Case C-237/05

OPINION OF ADVOCATE GENERAL

MENGOZZI

delivered on 15 February 2007(1)

Case C-237/05

Commission of the European Communities

v

Hellenic Republic

(Failure of a Member State to fulfil an obligation – Public service contracts – Admissibility – Nature of the services – Principles of transparency and non‑discrimination)

I–Introduction

1.In this case, the European Commission has brought an action before the Court of Justice, pursuant to Article 226 EC, seeking a declaration that, by reason of the practice followed by the competent authorities in regard to the works involved in the completion and collation of applications and declarations by cereal producers and others in the context of the Integrated Administration and Control System (IACS), introduced by Council Regulation (EEC) No 3508/92 of 27November 1992 establishing an integrated administration and control system for certain Community aid schemes,(2) for the year 2001, the Hellenic Republic has failed to fulfil its obligations under Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts(3) and, in particular, Articles 3(2), 7, 11(1) and 15(2) thereof, as well as the general principle of transparency.

II–Legislative framework

A–Directive 92/50

2.In order to analyse the issues raised in this case, it is necessary briefly to cite a number of the provisions in Titles I to V of Directive 92/50, in the version which was in force at the material time. As we know, Directive 92/50 has been amended several times over the years, and was finally repealed, except for Article 41 thereof, as of 31 January 2006, by Article 82 of Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts.(4)

3.Article 1(a) of Directive 92/50 defines ‘public service contracts’ as ‘contracts for pecuniary interest concluded in writing between a service provider and a contracting authority’, to the exclusion of contracts falling within the scope of Directive 77/62/EEC,(5) Directive 71/305/EEC(6) and Directive 90/531/EEC,(7) contracts relating to services in the sectors listed in Article 1(a)(iii) to (vii) and (ix), as well as employment contracts.

4.According to Article 3(1) of Directive 92/50, ‘[i]n awarding public service contracts … contracting authorities shall apply procedures adapted to the provisions of this Directive.’ And, according to Article 3(2), ‘[c]ontracting authorities shall ensure that there is no discrimination between different service providers.’

5.According to Article 7(1)(a):

‘1. (a) This Directive shall apply to:

– … public service contracts concerning the services referred to in Annex I B, … awarded by the contracting authorities referred to in Article 1(b), where the estimated net value of value-added tax (VAT) is not less than ECU 200 000;

– public service contracts concerning the services referred to in Annex I A …:

(i) awarded by the contracting authorities listed in Annex I to Directive 93/36/EEC where the estimated value net of VAT is not less than the equivalent in ecus of 130000 special drawing rights (SDRs);

(ii) awarded by the contracting authorities listed in Article 1(b) other than those referred to in Annex I to Directive 93/36/EEC(8) and where the estimated value net of VAT is not less than the equivalent in ecus of 200 000 SDRs.’

6.Under Article 7(2) of Directive 92/50, for the purposes of calculating the estimated value of the contract, the contracting authority is to include the estimated total remuneration of the service provider, taking account of the provisions of paragraphs 3 to 7, which lay down a number of criteria for determining that figure. More particularly, according to Article 7(3), ‘the selection of the valuation method shall not be used with the intention of avoiding the application of this Directive, nor shall any procurement requirement for a given amount of services be split up with the intention of avoiding the application of this Article.’ The first sentence of Article 7(4) indicates which factors must, where appropriate, be taken into account for the purposes of calculating the estimated contract value for certain types of services, including, in particular, insurance services, banking services and other financial services and contracts which involve design. The first and second subparagraphs of Article 7(4) stipulate that ‘[w]here the services are subdivided into several lots, each one the subject of a contract, the value of each lot must be taken into account for the purpose of calculating the amount referred to above’ and that ‘[w]here the value of the lots is not less than this amount, the provisions of this Directive shall apply to all lots. Contracting authorities may waive application of paragraph 1 for any lot which has an estimated value net of VAT of less than ECU 80000, provided that the total value of such lots does not exceed 20% of the total value of all the lots.’

7.For the purposes of applying the rules establishing the award procedures, the directive divides the services forming the subject matter of the contracts into two categories – used also in Annexes I A and I B to the directive – based on a classification system which, in the absence of a Community nomenclature, refers to the CPC (common product classification) nomenclature of the United Nations.

8.According to Articles 8 and 9 of Directive 92/50, contracts which have as their object services listed in Annex I A are to be awarded in accordance with the provisions of Titles III to VI, whereas contracts which have as their object services listed in Annex I B are to be awarded in accordance with Articles 14 and 16. Pursuant to Article 10, ‘[c]ontracts which have as their object services listed in both Annexes I A and I B shall be awarded in accordance with the provisions of Titles III to VI where the value of the services listed in Annex I A is greater than the value of the services listed in Annex I B. Where this is not the case, they shall be awarded in accordance with Articles 14 and 16.’

9.Title III of the directive lays down the rules which the contracting authorities must apply in selecting the procedures for the award of public service contracts, defined in Article 1(d), (e) and (f), to which Article 11(1) refers, that is to say the open, restricted and negotiated procedures. In accordance with Article 11(4), the award of public service contracts is usually made by the open procedure or by the restricted procedure. Article 11(2) lists those cases in which the contracting authorities may use the negotiated procedure, with prior publication of a contract notice, and Article 11(3) lists the cases in which the contracting authority may use the negotiated procedure without prior publication of a contract notice. Among those cases, of particular interest for the purposes of this case, is the situation envisaged in Article 11(3)(b) which refers to contracts where ‘for technical or artistic reasons, or for reasons connected with the protection of exclusive rights, the services may be provided only by a particular service provider.’

10.Title IV of Directive 92/50, which consists only of Article 14, lays down common rules in the technical field, while Title V contains rules on advertising. In particular, Article 15(2) requires contracting authorities who wish to award a public service contract by open, restricted or, under the conditions laid down in Article 11, negotiated procedure, to make known their intention by means of a notice. Under Article 16(1), contracting authorities who have awarded a public service contract are to send a notice of the results of the award procedure to the Office for Official Publications of the European Communities. Those notices are to be published in the conditions laid down in Article 16(2). With reference solely to the public service contracts listed in Annex I B, Article 16(3) provides that ‘the contracting authorities shall indicate in the notice whether they agree on its publication.’

B–Regulation No3508/92

11. Adopted for the purpose of harmonising the administration and control mechanisms which the Member States apply in the crop and livestock sectors, to adapt them to the requirements of the reform of the common agricultural policy and improve their effectiveness and usefulness, Regulation No3508/92 provides for the creation, by each Member State, of an integrated administration and control system (IACS) covering the aid schemes for arable crops, beef and veal, sheepmeat and goatmeat, as well as specific measures for farming in mountain, hill and certain less-favoured areas.

12.Since the services at issue relate to the implementation of the activities involved in putting the IACS into effect in Greece for the year 2001, it may be helpful to cite briefly the provisions of Regulation No3508/92 which define the aims and operation of the system, in the version which was in force at the material time.

13.Under Article 2 of Regulation No3508/92, the IACS comprises the following elements: (a) a computerised data base; (b) an identification system for agricultural parcels; (c) a system for the identification and registration of animals; (d) aid applications; and (e) an integrated control system. According to Article 3(1), the computerised data base is to record, for each agricultural holding, ‘the data obtained from the aid applications.’ This data base must, in particular, allow direct and immediate consultation, through the competent authority of the Member State, of the data relating at least to the previous three consecutive calendar and/or marketing years. As regards the system for identifying agricultural parcels, Article 4 stipulates that this is to be ‘established on the basis of maps or land registry documents or other cartographic references. Use shall be made of computerised geographical information system techniques including preferably aerial or spatial orthoimagery, with an homogenous standard guaranteeing accuracy at least equivalent to cartography at a scale of 1:10000.’

