Case C-394/02 Commission v Greece

Judgement was given by the ECJ in the case of Commission v Greece on 2 June 2005.
The case concerned the application of the Utilities Directive (Directive 93/38/EEC), which sets out provisions co-ordinating the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors.

The Greek public electricity undertaking, Dimosia Epicheirisi Ilektrismoy (DEI) had awarded a contract for the construction of a conveyor-belt system for a project involving the installation of a system for de-sulphuration, stabilisation, transport and deposit of solid waste from a thermal-electricity generation plant.

This had been awarded by means of a negotiated procedure without prior publication of a contract notice, which was therefore held to be in breach of the Directive.

In particular, Greece was held to have failed to fulfil its obligations under Articles 20(1) and 21 of the Directive.

While Greece did not dispute that the contract issued was covered by Article 15 of the Directive, it argued that exceptional circumstances existed which permitted the contract to be awarded without publication of a notice, namely that there were technical reasons connected to the works and that due to these it was necessary to award the contract to one particular contractor.

However, neither the characteristics of the product to be transported, nor the instability of the subsoil and the need to attach the system of conveyor belts to the existing one proved that there was only one contractor within the EC with the necessary expertise to carry out the works in question.

Further the need to carry out the works within the time-limits imposed by the competent authority for the environmental impact assessment could not be regarded as “extreme urgency brought about by events unforeseeable by the contracting entities”.

Greece was therefore found to be in breach of Articles 20(1) and 21 of the Utilities Directive and ordered to pay the costs.

The full text of the judgement is available in English at the following link.

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