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Document 62002TO0202

Order of the Court of First Instance (Fourth Chamber) of 14 January 2004.
Makedoniko Metro and Michaniki AE v Commission of the European Communities.
Action for damages - Inadmissibility.
Case T-202/02.

European Court Reports 2004 II-00181

ECLI identifier: ECLI:EU:T:2004:5

Ordonnance du Tribunal

Case T-202/02


Makedoniko Metro and Mikhaniki AE
v
Commission of the European Communities

«(Public works contracts – Failure to institute infringement proceedings – Article 3 of Directive 89/665/EEC – Action for compensation – Inadmissibility)»

Order of the Court of First Instance (Fourth Chamber), 14 January 2004
    

Summary of the Order

1..
Non-contractual liability – Conditions – Lawfulness – Fact that the Commission did not initiate infringement proceedings – Not unlawful – Claim for compensation – Inadmissible

(Arts 226 EC and 288, second para., EC)

2..
Actions for failure to fulfil obligations – Commission's right of action – Exercise of its discretion – Procedural position of parties who have submitted a complaint different from that in competition matters

(Art. 226 EC; Council Regulation No 17)

3..
Approximation of laws – Review procedures relating to the award of public supply and public works contracts – Directive 89/665 – Procedure enabling the Commission to act where there has been a clear and manifest infringement of the Community rules on public procurement – Unrelated to the infringement procedure under Article 226 EC – Commission's choice not to make use of the procedure – Not unlawful

(Art. 226 EC; Council Directive 89/665, Art. 3)

4..
Actions for annulment – Jurisdiction of the Community judicature – Unlimited jurisdiction – Issue of directions to an institution – Not permissible

(Art. 230 EC)

1.
Since the Commission is not bound to commence infringement proceedings under Article 226 EC its decision not to institute such proceedings is not in any event unlawful, so that it cannot give rise to non-contractual liability on the part of the Community and the only conduct which might possibly be adduced as the source of damage is the conduct of the Member State concerned. Consequently, a claim for compensation based on the Commission's decision not to commence infringement proceedings against a Member State is inadmissible. see paras 43-44

2.
The procedural position of parties who have submitted a complaint to the Commission is fundamentally different in the case of a procedure under Article 226 EC from their position in the case of a proceeding under Regulation No 17. The Commission is not bound to initiate a procedure under Article 226 EC but has a discretion which excludes the right for individuals to require it to adopt a specific position. It follows that, in the case of such a procedure, it is not open to persons who have lodged a complaint to bring an action before the Community judicature against a decision to take no further action on their complaint; nor do they have any procedural rights, comparable to those they may have in the case of a procedure under Regulation No 17, enabling them to require the Commission to inform them and to grant them a hearing. see para. 46

3.
Article 3 of Directive 89/665 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts provides that the Commission may invoke the procedure for which the following paragraphs of that article provide when, prior to a contract being concluded, it considers that a clear and manifest infringement of Community provisions in the field of public procurement has been committed during a contract award procedure falling within the scope of Directive 93/37 concerning the coordination of procedures for the award of public works contracts. The clear wording of that provision, which neither derogates from nor replaces Article 226 EC, shows that only the Commission is allowed to use the procedure for which it provides. Since the choice not to make use of such power is not unlawful, it cannot give rise to non-contractual liability on the part of the Community. In fact, even when called on to use it the Commission retains the option of considering the complaint referred to it under Article 226 EC. see paras 49-50

4.
The Community judicature may not give directions to a Community institution without encroaching upon the powers of the administration. That principle not only renders inadmissible, in an action for annulment, heads of claim seeking an order requiring a defendant institution to adopt the measures necessary for the enforcement of a judgment by which a decision is annulled, but it is also applicable, in principle, in proceedings in which the Court has unlimited jurisdiction. see para. 53




ORDER OF THE COURT OF FIRST INSTANCE (Fourth Chamber)
14 January 2004 (1)


((Public works contracts – Failure to institute infringement proceedings – Article 3 of Directive 89/665/EEC – Action for compensation – Inadmissibility))

