Transparency is country’s sovereign right (IV)
V. In view of the objective and subject-matter of the national provisions and provided that such incompatibility of functions is not regulated or harmonized by any Community directive, in our opinion, the examination of national provisions from the point of view of secondary Community law would not be necessary. On an ancillary basis, however, concerning the relevant remarks of the Letter, the following should be noted: A. The Commission alleges that the introduction of the said incompatibility of functions constitutes an ipso jure exclusion, not stipulated in the Directives, with particular reference to article 24 of Directive 93/37/EC on public works, article 20 of Directive 93/36/EC on public supplies and article 29 of the public services Directive. This allegation, however, is unfounded for the following reasons: According to the ECJ’s case law, the directives on public contracts do not lay down «a uniform and exhaustive body of Community rules. Within the framework of the common rules which they contain, the Member States remain free to maintain or adopt substantive and procedural rules in regard to public contracts on condition that they comply with all the relevant provisions of Community law, in particular the prohibitions flowing from the principles laid down in the Treaty in regard to the right of establishment and the freedom to provide services» (cf. ECJ «Association intercommunale pour les autoroutes des Ardennes», C – 27-29/86, r. 15, ECJ «Beentjes», C-31/87, r. 20, cf. also ECJ «Commission versus the French Republic» («Beentjes II»), C-225/98, ECJ «Concordia Bus Finland versus Helsingin Kaupunki», C-513/99, ECJ «Macedonian Metro versus the Hellenic Republic», C-57/01, r. 58; cf. also case law of Greek Supreme Court and, in particular, Council of State 3242/2004. 3243/2004, Council of State’s Suspensions Commission 80, 81. 82, 83/2005). See also related document of the Commission (DN:IP/01/1418) of 15-10-2001, addressed to the contracting authorities of Member States, which refers to the possibility of excluding companies from tendering procedures because they do not comply with specific social obligations. It refers, in fact, to reasons for exclusion that are not contained in the Directives. According to the ECJ’s standing case law, therefore, a Member State may introduce new substantive rules, which are not covered by the Directives on public contracts, provided of course that they comply with Community law provisions and in particular with the interdictions arising from the principles enshrined in the Treaty regarding the right of establishment and free provision of services. The specific provisions of the Directives on public contracts mentioned in the Letter, have no relation to the case under discussion, so as to raise the issue of the conflict between such provisions and national law, for the reason that the specific provisions of the Directives refer to the possible exclusion of a candidate from a tender for specific reasons of professional incapacities and, specifically, because of bankruptcy, conviction for an offense related to professional behavior, serious professional misconduct, non compliance with social insurance and taxation obligations, as well as conviction for serious false statement when providing information. The above provisions refer to the criteria for «qualitative selection», as indicated in the relevant chapter’s title, and, in particular, to the obligation of complying with specific professional commitments, the infringement of which entails as a sanction the company’s exclusion from the tender. It is therefore clear that these provisions do not refer to a general listing of all interdictions or cases of incompatibility, which a Member State may provide for public tenders for reasons of imperative public interest. On the contrary, they refer to specific cases related to the insolvency or dishonesty on the part of a candidate («professional incapacities») and may lead to his exclusion from the tender (cf. the above case law, as well as par. 21 in ECJ C-27, 28, 29/86 where it is expressly stated that: «The said provisions of article 23 define the circumstances relating to the insolvency or dishonesty of a contractor justifying his exclusion from participation in a contract»). The above observations are becoming even clearer in the corresponding article 45 of the new Directive 2004/18/EC. This article expressly refers to data concerning the «personal situation» of the candidate, distinguishing in fact between compulsory and optional reasons for exclusion, always in relation to specific data that concern the candidates’ personal situation. It should be noted that your reference to this Directive is in contradiction with your other arguments, as two legally opposed conclusions are recognized: Firstly, that the provision of article 24 of Directive 93/36/EC was not uniform and exhaustive. If it were so, there would be no reason to provide for new cases of exclusion. Secondly, that the objective pursued through the critical national provisions (at the level of the constitutional and common legislator) is legitimate, in the context of Community law. Therefore, the reference to the new Directive reaches the opposite conclusion than that considered as arising by the Commission. It clearly follows therefore that the Community legal order itself «ratifies» the national provisions, as regards both the absence of an intersection between their regulatory scope and the regulatory scope of the secondary Community law in force before 2004 and the objective pursued by them, which is legitimate under Community law. It should be pointed out, moreover, that par. 1 of article 45 introduces participation in a criminal organization as a new reason for excluding a candidate. If the Commission’s affirmations were founded, then a Member State, under the previous Directives, could not include in its national legislation participation in a criminal organization as a reason for exclusion from a public tender! The respective provisions of the directives on public contracts, therefore, invoked by the Commission in its present Letter, have a different regulatory scope than that of national provisions that introduce the incompatibility of functions. They do not intersect in any way and, as a result, the issue of a conflict between the provisions of the two legal orders cannot be raised. Generally speaking, the Directives on public contracts do not in any way forbid (esp. in absolute manner) any other relevant national law regulations, apart from those expressly provided in the Directives, which would introduce a substantive rule (as