14.Article 6(1) of the regulation provides:

‘In order to be eligible under one or more Community schemes governed by this Regulation, each farmer shall submit, for each year, an “area” aid application indicating:

– agricultural parcels, including areas under forage crops, and agricultural parcels covered by a set-aside measure for arable land and those laid fallow;

– where applicable, any other necessary information provided for either by the Regulations relating to the Community schemes, or by the Member State concerned.’

15.A Member State may, however, decide that an ‘area’ aid application need contain only changes with respect to the ‘area’ aid application submitted for the previous year. According to Article 6(6), ‘[f]or each of the agricultural parcels declared, farmers shall indicate the area and its location which information must enable the parcel to be identified in the alphanumeric identification system for agricultural parcels.’

16.According to Article 7 of the regulation, the integrated control system is to cover all aid applications submitted, in particular as regards administrative checks, on-the-spot checks and, if appropriate, verification by aerial or satellite remote sensing. In particular, the Member State must carry out administrative checks on aid applications (Article 8(1)), and administrative checks are to be supplemented by on-the-spot checks covering a sample of agricultural holdings. For all these checks, the Member State is to draw up a sampling plan (Article 8(2)). Finally, Article 8(5) provides that where the competent authorities of the Member State delegate some aspects of the work to be carried out pursuant to the regulation to specialised agencies or firms, they must retain control over and responsibility for that work.

III–Facts and pre-litigation procedure

17.On 20 February 2001, the Greek Ministry of the Interior, the Greek Ministry of Agriculture, the Union of Prefectoral Authorities (ENAE) and the Pan-Hellenic Association of Unions of Agricultural Cooperatives (PASEGES) entered into a framework agreement concerning the activities involved in implementing the IACS in Greece for the year 2001.

18.On the basis of that framework agreement, PASEGES acted as coordinator between its members, the local unions of agricultural cooperatives (hereinafter: the ‘UACs’), for the purpose of providing assistance to producers of agricultural products in connection with the IACS. In particular, the UACs were supposed to:

–inform farmers about the adoption of the new aid application forms and the declarations relating to the agricultural holdings and crops, which were intended to be entered into the IACS database;

–assist farmers in entering the data in the relevant forms, including by providing technical assistance for the identification of parcels and crops on orthophotographs, aerial photographs or topographical maps;

–collect the forms and send them in hard copy or electronic format to the competent prefectoral authority.

19.The individual prefectoral authorities entered into contracts with the local UACs on the basis of the abovementioned framework agreement.

20.In response to a complaint questioning the compatibility of the abovementioned framework agreement and the related implementing agreements with the provisions of Directive 92/50, the Commission sent the Hellenic Republic, by letter of 10 December 2001, a request for information on both the selection procedure in relation to PASEGES as the authority’s co-contractor and on how it had been ensured that the procedure for the award of the implementing agreements was properly publicised.

21.The Hellenic Republic responded on 19 February 2002, explaining that, in the context of the framework agreement, PASEGES merely acted as coordinator between the various UACs, in return for which it received no remuneration, and that the direct allocation to the UACs, on the basis of the implementing agreements, of the activities linked to the implementation of the IACS was compatible with the applicable provisions of Community law.

22.The Commission was not satisfied with this response and, on 18 December 2002, it sent the Greek authorities a letter of formal notice claiming, with reference to the implementing agreements for the framework agreement, that there had been a breach of the provisions of Directive 92/50 and of Article 3(2) thereof, in particular, as well as of the principle of non-discrimination.

23.The Commission basically took the view that, on the basis of the agreements at issue, the local authorities had directly awarded, without prior publication, public service contracts falling within the scope of Directive 92/50.

24.It pointed out that the conclusion of the framework agreement and the related implementing agreements marked a departure from the practice followed for the years preceding 2001, when there had been provision for the conclusion, in respect of each region, of technical assistance agreements with specialist companies, based on competitive tendering procedures.

25.For the purpose of applying the thresholds laid down by Article 7 of Directive 92/50, the Commission took the view that, given the uniform nature of the agreements at issue, they constituted a single contract and that it was, therefore, necessary, in calculating the estimated value of the latter, to take account of the cumulative value of each of the agreements.

26.As regards the nature of the services, the Commission pointed out that, in its letter of 10 December 2001, it had stated that the contract in question concerned two types of service: on the one hand, public administration services, which were covered by Annex I B to Directive 92/50 and, on the other, data processing services, which were included in Annex I A to the directive, and that the value of the services falling into the first category seemed to be higher than that of those falling into the second category, with the result that the contract was governed by the provisions of Articles 14 and 16 of the directive. However, as a result of information obtained from the complainant, the Commission cast doubt on that conclusion, speculating that some of the services previously categorised as public administration services ought really to be regarded as topographical services, falling under Annex I A to Directive 92/50. If that supposition were confirmed by further information, which the Greek Government was asked to supply, the total value of the services falling under Annex I A would have been higher than that of the services falling under Annex I B, so that the provisions of Titles III to VI of the directive would apply.

27.The Hellenic Republic responded by letter of 30 January 2003, rejecting all of the complaints.

28.Consequently, on 19 December 2003, the Commission adopted a reasoned opinion in which it concluded that, by reason of the practice followed by the competent authorities in regard to the works involved in the completion and collation of applications and declarations by cereal producers and others in the context of the IACS in respect of 2001, the Hellenic Republic had failed to fulfil its obligations under Directive 92/50, and in particular Articles 3(2), 7, 11(1) and 15(2) thereof, as well as the general principle of transparency, and asked the Hellenic Republic to comply with the abovementioned obligations within a period of two months.

IV–Procedure before the Court and arguments of the parties

29.By an application lodged at the registry of the Court on 30 May 2005, the Commission brought the present action.

30.The Commission claims that the Court should:

–declare that, by reason of the practice followed by the competent authorities in regard to the works involved in the completion and collation of applications and declarations by cereal producers and others in the context of the IACS in respect of 2001, the Hellenic Republic has failed to fulfil its obligations under Directive 92/50, and in particular Articles 3(2), 7, 11(1) and 15(2) thereof, and under the general principle of transparency;

–order the Hellenic Republic to pay the costs.

31.The Hellenic Republic claims that the Court should:

–dismiss the application;

–order the Commission to pay the costs.

32.By way of measures of organisation of the procedure, the Greek Government was asked to answer in writing a number of questions put by the Court. It complied with that request within the prescribed time‑limit.

33.The parties presented oral argument at the hearing of 14 September 2006.

V–Legal analysis

A–Admissibility

1.Arguments of the parties

34.The Greek Government submits, firstly, that it adopted the measures necessary to bring to an end the breach with which it is charged before the deadline which the Commission set in its reasoned opinion had expired. The application is, therefore, inadmissible since it is devoid of purpose. In that connection, the Greek Government claims, on the one hand, that the service contracts at issue were not directly awarded in 2003 and, on the other, that the Greek authorities had undertaken, by official declaration of the Secretary-General of the Ministry of Agriculture of 2003, to use, if necessary, competitive tendering procedures for the award of the service contracts at issue, provided that those services fell, wholly or in part, under Annex I A to Directive 92/50.

35.Secondly, the Greek Government contends that, since the services to be provided under the contracts at issue consist in activities which have to be undertaken on an annual basis, the effects of the infringement at issue were confined to 2001. Consequently, the Commission has no legal interest in bringing proceedings in this case. An interest of that nature cannot be based solely on a difference of opinion between the Commission and the Greek authorities regarding the nature of the services at issue, which has not resulted in specific actions. In addition, the facts relating to the years subsequent to 2001, which the Commission cites in its observations, fall outside the scope of the application and cannot constitute an independent subject of complaint, since the Commission failed to raise them in the pre-litigation procedure. Furthermore, the Commission’s account of those facts does not reflect reality. In fact, contrary to the Commission’s claims, the services at issue were not awarded to PASEGES for the years subsequent to 2001, but were directly provided by the local authorities, leaving each producer free to apply to the authorities themselves or to private bodies to complete the applications for financial assistance.