In Case T-202/02,

Makedoniko Metro, established in Thessaloniki (Greece),Mikhaniki AE, established in Maroussi Attikis (Greece),represented by C. Gonis, lawyer, with an address for service in Luxembourg,

applicants,

v

Commission of the European Communities, represented by M. Konstantinidis, acting as Agent, with an address for service in Luxembourg,

defendant,

APPLICATION for compensation for the damage allegedly suffered by the applicants following the Commission's decision to take no further action on their complaint, No 97/4188/P, lodged on 23 January 1997 concerning the award by the Greek State of a public works contract for the design, construction, self-financing and operation of the Thessaloniki metro (Greece),



THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Fourth Chamber),



composed of: H. Legal, President, V. Tiili and M. Vilaras, Judges,

Registrar: H. Jung,

makes the following



Order



Background to the case

1
The first applicant is the consortium Makedoniko Metro ( Makedoniko Metro), established in order to take part in the international public tendering procedure for the award of the contract for the design, construction, self-financing and operation of the Thessaloniki metro. The second applicant, Mikhaniki AE ( Mikhaniki), is a limited company incorporated under Greek law and a member of Makedoniko Metro (together the applicants).

2
The Greek State decided to issue an international invitation to tender in respect of the planning, construction, self-financing and operation of the Thessaloniki metro, amounting to GRD 65 000 000 000. It opted, in relation to the award of that contract, for a restricted procedure comprising six stages: preselection of candidates who would be invited to tender, submission of tenders by the preselected candidates, evaluation of their technical proposals, evaluation of their economic and financial proposals, negotiations between the contracting authority and the tenderer provisionally selected, and signature of the contract.

3
By decision of 18 June 1992, the Greek Minister for the Environment, Regional Development and Public Works ( the Minister) approved the contract notice initiating the first stage of the procedure (preselection of candidates). On conclusion of that stage, eight consortia, including Makedoniko Metro and the Thessaloniki Metro consortium ( Thessaloniki Metro), were authorised to submit tenders.

4
By decision of 1 February 1993, the Minister approved the tender documentation for the second stage of the procedure (submission of tenders by the preselected candidates), including, in particular, the supplementary contract notice and the specific contract documents.

5
From those contract notices read together, it is apparent that during the second stage a preselected consortium could be enlarged by the addition of new members but that such enlargement was possible only until the deadline for submission of tenders.

6
During the second stage of the procedure, technical proposals, economic studies and financial proposals were submitted by, amongst others, Makedoniko Metro and Thessaloniki Metro.

7
When the preselection took place, Makedoniko Metro's members were Mikhaniki and the companies Edi-Stra-Edilizia Stradale SpA, Fidel SpA and Teknocenter-Centro Servizi Administrativi Srl, which held respectively 70%, 20%, 5% and 5% interests.

8
During the second stage of the procedure, Makedoniko Metro was extended to include AEG Westinghouse Transport Systems GmbH. The interests of the first four companies then amounted to 63%, 17%, 5% and 5% respectively, while AEG Westinghouse Transport Systems GmbH had a 10% stake.

9
On 14 June 1994 Makedoniko Metro was provisionally designated as the successful tenderer with that composition.

10
Following the formation, by decision of 24 June 1994, of the negotiating committee and following the commencement of negotiations between the Greek State and Makedoniko Metro as the provisionally designated successful tenderer, Makedoniko Metro gave notice to the Minister, by letter of 29 March 1996, of its new composition, which included as members Mikhaniki, ABB Daimler-Benz Transportation Deutschland GmbH ( Adtranz) and the Fidel Group, which in turn comprised Edi-Stra-Edilizia Stradale SpA, Fidel SpA and Teknocenter-Centro Servizi Administrativi Srl, their interests being 80% (Mikhaniki), 19% (Adtranz) and 1% (Fidel Group) respectively.

11
Subsequently, by letter of 14 June 1996, Makedoniko Metro informed the commission for major works, in response to questions concerning reports that members of the Fidel Group were insolvent and had gone into liquidation, that the companies within that group were no longer part of Makedoniko Metro and that, as of that date, the latter's members were Mikhaniki, Adtranz and Belgian Transport and Urban Infrastructure Consult (Transurb Consult), whose respective interests amounted to 80.65%, 19% and 0.35%.