is the case with the specific national provisions) aimed at serving an imperative public interest, in accordance with the principles of the Directives (transparency and fair competition) and with the rules of primary Community law. On the contrary, the incompatibility between media undertakings and companies obtaining public contracts is not the subject-matter of any regulation by any Community directive. Had it been otherwise, it would have to be accepted that the Directives on public contracts regulate in an exhaustive and absolute way all issues pertaining to public calls for tenders (even as regards the operation of media undertakings), an assumption which conflicts with the ECJ’s jurisprudence, but also with the general exceptions that are accepted with respect to the fundamental freedoms of primary Community law, which these directives are intended to guarantee. B. The above observations apply even more so to the issue of the obligation of companies to have registered (and not bearer) shares, given that this particular obligation constitutes a necessary prerequisite in order for the control of incompatible functions to be adequate. We wish, in particular, to note the following: The obligation for a company to have registered shares does not impose any substantial burden on the company or any other substantial corporate difficulty, since the way of operation of the company is not differentiated. The only change that occurs is related to the nature of the company shares which instead of bearer are registered. Community law, both primary and secondary, does not in any way forbid the right for Member States, in a specific sector, such as the state’s economic functions, and for reasons of imperative public interest, to be aware of who are the real shareholders of a company. On the contrary, in the context of the transparency principle, the cases where companies are obliged to have registered shares are steadily increasing in sensitive economic sectors. The obligation for parent companies up to natural persons to have registered shares, in such cases, is already enforced in Greece by virtue of article 15 of law 2328/1995 and Presidential Decree 82/1996. Law 3310/2005 provides that, in the event that the law of the state where a particular company has its registered office does not impose the obligation for such company to have registered shares (since it would not be possible, of course, that the Greek legislation impose an obligation for a corporate act on a company operating under the law of another country), this company must simply submit to the Independent Authority recognized by the Constitution, i.e. the Greek National Council for Radio and Television, information evidencing the composition of its share capital. Such obligation does not in any way infringe any of the rules of EC law. On the contrary, it constitutes a minimum condition for implementing the measures on incompatibility of functions and does not create any impediment or restriction whatsoever for Community companies. In any event, it is clear that no issue of discriminating treatment arises as a result of these national provisions. These provisions do not establish any discrimination between domestic and foreign companies or, generally, between companies participating in a tender. The ECJ’s decision in the two cases jointly examined, ECJ C-21/03 and C-34/03 («Fabrikom»), strengthens on the one hand the aforementioned case law regarding the non exhaustive listing of interdictions to participate in public tenders, since another interdiction beyond those provided by the directives on public contracts is, in principle, deemed as being compatible with Community law. On the other hand, the above decision refers to different measures serving a completely different purpose than the one with regard to our case. In any case, in accordance with the ECJ’s standing case law, «the principle of equal treatment requires that different treatment should not be used for similar situations nor the same treatment for different situations, unless such differentiation is justified on objective grounds». (ECJ C-434/02, reason 68, ECJ C-304/01, reason 31). Finally, in respect of the impediments relating to the implementation of law 3310/2005, it is evident that the relevant allegation cannot be admissibly invoked by the Commission as grounds for referring Greece to the European Court of Justice since, even if we were to assume that such impediments will arise, they will be future and uncertain impediments that will depend on the way this legislation will be implemented by the competent bodies. Only then, the judge will be able to rule in concreto on whether the way in which the national law provisions are implemented constitutes a violation of Community law. At present, this allegation is made prematurely and unable to justify, regarding that particular issue, the Letter which was recently communicated to us. . Finally, as regards the last paragraph of your Letter as to the urgency of the matter and the possibility of provisional measures for suspending the enforcement of law 3310/2005, we wish to point out the following: Currently, the previous implementing law of the Constitution, Law 3021/2002, is still in force, which will also remain in force, irrespective of the time required for all the procedures that have been or will be initiated until law 3310/2005 comes into force and until the completion of such procedures – and not law 3310/2005 as the Letter not accurately seems to indicate. Law 3310/2005, as explicitly stated in the provision that regulates the timing of its enforcement, will enter into force and therefore have legal effect for the issues and procedures it amends (both for the media and the companies concluding public contracts) as from 14.6.2005. And this because the Greek legislator considered that there should be a reasonable transitional period of «four months», until the new law comes into force. þn any case, especially in respect of issue of urgency of the matter, it is noted that any legal person, and thus the legal persons engaged in media and public contracts, of any legal type that are governed by any law, can request for legal protection before the national Courts, and in particular by applying for interim measures (injunction), when such persons consider that their interests are affected by national legislation. As it is known, national courts have always the right to submit preliminary questions before the ECJ for any issue that concerns the interpretation and implementation of Community Law. The Ministers Minister of Interior, Public Administration and Decentralization Minister of Foreign Affairs Minister of State
