CELEX: 62002CC0394
Language: en
Date: 2005-02-24
Title: Opinion of Mr Advocate General Jacobs delivered on 24 February 2005.#Commission of the European Communities v Hellenic Republic.#Failure of a Member State to fulfil obligations - Directive 93/38/EEC - Public procurement in the water, energy, transport and telecommunications sectors - Contract for the construction of a conveyor-belt system for the thermal-electricity generation plant at Megalopolis - Failure to publish a contract notice - Technical reasons - Unforeseeable event - Extreme urgency.#Case C-394/02.

OPINION OF ADVOCATE GENERAL
      JACOBS
      delivered on 24 February 2005 (1)
      
      Case C-394/02
      Commission of the European Communities
      v
      Hellenic Republic
      1.     In this action brought under Article 226 EC the Commission seeks a declaration by the Court that, by reason of the award by
         the public electricity company Dimosia Epicheirisi Ilektrismoy (hereinafter ‘DEI’) of a contract for the construction of a
         conveyor-belt system for the thermal-electricity generation plant of Megalopolis (hereinafter ‘the Megalopolis plant’) by
         means of a negotiated procedure without previous publication of a notice, the Hellenic Republic has failed to fulfil its obligations
         under Council Directive 93/38/EEC of 14 June 1993 coordinating the procurement procedures of entities operating in the water,
         energy, transport and telecommunications sectors (hereinafter ‘the Utilities Sectors Directive’) (2) and in particular Article 20 et seq. thereof. 
      
        
       The facts and background to the case 
      2.     Towards the end of 1997 DEI submitted to the competent national environmental authority, the Ministry of Environment, Planning
         and Public Works, a project concerning the installation of a system for the de-sulphuration, stabilisation and transport of
         ashes and solid waste from the Megalopolis plant for the purposes of an environmental impact assessment under Council Directive
         85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment (hereinafter
         the ‘Environmental Impact Assessment Directive’). (3)  By decisions of 29 October 1998 and 30 December 1999, the competent national environmental authority gave its approval. 
         That approval was subject, on the one hand, to DEI lodging a request for a final authorisation for the elimination of the
         resulting waste within 9 months and, on the other, to the installation within 12 months of a conveyor-belt system for the
         transport of the ashes between the Megalopolis plant and the mine of Thoknia, where the ashes would be treated. 
      
      3.     Having been unofficially informed of the possibility of those deadlines being imposed, on 27 July 1999 DEI decided to carry
         out a negotiated award procedure without publication of a notice and invited the firms Koch/Metka and Dosco to submit offers.
         
      
      4.     On 18 January 2000, Dosco declared that it was not in a position to take part and withdrew from the award procedure. 
      5.     On 29 August 2000, after price negotiations that lasted several months, DEI awarded the contract for the construction of the
         conveyor-belt system to the firm Koch/Metka.
      
      6.     By letter of 3 October 2000 the Commission requested information from Greece concerning the disputed contract award.  After
         receiving a reply from Greece by letter of 9 November 2000, the Commission sent its letter of formal notice on 17 April 2001. Greece
         replied by letter of 30 July 2001.  After giving Greece the opportunity to submit its observations, on 21 December 2001 the
         Commission issued a reasoned opinion in which it stated that the contract for the construction of the conveyor-belt system
         for the transport of ashes between the Megalopolis plant and the mine of Thoknia should have been the subject of a notice
         published in the Official Journal in accordance with the Utilities Sectors Directive.  It requested Greece to adopt all necessary
         measures to comply with the reasoned opinion within two months.  Not being satisfied by the reply given by Greece dated 3
         April 2002, the Commission lodged the present action on 8 November 2002. 
      
        
       Relevant provisions of Community law 
      7.     Article 15 of the Utilities Sectors Directive requires that ‘supply and works contracts and contracts which have as their
         object services listed in Annex XVI A shall be awarded in accordance with the provisions of Titles III, IV and V’. 
      
      8.     Article 20(1) of the Utilities Sectors Directive, which is contained in Title IV governing procedures for the award of contracts,
         provides that ‘[c]ontracting entities may choose any of the procedures described in Article 1(7), provided that, subject to
         paragraph 2, a call for competition has been made in accordance with Article 21’. 
      