12
Finding that Makedoniko Metro had substantially departed from the requirements laid down for the contract, the Minister took the view that the negotiations had failed and, by decision of 29 November 1996, terminated negotiations between the Greek State and Makedoniko Metro and called on Thessaloniki Metro to enter into negotiations as the new provisional contractor.

13
On 10 December 1996 Makedoniko Metro brought an action for annulment of the Minister's decision of 29 November 1996 before the Simvoulio tis Epikratias (Council of State, Greece). By judgment No 971 of 6 March 1998, the Council of State dismissed the action on the ground that Makedoniko Metro could not lawfully change its composition after tenders had been submitted and after having been chosen as provisional contractor, while also continuing to take part in the procedure at issue, and that, consequently, it was not entitled, with its new membership, to apply for annulment of the contested decision.

14
In addition, the applicants brought an action before the Diikitiko Protodikio Athinon (Administrative Court of First Instance, Athens) for damages against the Greek State for reparation of the damage allegedly suffered in the wake of the breakdown of negotiations and the failure to award the contract in question to Makedoniko Metro. By judgment of 30 April 1999, the Administrative Court, following the interpretation given by the Council of State, dismissed that action.

15
After the applicants appealed against that judgment to the Diikitiko Efetio Athinon (Administrative Court of Appeal, Athens), that court decided to stay the proceedings and refer to the Court of Justice for a preliminary ruling a question on the interpretation of Council Directive 93/37/EEC of 14 June 1993 concerning the coordination of procedures for the award of public works contracts (OJ 1993 L 199, p. 54) and of Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts (OJ 1989 L 395, p. 33), as amended by Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts (OJ 1992 L 209, p. 1) ( Directive 89/665).

16
Ruling on that question, the Court, in Case C-57/01 Makedoniko Metro and Mikhaniki [2003] ECR I-1091, held that Directive 93/37 does not preclude national rules which prohibit a change in the composition of a group consortium taking part in a procedure for the award of a public works contract or a public works concession which occurs after submission of tenders. The Court also held that in so far as a decision of a contracting authority adversely affects the rights conferred on a consortium by Community law in the context of a procedure for the award of a public contract, that consortium must be able to avail itself of the review procedures provided for by Council Directive 89/665.

17
On 23 January 1997 Makedoniko Metro also lodged a complaint with the Commission, which was registered as No 97/4188/P. In that complaint Makedoniko Metro criticised the Minister's decision of 29 November 1996 referred to above, and submitted that by failing to award it the contract to build the Thessaloniki metro the Hellenic Republic had failed to fulfil its obligations under the Community's public procurement legislation. Makedoniko Metro therefore called on the Commission, in its capacity as guardian of the treaties, to institute against the Hellenic Republic all appropriate proceedings and actions, in particular proceedings under Article 226 EC for failure to fulfil obligations, and to initiate the procedure under Article 3 of Directive 89/665, which allows the Commission, where, prior to a contract being concluded, it considers that a clear and manifest infringement has been committed during a public contract award procedure, to intervene with the competent authorities of the Member State and the contracting authority concerned so that appropriate measures may be taken in order that any infringement complained of may be rectified quickly.

18
By fax of 30 July 1997, the Commission called upon the Greek authorities to suspend approval of the result of the procurement procedure and signature of the contract in question with the new provisional contractor until it had finished investigating this case.

19
Makedoniko Metro's complaint was initially discussed at the Commission's meeting on 7 April 1998. The Commission pointed out at the time that the voluminous documents relating to the invitation to tender contained provisions which might give rise to differing interpretations by the bidders of the specific requirements to which they were subject. However, in view of the complexity of the procedure and of the tender documents, the Commission drew the conclusion that it could not be argued that the contracting authority had not allowed a genuinely competitive procedure to take place. In that context, the Commission considered that it was not possible to show that there had been a clear infringement of the principle of equal treatment, requiring the institution of infringement proceedings. The Commission also decided on that occasion to authorise a member of the Commission, Mr Monti, to contact the competent Greek authorities to explain the Commission's position on this matter, and to gather the comments and obtain the assurances of those authorities concerning their future policy on the matter.