36.In response to a written question put by the Court, in which it asked for clarification of the procedures followed by the Greek authorities for the award of service contracts linked to the implementation of the IACS in Greece for the years from 2002 to 2005, the Greek Government confirmed that the Greek authorities had not awarded service contracts for those years. In the context of their activities involving the provision of assistance to farmers, the local authorities had worked with the owners of parcels of land and their trade union bodies. The farmers were free to choose whether to seek the assistance of their UAC or of third parties. Whenever necessary, the authorities had also provided the computerised or cartographic materials needed to complete the application forms to PASEGES or to the UACs considered competent to administer that material. Any natural or legal person requesting it could have had access to that same material, subject to a prior assessment of their capacity to administer it. The Greek Government rejects any claim that a procedure of that kind could be equated with the direct or indirect award of the services linked to the implementation of the IACS. To substantiate its claims, the Greek Government attached to its response to the Court’s question a memorandum, of 28 April 2004, concluded with PASEGES and concerning the implementation of the IACS for 2004.

37.Finally, the Greek Government points out that the regulatory background of the IACS was amended subsequent to the material facts and remains in constant evolution. Therefore, according to the Greek Government, the action which the Greek authorities have already taken to adjust their own practices in this area to meet the requirements of Directive 92/50 will, of necessity, have to be re-evaluated once the IACS has assumed its final form.

38.The Commission’s response is that the interpretation by the Greek authorities, an interpretation which it believes to be mistaken, of the provisions of Directive 92/50 concerning the nature of the services at issue and the related obligations regarding advertising, as well as the nature of the agreements at issue, has resulted in an application of the national rules which is incompatible with Community law. Far from being merely theoretical, the difference of opinion in that regard between the Commission and the Greek Government involves a real risk of further breaches. Without seeking to extend the subject matter of the application to conduct subsequent to 2001, but merely in order to demonstrate the actual effects of the position adopted by the Greek authorities, the Commission refers to a number of documents annexed to the application, which indicate that PASEGES was directly awarded the contracts at issue for the years subsequent to 2001 also.

2.Assessment

39.The plea of inadmissibility submitted by the Greek Government does not appear to be unfounded.

40.In point of fact, there are a number of precedents in case-law, relating, in particular, to infringement proceedings in the public contracts sector, which support the Greek Government’s argument.

41.The judgment of 31 March 1992, in Case C-362/90 Commission v Italy,(9) concerned an action against Italy under Article 226 EC, seeking a declaration of the incompatibility with the provisions of Directive 77/62/EEC of the condition, required for participation in an annual supply contract held by a local health authority, stipulating that 50% of the minimum amount of supplies required to have been made by the tenderers over the preceding three years should have been supplied to public administrative authorities. The contract notices containing that condition had been published in October 1988 and the supply contract consequent on the contract notice had fully exhausted its effects by 31 December 1989, that is to say at a date prior to the expiry of the period the Commission had accorded the respondent Government to comply with the reasoned opinion, which was issued on 27 March 1990. The Italian Government contended that, for this reason, the action was devoid of purpose and should be declared to be inadmissible.

42.In its judgment, the Court held(10) that, in that case, the effects of the contract notice at issue had been exhausted on 31 December 1989, that is to say, before the issue of the reasoned opinion, and that the contract notices for 1990 and 1991, published, respectively, on 4 November 1989, that is to say before the reasoned opinion was issued, and on 3 November 1990, that is to say before the action was brought, no longer contained the condition at issue. The Court further held that the Commission had not acted in good time in order to prevent, by means of procedures available to it, the infringement complained of from producing effects and had not even invoked the existence of circumstances preventing it from concluding the pre-litigation procedure laid down in Article 226 EC before the infringement ceased to exist. The Court concluded, on the basis of those considerations, that the infringement complained of had ceased to exist on expiry of the deadline laid down in the reasoned opinion and that the Commission’s application should therefore be dismissed as inadmissible.(11)

43.In subsequent judgments, while rejecting the pleas of inadmissibility raised by the respondent governments, the Court implicitly upheld the solution adopted in the abovementioned judgment in Commission v Italy.

44.In its judgment of 10 April 2003 in Joined Cases C-20/01 and C-28/01 Commission v Germany,(12) the Commission complained that the Federal Republic of Germany had infringed the provisions of Directive 92/50 on the occasion of the award by two German municipalities of service contracts concerning the collection of waste water and waste disposal, the minimum period of which was set, in both cases, at 30 years. The German Government submitted that, in this instance, the failure to fulfil obligations consisted of breaches of procedural rules, whose effects were entirely exhausted before the end of the periods laid down in the reasoned opinions, and that the Federal Republic of Germany had acknowledged, before that date, that it had failed to fulfil its obligations. The action ought, therefore, to be dismissed on the ground that the Commission had no legal interest in bringing proceedings.

45.The Court first of all drew attention to the case-law according to which, when the Commission exercises its powers under Article 226 EC, it does not have to show that it has a specific interest in bringing an action, and the Commission alone is competent to determine the act or omission on which such proceedings should be based. The Court confirmed that, on the basis of those powers, the Commission may, therefore, ask the Court for a declaration that there has been a failure to fulfil an obligation, consisting in not having achieved, in a specific case, the result intended by the directive.

46.The Court further pointed out that ‘although Directive 92/50 contains essentially procedural rules, it was nevertheless adopted with a view to eliminating barriers to the freedom to provide services and therefore is intended to protect the interests of traders established in a Member State who wish to offer services to contracting authorities established in another Member State’(13) and that, therefore, ‘the adverse effect on the freedom to provide services arising from the infringement of Directive 92/50 must be found to subsist throughout the entire performance of the contracts concluded in breach thereof’.(14)

47.Consequently, the Court concluded that, since in that particular case, the contracts at issue would have continued to produce effects for decades, it could not be maintained that the alleged breaches of obligations had come to an end before the periods laid down in the reasoned opinions expired.(15) The plea of inadmissibility was, therefore, rejected.(16)

48.In Case C-394/02 Commission v Greece,(17) the Commission sought a declaration by the Court that, by reason of the award by the public electricity company DEI of a contract for the construction of a conveyor-belt system for the thermal electricity generation plant at Megalopolis by means of a negotiated procedure without prior publication of a contract notice, the Hellenic Republic had failed to fulfil its obligations under Council Directive 93/38/EEC. In the context of its pleas of inadmissibility, the Greek Government alleged both that the Commission lacked any interest in bringing an action, since the alleged infringement of Community law had, when the period for compliance with the reasoned opinion expired, been fully or at least in large measure completed, and that the action was devoid of purpose, since the contract for works, awarded by DEI as part of the contract notice at issue, had, when the period fixed by the reasoned opinion expired, been almost fully performed, and in actual fact, it was therefore no longer possible to comply with the reasoned opinion.

49.In rejecting the first of the above pleas, the Court basically confined itself to drawing attention to the case-law, according to which, 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.(18)

50.As regards the second plea, after citing the abovementioned judgment in Commission v Italy, the Court noted that, in that case, ‘the contract concluded between DEI … for the purposes of the contract at issue, was, when the period prescribed by the reasoned opinion expired, in course of performance, since only 85% of the works had been completed. That contract had therefore not been fully performed.’(19) Consequently, the plea was rejected.(20)

51.It should, finally, be pointed out that, recently,(21) relying on grounds largely identical to those which it adopted in the abovementioned judgment in Commission v Italy, cited in point 41 above, the Court declared to be inadmissible an action by which the Commission complained that Italy had authorised, in connection with an ordinance introducing urgent measures for aerial forest fire-fighting on national territory, the award of supply and service contracts which were incompatible with Directives 92/50 and 93/36 and with Article 43 EC and 49 EC.(22) The Court found that the contested ordinance had ceased to produce any legal effect at the expiry date of the state of emergency declared on Italian territory and had been exhausted before the period laid down in the reasoned opinion expired.(23)

52.That judgment also stands out in that, in contrast to the abovementioned judgments in Commission v Germany and Commission v Greece, the Court did not consider the fact that the procedures set under way in accordance with the authorisation contained in the ordinance at issue were still effective to be relevant.(24)

53.The abovementioned case-law provides a number of elements which are useful in assessing the validity of the plea of inadmissibility submitted by the respondent Government in this case.

