Commission of the European Communities v Hellenic Republic.
Date: 2005-06-02
14. In that regard, it must be noted that, when exercising its powers under Article 226 EC, the Commission does not have to show that there is a specific interest in bringing an action (see Case 167/73 Commission  v France  [1974] ECR 359, paragraph 15, and Joined Cases C-20/01 and C‑28/01 Commission  v Germany  [2003] ECR I-3609, paragraph 29).
15. The Commission’s function is to ensure, in the general interest, that the Member States give effect to Community law and to obtain a declaration of any failure to fulfil the obligations deriving therefrom with a view to bringing it to an end (see Commission  v France , cited above, paragraph 15, and Commission  v Germany , cited above, paragraph 29 and the case‑law there cited).
16. Article 226 EC is not therefore intended to protect that institution’s own rights. It is for the Commission alone to decide whether or not it is appropriate to bring proceedings against a Member State for a declaration that it has failed to fulfil its obligations, and, depending on the circumstances, because of what conduct or omission those proceedings should be brought (see, to that effect, Case C-431/92 Commission  v Germany  [1995] ECR I‑2189, paragraph 22; Case C-476/98 Commission  v Germany  [2002] ECR I‑9855, paragraph 38, and Commission  v Germany , cited in paragraph 14 above, paragraph 30).
The action’s want of any purpose
18. In that regard, it is indeed the case that, as far as concerns the award of public procurement contracts, the Court has held that an action for failure to fulfil obligations is inadmissible if, when the period prescribed in the reasoned opinion expired, the contract in question had already been completely performed (see, to that effect, Case C-362/90 Commission  v Italy  [1992] ECR I-2353, paragraphs 11 and 13).
21. In that regard, it is clear from settled case‑law that, while the reasoned opinion must contain a cogent and detailed exposition of the reasons which led the Commission to the conclusion that the Member State concerned had failed to fulfil one of its obligations under the EC Treaty, the Commission is not, however, obliged to set out in that opinion the steps to be taken to remedy the infringement complained of (see, to that effect, Case C-247/89 Commission  v Portugal  [1991] ECR I‑3659, paragraph 22, and Case C-328/96 Commission  v Austria  [1999] ECR I‑7479, paragraph 39).
22. The purpose of the pre‑litigation procedure is to define the subject‑matter of the action for failure to fulfil obligations in order to give the Member State an opportunity to comply with its obligations under Community law and to avail itself of its right to defend itself against the complaints made by the Commission (see, to that effect, Commission  v Austria , cited above, paragraph 34, and Case C‑476/98 Commission  v Germany , paragraphs 46 and 47).
23. Consequently, it is only where the Commission intends to make failure to adopt measures to enable the infringement complained of to be remedied the subject‑matter of its action for failure to fulfil obligations that it has to specify those measures in the reasoned opinion (see, to that effect, Commission  v Austria , cited above, paragraph 39).
27. Even if the Greek Government had cited Article 8 of Directive 92/13, which provides for a procedure essentially identical to that under Article 3 of Directive 89/665, it follows from settled case‑law that, even were it preferable that the Commission use the procedure for direct intervention established by those directives, such a procedure is a preventive measure which can neither derogate from nor replace the powers of the Commission under Article 226 EC (see, in the context of Directive 89/665, Case C-359/93 Commission  v Netherlands  [1995] ECR I‑157, paragraph 13; Case C-79/94 Commission  v Greece  [1995] ECR I‑1071, paragraph 11; Case C-353/96 Commission  v Ireland  [1998] ECR I‑8565, paragraph 22; and Commission  v Austria , cited above, paragraph 57). The fact that the Commission used or did not use that procedure is therefore irrelevant where it is a matter of deciding on the admissibility of infringement proceedings.
28. The Commission alone is competent to decide whether it is appropriate to bring proceedings under Article 226 EC for failure to fulfil obligations (see, to that effect, Case C‑431/92 Commission  v Germany , paragraph 22, and Case C‑476/98 Commission  v Germany , paragraph 38). Thus, the choice between the two procedures is within its discretion.
29. It follows from the foregoing considerations that the pleas of inadmissibility must be rejected.
Substance
33. In this respect, it should, as a preliminary point, be noted that, as derogations from the rules relating to procedures for the award of public procurement contracts, the provisions of Article 20(2)(c) and (d) of Directive 93/38 must be interpreted strictly. Also, the burden of proof lies on the party seeking to rely on them (see, to that effect, in the context of Directives 71/305 and 93/37, Case 199/85 Commission  v Italy  [1987] ECR 1039, paragraph 14; Case C-57/94 Commission  v Italy  [1995] ECR I-1249, paragraph 23; and Case C-385/02 Commission  v Italy  [2004] ECR I‑8121, paragraph 19).
34. As regards, first of all, Article 20(2)(c) of Directive 93/38, it follows from the case‑law that the application of that provision is subject to two cumulative conditions, namely, first, that there are technical reasons connected to the works which are the subject‑matter of the contract and, second, that those technical reasons make it absolutely necessary to award that contract to a particular contractor (see, to that effect, in the context of Directives 71/305 and 93/37, Case C‑57/94 Commission  v Italy , paragraph 24, and Case C‑385/02 Commission  v Italy , paragraphs 18, 20 and 21).
37. Moreover, since it also invited Dosco to tender, DEI itself considered that a contractor other than the Koch/Metka consortium was, in principle, also capable of carrying out the works.
40. As regards, secondly, the derogation under Article 20(2)(d) of Directive 93/38, the case‑law has made it subject to three cumulative conditions, namely an unforeseeable event, extreme urgency rendering impossible the observance of the time‑limits laid down for calls for tenders, and a causal link between the unforeseeable event and the extreme urgency resulting therefrom (see, to that effect, in the context of Directive 71/305, Case C-107/92 Commission  v Italy  [1993] ECR I-4655, paragraph 12, and Case C‑318/94 Commission  v Germany  [1996] ECR I-1949, paragraph 14).
43. The fact that an authority which must approve the project concerned may impose time‑limits is a foreseeable part of the procedure for approving that project (see, to that effect, in the context of Directive 71/305, Case C‑318/94 Commission  v Germany , cited above, paragraph 18).