20
By letter of 20 May 1998, before the Commission gave its final decision on what action should be taken on the complaint, the Commissioner, Mr Monti, called on the Greek authorities to take all necessary measures to see to it that invitations to tender and contract documents were drawn up in such a way as to avoid differing interpretations and ensure compliance with the principle of equal treatment. In that regard, he asked those authorities to ensure that the relevant rules were complied with and to take appropriate measures to avoid a recurrence of such a situation in the future.

21
The Greek authorities gave their answer to that letter on 26 June 1998. Makedoniko Metro submitted its comments on the letter in a letter dated 15 July 1998.

22
By letter of 30 July 1998 the Director-General of the Commission Directorate General (DG) for the Internal Market and Financial Services informed Makedoniko Metro that his officials would suggest to the Commission that the case be closed, unless the applicants were in a position to provide additional evidence to show there had been an infringement of Community public procurement law.

23
By decision of 20 August 1998 (not 27 August 1998 as the applicants stated in the application), the Commission decided to take no further action on the case.

24
By letters dated 10 September, 7 and 21 October and 25 November 1998, sent to the Commissioner, Mr Monti, the applicants submitted to the Commission some additional evidence concerning in particular the allegedly unlawful way in which the competent authority conducted the negotiations with Makedoniko Metro, the abovementioned judgment of the Greek Council of State, and a number of alleged technical deviations in Thessaloniki Metro's bid. That evidence was alleged to show there had been clear and significant infringements of Community law, in particular the principle of equal treatment, and therefore to justify the institution of infringement proceedings. In their letter of 25 November 1998 the applicants also asked to be informed of the action the Commission proposed to take to prevent the signature of a concession contract which in their view was unlawful and deviated to a considerable extent from the tender documents.

25
After examining the applicants' letters referred to above, the Director-General of the Directorate-General for the Internal Market and Financial Services informed the applicants by letter of 10 December 1998 that his officials considered that no new evidence [had] been brought to their attention which justified instituting new infringement proceedings in that case.

26
Finally, following a complaint submitted by the applicants to the European Ombudsman by letters of 25 September and 23 November 1998, the Ombudsman, in his decision of 30 January 2001, observed that the Commission had demonstrated maladministration by failing to provide the complainant with sufficient reasons for its decision to take no further action on the case and by depriving the complainant of the opportunity to put forward its point of view before the case was closed. However, he rejected Makedoniko Metro's complaints alleging, first, that the Commission's decision to close the case was based on political criteria without any legal basis and was not motivated by public interest and, second, that the time taken to investigate the complaint and inform the complainant of the results of that investigation was excessively long. Lastly, referring to the case-law of the Court of Justice, he pointed out that the Commission had broad discretion with regard to instituting infringement proceedings under Article 226 EC.

Procedure and forms of order sought

27
By application lodged at the Registry of the Court of First Instance on 3 July 2002, the applicants brought the present action.

28
By a separate document lodged at the Registry of the Court on 8 October 2002, the Commission raised an objection of inadmissibility under Article 114 of the Rules of Procedure of the Court.

29
The applicants submitted their observations on that objection on 16 December 2002. By a separate document lodged at the Registry of the Court the same day they applied for the adoption of measures of organisation of procedure concerning the production of certain documents by the Commission. The Commission submitted observations on that application on 7 January 2003.

30
In their application the applicants claim that the Court should:

─
declare the action admissible in its entirety;
declare the action admissible in its entirety;

─
order the Commission to pay:
order the Commission to pay:

─
to Mikhaniki the sums of EUR 23 578 050, with interest at the rate of 8% from 29 November 1996, or otherwise from [20] August 1998, and EUR 224 654 and EUR 60 000 000, both with interest for late payment at the rate of 8% from the lodging of the action;

─
to Mr Emfietzoglou, Chairman of Mikhaniki, EUR 15 000 000 with interest for late payment at the rate of 8% from the lodging of the action, as compensation for non-material damage;

─
to Mikhaniki EUR 1 025 839 598 with interest at the rate of 8% from the lodging of the present action, in respect of loss of earnings;

─
to Makedoniko Metro a total of EUR 110 754 352, 20% of that sum being for the benefit of Adtranz and 0.35% for Transurb Consult;