54.Firstly, it is necessary to point out that there are two earlier cases in which the Court declared the action to be inadmissible on the basis of the finding that the alleged failure to fulfil an obligation had exhausted its effects before the period allowed in the reasoned opinion had expired. In those judgments, moreover, the Court expressed itself in terms which do not permit a distinction to be made between the various types of contract governed by the Community directives.

55.Secondly, it is clear from the abovementioned judgments in Commission v Germany and Commission v Greece that the action cannot be declared to be inadmissible if the alleged breach of the rules on public contracts continues to produce its effects after the period allowed in the reasoned opinion has expired. More particularly, those effects continue to exist so long as the contracts concluded on the basis of the procedures at issue have not been performed in full.

56.In this case, it is clear from the documents before the Court that the contracts at issue were of one year’s duration (they related to the implementation of activities connected with the IACS for 2001 only) and that the services which constituted the subject matter of those contracts had been performed in full at the time when the reasoned opinion was adopted on 19 December 2003.(25)

57.As regards the implementation of the IACS for the years subsequent to 2001, the competent authorities followed procedures different from the procedure at issue. In particular, according to information provided by the Greek Government, those procedures no longer provided for any payment to be made, from the authorities’ budget, to persons, including the UACs, which assisted farmers in compiling and submitting application forms.

58.Although the Commission has voiced doubts concerning the compatibility of those procedures with the provisions of Directive 92/50, I do not consider it necessary to assess the validity of those allegations for the purpose of determining whether the present action is admissible. In point of fact, as clearly emerges from the forms of order sought in the application itself, and as the Commission specifically acknowledged in its written observations and at the hearing, the current dispute relates solely to the procedure adopted by the Greek authorities to implement the IACS in 2001.

59.Moreover, since the procedures adopted by the Greek authorities for the years subsequent to 2001 clearly differ from the procedure at issue in this case – to such an extent that, on the basis of the information which the Greek Government has supplied, it is hard to imagine that any public works contracts were awarded after 2001(26) – it does not seem to me to be permissible to rely on those procedures to claim, as the Commission appears to claim, that the failure to fulfil an obligation with which the Greek Government is charged for 2001 was followed, in subsequent years, by conduct which can be defined as a continuing breach.

60.In those circumstances, in accordance with the abovementioned case-law, the action must, in my view, be declared to be inadmissible.

61.As Advocate General Lenz rightly pointed out in his Opinion in the case of Commission v Italy, which I have mentioned several times and which is cited at point 41 above, it is a condition for bringing an action under Article 226 EC that, at the time when the period allowed to the Member State to comply with the reasoned opinion expires, conduct or a failure should exist, which is attributable to that Member State and which the Commission considers to be incompatible with Community law.

62.That is perfectly clear from the second paragraph of Article 226 EC, according to which, if the Member State concerned does not comply with the reasoned opinion within the period laid down by the Commission, the latter may bring the matter before the Court of Justice. Interpreted a contrario, that provision implies that the Commission is not authorised to bring an action to establish that there has been a breach of Community law, if that breach came to an end before the period laid down in the reasoned opinion expired, at least where the breach was brought to an end because the Member State took measures to comply with the reasoned opinion.

63.No other solution appears to me to be justified, as a rule, if the alleged breach had in any case come to an end when the period laid down in the reasoned opinion expired because it had exhausted all its effects before that date, even though the fact that it was brought to an end was not actually the result of the Member State concerned taking the action the Commission had required. That conclusion is consistent with the objectives of the pre-litigation stage of the procedure under Article 226 EC – which seems to be designed to bring the breach to an end before the matter is referred to the Court – and, more generally, it is consistent with the aims of Treaty infringement proceedings.(27)

64.It is also worth pointing out that, as the Court has stated on many occasions, the purpose of infringement proceedings is objectively to establish whether there has been a breach of Community law. Any recognition by a Member State of a failure to fulfil an obligation, if not followed by measures capable of bringing it to an end within the period laid down in the reasoned opinion, does not preclude a finding of that nature, just as a continuing difference of opinion between the Commission and the Member State concerning the existence of an infringement does not authorise the Commission to bring the matter before the Court if the latter has none the less complied with the reasoned opinion. In other words, use of the mechanism provided for under Article 226 EC is not, in my view, justified solely in order to prevent the risk of future infringements or resolve differences of opinion between the Commission and a Member State concerning the compatibility of the latter’s conduct with Community law.

65.Nor does it seem to me to be possible to base justification for action by the Commission in relation to an infringement, which has been brought to an end, on the need to obtain a declaration that there has been a failure to fulfil an obligation which may provide the basis for actions which are designed to establish the Member State’s liability for harm caused to individuals by that failure. While there is no doubt that a judgment of the Court of Justice declaring the existence of a breach of Community law may make it easier to bring actions for damages against the defaulting State before the national courts, actions under Article 226 EC are not designed to determine the liability of the Member State in question, which will have to be established through the legal channels provided for that purpose in the individual national legal systems; such actions are designed solely to establish objectively whether there has been a failure to fulfil an obligation in the general interest. Furthermore, it should be pointed out that the interest of persons who have suffered harm as a result of a breach of Community law by a Member State in obtaining a declaration that there has been a failure to fulfil an obligation continues to exist even where the State concerned complied with the reasoned opinion within the period laid down by the Commission, without that interest of itself conferring on the Commission the right to bring the matter before the Court to seek a declaration confirming the infringement in question.

66.It should, however, be made clear that while, in principle, the Commission is not authorised to bring proceedings in relation to infringements which have been brought to an end, that does not rule out the possibility of taking action in respect of failures of brief duration, in relation to which, although it has acted swiftly, the Commission did not actually have the time to conclude the pre-litigation procedure before those failures were remedied(28) or in respect of continuing and systematic breaches of Community law.(29)

67.On the basis of all of the above considerations, I therefore consider that the abovementioned case-law should be applied in this case in which, as we have seen, the infringement at issue, which lasted for more than a year, was probably brought to an end before the pre-litigation procedure began and, in any event, before the period accorded to the Hellenic Republic in the reasoned opinion had expired.

68.In the alternative, should the Court reject any argument and hold the action to be admissible, I shall consider below whether the action is well founded as to the merits.

B–Merits

1.The alleged breach of the provisions of Directive 92/50

69.An examination of the first plea submitted by the Commission in support of its action, which is founded on the breach of the provisions of Directive 92/50, necessitates an analysis of both the nature of the agreements at issue and the nature of the services forming the subject matter of those agreements.

a)The nature of the agreements at issue

i)Arguments of the parties

70.According to the Commission, the implementing agreements for the framework agreement, which it considers to be public service contracts within the meaning of Directive 92/50, must, for the purposes of applying the provisions of that directive, be viewed as a whole and not, as the Greek Government submits, separately.

71.The Commission infers that those agreements are unitary in nature from a number of different factors, and, in particular: from the fact that they share the same object, that is to say to carry out activities linked to the implementation of the IACS; from the existence of a framework agreement which uniformly defines the basic components of the individual agreements and globally determines the remuneration to be paid for the services forming the subject matter of those agreements; and from the fact that, by its very nature, the IACS requires uniform and centralised implementing procedures. It follows, according to the Commission, that, in order to determine the estimated cost of the contract in accordance with Article 7 of Directive 92/50, it is necessary to take into account the cumulative value of all of the implementing agreements. Since the figure arrived at on the basis of that calculation will be far in excess of the thresholds laid down in Article 7, the directive will apply to each contract.

