Case C-394/02: Action brought on 8 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, electricity supply, public contract

C 19/12

EN

Official Journal of the European Communities

25.1.2003

5. Must those directives and, in particular, Article 44(3)(g)
of the EC Treaty, Articles 2(1)(f) and 6 of the first directive
(Directive 68/151/EEC) and Article 2(2), (3) and (4) of the
fourth directive (Directive 78/660/EEC), as consolidated
by Directive 83/349 and Directive 90/605), be interpreted
as meaning that that legislation precludes a law of a
Member State which, in response to an infringement by
companies of those obligations concerning disclosure
and the provision of accurate information imposed on
them in order to safeguard ‘the interests of both members
and third parties’, allows only members and creditors to
seek imposition of a penalty, thereby excluding third
parties from any general and effective protection?

6. Must those directives and, in particular, Article 44(3)(g)
of the EC Treaty, Articles 2(1)(f) and 6 of the first directive
(Directive 68/151/EEC) and Article 2(2), (3) and (4) of the
fourth directive (Directive 78/660/EEC), as consolidated
by Directive 83/349 and Directive 90/605), be interpreted
as meaning that that legislation precludes a law of a
Member State which, in response to the infringement by
companies of those obligations concerning disclosure
and the provision of accurate information imposed on
them in order to safeguard ‘the interests of both members
and third parties’, provides for prosecution machinery and
a sanctionative system which are markedly differentiated,
whereby the possibility of the imposition of a punishment
upon complaint being made, together with more serious
and effective penalties, is reserved solely for infringements
occasioning loss to members and 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).

( 2) Fourth Council Directive 78/660/EEC of 25 July 1978 based on
Article 54 (3) (g) of the Treaty on the annual accounts of certain
types of companies (OJ L 222, 14.08.1978, p. 11).

( 3) Seventh Council Directive 83/349/EEC of 13 June 1983 based on
the Article 54 (3) (g) of the Treaty on consolidated accounts (OJ
L 193, 18.07.1983, p. 1).

( 4) Council Directive 90/605/EEC of 8 November 1990 amending
Directive 78/660/EEC on annual accounts and Directive 83/349/
EEC on consolidated accounts as regards the scope of those
Directives (OJ L 317, 16.11.1990, p. 60).

Action brought on 8 November 2002 by the Commission
of the European Communities against the Hellenic Repub-
lic

2002 by the Commission of the European Communities,
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 award by the Dimosia
Epikhirisi Ilektrismou (DEI) of work for the construction
of a conveyor system at the steam-generated electricity
station at Megalopolis by a procedure of negotiation
without a competition first being called, the Hellenic
Republic has failed to fulfil its obligations under Council
Directive 93/38/EEC (1) of 14 June 1993 coordinating
the procurement procedures of entities operating in the
water, energy, transport and telecommunications sectors
and,
the
in particular, under Article 20 et seq. of
directive;

b)

order the Hellenic Republic to pay the costs.

Pleas in law and main arguments

Directive 93/38 governs the choice of procurement procedures
in the water, energy, transport and telecommunications sectors
and applies to contracts whose estimated value is not less than
EUR 5 000 000.

According to the Commission, the contract at issue, by reason
of its value and type, is covered by the directive. Consequently,
the contracting entity (Dimosia Epikhirisi Ilektrismou (DEI);
the State Electricity Undertaking) had to follow the procedures
under Article 20(1) of the directive and call a competition in
accordance with Article 21 of the directive. However, the
contract was not put out to tender but was awarded following
private negotiation.

The Commission maintains that in the present case neither
Article 20(2)(c) of the directive (technical or artistic reasons
rendering it absolutely essential to place the contract with a
particular contractor) nor Article 20(2)(d) (extreme urgency
brought about by events unforeseeable by the contracting
entity) is applicable.

(Case C-394/02)

(2003/C 19/22)

(1) OJ L 199, 9.8.1993, p. 84.

An action against the Hellenic Republic was brought before the
Court of Justice of the European Communities on 8 November