      9.     Pursuant to paragraph 2 of the same provision: 
      ‘Contracting entities may use a procedure without prior call for competition in the following cases:  … 
      (c)      when, for technical or artistic reasons or for reasons connected with protection of exclusive rights, the contract may be
         executed only by a particular supplier, contractor or service provider; 
      
      (d)      in so far as is strictly necessary when, for reasons of extreme urgency brought about by events unforeseeable by the contracting
         entities, the time limits laid down for open and restricted procedures cannot be adhered to.’ 
      
      10.   Article 1(7) of the Utilities Sectors Directive defines the three types of award procedures – open, restricted and negotiated
         – that contracting entities must follow whenever the directive applies. 
      
      11.   Article 21(1) of the Utilities Sectors Directive lays down the means whereby the call for competition may be made, in essence
         the publication of a notice in the Official Journal drawn up in accordance with the models contained in the annexes to the
         directive. 
      
        
       Admissibility 
      12.   Greece objects to the admissibility of the Commission’s action on two grounds. 
      13.   First, the Commission did not specify the measures that it was required to adopt in order to comply with the reasoned opinion. 
         Since the procurement in question concerned public works which were to a large extent – around 85% – completed by the deadline
         set for compliance in the reasoned opinion, it was impossible to give effect to the opinion.  In view of this, Greece questions
         the interest of the Commission in pursuing an infringement procedure. 
      
      14.   Secondly, the use of the infringement procedure under Article 226 EC constitutes an abuse of procedure.  The Commission should
         have resorted to the procedure under Article 3 of Council Directive 89/665/EEC of 21 December 1989 on the coordination of
         the laws, regulations and administrative provisions relating to the application of review procedures to the award of public
         supply and public works contracts (hereinafter the ‘General Remedies Directive’), (4) which entitles the Commission to intervene directly in a national award procedure and request action from the Member State
         to tackle alleged clear and manifest breaches of the general public supply, public works and public services directives. 
      
      15.   As regards Greece’s first plea, it must first of all be noted that, pursuant to settled case-law, the Commission does not
         have to show that there is a specific interest in bringing an action when exercising its powers under Article 226 EC.  Given
         its role as guardian of the Treaty, the Commission alone is competent to decide whether it is appropriate to bring proceedings
         against a MemberState for failure to fulfil its obligations and to determine the conduct or omission attributable to the MemberState
         concerned on the basis of which those proceedings should be brought. (5)
      
      16.   The Court has further held that, where the effects of the breach subsist beyond the date for compliance laid down in the reasoned
         opinion, the Commission may have an interest in bringing an action.  In the specific context of public procurement cases,
         without making a distinction between works, supply or services procurement contracts, the Court has held that the unlawful
         effects subsist during the entire performance of the contracts concluded in breach of the procurement directives. (6)  
      
      17.   The Court has in the past also dismissed an objection of inadmissibility based on a claim that the alleged infringement had
         ceased in a situation in which the award procedures had been completed before the date on which the period laid down in the
         reasoned opinion expired, since the contracts had not been fully performed by that date.  Here again the Court does not differentiate
         between the different procurement contracts covered by the various directives. (7) 
      
      18.   In the present case it appears from the file that at the expiry of the period prescribed for compliance with the reasoned
         opinion, the contract was, by the defendant’s own admission, still not fully implemented.  In fact, the works were only completed
         in May 2002.  It follows that the Commission’s interest in bringing the action cannot be contested. 
      
      19.   Greece’s arguments as to the de facto  impossibility of giving effect to the reasoned opinion, thereby rendering the Commission’s action devoid of any purpose, must
         in my view also be dismissed.  
      
      20.   First of all, as the Court has consistently held, ‘even where the default has been remedied after the time-limit given in
         the reasoned opinion has expired, there is still an interest in pursuing the action in order to establish the basis of liability
         which a Member State may incur, as a result of its default, towards other Member States, the Community or private parties’. (8)  I would add that the same applies whenever the default may no longer be remedied. 
      