72.The respondent Member State submits, in its defence, that the implementing agreements are not uniform in nature. The fact that the contracting parties are not the same, the diversity of the services provided – which vary in nature and scope according to the characteristics of the territory concerned – the different places of implementation and the different value, in economic terms, of each category of services offered, are all elements which differentiate the agreements in question, with the result that they cannot be considered to be unitary agreements.

73.The Hellenic Republic also claims that the figure laid down in the framework agreement, which the Commission used as the basis for calculating the thresholds laid down in Article 7 of Directive 92/50, actually represents the financial cover provided by the Greek authorities for the implementation of the IACS throughout the whole of Greek territory and includes, not only remuneration for the services provided by the UACs, but also sums earmarked to cover the costs of the prefectoral authorities.

74.According to the Greek Government, the value of the contracts at issue must, in fact, be calculated by reference to each agreement in isolation, taking account of the figure corresponding to the remuneration paid for the services provided and excluding the credits allocated to the individual contracting authorities.

ii)Analysis

75.It is first necessary to make clear that it is only in the event that the agreements at issue have to be assessed as a single unit, as the Commission suggests, that the provisions of Directive 92/50 will apply. It appears, in fact, to be common ground among the parties that, if viewed individually, as the Greek Government claims they should be, those agreements do not fall within the thresholds laid down by the directive.

76.According to Article 7(3) of Directive 92/50, ‘[t]he selection of the valuation method [of the estimated cost of the contract] shall not be used with the intention of avoiding the application of this Directive, nor shall any procurement requirement for a given amount of services be split up with the intention of avoiding the application of this Article.’

77.Although there are, in this case, both elements which support the view that the agreements at issue are unitary in nature, as the Commission claims, and elements which suggest the contrary, as the Greek Government contends, I consider that the former should take precedence.

78.The framework agreement which the Greek authorities entered into with PASEGES places all of the agreements at issue in a single legal context and acts as a unifying factor for those agreements.(30) Not only does it define the nature of the services, identify the contracting authorities and the successful tenderers,(31) designate a person responsible for coordinating all of the activities involved in implementing the individual agreements and determine the overall financial cover for the operation, it also furnishes the legislative framework within which the individual agreements are concluded. That agreement is automatically annexed to the agreements entered into at local level(32) and its provisions supplement the content of those agreements on matters for which the latter do not make specific provision. Moreover, it seems to me that the conclusion of the framework agreement of itself demonstrates that the Greek authorities themselves took a unitary view of the various contracts entered into on the basis of that framework agreement.

79.As regards the implementing agreements, it must be pointed out that the Greek State appears as a contracting party in each of those agreements, even though, as the Greek Government points out, the agreements were in fact concluded by the individual prefectoral authorities with the territorially competent UAC and, therefore, actually differ in terms of the particular contracting authorities and successful tenderers. They are largely the same in content as regards the nature of the services forming the subject matter of the contracts, the nature of the obligations entered into by each of the contracting parties and the duration of the agreement. They also relate to the provision of services which are essential for the attainment of a common objective, that is to say the implementation of the IACS throughout the whole of Greek territory for 2001.(33)

80.The fact that, as the Greek Government points out, the economic value of the services provided differs, depending on the requirements linked to the territory of each prefectoral authority, just as the place at which the services are provided differs, does not, however, seem to me to be of critical importance, since it does not change the fact that the agreements at issue have basically the same rationale and object, are of the same duration and have the same purpose.

81.If, then, the implementing agreements have to viewed overall, their value must be considered cumulatively in order to assess the estimated cost of the contract. Since the documents before the Court indicate that some of the implementing agreements, viewed in isolation, have a value close to the thresholds provided for by Directive 92/50, the conclusion must be that if the value of all of the agreements at issue is added together, those thresholds are substantially exceeded.

82.The Greek Government’s allegation that the Commission incorrectly used as the basis for calculating the overall value of the contracts the sum laid down in the framework agreement, which includes not only the payment for the services provided by the UACs, but also sums earmarked to cover the costs of the prefectoral authorities, seems to me to be unfounded in fact.

83.There is no evidence to substantiate that allegation, and it is, moreover, contradicted on a reading of the documents in the pre-litigation procedure, which clearly indicate that in calculating the estimated value of those contracts, the Commission did not rely on the abovementioned figure but, in fact, added up the value of each agreement. Moreover, at the hearing, the Commission confirmed that this was the method it had adopted.

84.On the basis of the above considerations, it must be concluded, in agreement with the Commission, that the contracts at issue fall within the scope of Directive 92/50.

b)The nature of the services provided

i)Arguments of the parties

85.The Commission considers that many of the services forming the subject matter of the contracts at issue must be regarded as ‘topographical services’ falling within category 12 of Annex I A to Directive 92/50. According to the Commission, that category includes operations involving the use of orthophotographic maps and the identification of agricultural holdings on those maps. Those services can be provided only by professional topographers.

86.Again, according to the Commission, the remaining portion of the services at issue relates, on the one hand, to processing the data which has been collected and entering it in a data base, operations which – the Commission contends – come under category 7, ‘data processing services’, of Annex I A to Directive 92/50, and, on the other, the entering of the data collected in the declaration forms, which activity, being a public administration activity, should, in fact, be classified in Annex I B, ‘other services’, to the directive.

87.The Commission considers that the value of the services which fall under Annex I A to Directive 92/50 is higher than the value of the services which fall under Annex I B thereto.

88.The Greek Government maintains that the services forming the subject matter of the implementing agreements entirely – or, at least, overwhelmingly – constitute public administration activities, which fall under Annex I B to Directive 92/50.

89.As regards, in particular, the services involved in providing assistance to producers with a view to submitting the applications and declarations, the Greek Government first explains that these involve not only assistance in filling in the forms, but also identifying both the areas under cultivation and those used for stabling. Consequently, the Commission’s argument that those services must be classified as topographical services is valid only in relation to the identification of the agricultural parcels.

90.Secondly, the Greek Government contends that the cartographical support equipment needed to make that identification is provided by the ministry of agriculture, and that the prefectoral authorities, the staff of the topographical service and the directorate for agricultural development provide producers with the technical assistance they need for the identification process. The UACs provide their activities of assisting the producers under the supervision of the topographical service and the directorate for agricultural development.

91.Thirdly, the Greek Government points out that since the UACs had access to the data entered in the declarations submitted for 2000, as well as maps indicating the parcels declared for that year, their work in locating the parcels was made easier and basically confined to identifying any differences as compared with the previous year. The respondent Government estimates that, in general, approximately 70% of the parcels declared in a given year remain unchanged in the following year.

92.Fourthly, the Greek Government claims that the activities involved in identifying the agricultural parcels do not require the services of topographers, since they can be carried out by other specialist staff.

93.Finally, in response to a question put by the Court, the Greek Government objects to the classification of the services at issue as topographical services, a classification which, it alleges, the Commission arrived at without undertaking a detailed analysis of the United Nations CPC nomenclature.

ii)Analysis

94.An analysis designed to identify the nature of the services forming the subject matter of the agreements at issue is important for the purpose of determining the rules applicable to the related contracts. If the services fall under Annex I A to Directive 92/50, then, in accordance with Article 8 thereof, the provisions of that directive apply in full; if they do not fall under Annex I A, only Articles 14 and 16 are applicable, in accordance with Article 9 of the directive. If the services in question are regarded as in part covered by Annex I A and in part covered by Annex I B, as suggested – though their views differ – by both the Commission and, in the alternative, by the Greek Government, it is further necessary to assess, for the purposes of applying the rule under Article 10 of Directive 92/50, whether the value of the services included in Annex I A is higher than that of the services which fall under Annex I B or vice versa.