─
order the Commission to send a memorandum to all its departments in order to restore the name and reputation of Mikhaniki and its chairman Mr Emfietzoglou; order the Commission to add to the case-file and communicate to the applicant the minutes of the meetings of 7 April 1998 and 20 August 1988 and the decisions which were adopted at those meetings, together with the originals of the letters of Mr Mogg, Mr Monti and the President, Mr Prodi;
order the Commission to send a memorandum to all its departments in order to restore the name and reputation of Mikhaniki and its chairman Mr Emfietzoglou; order the Commission to add to the case-file and communicate to the applicant the minutes of the meetings of 7 April 1998 and 20 August 1988 and the decisions which were adopted at those meetings, together with the originals of the letters of Mr Mogg, Mr Monti and the President, Mr Prodi;

─
call as witnesses:
call as witnesses:

─
the European Ombudsman at the time, Mr Söderman,

─
the latter's assistants, Mr Harden and Mr Verheecke,

─
the Chairman of Mikhaniki, Mr Emfietzoglou,

─
whomever may be considered necessary after the documents sought have been lodged by the Commission;

─
order the Commission to pay all the costs.
order the Commission to pay all the costs.

31
In its objection of inadmissibility the Commission claims that the Court should:

─
dismiss the application as inadmissible,
dismiss the application as inadmissible,

─
order the applicants to pay the costs.
order the applicants to pay the costs.

32
In their observations on the objection of inadmissibility the applicants contend that the Court should:

─
dismiss the objection of inadmissibility;
dismiss the objection of inadmissibility;

─
in the alternative, join the objection of inadmissibility to the substance of the case;
in the alternative, join the objection of inadmissibility to the substance of the case;

─
order the Commission to pay the costs.
order the Commission to pay the costs.

Admissibility

33
Under Article 114(1) of the Rules of Procedure, where a party so requests, the Court may rule on the admissibility without going into the substance of the case. Under Article 114(3), the remainder of the proceedings is to be oral unless the Court decides otherwise. In the present case, the documents in the case-file provide sufficient information to enable the Court to rule on the request without opening the oral procedure.

Admissibility of the claim for compensation

Arguments of the parties

34
The Commission submits that an action for compensation before the Community courts cannot be founded on decisions adopted in the course of investigation of a complaint under the procedure laid down in Article 226 EC. In that regard, it points to the settled case-law of the Court of Justice and the Court of First Instance, according to which the Commission is not bound to institute infringement proceedings under Article 226 EC. Hence its decision not to institute such proceedings against a Member State does not constitute unlawful behaviour and cannot therefore give rise to non-contractual liability on the part of the Community.

35
As regards the complainant's position in respect of the procedure laid down in Article 226 EC, the Commission argues that persons who have lodged a complaint do not have the option of bringing an action before the Community judicature against any decision to take no further action on their complaint, nor do they have procedural rights comparable to those they may enjoy, in particular, in the context of proceedings brought under Regulation No 17 of the Council of 6 February 1962, First Regulation implementing Articles [81] and [82] of the Treaty (OJ, English Special Edition 1959-62, p. 87). It follows that Commission decisions not to institute infringement proceedings and to take no further action on a complaint cannot be unlawful in that respect and thus provide grounds for the admissibility of an action for compensation, even where the Commission has failed to provide adequate reasons for the decision to take no further action on the complaint and has not given the complainants sufficient time to put their point of view before taking that decision.

36
At any event, it is clear from the application that in seeking compensation the applicants are in essence basing their case on the fact that the Commission's contested measures, in their view, led to the loss of the contract in question with the Greek State, and not on the fact that those measures stated inadequate reasons or were adopted in breach of the rights of the defence. In addition, the administrative measures adopted by the Commission when dealing with a complaint do not influence or alter the nature of the action for infringement provided for in Article 226 EC. In that regard, the Commission's discretion in the matter excludes the right for individuals to require the Commission to adopt a specific position and to bring an action for annulment against its refusal to institute infringement proceedings or to base an action for compensation on that refusal.

