Case C-256/04: Action brought on 15 June 2004 by the Commission of the European Communities against the Hellenic Republic
Date: 2004-09-25
Institutions: Court of Justice
Subjects: European Commission, Greece, action for failure to fulfil an obligation, animal plague, health control, national implementing measure, swine

25.9.2004

EN

Official Journal of the European Union

C 239/5

Reference for a preliminary ruling by the Consiglio di
Stato, in sede giurisdizionale (Sesta Sezione), by order of
that court of 6 April 2004 in the case of A.T.I. E.A.C. srl
and VIAGGI DI MAIO SNC against A.C.T.V. Venezia spa

(Case C-331/04)

(2004/C 239/08)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Consiglio di Stato, in sede
giurisdizionale, Sesta Sezione (Council of State, Judicial Divi-
sion, Sixth Chamber), of 6 April 2004, received at the Court
Registry on 29 August 2004, for a preliminary ruling in the
case of A.T.I. E.A.C. srl and VIAGGI DI MAIO SNC against
A.C.T.V. Venezia spa on the following questions:

‘Is it lawful to interpret those provisions as flexible rules
allowing the contracting authority, where the award is to
be made on the basis of the economically most advanta-
geous tender, to fix the criteria in a general way in the
tender notice or the contract documents, leaving it to the
if need be,
jury to specify or supplement those criteria,
provided always that such specifying or supplementing is
carried out before the packets containing the tenders have
been opened and that such action introduces nothing new
in relation to the criteria fixed in the tender notice or, on
the contrary, must that provision be interpreted as a rigid
rule requiring the contracting authority to determine,
analytically, the criteria for the award of the contract in the
tender notice or the contract documents, and in any case
before the prequalification stage or the invitation to tender,
and as meaning that the jury may not subsequently in any
way do anything to specify or supplement those criteria or
to creating subheadings or sub-marking, since for reasons
of transparency every piece of information concerning the
criteria for the award must appear in the notice or contract
documents.

In short, is the traditional line of interpretation followed in
the past in the Consiglio di Stato's case-law, which permits
the jury to take action to supplement the criteria, lawful in
the light of Community law?

Is it lawful, in the light of that provision loosely interpreted
having regard to the adverbial phrase “where possible”, for
the contracting authority to adopt conditions for participa-
tion that provide, with regard to one of the criteria for the
the organisational and support
award (in this instance,
procedures), with reference to a complex series of criteria
for which the tender notice did not allocate individual
points, so that they were in that sense in part indetermi-
nate, that the points should be allocated at the absolute
discretion of the contracting authority, or does not that
provision in any case require that the criteria should as a
general rule be formulated absolutely definitively, which is
not compatible with the fact that those criteria were not

if

it

allocated separate points in the notice;
is lawful,
because the provision is considered to be flexible and
because it is not essential to give points to every item, is it
permissible, where the tender notice does not give express
power to the jury, for the latter to specify or supplement
the criteria (simply by allocating individual importance and
relative weight to every single item that the notice intended
to be assessed by the overall allocation of a maximum of
25 points ), or is it not on the contrary necessary to apply
the conditions of the tender literally, allocating the points
on an overall assessment of
the various and complex
matters taken into consideration by the lex specialis?

In any case, is it lawful, in the light of that provision, to
give the jury which is to assess the tenders, regardless of
the manner in which criteria have been formulated in the
tender notice, in a procedure for an award on the basis of
the economically most advantageous tender, the power, but
only in respect of the complexity of the matters to be
assessed, to restrict its own actions in a general way, by
specifying the parameters for the application of the criteria
previously determined in the tender notice, and may such
power held by the jury be exercised by creating subhead-
ings, sub-points, or simply by setting more specific criteria
for the application of the criteria laid down generally in the
notice or the contract documents, before of course the
envelopes have been opened?’

Action brought on 15 June 2004 by the Commission of
the European Communities against the Hellenic Republic

(Case C-256/04)

(2004/C 239/09)

An action against the Hellenic Republic was brought before the
Court of Justice of the European Communities on 15 June
2004 by the Commission of the European Communities, repre-
sented by Arnaud Bordes and Minas Konstantinidis, of its Legal
Service.