95.That said, it seems to me that the analysis must include an assessment of the content of the agreements at issue. Since they have been concluded in implementation of the framework agreement, the different contracts are largely similar in content, particularly as regards the subject matter of the services the different contracting parties undertake to provide, consequently, that assessment will be made below with reference, by way of illustration, solely to the provisions of the agreement entered into by the Greek State, the prefectoral authority of Corinth and the Corinth UAC.

96.It should first be pointed out that, in defining the subject matter and aims of the agreement, Article 1 thereof sets out that the need to issue an invitation to tender for the services of providing assistance to producers in the context of implementing the IACS is based on a finding that it is impossible for producers independently to identify the areas under cultivation on orthophotographic materials and to collect information on the livestock being raised, and on the lack of adequate assistance from the services of the prefectoral authorities, of specialist staff and the appropriate data processing support and, consequently, the difficulty, in those circumstances, of complying with the time‑limits laid down for implementing the IACS.

97.Article 2 of the agreement defines the obligations entered into by the different contracting parties and is made up of two parts: part A refers to the ‘activities of identifying the declared areas under cultivation and the livestock and their entry in the special application forms.’ Part B concerns ‘activities involving inputting data from the application forms into the ministry’s computer to create a computerised data base.’

98.As regards the activities covered in Part A, the UAC undertakes to provide the necessary technical assistance to the producers concerned within the confines of the territorial jurisdiction of the contracting prefectoral authority. For that purpose, it is required to set up two teams, providing five individuals responsible for identifying on orthophotographic maps the areas and stabling facilities which are to be declared for the purpose of filling in the application forms, under the supervision of the topographical service, the veterinary service and the prefectoral authority’s directorate for agricultural development, as well as to submit the declarations to the prefectoral authority and make the necessary corrections should mistakes have been made.

99.The Greek State undertakes to make available the cartographical materials for identifying the holdings and the manuscript archives concerning the branded livestock in order to identify them and establish a computerised register. It also undertakes to pay to the UAC, through the offices of the prefectoral authority, a sum in drachma corresponding to the overall amount of the applications drawn up by the UAC, augmented by a sum representing a flat-rate payment for each application.

100.The prefectoral authority undertakes to supply, using the staff of the topographical service, technical assistance to producers covering, in all, 500 of an estimated total of 1992 claim declarations, with the assistance for the remaining declarations to be provided by the UAC.

101.The activities falling under part B of Article 2 of the agreement consist in entering the data taken from the declarations into a computer program provided by the ministry of agriculture, under the supervision of the prefectoral authority’s directorate for agricultural development, in order to establish a definitive data base. Therefore, the Greek State undertakes to provide the software with the instructions for entering the data concerning the holdings and the livestock; to make available the requisite computer connections, to make available to the directorate for agricultural development and the UAC the computer expertise of its own services; and to pay the UAC, through the offices of the prefectoral authority, a sum in drachma corresponding to the overall amount of the applications draw up by the UAC, augmented by a sum of 500 drachma for each application by way of remuneration for entering the data in the relevant computerised data base and a sum of 1750 drachma for each application by way of remuneration for entering data in the cattle register.

102.Article 3 of the agreement defines the financing procedures. Article 3(b) lays down a sum of 6 554025 drachma to cover spending on remuneration, in the form of a flat-rate payment per form, for carrying out the activities of identification and preparing the applications and declarations. Article 3(c) lays down a sum of 1920500 drachma to cover spending on remuneration, in the form of a flat-rate payment per form, for carrying out the activities involved in processing the data from the applications and declarations.

103.One element of the services which the UACs are asked to provide, which the Commission describes as ‘topographical services’, consists, therefore, in identifying, on the basis of cartographic or orthophotograhic materials or aerial photographs provided by the prefectoral authorities, the agricultural holdings under cultivation. Furthermore, it is clear from the wording of Articles 1 and 2 of the agreement concluded between the Greek State, the prefectoral authority of Corinth and the Corinth UAC that those activities are able to be carried out only by specialist staff. It should, finally, be pointed out that those activities are carried out under the supervision of the staff of the prefectoral authority’s topographical service.

104.The above elements should now be used to assess the accuracy of the Commission’s classification.

105.The Greek Government challenges that classification essentially in relation to the services involved in identifying the agricultural parcels. Furthermore, the breach of the provisions of Directive 92/50, which is cited in the context of the plea under consideration, could arise only if those services can be included under Annex I A to the directive. In point of fact, were that not the case, then, given the marginal economic nature of the services involved in entering data in the authority’s data bases, as compared with the other services, it would have to be concluded that, in value terms, the services falling under Annex I B to Directive 92/50 are more significant than those falling under Annex I A, with the result that the rules on publication laid down in the directive would apply in part only.

106.For those reasons, the analysis which follows relates solely to the proper definition of the services involved in identifying the agricultural parcels.

107.It should first be pointed out that the seventh recital in the preamble to Directive 92/50 states that ‘the field of services is best described, for the purpose of application of procedural rules and for monitoring purposes, by subdividing it into categories corresponding to particular positions of a common classification; whereas Annexes I A and I B of this Directive refer to the CPC nomenclature (common product classification) of the United Nations; whereas that nomenclature is likely to be replaced in the future by a Community nomenclature; whereas provision should be made for adapting the CPC nomenclature in Annexes I A and B in consequence.’

108.In its judgment in Tögel, the Court held that it is clear from the seventh recital in the preamble to Directive 92/50 that the reference in Annexes I A and I B to the CPC nomenclature is binding.(34) It follows that in defining the services forming the subject matter of a contract, the Commission must refer to the nomenclature – and the explanatory notes which accompany it – in order to determine whether they fall under Annex I A or Annex I B to the directive.

109.It is not clear from the procedural documents, which the Commission has submitted, on the basis of what information and with reference to exactly which class in the CPC nomenclature the Commission has defined the activities at issue as ‘topographical services.’

110.In response to a written question put by the Court, the Commission has, however, cited reference numbers CPC 86753 and CPC 86721, which constitute subdivisions of CPC 867, listed in category 12 of Annex I A to Directive 92/50.

111.Category 12 of Annex I A to Directive 92/50 covers the following descriptions: ‘[a]rchitectural services; engineering services and integrated engineering services; urban planning and landscape architectural services; related scientific and technical consulting services; technical testing and analysis services.’

112.Number 867 in the provisional CPC nomenclature, to which category 12 of Annex I A to Directive 92/50 refers, concerns ‘architectural services, engineering and other technical services.’ Class 8672 covers ‘engineering services’ and includes subclass 86721 ‘advisory and consultative engineering services’, to which the Commission refers. According to the explanatory note relating to that subclass, it includes ‘preparatory technical feasibility studies and project impact studies.’ Cited, by way of example are ‘study of the impact of topography and geology on the design, construction and cost of a … infrastructure.’ The explanatory note further makes clear that the provision of those services is not necessarily linked to a construction project, but may, for example, consist in ‘the appraisal of the structural, mechanical and electrical installations of buildings, of expert testimony in litigation cases, of assistance to government bodies in drafting laws etc.’

113.As regards subclass CPC 86753 ‘[s]urface surveying services’ to which the Commission also refers, this belongs to class 8675, ‘services related to scientific and technical consultancy.’ According to the explanatory note referring to that subclass, such services consist in ‘[g]athering services of information on the shape, position and/or boundaries of a portion of the earth’s surface by different methods including … photogrammetric and hydrographic surveying for the purpose of preparing maps.(35)

114.The Greek Government takes the view that services involving the provision of assistance by the UACs, including those relating to the identification of the agricultural parcels on cartographic or other materials, must be classified as ‘pubic administration’ services falling within the category of ‘other services’ (category 27) of Annex I B to Directive 92/50.

115.The Commission does not appear to me to have adequately clarified whether, and to what extent, the services at issue fall under category 12 of Annex I A to Directive 92/50.

