C-79/94

COMMISSION v GREECE

OPINION OF ADVOCATE GENERAL LENZ delivered on 16 February 1995 *

A — Introduction could be extended by one or two years (Article 14).

1. On 11 July 1991 the Greek Ministry for Industry, Energy and Technology concluded an agreement with six Greek manufacturers 3. In a letter of 9 September 1991 the Com­ of dressing materials. This 'framework agree­ mission asked the Greek Government to ment' provided that the hospitals listed in state its opinion on whether this procedure Annex A of the agreement should purchase was compatible with Council Directive certain types of dressing material exclusively 77/62/EEC of 21 December 1976 coordinat­ from those manufacturers. At the same time ing procedures for the award of public sup­ the six manufacturers undertook to produce ply contracts. 1 these goods and supply them to those hospi­ tals (Article 1 of the framework agreement). If in the future more hospitals were to be opened or other institutions made subject to the framework agreement, it was provided that such hospitals and institutions should also cover their requirements for the goods concerned exclusively from the said manu­ facturers (Article 8 of the framework agree­ 4. As no reply was received to this letter, the ment). Commission initiated the procedure laid down by Article 169 of the EC Treaty by giving the Greek Government, in a letter of 14 November 1991, an opportunity to sub­ mit its observations. In this letter the Com­ mission stated its opinion that Directive 77/62 was applicable to the framework 2. The framework agreement was to take agreement concluded by the Greek Govern­ effect for three years after it came into force. ment and that the agreement ought therefore Entry into force was conditional on ratifica­ to have been the subject of a notice in the tion by the Greek Minister for Industry, Official journal of the European Communi- Energy and Technology, which was given by ties pursuant to Article 9 of the directive. It ministerial decree of 19 July 1991. The agree­ is not disputed that no such notice was ever ment also provided that its period of validity published.

6. The Greek Government, in a letter of 10 December 1992, subsequently accepted that the Commission's view regarding the applicability of Directive 77/62 was correct. However, it claimed that the disputed agree­ ment had not adversely affected competition in the Community and that there would be considerable difficulty in cancelling the 8. As the stated intentions of the Greek framework agreement unilaterally, particu­ Government were not followed by concrete larly as this would expose the Greek State to action, the Commission finally brought the claims for damages by the manufacturers matter before the Court of Justice pursuant concerned. Furthermore, the Greek authori­ to Article 169 of the EC Treaty. The Com­ ties had already complied with the Commis­ mission asks the Court: sion's recommendations. Thus, a provision in the framework agreement stipulating that only Greek primary products should be used in the manufacture of the dressing materials in question had been deleted. Consideration was also being given to refraining from exer­ cising the option of extending the framework (1)to declare that, by concluding a frame­ agreement beyond the proposed term of work agreement for the exclusive supply three years. by six Greek textile manufacturers of dressing materials for use by hospitals and the Greek army and by not publish­ ing a notice to that effect in the Offi- cial Journal of the European Communi- ties, the Hellenic Republic has failed to 7. After the Commission had indicated that, fulfil its obligations under Directive in its opinion, the Treaty infringement of 77/62/EEC; which it complained had not been remedied by these measures, the Greek Government sent a further letter on 13 February 1993 which described once again the mea­ sures which the Greek Government had taken or proposed to take and which had already been set out in the letter of 10 December 1992. The letter added that the (2) to order the Hellenic Republic to pay the Greek Government had informed the parties costs of the action.

10. The defendant considers the action inad­ missible in two respects. First, it points out that it acknowledged, in its reply to the Commission's reasoned opinion, its failure to fulfil its obligations under the EC Treaty. 11. The second submission of the Greek At the same time, it explained in its reply Government must be dismissed immediately. that the framework agreement would not be If, in pursuing an infringement of the Com­ extended beyond the planned term of three munity provisions in the field of public pro­ years and that the provisions of Community curement, the Commission does not act as law would in future be complied with. In the diligently as might have been expected in defendant's opinion, the action brought by view of the circumstances of the case, this the Commission is abusive and in breach of may be relevant to a decision on an applica­ the obligation to treat Member States tion by the Commission for interim mea­ equally. The Hellenic Republic refers in this sures in the context of an action for failure to 4 connection to the procedure followed by the comply with Treaty obligations. However, Commission in an action brought against it in no way affects the admissibility of the Italy for failure to fulfil Treaty obligations. 2 action as such. In any event, the Commission In that case, it claims, the Commission has rightly pointed out that it informed the treated as sufficient a written declaration that

3 — OJ 1989 L 395, p. 33. 4 — Sec the order of the Court of Justice in Case C-87/94 R 2 — Judgment in Case 199/85 Commission v Italy [1987] ECR Commission v Belgium [1994] ECR I-1395, in particular 1039. paragraph 42.