The Commission claims that the Court should:

1) declare that, by failing to adopt, and in any event to notify
to the Commission, the laws, regulations and administrative
provisions necessary to comply with Council Directive
2001/89/EC (1) of 23 October 2001 on Community
measures
the
Hellenic Republic has failed to fulfil its obligations under
that directive;

the control of classical swine fever,

for

2) order the Hellenic Republic to pay the costs.

C 239/6

EN

Official Journal of the European Union

25.9.2004

Pleas in law and main arguments

The period for transposition of the directive into national law
expired on 31 October 2002.

(1) OJ L 316, 1.12.2001, p. 5.

the Common Agricultural Policy, but amounts rather to a
fundamental alteration of the conditions of accession defined in
that Act that is detrimental to the Republic of Poland and to
territory. The
agricultural producers operating within its
contested measure is not a measure that is necessitated by
reason of changes to the Community rules. Consequently, in
the view of the Government of the Republic of Poland, the
Council of the European Union did not have the power to
extend the restricted scope of payments by way of a decision
adopted pursuant to Article 23 of the Act of Accession. In
introducing the contested measure, the Council of the Euro-
pean Union has infringed Article 23 of the Act of Accession.

Action brought on 28 June 2004 by the Republic of
Poland against the Council of the European Union

(Case C-273/04)

(2004/C 239/10)

An action against the Council of the European Union was
brought before the Court of Justice of the European Commu-
nities on 28 June 2004 by the Republic of Poland, represented
by Jarosław Pietras.

The Republic of Poland claims that the Court should:

1. Declare

of

invalid Article

Council Decision
1.5
2004/281/EC of 22 March 2004 adapting the Act
concerning the conditions of accession of
the Czech
Republic, the Republic of Estonia, the Republic of Cyprus,
the Republic of Latvia,
the
Republic of Hungary, the Republic of Malta, the Republic of
Poland, the Republic of Slovenia and the Slovak Republic
and the adjustments to the Treaties on which the European
Union is founded, following the reform of the common
agricultural policy (1); and

the Republic of Lithuania,

The Government of the Republic of Poland submits further that
the contested measure is contrary to the objective of the Acces-
sion Treaty of ensuring full assumption by the new Member
States of the rights and duties deriving from membership of the
European Union and infringes the principle of non-discrimina-
tion set out in Articles 12 EC and 34(2) EC, second sub-
paragraph. The Accession Treaty was based on the principle
that the new Member States should accede with equal rights,
and thus in compliance with the fundamental principle of non-
discrimination and equal
for producers from the
treatment
Community of 15 States and for those from the new Member
States. That fundamental principle has been limited only in the
case of the listed instruments designed to support agricultural
producers. The contested measure, by contrast,
introduces a
is discriminatory in character and
divergent principle that
under which all direct payments, both present and future, will
be made on unequal bases resulting from the mechanism of
gradual
accordingly
results in departures from the principle of non-discrimination
and equal treatment within an indeterminate and uncertain
area.

contested measure

introduction. The

2. — conduct the proceedings in Polish,

— determine the case in plenary formation,

— order the Council of the European Union to pay the

costs.

Pleas in law and main arguments:

The Government of the Republic of Poland takes the view that
Article 23 of the Act of Accession, construed in accordance
with the principles governing the interpretation of international
agreements and Community law, does not provide any legal
basis for adoption of the measures specified in Article 1.5 of
Decision 2004/281/EC and based on the extension of
the
restricted scope of payments to the new direct payments.

The contested measure does not constitute an adjustment to
the Act of Accession designed to take account of changes to

The Government of the Republic of Poland also takes the view
that, by basing itself as a rule on solutions which in the Acces-
sion Treaty were exceptional in nature, the contested measure
undermines the negotiating compromise and constitutes an
infringement of the principle of good faith. The Government of
the Republic of Poland submits that, from the outset of the
accession negotiations, it recognised the instrument of gradual
introduction as being a solution exceptional
in character,
covering only the listed support instruments, but not as being a
principle for supporting agricultural incomes within the terri-
tory of the Republic of Poland.

(1) OJ L 93 of 30.3.2004, p. 1.