116.While it is true that it is clear from the implementing agreements that the services provided by the UACs in connection with their work in providing assistance in filling in the forms for applications and declarations largely consist in identifying agricultural parcels on the basis of the cartographic materials provided by the competent authorities, the Commission’s argument to the effect that, because they involve using specialist staff and are carried out under the supervision of the topographical services, these services must be categorised as topographical services, does not seem to me to be entirely persuasive.

117.In point of fact, it is clear from the explanatory note cited in point 113 above, that the ‘surface surveying’ surfaces which fall under CPC subclass 86753, to which the Commission refers, consist in identification activities for the purpose of drawing up maps, whereas, in this case, the parties do not dispute that the services at issue are confined to identifying data on existing cartographic materials. Furthermore, subclass CPC 86721, ‘advisory and consultative engineering services’, which the Commission also cites, refers, according to the relevant explanatory note – which is cited in point 112 above – to project feasibility studies or studies relating to a project’s topographical impact, or other consultancy activities, which may also not be linked to a construction project, and whose description does not clearly extend to cover technical assistance activities, such as those at issue in this case.

118.It is settled case-law that in an action based on Article 226 EC, it is for the Commission to prove the existence of the alleged infringement and to provide the Court with the information necessary for it to determine whether the infringement is made out, and the Commission may not rely on any presumption for that purpose.(36)

119.In this case, on the basis of the above considerations, it is my view that the Commission has failed to provide sufficient evidence to demonstrate that the services involved in identifying the agricultural parcels at issue may be categorised as falling under category 12 of Annex I A to Directive 92/50 and that, consequently, it has failed to prove one of the conditions establishing the existence of the Treaty infringement with which the Greek Government is charged under the first form of order sought.(37)

120.For the reasons set out above, and without prejudice to the conclusion I have reached concerning the admissibility of the action forming the subject matter of these proceedings, I consider that this plea, which is based on a breach of the provisions of Directive 92/50, must be rejected.

2.The alleged breach of the principle of transparency and the principle of non‑discrimination

121.In the alternative, and should the Court consider that the services at issue fall – largely or entirely – under Annex I B to Directive 92/50, the Commission contends that the Greek authorities were, none the less, required to ensure an adequate level of publicity, in the procedure for awarding the contracts at issue, in compliance with the principle of non‑discrimination laid down in Article 3(2) of Directive 92/50. That article is included in the general provisions of Title I of the directive, which also apply to public service contracts falling under Annex I B thereto.

122.The Commission also refers to the Court’s more general finding in its judgment in Teleaustria and Telefonadress(38) concerning the application of the principles of non-discrimination and transparency to public service contracts which are not governed by Community directives.

123.In that judgment, as in the abovementioned Coname(39) and Parking Brixen(40) judgments, the Court held that notwithstanding the fact that public service concession contracts are, as Community law stands at present, excluded from the scope of Directive 92/50, the public authorities concluding them are, none the less, bound to comply with the fundamental rules of the EC Treaty, in general, and the principle of non-discrimination on the ground of nationality, in particular.(41) According to the Court, the principles of equal treatment and non‑discrimination on grounds of nationality imply, in particular, a duty of transparency ‘to ensure … for the benefit of any potential tenderer, a degree of advertising sufficient to enable the service concession to be opened up to competition and the impartiality of procurement procedures to be reviewed.’(42)

124.However, the question raised in this case differs in part from those which formed the subject matter of the earlier cases cited above. Whereas the cases which resulted in the Teleaustria, Coname and Parking Brixen judgments related to the award of public services which were not governed by Community directives, the agreements at issue fall within the scope of Directive 92/50, which provides for an advertising regime which differs depending on whether the public service contracts to which it applies have, as their object, services falling under Annex I A or Annex I B to the directive.

125.That issue is the subject of Case C-507/03 Commission v Ireland, which is currently pending before the Grand Chamber of the Court. Advocate General Stix‑Hackl delivered her Opinion in that case on 14September 2006, and has taken the view that the general principles of non-discrimination and transparency also apply in relation to public service contracts falling under Annex I B to Directive 92/50, in relation to those aspects of that contract regime which the directive does not specifically regulate.

126.I endorse the solution which Advocate General Stix-Hackl recommends in her Opinion, and which, basically, reflects the argument advanced by the applicant in this case. I do not, therefore, consider it necessary – bearing in mind also the considerations set out in relation to the admissibility of the action – to analyse this plea further and will, therefore, simply refer to the considerations set out in the abovementioned Opinion.

127.It remains to be considered whether the Greek Government has cited grounds which, in any event, justify excluding the requirements of prior publication in relation to the public service contracts at issue.

128.In challenging the validity of the plea in question, the Greek Government’s response has simply been that it has provided an appropriate and sufficient level of advertising of the activities linked to the IACS for 2001, with the result that interested persons had the opportunity to offer their services to farmers, with the latter, in any event, remaining free to choose to whom they would apply in order to obtain assistance in drawing up and submitting the applications and declarations.

129.In response to the first complaint submitted by the Commission, the respondent Government did, however, cite the applicability to the public service contracts at issue of Article 11(3)(b) of Directive 92/50, according to which the award of public service contracts by negotiated procedure without prior publication of a contract notice is permitted where ‘for technical or artistic reasons, or for reasons connected with the protection of exclusive rights, the services may be provided only by a particular service provider.’ The Greek Government cited, in particular, the existence in this case of technical reasons requiring that the contracts at issue be awarded to the UACs.

130.Even supposing that the exception which that provision permits to the rule, according to which contracts to which the provisions of Title III of the directive applies are awarded after prior publication of a contract notice, may be relied upon in connection with this plea – concerning the infringement of the general principles of transparency and non-discrimination and not a breach of the rules on prior publication provided for by directive 92/50(43) – it does not seem to me that the respondent Member State has adequately proved that, in the case in point, the conditions for that exception to apply were met. Indeed, in that connection, the Greek Government merely refers generally to the existence of technical reasons relating to the subject matter and award of the public service contracts at issue – reasons which, that Government contends, necessitate awarding those contracts to the representatives of farmers in the place where the services are to be provided – without, however, providing further information.

131.In the light of the above considerations, and should the Court not share the Opinion at which I have arrived concerning the admissibility of the action forming the object of these proceedings, I propose to accept this plea concerning the breach of the principles of non-discrimination and transparency and to declare that the conduct with which the Commission has charged the Hellenic Republic in the context of this plea constitutes a failure to fulfil the obligations incumbent upon the Hellenic Republic under the Treaty.

VI–Costs

132.Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

133.Since I am proposing that the Court should dismiss the action, and since the Hellenic Republic has applied for costs against the Commission, the Commission must be ordered to pay the costs.

VII–Conclusion

134.For all of the reasons set out above, I propose that the Court should declare that:

–the action is inadmissible;

–the Commission is ordered to pay the costs.

1- Original language: Italian.

2– OJ 1992 L 355, p.1.

3– OJ 1992 L 209, p. 1.

4– OJ 2004 L 134, p. 114.

5– Council Directive 77/62/EEC of 21 December 1976 coordinating procedures for the award of public supply contracts (OJ 1976 L 13, p.1).

6– Council Directive 71/305/EEC of 26 July 1971 concerning the co-ordination of procedures for the award of public works contracts (OJ, English Special Edition 1971 (II), p. 682).

7– Council Directive 90/531/EEC of 17 September 1990 on the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors (OJ 1990 L 297, p. 1).

8 –Council Directive 93/36/EEC of 14 June 1993 coordinating procedures for the award of public supply contracts (OJ 1993 L 199, p. 1).

9– [1992] ECR I-2353.