      21.   The establishment of a basis for potential liability claims may be particularly relevant in the case of breaches of public
         procurement rules.  It is generally agreed that the setting aside of a fully implemented contract by reason of a breach of
         the applicable Community rules on public procurement is not always the most sensible solution since it does not, as a general
         rule, satisfy either the public or private interests involved.  That is especially so in the case of contracts for public
         works which have been for the most part executed.  In those circumstances the best remedy to injured parties may lie in the
         award of damages.  That is precisely the logic that underlies both the General Remedies Directive and Council Directive 92/13/EEC
         of 25 February 1992 (9) coordinating the laws, regulations and administrative provisions relating to the application of Community rules on the procurement
         procedures of entities operating in the water, energy, transport and telecommunications sectors (hereinafter the ‘Utilities
         Sectors Remedies Directive’).  Article 2(6) of each of those directives enables Member States to provide that, after the conclusion
         of a contract following its award, the powers of the body responsible for the review procedures are to be limited to awarding
         damages to any person harmed by an infringement.  A declaration by the Court that a breach has occurred may provide a basis
         for claims for damages before national courts, even where the contract has already been awarded and fully executed. 
      
      22.   That is so, moreover, in the case of breaches of the Utilities Sectors Directive.  Assuming that Greece has properly implemented
         its obligations under the Utilities Sectors Remedies Directive – which, as I shall discuss below, applies in the instant case
         – any party injured by a breach should benefit from the relatively generous damages regime established thereunder. (10)
      
      23.   Greece argues that, in any event, there is no third party in the instant case which could avail itself of the Court’s judgment
         to claim damages at national level.  That argument should also be rejected.  
      
      24.   First, such argument is not borne out by reality.  The spectrum of possible claimants is defined in very broad terms by both
         the Remedies directives as ‘any person having or having had an interest in obtaining a particular contract and who has been
         or risks being harmed by an alleged infringement’.  Thus, the number of persons that could claim relief under the applicable
         provisions is, potentially, significant and their existence cannot, in my view, be excluded a priori.  In the instant case,
         a second company, Dosco, took part in the preliminary stages of the award procedure but withdrew (for reasons not specified
         before the Court).  In addition, the Commission, according to its submissions, took action following an individual complaint. 
         Thus, contrary to the arguments put forward in the defence, the possibility cannot be excluded that there may be parties who
         could benefit from a declaration by the Court of a breach of the Community public procurement rules. 
      
      25.   Secondly, accepting Greece’s arguments would be tantamount to allowing national authorities a means to circumvent their obligations
         under the EC public procurement rules.  In view of the length of the pre-litigation and judicial procedures under Article
         226 EC, it is highly likely that by the time the Court has ruled on the substance the contract affected by the alleged infringement
         will be fully implemented, unless interim measures suspending the award procedure or the execution of the contract are granted. 
         It would therefore suffice for Member States, while proceeding to the execution of the contested contract, systematically
         to oppose the Commission’s allegations throughout the pre-litigation procedure, only to argue subsequently the inadmissibility
         of the Commission’s action on grounds of the impossibility of implementing the reasoned opinion.  Moreover, it would be unacceptable
         for a MemberState to be in a better position where the breach is a fait acccompli than where it can still be prevented. 
      
      26.   Finally, the Court has held that since the finding of failure by a Member State to fulfil its obligations is not bound up
         with a finding as to the damage resulting therefrom, that Member State cannot rely on the fact that no third party had suffered
         damage from the alleged breach of the public procurement rules committed by the national contracting authorities. (11)
      
      27.   As regards the need to specify the measures to be adopted by the defaulting MemberState, it is settled case-law that the Commission
         cannot be required to indicate in the reasoned opinion the measures or steps to be taken to eliminate the infringement in
         question. (12)  That case-law, which sanctions the usual practice of the Commission under Article 226 EC, constitutes in my view an expression
         in the context of that provision of what may be referred to as the principle of ‘institutional autonomy’ which governs the
         relationship between the Community and its Member States. (13)  According to the system of the division of powers established by the EC Treaty, in the absence of applicable Community rules,
         the responsibility for the implementation, application and enforcement of Community rules falls upon the Member States in
         accordance with their national legal systems, (14) subject, of course, to the constraints of the principle of effectiveness as developed by the Court. 
      
      28.   Greece refers however to the judgment in Commission v Austria in support of its plea.  In that case the Court held, as an exception to its previous case-law, that ‘the Commission must
         specifically indicate to the Member State concerned that it must adopt a certain measure if it intends to make the failure
         to adopt that measure the subject-matter of its infringement action’. (15)  The Court interpreted part of the Commission’s application as seeking a declaration that the defendant State ought to have
         cancelled the contracts concluded by the national authorities in breach of Community law.  Since such a failure had not been
         specified during the pre-litigation procedure, the Court declared that part of the application inadmissible as the Commission
         had altered the subject-matter of the proceedings, thereby violating the rights of defence of the Republic of Austria. 
      