15. There can be no serious doubt that this argument must be rejected. Member States would otherwise have a simple and con­ venient defence against actions under Article 13. That question is in any case irrelevant 169 of the Treaty for failure to fulfil their here. If the Commission is to take steps 'pri­ obligations. The present case offers a partic­ or to a contract being concluded', this pre­ ularly good example of this. As already men­ supposes that it is aware of the contract tioned, the contested framework agreement before its conclusion. However, the defen­ was concluded in July 1991 for a period of dant has not alleged (let alone proved) that three years. In its letter of 10 December the Commission was already aware of the 1992, thus at a time when not even half of framework agreement before 19 July 1991. the period had elapsed, the Greek Govern­ ment informed the Commission that it was considering not extending the period of validity of the framework agreement. In its 5 — Case C-359/93 Commission v Netherlands [1995] ECR letter of 13 February 1993 it indicated that it I-0000. 6 — Paragraph 13. might terminate the agreement before its

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COMMISSION v GREECE

8 — Paragraph 8. 9 — See my Opinion in Case 199/85 [1987] ECR 1047, at p. 1049. 7 — Sec footnote 2 above. point 8.

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OPINION OF MR LENZ — CASE C-79/94

20. In the course of time Directive 77/62 has ment, that is to say, the obligation on the undergone many amendments 11 and was hospitals and other institutions to obtain finally recast by Council Directive their supplies solely from the six Greek man 93/36/EEC of 14 June 1993 coordinating ufacturers named in the agreement. procedures for the award of public supply 12 contracts. According to the Court's case- law, the question whether there has been a failure to fulfil obligations must be examined on the basis of the position in which the Member State found itself at the end of the

1988. 14 In its application the Commission pitals and the army', whereas the letter of refers to the provisions of the original ver 14 November 1991 requesting the Greek sion of the directive. As the subsequent Government's observations referred only to amendments do not entail any material alter 'hospitals', has no bearing on the question of ations so far as the present case is concerned, admissibility. As the representative of the the position is not affected. I shall refer Greek Government explained during the below to the provisions applying at the end hearing, the exclusive purchasing obligation of 1992. applied from the beginning also to army hos

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COMMISSION v GREECE

21. According to Article 9(2) of Directive 23. The Greek Government thus takes the 77/62, contracting authorities who wish to view that the supply contracts concluded by award a public supply contract must make the hospitals and other institutions con­ known their intention by means of a notice. cerned should be considered on an individual However, pursuant to Article 5(1 )(a), first basis. As none of them has a value of more indent — overlooking the supply contracts than ECU 200 000, it argues, the directive referred to in Article 5(1)(a), second indent, does not apply at all. This submission may which are not at issue in the present case — imply a further argument, concerning the this obligation applies only to public supply question whether the disputed framework contracts concluded by contracting authori­ agreement is a 'supply contract' at all within the meaning of the directive. It is not entirely ties within the meaning of Article 1(b) of the clear from the submissions of the Greek directive and the estimated value of which is Government's representative at the hearing not less than ECU 200 000. Under Article whether the Greek Government opposes the 1(a) of the directive, 'public supply contracts' Commission's application on this point also. are 'contracts for pecuniary interest con­ I shall therefore deal briefly with it just in cluded in writing' between a supplier and case this is so. one of the contracting authorities defined in Article 1(b) for 'the purchase, lease, rental or hire purchase, with or without option to buy, of products'.

is a 'supply contract' at all within the mean­ publishing the notice required by Article ing of the directive. In order to fill out the 9 of the directive because no tenderers from framework created 'by the framework agree­ other Member States have so far shown any ment it is of course necessary for the hospi­ interest in such supply contracts. A notice tals and other institutions concerned to place would for that reason have been a meaning­ specific supply contracts. Furthermore, less formality. This contention must be cate­ 'pecuniary interest' is payable only on the gorically rejected. Clearly, it is perfectly pos­ basis of individual contracts. However, these sible that the situation described by the considerations are rather theoretical. All the Greek Government is attributable precisely principal contractual elements, in particular to the fact that no information was available the exclusive purchasing obligation and the to potential tenderers from other Member price calculation, are already laid down in States. the framework agreement, with the result that the individual supply contracts do little more than specify the quantity to be sup­ plied. In those circumstances there should hardly be any doubt that, having regard to the interpretation required here, which must be guided by the aims of the directive, a framework agreement of this kind must be treated as a supply contract within the mean­ 15 ing of the directive. If this were not accepted, the present action would have to 27. Finally, the Greek Government contends be dismissed (because there would be no that such notice was unnecessary by reason breach of Directive 77/62). However, the of one of the derogations provided for by framework agreement would then quite cer­ Article 6 16 of the Directive. This provision tainly have to be classified as a measure hav­ relates to cases where 'for technical or artis­ ing equivalent effect to a quantitative restric­ tic reasons, or for reasons connected with tion on imports within the meaning of protection of exclusive rights, the goods sup­ Article 30 of the EC Treaty in so far as it plied may be manufactured or delivered only prevents tenderers from other Member States by a particular supplier'. At the hearing from supplying specific customers in Greece. before the Court the representative of the Greek Government was unable to explain how this provision could apply to the present case, which concerns the supply of dressing materials. As the Court has recently reconfirmed (and precisely with reference to this provision of Directive 77/62), the bur­ den of proof in this connection is borne by the party which seeks to rely on the deroga­ 17 tion. The claim made by the Greek Gov­ ernment during the hearing that the dressing 26. The Greek Government also claims that in the present case it refrained from

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