CELEX: C2000/176/28
Language: en
Date: 2000-06-24 00:00:00
Title: Case C-157/00: Action brought on 27 April 2000 by the Hellenic Republic against the Commission of the European Communities

C 176/16               EN                    Official Journal of the European Communities                                       24.6.2000
Action brought on 26 April 2000 by the Commission of                    Action brought on 27 April 2000 by the Hellenic Republic
  the European Communities against the Italian Republic                   against the Commission of the European Communities
                          (Case C-155/00)                                                         (Case C-157/00)
                          (2000/C 176/27)
                                                                                                  (2000/C 176/28)
An action against the Italian Republic was brought before the
Court of Justice of the European Communities on 26 April                An action against the Commission of the European Communi-
2000 by the Commission of the European Communities,                     ties was brought before the Court of Justice of the European
represented by Michel Nolin, of its Legal Service, acting as            Communities on 27 April 2000 by the Hellenic Republic
Agent, assisted by Massimo Moretto, of the Venice Bar, with             represented by Vasilios Kontolaimos, Legal Adviser in the State
an address for service in Luxembourg at the office of Carlos            Legal Service, Ioannis-Konstantinos Khalkias, Member of that
Gómez de la Cruz, Wagner Centre, Kirchberg.                            Service, and Khrisoula Tsiavou, Legal Agent of that Service,
                                                                        with an address for service in Luxembourg at the Greek
The applicant claims that the Court should:                             Embassy, 117 Val Sainte-Croix.
— declare that, by adopting Law No 21 of the Region of
                                                                        The applicant claims that the Court should:
     Lombardy, which allows contracting authorities to grant
     concessions for works without complying with the rules
     on advertising or to award public works contracts, without         — grant the application;
     having first issued a public invitation to tender, to under-
     takings which have submitted projects, the Italian Republic
                                                                        — annul or, in the alternative, amend Commission Decision
     has failed to fulfil its obligations under Council Directive
                                                                             C(2000) 488 Final/1.3.2000 excluding from Community
     93/37/EEC of 14 June 1993 concerning the coordination
                                                                             financing certain expenditure incurred by the Member
     of procedures for the award of public works contracts (1),
                                                                             States under the Guarantee Section of the European
     in particular Articles 3 and 7 thereof;
                                                                             Agricultural Guidance and Guarantee Fund (EAGGF),
                                                                             which has been published in the Official Journal of the
— order the Italian Republic to pay the costs.                               European Communities as Decision No 2000/216/EC (OJ
                                                                             2000 L 67, p. 37), so far as concerns the chapters thereof
                                                                             specifically contested, relating to financial corrections to
Pleas in law and main arguments                                              the detriment of the Hellenic Republic.
Article 32 of the Regional Law allows contracting authorities
(a) to grant concessions for works the value of which is equal
                                                                        Pleas in law and main arguments
to or greater than ECU 5 000 000 without complying with
the rules on advertising and (b) to award public works
contracts the amount of which is equal to or greater than the           — Incorrect interpretation and application of Article 5 of
threshold indicated above without first publishing an invitation             Regulation No 2221/95, in the alternative incorrect assess-
to tender, alternatively by means of a negotiated procedure, in              ment of the facts.
circumstances different from those exceptional cases implicitly
enumerated by the directive. The correctness of such an
                                                                        — Infringement of Article 5(2)(c) of Regulation No 729/70
interpretation is demonstrated by the way in which Article 32
                                                                             and overstepping by the Commission of the limits of its
has been applied by the Municipality of Monza in the context
                                                                             discretion.
of a procedure for the construction of a plant for the disposal
of solid urban waste.
                                                                        — No legal basis for imposing the financial correction at issue
                                                                             and infringement of the principle of legal certainty.
Moreover, even if it were to be held that the Municipality of
Monza had misinterpreted and misapplied Article 32 in the
belief that that article permitted derogations from the normal          — With regard to the undertaking not to replant: misinterpret-
rules on advertising, that in itself shows, according to the                 ation of Article 2(1)(a) of Regulation No 2505/95 and
Commission, that the wording of Article 32 does not satisfy the              Articles 3 and 4(3) of Regulation No 2684/95.
requirements of clarity, unambiguousness and legal certainty
imposed on the Member States by virtue of the settled case-
                                                                        — With regard to the failure to record the date on the
law of the Court with regard to the transposition of directives.
                                                                             certificates: misinterpretation of Article 4 of Regulation No
                                                                             2684/95 — incorrect assessment of the facts.
(1) OJ L 199 of 9 August 1993, p. 54.
                                                                        — With regard to the failure to give advance notice of
                                                                             the date of grubbing-up operations: misinterpretation of
                                                                             Article 5 of Regulation No 2684/95.