      29.   In my view the circumstances in the instant case are not comparable to those in Commission v Austria.  In the present case the Commission has throughout the entire pre-litigation and judicial procedures maintained the same
         subject-matter for its action, namely the failure by Greece to fulfil its obligations under the Utilities Sectors Directive
         by reason of the award by DEI of a contract following a negotiated procedure without previous publication of a notice.  In
         its application, the Commission has not sought to require Greece to adopt measures other than those that it had already mentioned
         in its reasoned opinion.  It has therefore not changed the subject-matter of its action and has not prejudiced the defendant’s
         rights of defence. 
      
      30.   In its second plea of inadmissibility relating to an abuse of procedure, Greece claims that the Commission should have resorted
         to the direct intervention procedure provided for in Article 3 of the General Remedies Directive.  
      
      31.   Reference to that provision is surely an oversight by Greece since that directive cannot apply to the instant case. (16)  Breaches of the Utilities Sectors Directive are covered by the Utilities Sectors Remedies Directive, which was specifically
         designed to cater for the peculiarities of public procurement procedures in the sectors covered and to fill the gap left by
         the General Remedies Directive as regards breaches of the provisions of the Utilities Sectors Directive. (17)
      
      32.   That having been said, the Utilities Sectors Remedies Directive also provides in its Article 8 for a special procedure enabling
         the Commission to intervene directly before the MemberState when a clear and manifest breach of the Utilities Sectors Directive
         is detected.  Apart from the different deadline that it lays down for the reply of the MemberState to the notification of
         the Commission, the procedure is the same as that laid down by Article 3 of the General Remedies Directive.  Although the
         Commission did not address this point in its written reply, at the hearing it noted that, despite its written submissions,
         the relevant procedure was that under Article 8 of the Utilities Sectors Remedies Directive.  Thus, it might be inferred that
         Greece’s plea refers to the procedure under Article 8 of the Utilities Sectors Remedies Directive rather than Article 3 of
         the General Remedies Directive 
      
      33.   The Court has, in my view somewhat reluctantly, (18) held that the ‘special procedure under [Article 3 of the General Remedies Directive] is a preliminary measure which can neither
         derogate from nor replace the powers of the Commission under Article [226] of the Treaty.  That article gives the Commission
         discretionary power to bring an action before the Court where it considers that a Member State has failed to fulfil one of
         its obligations under the Treaty and that the State concerned has not complied with the Commission’s reasoned opinion.’ (19)  In view of the practically identical nature of both provisions, those statements should also be taken to apply to the procedure
         laid down by Article 8 of the Utilities Sectors Remedies Directive. 
      
      34.   Given that, owing to their particular features, breaches of public procurement rules require swift action in order to avoid
         a situation of fait accompli and that the Commission’s powers under the special procedures laid down in both Remedies directives
         were specifically designed to avoid such situations when a clear and manifest breach is detected, one may sympathise with
         Greece’s point of view in terms of the expediency of the choices made by the Commission.  However, the use made by the Commission
         of the special procedure provided for in both Remedies directives falls within the realm of its discretion when deciding its
         enforcement policy in this area and, even if one might disagree from a practical point of view, it cannot be condemned from
         a strict legal point of view. 
      
      35.   It follows from the foregoing that the objections of inadmissibility raised by Greece should be dismissed. 
        
       Substance 
      36.   The Commission claims that the contract in question falls within the scope of the Utilities Sectors Directive and should therefore
         have been awarded in accordance with one of the procedures involving publication of a notice as required by Article 20(1)
         of that directive. 
      
      37.   Greece does not dispute the fact that the contract falls, in principle, within the scope of the Utilities Sectors Directive
         but claims that it was exempted from its discipline by virtue of Article 20(2)(c) and (d) thereof.  As regards subparagraph
         (c), the technical specificity of the works in question made the chosen firm Koch/Metka the only contractor capable of performing
         the works.  As regards subparagraph (d), the extreme urgency was brought about by the unforeseen decisions of the competent
         national authorities imposing tight deadlines for the completion of the environmental procedures which rendered respect for
         any of the procedures involving publication unviable. 
      
