CELEX: C1998/094/17
Language: en
Date: 1998-03-28 00:00:00
Title: Action brought on 22 January 1998 by the Commission of the European Communities against the French Republic (Case C-16/98)

28.3.98               EN                Official Journal of the European Communities                                       C 94/9
     Commission examined whether it was possible to                It cannot share the view of the French authorities that,
     apply the derogations provided for in Article 92(2)           technically, there are two types of contracts relating to
     and (3). That point in the decision must suffer the           underground work (electrification) and installation above
     same consequences as the unlawful assessment carried          ground' (street lighting) respectively; the two operations
     out for the purposes of Article 92(1) denounced under         are closely linked and reference to the NACE
     the preceding submission which, should it be upheld,          nomenclature and the CPC and ISIC nomenclatures is
     would overturn all that has been decided on the               irrelevant.
     presumption that the aid is incompatible.
5. Unlawful order to recover the aid on the ground that            Moreover, the Commission considers, in particular in view
     it is in breach of the principles of protection of            of the notices published in both the Official Journal of the
     legitimate expectations, proportionality and equal            European Communities and the French Bulletin Official
     treatment.                                                    des Annonces des MarcheÂs Publics, that SYDEV must be
                                                                   considered to be the only contracting entity in question
(1) Commission Decision 98/95/EC (OJ L 20, 27.1.1998, p. 30).      rather than the individual associations of communes for
                                                                   the electrification of the VendeÂe. Since the contracting
                                                                   entity, for the purposes of the Directive, may be an entity
                                                                   with no legal personality, the question as to who is a legal
                                                                   party to the public contract is not decisive in order to
                                                                   identify it as the contracting entity. Finally, the work
Action brought on 22 January 1998 by the Commission of             concerned has only one purpose and is intended to fulfil a
  the European Communities against the French Republic             single economic and technical function, namely
                        (Case C-16/98)                             electrification over a number of years of the deÂpartement
                         (98/C 94/17)                              of the VendeÂe. Only the geographical location of the work
                                                                   is varied within the same deÂpartement. That difference is
An action against the French Republic was brought before           not such as to enable various works to be distinguished: it
the Court of Justice of the European Communities on                merely means that several lots may be distinguished within
22 January 1998 by the Commission of the European                  the same works. However, pursuant to the second
Communities, represented by Hendrik van Lier, Legal                paragraph of Article 14(10), in particular, where a work is
Adviser, and Olivier Couvert-CasteÂra, a national civil            the subject of several lots, the value of each lot is to be
servant on secondment to the Legal Service, acting as              taken into account when assessing the value of all the
Agents, with an address for service in Luxembourg at the           contracts.
office of Carlos Gómez de la Cruz, Wagner Centre,
Kirchberg.                                                         The notices of the award of contracts as published
The Commission of the European Communities claims                  confirm the Commission's view that the result of splitting
that the Court should:                                             the contracts has been to reserve the contracts to local
                                                                   undertakings, who were better informed as to the real
Ð declare that, in the course of the procurement                   scale of the programme of works. Those notices show in
     procedure issued by the Syndicat DeÂpartement                 fact that all the contracts were awarded to a restricted
     d'Electrification de la VendeÂe in December 1994 for          group of undertakings of the deÂpartement of the VendeÂe.
     the award of a contract for electrification and street
     lighting work, the French Republic failed to fulfil its       (1) OJ L 199, 9.8.1993, p. 84.
     obligations under Articles 4(2), 14(1), 10 and 13,            (2) Judgment in Case C-311/96 (OJ C 212, 12.7.1997, p. 6).
     together with Articles 21, 24 and 25 of Council
     Directive 93/38/EEC of 14 June 1993 coordinating the
     procurement procedures of entities operating in the
     water, energy, transport and telecommunications
     sectors (1),
Ð order the French Republic to pay the costs.                      Reference for a preliminary ruling by the President of the
                                                                   Arrondissementsrechtbank, The Hague, by order of
Pleas in law and main arguments adduced in support:
                                                                   19 December 1997 in the case of Emesa Sugar (Free Zone)
When the procedure for the award of public contracts in            NV and 1. the Netherlands State, 2. the Hoofdproduct-
question was held (end 1994 to early 1996), Directive 93/                 schap voor Akkerbouwproducten and 3. Aruba
38/EEC of 14 June 1993 had still not been transposed into                                  (Case C-17/98)
French law (2). None the less, the contracting entity was
required to apply the provisions of that Directive to that                                  (98/C 94/18)
award procedure by reason of their direct effect as from
1 July 1994.
                                                                   Reference has been made to the Court of Justice of the
The Commission considers that the entire electrification           European Communities by order of the President of the
and street lighting work in question comes within the              Arrondissementsrechtbank, The Hague, of 19 December
scope of one contracting entity and constitutes a single           1997, received at the Court Registry on 23 January 1998,
contract which was artificially split in order to avoid the        for a preliminary ruling in the case of Emesa Sugar (Free
obligations of the Directive.                                      Zone) NV and 1. the Netherlands State, 2. the Hoofdpro-