaning of the second paragraph of
Article 58 of the Treaty, with a view to making such safeguards
equivalent throughout the Community (English Special Edition...:
Series-I I Chapter 1968(I), p. 41).

Reference has been made to the Court of Justice of the
European Communities by order of the Tribunale di Milano,
Sezione IV Penale (Milan District Court, Fourth Criminal
Chamber) of 29 October 2002, received at the Court Registry
on 12 November 2002, for a preliminary ruling in the criminal
proceedings against Marcello Dell’Utri, Romano Luzi and
Romano Comincioli on the following questions:

— May Article 6 of Directive 68/151/EEC (1) (first directive)
be understood as requiring the Member States to establish
appropriate penalties not only for non-disclosure by
commercial companies of balance sheets and profit and
loss accounts but also for false disclosure of such
documents, of other company documents addressed to
members or to the public, or of any information on a
company’s assets and liabilities, and economic and finan-
cial situation which the company is required to provide
in relation to itself or to the group of which it forms a
part?

— Must the concept of the ‘appropriateness’ of the penalty,
for the purposes also of Article 5 of the EC Treaty, be
understood in terms to be specifically assessed within the
legislative scope (both criminal and procedural) of the
Member States as requiring a penalty which is ‘efficacious,
effective and genuinely dissuasive’?

— Do the combined provisions of new Articles 2621 and
2622 of the Civil Code, as amended by Legislative Decree
in
No 61 of 11 April 2002, satisfy those criteria:
particular can Article 2621 of the Civil Code, which
summarily punishes by a term of imprisonment of one
year and six months offences in connection with non-
disclosure of balance sheets not occasioning financial loss
or occasioning loss but in respect of which no prosecution
may be brought under Article 2622 of the Civil Code
owing to the absence of a complaint, be described as
‘effectively dissuasive’ and ‘genuinely appropriate’? Finally,
the specific
is it appropriate,
protection of the collective interest in the ‘transparency’
of the corporate market, and the possibility that that

in terms not least of

Action brought on 15 November 2002 by the Com-
mission of the European Communities against the Hellen-
ic Republic

(Case C-407/02)

(2003/C 19/25)

An action against the Hellenic Republic was brought before
the Court of Justice of the European Communities on 15 Nov-
ember 2002 by the Commission of the European Communi-
ties, represented by Michel Nolin and Minas Konstantinidis, of
its Legal Service, with an address for service in Luxembourg.

The Commission claims that the Court should:

a)

declare that, as a result of
the direct award by the
municipality of Serres of the contract ‘Renewal of the
town of Serres: framework of investigative study models
and pilot realisation programme’ without tenders first
being invited, the Hellenic Republic has failed to fulfil its
obligations under the provisions of Directive 92/50/
EEC (1) (Article 8 et seq.) which require a tender procedure
to be carried out and lay down the tender procedure for
the award of public service contracts;

b)

order the Hellenic Republic to pay the costs.

Pleas in law and main arguments

The provisions of Directive 92/50 govern the choice of
procedures for the award of public service contracts and lay
down common rules in the field of design contests and in the
technical field. Those provisions apply to contracts whose
estimated value is equal to or exceeds a specified threshold.

25.1.2003

EN

Official Journal of the European Communities

C 19/15

According to the Commission, the contract ‘Renewal of the
town of Serres: framework of investigative study models and
is a public service contract
pilot realisation programme’
falling within the directive given its subject-matter and value.
Nevertheless, the contract was not put out to tender but was
awarded directly by the municipality of Serres to the Aristotle
University of Thessaloniki.

2.

annul the decision of the respondent (ECB) in its letter of
28 June 2000 altering the responsibilities assigned to the
appellant;

3.

order the ECB to pay the costs.

The Commission further maintains that in the present case
neither the exception in Article 6 of the directive (contract
with an entity which is itself a contracting authority within the
meaning of the directive) nor the exception in Article 1(a)(ix)
is applicable.

( 1) Council Directive 92/50/EEC of 18 June 1992 relating to the
coordination of procedures for the award of public service
contracts (OJ L 209, 24.7.1992, p. 1).

Appeal by Jan Pflugradt against the judgment of the Court
of First Instance of the European Communities (Fifth
Chamber) of 22 October 2002 in Joined Cases T-178/00
and T-341/00, Jan Pflugradt v European Central Bank,
lodged on 18 November 2002

(Case C-409/02 P)

(2003/C 19/26)

An appeal against the judgment delivered on 22 October 2002
by the Fifth Chamber of the Court of First Instance of the
European Communities in Joined Cases T-178/00 and T-341/
99, Jan Pflugradt v the European Central Bank, was brought
before the Court of First Instance of the European Communities
on 18 November 2002 by Jan Pflugradt, represented by Dr
Norbert Pflüger, 44 Kaiserstraße, D-60329 Frankfurt am Main,
with an address for service in Luxembourg.

The appellant claims that the Court should, on setting aside
the judgment appealed against (1)

1.

annul the appellant’s performance appraisal report for
1999 dated 23 November 1999;

Pleas in law and main arguments

— The judgment appealed against mistakes the scope and
structure of the EBC’s functional autonomy under the
contractual system established by Article 36.1 of the
ESCB Statute and the first sentence of Article 9(a) of the
Conditions of Employment. Owing to that error of law
that judgment was based on the supposition that under
the contractual system the ECB had the same wide
discretion as is available to employers in the use of
staff under the law governing officials of the European
Communities. That discretion relating to the use of staff
is, however, to be distinguished from discretion in terms
of operational organisation. The Court of First Instance
was wrong to consider the ECB entitled to disregard the
applicant’s job description which had become a part
of the contract and to withdraw contractually agreed
responsibilities from him. In accordance with principles
governing the law concerning officials, the Court of First
Instance should not have had regard to whether the
tasks withdrawn constituted ‘essential elements’ of the
contractually agreed area of activity.
It should have
inquired into whether those tasks were contractually laid
down.

In the event that the contractually agreed employment
cannot be continued because of cessation of employment,
Article 11(a)(ii) provides for the possibility of dismissal for
organisational reasons. That provision therefore makes it
clear that it is not permissible unilaterally to alter the
terms of the contract in order to enable employment
relations to be ‘developed further’ in disregard of contrac-
tual agreements. It is not permissible to leave to the ECB
as the employer from the point of view of employment
law the decision on the application of two different
arrangements which in the end are contradictory. If that
were the case, the ECB could — in certain cases even
arbitrarily — choose between termination of contract
under Article 11(a)(ii) of the Conditions of Employment
and continuation of the contract in disregard of contrac-
tual agreements.

The Court of First Instance described the appellant’s
responsibility for appraisal of the members of the UNIX
team as not an essential element of the contract of
employment, although in the job description it is termed
a ‘key responsibility’. The Court of First Instance also
misconstrued the job description by assuming it
to
constitute merely a provisional assignment of responsi-
bilities.

— Infringement of the rules concerning evidence.

(1) Not yet published in the Official

Journal of

the European

Communities.