      38.   It must first be noted that as a derogation from the rules intended to ensure the effectiveness of the rights conferred by
         Community law in relation to public procurement, both subparagraphs mentioned by Greece must be interpreted strictly. In addition,
         the burden of proving the existence of exceptional circumstances justifying the derogation which they provide lies on the
         person seeking to rely on those circumstances. (20)
      
      39.   As regards Article 20(2)(c) of the Utilities Sectors Directive, Greece claims that three types of technical reasons justified
         the award of the contract to Koch/Metka.  First, the specific characteristics of the ashes to be transported, resulting from
         the fact that the fuel used in the plant is lignite rather than coal, required special technical solutions.  Lignite is used
         as a fuel, according to the technical studies submitted by Greece, in only one other plant in the world and the technical
         solutions required for lignite are very rarely used by plants using coal.  Secondly, the unstable nature of the sub-soil rendered
         difficult the building of the foundations for the conveyor belts.  Finally, it was necessary to attach the new conveyor belts
         to the existing ones, and therefore to ensure their compatibility.  In view of those technical specificities, only Koch/Metka
         enjoyed, in the contracting authority’s view, the necessary expertise for the realisation of the works. 
      
      40.   I am not convinced that the arguments put forward by Greece adequately establish that Koch/Metka was the only contractor capable
         of performing the works.  The fact that the works to be carried out were subject to exceptional technical constraints does
         not necessarily mean, as Greece seems to believe, that only one firm has the know-how to deal with such constraints.  As the
         Court of Justice has held, a Member State may rely on an exception such as that provided for by Article 20(2)(c) of the Utilities
         Sectors Directive only if it can both establish the existence of ‘technical reasons’ within the meaning of that provision
         and prove that those ‘technical reasons’ made it absolutely essential that the contract in question be awarded to the chosen
         undertaking. (21)
      
      41.   The passages of the independent technical report quoted in the written submissions of Greece do confirm the rare character
         and the peculiar properties of the fuel used by the Megalopolis plant and their consequences for the transport of the resulting
         ashes.  However, nowhere in the technical report is it stated that only Koch/Metka was in a position to provide the required
         service.  In fact, the passage cited acknowledges that the technical solutions for lignite-fuelled plants can also be used
         in coal-fuelled ones, even though they are very rarely used. 
      
      42.   The same reasoning applies in my view as regards the constraints relating to the configuration of the sub-soil and the need
         to attach the new conveyor-belt system to the existing one.  The geological instability of the sub-soil and the need for compatibility
         between the new and existing conveyor belts are indeed technical reasons which may be taken into account by the contracting
         authority when choosing the successful bidder, but they do not on their own prove that Koch/Metka was the only firm capable
         of performing the contract. 
      
      43.   Greece’s position is further undermined by two more facts.  First, the same contracting authority has published award notices
         in relation to similar works carried out in Megalopolis in the past and, second, Dosco was also invited to negotiate.  As
         the Commission points out, the Greek reply of 9 November 2000 indicates that Dosco was initially considered to be technically
         capable of performing the contract.  The absence of other possible contractors was not as apparent as Greece claims. 
      
      44.   In brief, to the extent that it tries to shift the burden of proof to the Commission on this aspect of the case, the reasoning
         of Greece appears to be misguided for the reasons set out in point 40 above.  It must be recalled that one of the main aims
         of the public procurement rules is to enable contracting authorities and firms throughout the EU to benefit from the possibilities
         offered by the European market.  By not testing the market by means of a publication of the notice, Greece has defeated such
         an aim. 
      
      45.   In view of the foregoing, I must conclude that Greece has failed to prove that the difficulties arising from the technical
         constraints of the works to be carried out made it absolutely essential, pursuant to Article 20(2)(c) of the Utilities Sectors
         Directive, to award the contract to Koch/Metka. 
      
      46.   As regards the derogation based on reasons of extreme urgency, in order to invoke successfully that derogation under Article
         20(2)(d) of the Utilities Sectors Directive three cumulative conditions must be met, namely the existence of an unforeseeable
         event, extreme urgency rendering the observance of time-limits laid down by other procedures impossible and a link between
         the unforeseeable event and the extreme urgency resulting therefrom. 
      