 ---pagebreak--- 24.6.2000             EN                    Official Journal of the European Communities                                         C 176/17
— With regard to the extent of the parcel of land to be                     part of the expenses declared pursuant to Article 7(1) of
     grubbed up: incorrect interpretation and application of                Commission Regulation (EC) No 296/96 (3) be excluded
     Article 2 of Regulation No 2505/95 and Article 2 of                    from Community financing in respect of a period not
     Regulation No 2684/95.                                                 exceeding 24 months prior to the date of formal receipt of
                                                                            the notice. It follows that a refusal of financing cannot
— With regard to delivery notes and weight notes: misinter-                 affect expenses incurred before 26 May 1996.
     pretation of Article 15 of Regulation No 1558/91 and
     incorrect assessment of the facts.                                — Erroneous reasoning in that the decision does not take
                                                                            account of the evidence put forward by the Grand Duchy
— With regard to the serious deficiencies in the system of                  of Luxembourg for the correct assessment of the financial
     control which are relied upon (Articles 15 and 16 of                   consequences of the irregularities found:
     Regulation No 1558/91: absence of reports and checks):
     misinterpretation of Article 16 of Regulation No 1558/91               — The Commission generalises the defects found by
     and incorrect assessment of the facts.
                                                                                 challenging the whole system of administrative and
                                                                                 on-the-spot controls;
                                                                            — The defects should be viewed in an overall context and
                                                                                 in their true perspective in order to assess their
                                                                                 significance (the financial corrections proposed bear
                                                                                 no relation to the financial interests affected);
Action brought on 27 April 2000 by the Grand Duchy of                       — The Commission failed to take into account and give
Luxembourg against the Commission of the European                                credit for the many efforts to improve and perfect the
                         Communities                                             integrated system made since it was established (both
                                                                                 in relation to the processing and computerised moni-
                                                                                 toring of applications and in relation to the training of
                        (Case C-158/00)                                          controllers and improvement of the monitoring and
                                                                                 investigative documents). The Grand Duchy of Luxem-
                        (2000/C 176/29)                                          bourg considers that it has proved that the Commission
                                                                                 made a manifest error of assessment as to the financial
                                                                                 consequences to be drawn from the irregularities
An action against the Commission of the European Communi-                        discovered by refusing to take account of the evidence
ties was brought before the Court of Justice of the European                     put forward.
Communities on 27 April 2000 by the Grand Duchy of
Luxembourg, represented by Ferdinand Hofstetter, acting as
Agent, assisted by Roger Nothar, of the Luxembourg Bar, with           — Infringement of the guidelines in Document VI/5330/97
an address for service in Luxembourg at the chambers of Roger               and of the principle of proportionality: The extenuating
Nothar, 99 Avenue du Bois.                                                  circumstance relied upon by the Grand Duchy of Luxem-
                                                                            bourg, proposed by the Conciliation Body and laid down
                                                                            by the guidance document was dismissed by the Com-
The applicant claims that the court should:                                 mission on the ground that the European Parliament insists
                                                                            that the Commission apply the correction factors until the
— annul Commission Decision C(2000) 488 of 1 March                          deficiencies found have been eliminated. That rigorous
     2000, excluding certain expenses by the Grand Duchy                    approach is, however, entirely contrary to the purpose of
     of Luxembourg from Community financing under the                       the guidance document, which is designed to adjust the
     European Agricultural Guidance and Guarantee Fund                      correction factors by reference to actual circumstances. In
     (EAGGF), Guarantee Section, for the financial years 1996-              addition, the application of a correction factor of 5 % is
     1998 by not definitively charging to the EAGGF the sum                 totally disproportionate in relation to the risk of loss for
     of LUF 56 106 800 by way of expenses relating to arable                the EAGGF, which is in reality non-existent.
     crops;
— order the Commission to pay the costs.                               (1) OJ L 125, 8.6.1995, p. 1.
                                                                       (2) OJ L 94, 28.4.1970, p. 13.
                                                                       (3) Commission Regulation (EC) No 296/96 of 16 February 1996 on
                                                                           data to be forwarded by the Member States and the monthly
Pleas in law and main arguments                                            booking of expenditure financed under the Guarantee Section of
                                                                           the Agricultural Guidance and Guarantee Fund (EAGGF) and
                                                                           repealing Regulation (EEC) No 2776/88 (OJ L 39, 17.2.1996,
— Infringement of Article 1 of Council Regulation (EC) No
                                                                           p. 5).
     1287/95 of 22 May 1995 (1) amending Regulation (EEC)
     No 729/70 (2) on the financing of the common agricultural
     policy: It was only in a notice of 26 May 1998 that the
     Directorate General for Agriculture informed the Grand
     Duchy of Luxembourg of its intention to recommend that