10– Before reaching that finding, the Court first noted that ‘it follows from the very terms of [the second paragraph of Article 226 EC] that the Commission may bring an action for failure to fulfil obligations before the Court only if the Member State concerned does not comply with the opinion within the period laid down by the Commission for that purpose’, and pointed out that the Court has consistently held that the action brought under the second paragraph of Article 226 EC ‘is for a declaration that the State concerned has failed to fulfil an obligation under the Treaty and that it has not put an end to that infringement within the time laid down to that effect by the Commission in its reasoned opinion.’ The Court further pointed out that it is settled case‑law that the question whether there has been a failure to fulfil obligations must be determined by reference to the situation prevailing in the Member State at the end of the period laid down in the reasoned opinion.

11– In that case, the Court largely followed the Opinion of Advocate General Lenz, according to which ‘pursuant to the [second paragraph of Article 226 EC], it is a condition for bringing an action that an infringement of the Treaty should exist after the period laid down in the reasoned opinion.’ According to the Advocate General, ‘there is no legal interest in a declaration by the Court of an infringement of the Treaty if the infringement has been terminated before the expiry of that period’, that approach being consistent with the ratio of the pre-litigation procedure, which is aimed at bringing about the termination of the Treaty infringement before the proceedings before the Court. Advocate General Lenz acknowledges that exceptions to that rule may arise in cases of ‘seasonal infringements (Case C-240/86) where, because of its purpose and legal nature, the infringement of the Treaty is confined to a limited period (as, for example, in the case of the import and export restrictions introduced on a seasonal basis for the protection of national traders) and where, because of this, the conduct of the procedure prior to the actions for failure to fulfil obligations is made, purely in terms of time, more difficult, if not altogether impossible.’ However, since, in that case, it was objectively possible, without any difficulty, to conduct the procedure prior to the bringing of an action for failure to fulfil obligations during the almost 15 months in which the invitation to tender was valid, the Advocate General concluded that the action was inadmissible.

12– [2003] ECR I-3609.

13– Paragraphs 35 and 36 of the judgment. The Court cited in that connection Case C-19/00 SIAC Construction [2001] ECR I-7725, paragraph 32.

14– Emphasis added.

15– The Court reached a similar conclusion in its judgment in Case C-328/96 Commission v Austria [1999] ECR I-7479, paragraphs 43 to 45, in which the plea of inadmissibility raised by the respondent government was rejected, on the ground that, although Austria had amended – in the way indicated by the Commission and before the reasoned opinion was adopted – all the procedures already under way, any effects contrary to Community law produced by the procedures at issue still subsisted on the date on which the period set in the reasoned opinion expired. Advocate General Alber took the same approach in his Opinion.

16– In his opinion, without citing the above judgment in Commission v Italy, Advocate General Geelhoed expresses views which essentially contradict the solution upheld in that judgment (see, in particular, points 47 to 50 and 53 to 57). According to the Advocate General, proceedings for failure to fulfil obligations are intended, not only to put an end to the specific breach but also to bring about a change in the conduct of the defendant State and prevent further breaches. However, the continuing effects of the breach after the deadline imposed by the reasoned opinion represents, for the Advocate General too, the key factor in the solution of that case (see point 57).

17– [2005] ECR I-4713

18– Case C-394/02, cited in footnote 17 above, paragraph 14.

19– Ibidem, paragraph 19. Emphasis added.

20– Advocate General Jacobs had expressed the same view, although he did not adopt quite the same line of argument. According to the Advocate General, in fact, the Commission had an interest in securing a declaration of the alleged failure to fulfil an obligation by the Hellenic Government in that case, since the contract concluded on completion of the tendering procedure at issue was still under way and, therefore, the default continued to produce legal effects. As regards the plea based on the action being devoid of purpose, the Advocate General cited the Court’s case-law according to which ‘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.’ The Advocate General added that the same applies whenever the default may no longer be remedied.

21– Case C-525/03 Commission v Italy [2005] ECR I-9405. It is interesting, moreover, to note that the judgment was handed down by the Court’s second chamber, albeit in a formation different from that which is hearing this case.

22– It should be noted that the Court considered the admissibility of the action of its own motion, and declared it to be inadmissible despite the fact that, at the hearing the respondent government stated that it was in favour of admissibility. The Italian Republic did not, moreover, acknowledge the failure to fulfil an obligation with which it was charged.

23– Advocate General Jacobs considered that the action was admissible.

24– Paragraph 11 of the judgment in Case C-525/03, cited in footnote 21 above. It is true that the forms of order sought in the application related solely to the provisions of the ordinance at issue, however, as Advocate General Jacobs pointed out, the fact that tendering procedures were under way or that the related contracts were in the course of being performed could constitute a factor to be taken into account in assessing whether the effects of the ordinance could be regarded as being completely exhausted at the time when the period laid down in the reasoned opinion expired.

25– According to Article 5(1) of the framework agreement, that agreement is to enter into force on the day of its signature and cease to be in force when all of the financial aid has been paid to the farmers who have applied for it. The same provision appears in each of the agreements concluded on the basis of the framework agreement. In the absence of information to the contrary from the Commission, it must be assumed that, as the Greek Government stated at the hearing, the aid had been paid out in full before the period laid down in the reasoned opinion expired.

26– According to Article 1(a) of Directive 92/50, ‘public service contracts’ means ‘contracts for pecuniary interest concluded in writing between a service provider and a contracting authority.’ It follows from the definition that a public service contract within the meaning of that directive involves consideration which is paid directly by the contracting authority to the service provider (see Case C-458/03 Parking Brixen [2005] ECR I-8612, paragraph 39).

27– It is settled case-law that when exercising its powers under Article 226 EC, 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 (Case C-333/99 Commission v France [2001] ECR I-1025, paragraph 23 and Case C-394/02 , cited in footnote 17 above, paragraphs 14 and 15, as well as the case-law cited therein).

28– See, to that effect, Case C-362/90, cited in footnote 9 above.

29– See, for example, Case C-236/05 Commission v United Kingdom, [2006] ECR I‑10819.

30– See, to that effect, Case C-79/94 Commission v Greece [1995] ECR I-1071, paragraph 15.

31– Although, as the Greek Government points out, in regions in which there are several UACs, the UAC which will be party to the agreement with the local authority will be selected at the time when the implementing agreement is concluded.

32– See, for example, the preamble to the implementing agreement concluded between the Greek State, the prefectoral authority of Corinth and the Corinth UAC. The first paragraph in the preamble provides that the framework agreement is an integral part of the agreement.

33– Although in a different regulatory context (the question related to a breach of the provisions 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), the Court has already demonstrated, in the past, that it gives precedence to the criterion of the uniformity of the economic and technical function of public contracts rather than to factors such as the existence of a number of contracting authorities or a number of companies submitting successful tenders (see Case C-16/98 Commission v France [2000] ECR I-8315).

34– Case C-76/97 [1998] ECR I-5357, paragraph 37.

35– The Commission also points out that, although it has only indicative value, – the table in of equivalence Annex II A to Directive 2004/18/EC, between the headings in the Common Procurement Vocabulary (CPV) and the CPC nomenclature, includes topographical services in category 12 ‘engineering services’.

36– See Case C-287/03 Commission v Belgium [2005] ECR I-3761, paragraph 27, and the case-law cited therein.

37– See the considerations set out at point 105 above.

38– Case C-324/98 [2000] ECR I-10745.

39– Case C-231/03 [2005] ECR I-7287, concerning the award of a public gas distribution service to a company with predominantly public capital.

40– Cited in footnote 26 above.

41– Case C-324/98, cited in footnote 38 above, paragraph 60; Case 23/03, cited in footnote 39 above, paragraph 16; and Case C-458/03, cited in footnote 26 above, paragraph 46.

42– See Case C-324/98, cited in footnote 38 above, paragraphs 61 and 62, and Case C‑458/03, cited in footnote 26 above, paragraph 49.

43– The possibility of relying on that is supported by Advocate General Stix-Hackl in her abovementioned Opinion in Case C-507/03, and in the Opinion delivered on the same day in the related case C-532/03 Commission v Ireland, which is also pending before the Grand Chamber of the Court.