      47.   The unforeseeable event alleged by Greece in the instant case takes the form of the deadlines imposed by the decision of 30
         December 1999 of the national authority competent for defining of the environmental conditions for the exploitation of the
         project.  Pursuant to that decision the authorisation to dispose of the waste was to be obtained from the local authority
         by September 2000 and the new conveyor-belt system was to be operative by December 2000.  Such short deadlines were allegedly
         the result of the pressures put on the competent national environmental authority by local authorities and the local population,
         who expressed their concerns about pollution problems resulting from the existing installations.  According to Greece, failure
         to respect such deadlines would also have entailed serious legal consequences, principally in the form of sanctions. 
      
      48.   In my opinion, any contracting authority exercising a normal standard of diligence must be aware of the compulsory authorisation
         procedures, environmental or otherwise, which it must respect under applicable rules at national level when planning the award
         of contracts falling within the scope of the public procurement directives.  Contracting authorities are therefore bound to
         bear in mind such procedural steps, and their possible outcome, in their planning so as not to incur any breaches of Community
         law.  In Commission v Germany, where, in view of the delay in approving the public works plans by the competent national environmental authority, the contracting
         authority decided to abandon the open procedure and to award the contract by negotiated procedure without prior publication
         of a tender notice, the Court held that the ‘possibility that a body which must approve a project might, before expiry of
         the period laid down for this purpose, raise objections for reasons which it is entitled to put forward is … something which
         is foreseeable in plan approval procedure’. (22)  I agree with the Commission that the same reasoning should apply here.
      
      49.   As the Commission points out, DEI had already submitted the project to which the contested contract award relates to the competent
         national environmental authority in the last quarter of 1997, that is, over 12 months before the deadlines were laid down
         in the decision of the competent national environmental authority.  It also appears from the file that pollution caused by
         the existing solid waste transport installations at the site was a topical issue at both national and at local level.  Furthermore,
         DEI had in the past carried out works which had in fact respected the applicable public procurement rules.  One must therefore
         assume that DEI was fully familiar with the rules applicable both to environmental assessment and to public procurement procedures
         and was aware of the politically sensitive nature of the issue of pollution at the site. 
      
      50.   In those circumstances, the establishment of tight deadlines by the competent national environmental authority cannot in my
         view qualify as an unforeseeable event within the meaning of Article 20(2)(d) of the Utilities Sectors Directive.  Indeed
         there were apparently no unexpected changes either in the national regulatory framework or in the pollution levels at the
         site such as might have required immediate countervailing action. 
      
      51.   Moreover, what is alleged to have caused the breach of the obligations under the Utilities Sectors Directive was the decision
         of the Ministry of Environment, Planning and Public Works.  However, it is settled case-law that the notion of State for the
         purposes of Community law and, in particular, for the purposes of an action under Article 226 EC, must be understood as including
         all public authorities.  It is also settled case-law that ‘a Member State cannot rely on provisions, practices or circumstances
         existing in its internal legal order in order to justify its failure to comply with the obligations … laid down in a directive’. (23)  The Court has further stated that ‘the Community directives governing the award of public contracts would be deprived of
         their effectiveness if the actions of a contracting authority were not to be imputable to the State’. (24)  
      
      52.   It would be not only unreasonable but also dangerous to allow a Member State to justify a failure to comply with its obligations
         under Community law on the basis of the action (or inaction) of one of its constitutive elements, in the instant case an integral
         part of the Greek Government.  The obligations arising from the public procurement directives fall upon Member States and
         it is therefore their duty to ensure that the action or inaction of one of their constitutive elements does not cause or force
         another State body or agency to fail in its obligations under Community law.  It is to be noted that the ultimate liability
         under Community law of Greece as regards the actions of the DEI is not disputed by the parties. 
      
      53.   The chronology of the facts also belies the argument to the effect that a situation of ‘extreme urgency’ was present.  In
         this respect it suffices to note, first, that DEI presented the project for environmental approval in 1997 and that final
         approval, subject to conditions, did not come through until the end of 1999.  Secondly, the negotiations with Koch/Metka over
         the price for the contracted works lasted over six months.  Lastly, the works were in fact still uncompleted two years after
         the expiry of the ‘tight’ deadlines imposed by the decisions of the competent national environmental authority on grounds
         of environmental hazards.  Whereas I fully accept that environmental or public health hazards could in certain circumstances
         justify a departure from the discipline of the public procurement directives, there is nothing to indicate that such extreme
         urgency was a consideration in the present case.  In fact, as mentioned at point 5 above, price negotiations lasted for several
         months, which may suggest that it was the reduction in the price of the contract which took precedence. 
      
