CELEX: C2003/019/22
Language: en
Date: 2003-01-25 00:00:00
Title: Case C-394/02: Action brought on 8 November 2002 by the Commission of the European Communities against the Hellenic Republic

C 19/12                   EN                     Official Journal of the European Communities                                      25.1.2003
5.     Must those directives and, in particular, Article 44(3)(g)           2002 by the Commission of the European Communities,
       of the EC Treaty, Articles 2(1)(f) and 6 of the first directive      represented by Michel Nolin and Minas Konstantinidis, of its
       (Directive 68/151/EEC) and Article 2(2), (3) and (4) of the          Legal Service, with an address for service in Luxembourg.
       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                The Commission claims that the Court should:
       companies of those obligations concerning disclosure
       and the provision of accurate information imposed on
       them in order to safeguard ‘the interests of both members            a)    declare that, as a result of the award by the Dimosia
       and third parties’, allows only members and creditors to                   Epikhirisi Ilektrismou (DEI) of work for the construction
       seek imposition of a penalty, thereby excluding third                      of a conveyor system at the steam-generated electricity
       parties from any general and effective protection?                         station at Megalopolis by a procedure of negotiation
                                                                                  without a competition first being called, the Hellenic
6.     Must those directives and, in particular, Article 44(3)(g)                 Republic has failed to fulfil its obligations under Council
       of the EC Treaty, Articles 2(1)(f) and 6 of the first directive            Directive 93/38/EEC ( 1) of 14 June 1993 coordinating
       (Directive 68/151/EEC) and Article 2(2), (3) and (4) of the                the procurement procedures of entities operating in the
       fourth directive (Directive 78/660/EEC), as consolidated                   water, energy, transport and telecommunications sectors
       by Directive 83/349 and Directive 90/605), be interpreted                  and, in particular, under Article 20 et seq. of the
       as meaning that that legislation precludes a law of a                      directive;
       Member State which, in response to the infringement by
       companies of those obligations concerning disclosure
       and the provision of accurate information imposed on                 b)    order the Hellenic Republic to pay the costs.
       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        Pleas in law and main arguments
       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    Directive 93/38 governs the choice of procurement procedures
     of members and others, are required by Member States of                in the water, energy, transport and telecommunications sectors
     companies within the meaning of the second paragraph of                and applies to contracts whose estimated value is not less than
     Article 58 of the Treaty, with a view to making such safeguards        EUR 5 000 000.
     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).                      According to the Commission, the contract at issue, by reason
( 3) Seventh Council Directive 83/349/EEC of 13 June 1983 based on          of its value and type, is covered by the directive. Consequently,
     the Article 54 (3) (g) of the Treaty on consolidated accounts (OJ      the contracting entity (Dimosia Epikhirisi Ilektrismou (DEI);
     L 193, 18.07.1983, p. 1).                                              the State Electricity Undertaking) had to follow the procedures
( 4) Council Directive 90/605/EEC of 8 November 1990 amending               under Article 20(1) of the directive and call a competition in
     Directive 78/660/EEC on annual accounts and Directive 83/349/          accordance with Article 21 of the directive. However, the
     EEC on consolidated accounts as regards the scope of those
                                                                            contract was not put out to tender but was awarded following
     Directives (OJ L 317, 16.11.1990, p. 60).
                                                                            private negotiation.
                                                                            The Commission maintains that in the present case neither
                                                                            Article 20(2)(c) of the directive (technical or artistic reasons
Action brought on 8 November 2002 by the Commission                         rendering it absolutely essential to place the contract with a
of the European Communities against the Hellenic Repub-                     particular contractor) nor Article 20(2)(d) (extreme urgency
                                    lic                                     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