CELEX: C2002/323/38
Language: en
Date: 2002-12-21 00:00:00
Title: Case C-390/02: Action brought on 6 November 2002 by the Commission of the European Communities against the Hellenic Republic

C 323/26               EN                     Official Journal of the European Communities                                     21.12.2002
      municipal district, for the completion of an expansion             Action brought on 6 November 2002 by the Commission
      basin for the River Enza and for controlling spate                 of the European Communities against the Hellenic Repub-
      waters in the river Terdoppio-Canale Scolmatore to the                                                lic
      southwest of Cerano by means of a negotiated procedure
      which was not preceded by the publication of a tender
      notice when there no budgetary resources were available;                                      (Case C-390/02)
                                                                                                    (2002/C 323/38)
—     Order the Italian Republic to pay the costs.
                                                                         An action against the Hellenic Republic was brought before the
                                                                         Court of Justice of the European Communities on 6 November
                                                                         2002 by the Commission of the European Communities,
Pleas in law and main arguments                                          represented by Georgios Zavvos, of its Legal Service.
                                                                         The Commission claims that the Court should:
According to the Commission the negotiated procedure, which
was not preceded by the publication of a tender notice,
                                                                         —     declare that, by failing to adopt or, in the alternative, to
adopted by the Magistrato del Po di Parma when awarding
                                                                               notify to the Commission, within the time-limit laid
contracts relating to the completion of the abovementioned
                                                                               down, the laws, regulations and administrative provisions
work, does not conform with the requirements of Directive
                                                                               necessary to comply fully with Directive 99/42/EC (1) of
93/37/EC.
                                                                               the European Parliament and of the Council of 7 June
                                                                               1999 establishing a mechanism for the recognition of
                                                                               qualifications in respect of the professional activities
                                                                               covered by the directives on liberalisation and transitional
First, the Commission points out that the aforementioned                       measures and supplementing the general systems for the
awards, although described by the awarding authority as                        recognition of qualifications, the Hellenic Republic has
‘concessions solely for construction work’, must in actual fact                failed to fulfil its obligations under the EC Treaty;
be regarded as public works contracts.
                                                                         —     order the Hellenic Republic to pay the costs.
Article 1(d) of the directive defines ‘public works concession’
as a public works contract except for the fact that the
consideration for the works to be carried out consists either            Pleas in law and main arguments
solely in the right to exploit the construction or in this right
together with payment.
                                                                         In accordance with the third paragraph of Article 249 EC,
                                                                         directives are binding, as to the result to be achieved, upon
                                                                         each Member State to which they are addressed.
In the present case, however, the persons undertaking the
works have not been accorded any rights in the exploitation              Under the first paragraph of Article 10 EC, Member States are
of those works, so that the awards in question must be                   to take all appropriate measures, whether general or particular,
regarded as public works contracts, which is not disputed by
                                                                         to ensure fulfilment of the obligations arising out of the Treaty
the Italian authorities.                                                 or resulting from action taken by the institutions of the
                                                                         Community.
Secondly, the Commission points out that Article 6 of the                It is not disputed by the Hellenic Republic that it must adopt
directive provides that it applies to public works contracts             measures to comply with the abovementioned directive.
whose estimated value, including VAT, is EUR 5 000 000 or
greater. Thus, in view of the fact that the value of the contracts
in question exceeds the abovementioned threshold, they were              The Commission records that until now the Hellenic Republic
subject to the requirements of the directive.                            has not adopted the appropriate measures for the full incorpor-
                                                                         ation of the directive at issue into Greek law or, of course,
                                                                         notified such measures to the Commission.
( 1) OJ 1993 L 199, p. 54 .
                                                                         (1 ) OJ L 201, 31.7.1999, p. 77.