CELEX: C2003/019/25
Language: en
Date: 2003-01-25 00:00:00
Title: Case C-407/02: Action brought on 15 November 2002 by the Commission of the European Communities against the Hellenic Republic

C 19/14                EN                     Official Journal of the European Communities                                          25.1.2003
Reference for a preliminary ruling by the Tribunale di                          interest may assume a Community dimension, to provide
Milano, Sezione IV Penale by order of that Court of                             in respect of offences under Article 2622(1) of the Civil
29 October 2002 in the criminal proceedings against                             Code (those committed in regard to companies not listed
Marcello Dell’Utri, Romano Luzi and Romano Comincioli                           on the stock exchange) that proceedings may only be
                                                                                brought upon a complaint by members of the company
                                                                                concerned or by its creditors?
                        (Case C-403/02)
                                                                         (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
                         (2003/C 19/24)                                       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
                                                                         Action brought on 15 November 2002 by the Com-
Chamber) of 29 October 2002, received at the Court Registry
                                                                         mission of the European Communities against the Hellen-
on 12 November 2002, for a preliminary ruling in the criminal
                                                                                                       ic Republic
proceedings against Marcello Dell’Utri, Romano Luzi and
Romano Comincioli on the following questions:
                                                                                                    (Case C-407/02)
—    May Article 6 of Directive 68/151/EEC ( 1) (first directive)                                    (2003/C 19/25)
     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                 An action against the Hellenic Republic was brought before
     documents, of other company documents addressed to                  the Court of Justice of the European Communities on 15 Nov-
     members or to the public, or of any information on a                ember 2002 by the Commission of the European Communi-
     company’s assets and liabilities, and economic and finan-           ties, represented by Michel Nolin and Minas Konstantinidis, of
     cial situation which the company is required to provide             its Legal Service, with an address for service in Luxembourg.
     in relation to itself or to the group of which it forms a
     part?
                                                                         The Commission claims that the Court should:
—    Must the concept of the ‘appropriateness’ of the penalty,           a)     declare that, as a result of the direct award by the
     for the purposes also of Article 5 of the EC Treaty, be                    municipality of Serres of the contract ‘Renewal of the
     understood in terms to be specifically assessed within the                 town of Serres: framework of investigative study models
     legislative scope (both criminal and procedural) of the                    and pilot realisation programme’ without tenders first
     Member States as requiring a penalty which is ‘efficacious,                being invited, the Hellenic Republic has failed to fulfil its
     effective and genuinely dissuasive’?                                       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
—    Do the combined provisions of new Articles 2621 and                        the award of public service contracts;
     2622 of the Civil Code, as amended by Legislative Decree
     No 61 of 11 April 2002, satisfy those criteria: in                  b)     order the Hellenic Republic to pay the costs.
     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         Pleas in law and main arguments
     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                The provisions of Directive 92/50 govern the choice of
     ‘effectively dissuasive’ and ‘genuinely appropriate’? Finally,      procedures for the award of public service contracts and lay
     is it appropriate, in terms not least of the specific               down common rules in the field of design contests and in the
     protection of the collective interest in the ‘transparency’         technical field. Those provisions apply to contracts whose
     of the corporate market, and the possibility that that              estimated value is equal to or exceeds a specified threshold.
 ---pagebreak--- 25.1.2003               EN                   Official Journal of the European Communities                                           C 19/15
According to the Commission, the contract ‘Renewal of the               2.    annul the decision of the respondent (ECB) in its letter of
town of Serres: framework of investigative study models and                   28 June 2000 altering the responsibilities assigned to the
pilot realisation programme’ is a public service contract                     appellant;
falling within the directive given its subject-matter and value.
Nevertheless, the contract was not put out to tender but was            3.    order the ECB to pay the costs.
awarded directly by the municipality of Serres to the Aristotle
University of Thessaloniki.
                                                                        Pleas in law and main arguments
The Commission further maintains that in the present case               —     The judgment appealed against mistakes the scope and
neither the exception in Article 6 of the directive (contract                 structure of the EBC’s functional autonomy under the
with an entity which is itself a contracting authority within the             contractual system established by Article 36.1 of the
meaning of the directive) nor the exception in Article 1(a)(ix)               ESCB Statute and the first sentence of Article 9(a) of the
is applicable.                                                                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
( 1) Council Directive 92/50/EEC of 18 June 1992 relating to the              staff under the law governing officials of the European
     coordination of procedures for the award of public service               Communities. That discretion relating to the use of staff
     contracts (OJ L 209, 24.7.1992, p. 1).                                   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.
Appeal by Jan Pflugradt against the judgment of the Court
of First Instance of the European Communities (Fifth                          In the event that the contractually agreed employment
Chamber) of 22 October 2002 in Joined Cases T-178/00                          cannot be continued because of cessation of employment,
and T-341/00, Jan Pflugradt v European Central Bank,                          Article 11(a)(ii) provides for the possibility of dismissal for
                  lodged on 18 November 2002                                  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
                         (Case C-409/02 P)                                    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
                           (2003/C 19/26)                                     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.
An appeal against the judgment delivered on 22 October 2002
by the Fifth Chamber of the Court of First Instance of the                    The Court of First Instance described the appellant’s
European Communities in Joined Cases T-178/00 and T-341/                      responsibility for appraisal of the members of the UNIX
99, Jan Pflugradt v the European Central Bank, was brought                    team as not an essential element of the contract of
before the Court of First Instance of the European Communities                employment, although in the job description it is termed
on 18 November 2002 by Jan Pflugradt, represented by Dr                       a ‘key responsibility’. The Court of First Instance also
Norbert Pflüger, 44 Kaiserstraße, D-60329 Frankfurt am Main,                  misconstrued the job description by assuming it to
with an address for service in Luxembourg.                                    constitute merely a provisional assignment of responsi-
                                                                              bilities.
                                                                        —     Infringement of the rules concerning evidence.
The appellant claims that the Court should, on setting aside
the judgment appealed against ( 1)
                                                                        (1 ) Not yet published in the Official Journal of the European
                                                                             Communities.
1.     annul the appellant’s performance appraisal report for
       1999 dated 23 November 1999;