        
       Conclusion 
      54.   In view of the above, I am of the opinion that the Court should: 
      (1)      declare that, by reason of the award by DEI of a contract for the construction of a conveyor-belt system for the thermal-electricity
         generation plant of Megalopolis by means of a negotiated procedure without previous publication of a notice, the Hellenic
         Republic has failed to fulfil its obligations under Council Directive 93/38/EEC of 14 June 1993 coordinating the procurement
         procedures of entities operating in the water, energy, transport and telecommunications sectors and in particular Article
         20 et seq. thereof; 
      
      (2)      order the HellenicRepublic to pay the costs. 
      1 –	 Original language: English.
      
      2  –	OJ 1993 L 199, p. 84.
      
      3  –	OJ 1985 L 175, p. 40.
      
      4  –	OJ 1989 L 395, p. 33.
      
      5  –	Joined Cases C-20/01 and C-28/01 Commission  v Germany [2003] ECR I-3609, paragraphs 29 and 30 and the case-law cited therein. 
      
      6  –	Commission  v Germany, cited in footnote 5, paragraphs 33 to 39.
      
      7  –	Case C-328/96 Commission  v Austria [1999] ECR I-7479, paragraphs 43 to 45.  See also Case C-125/03 Commission  v Germany [2004] ECR I-0000, at paragraphs 12 and 13. 
      
      8  –	See for example Case C-166/00 Commission v Greece [2001] ECR I-9835, paragraph 9 and the case-law cited therein.
      
      9  –	OJ 1992 L 76, p. 14. 
      
      10  –	This regime allows, inter alia, injured parties to claim damages representing the costs of preparing a bid or of participating
         in an award procedure without the need to show a better right to the contract.  See Article 2(7) of the Utilities Sectors
         Remedies Directive.
      
      11  –	See for example Joined Cases C-20/01 and C-28/01 Commission  v Germany, cited in footnote 5, paragraph 42.
      
      12  –	Case C-247/89 Commission  v Portugal [1991] ECR I-3659, paragraph 22.
      
      13  –	See further J.Rideau, ‘Le rôle des Etats membres dans l’application du droit communautaire’ (1972) Annuaire  français de droit international, 864, at p. 865.
      
      14  –	See the comments of Advocate General Alber in Commission  v Austria,cited in footnote 7, at point 47 et seq.
      15  –	Commission  v Austria, cited in footnote 7, at paragraph 39.
      
      16  –	See Articles 1(1) and 3(1) of the General Remedies Directive and Articles 1(1)(a) and 8(1)(a) of the Utilities Sectors
         Remedies Directive.  The scope of application of the General Remedies Directive was later extended to cover breaches of public
         services Directive 92/50 by Article 41 of the latter directive.
      
      17  –	See the preamble to the Utilities Sectors Remedies Directive, in particular the fourth recital.
      
      18  –	The Court has held that it is clear from the letter and spirit of the General Remedies Directive that it is very much
         to be preferred, in the interest of all the parties concerned, that the Commission use the direct intervention procedure provided
         for in Article 3(3) of the General Remedies Directive:  see Case C-359/93 Commission v The Netherlands [1995] ECR I-157, at paragraph 12..
      
      19  –	Ibid., paragraph 13.  See also Case C-79/94 Commission v Greece [1995] ECR I-1071, paragraph 11.
      
      20  –	See, inter alia, Case 199/85 Commission v Italy [1987] ECR 1039, paragraph 14.
      
      21  –	See, in the context of the identical wording of the derogation provided for by Article 9(b) of Directive 71/305, Case
         C-57/94 Commission  v Italy [1995] ECR I-1249, paragraph 24.
      
      22  –	Case C-318/94 Commission  v Germany [1996] ECR I-1949, paragraph 18.
      
      23  –	Case C-323/96 Commission  v Belgium [1998] ECR I-5063, paragraph 42 and the case-law cited therein.
      
      24  –	Commission  v Austria,cited in footnote 7, paragraph 75.