37
Lastly, contrary to what the applicants assert several times in the application, the Commission argues that, as its decision not to institute infringement proceedings under Article 226 EC is not legally binding (Case 48/65 Lütticke v EEC Commission [1966] ECR 19), that decision cannot approve, much less impose, the Greek State's allegedly unlawful measure excluding Makedoniko Metro from the negotiations leading to the award of the contract for the construction of the Thessaloniki metro. That submission is therefore totally incorrect and manifestly inadmissible.

38
The applicants allege, first of all, that by deciding to take no further action on the complaint, the Commission infringed the principles and fundamental rules of Community law, both substantive and procedural, such as the principles of equal treatment, transparency, proportionality, sound administration, due care and legitimate expectations. The Commission was, in particular, in breach of its duty to ensure sound administration by infringing the applicants' right to be heard and informed and by failing to comply with the duty to state the reasons on which a decision is based, a breach which the Ombudsman recognised in his decision of 30 January 2001. For that reason, the applicants are applying for the Commission's decisions of 7 April and 20 August 1998, together with the minutes of the meetings at which those decisions were adopted, to be placed on the file. Such infringements can give rise to non-contractual liability on the part of the Community.

39
As regards the Commission's discretion as to whether or not to set in motion infringement proceedings under Article 226 EC, the applicants consider that this should not, as the Ombudsman pointed out in his decision of 30 January 2001, be regarded as a dictatorial or arbitrary power. Indeed, action taken by the Commission in the exercise of that discretion is not excluded from review by the Court (Case C-16/90 Nölle [1991] ECR I-5163, paragraph 12). In such cases, the Commission should observe the general principles of Community law, in particular the principle of due care stemming from the duty to ensure sound administration. In those circumstances, application of the principle of due care, together with respect for the right to be heard and compliance with the duty to state reasons, makes it possible to ensure the correctness of decisions taken by Community institutions and the lawfulness of their content.

40
The applicants go on to challenge the assertion that the complaint of 23 January 1997 related exclusively to institution of infringement proceedings against the Hellenic Republic under Article 226 EC. In that complaint, in addition to protesting against the Minister's decision of 29 November 1996, which was regarded as unlawful, and against the conduct of the Minister and the committees of the Ministry of Public Works, Makedoniko Metro requested the Commission, in its capacity as guardian of the treaties, a role conferred on it by Article 211 EC in particular, to adopt the measures needed in order to apply the principles and fundamental rules of public procurement and to apply Article 3 of Directive 89/665 in conjunction with Article 2 of that directive.

41
In conclusion, the applicants, restating the pleas and arguments contained in their application, consider that this action fulfils the conditions laid down in the second paragraph of Article 288 EC, which in their view does not provide for any specific restriction as to which persons are entitled to bring such an action. The application should therefore be declared admissible. In that regard, the non-binding nature of the measures adopted by the Commission during the investigation of the complaint and of the decision to take no further action on the case is irrelevant.

Findings of the Court

42
First of all, it should be pointed out that the applicants are seeking compensation for the damage they consider they have suffered, first, because of the Commission's failure to institute proceedings against the Hellenic Republic for infringement of Directives 89/665 and 93/37 and the general principles of law and, second, because of the Commission's failure to set in motion the procedure provided for in Article 3 of Directive 89/665. They argue that, by failing to institute such proceedings and set in motion that procedure and, in its capacity as guardian of the treaties, to adopt any measure that would make it possible to apply in this case the Community rules governing the award of public works contracts, the Commission exceeded the limits of its discretion and was guilty of a breach of the duty to take due care in dealing with the complaint and the duty to state reasons, capable of engaging the non-contractual liability of the Community.

43
As regards, first, the failure to institute infringement proceedings against the Hellenic Republic, it should be pointed out that, according to the case-law, since the Commission is not bound to commence infringement proceedings under Article 226 EC its decision not to institute such proceedings is not in any event unlawful, so that it cannot give rise to non-contractual liability on the part of the Community and the only conduct which might possibly be adduced as the source of damage is the conduct of the Member State concerned, in the present case the Greek State (order in Case C-72/90 Asia Motor France v Commission [1990] ECR I-2181, paragraph 13; judgment in Case T-571/93 Lefebvre and Others v Commission [1995] ECR II-2379, paragraph 61; order in Case T-201/96 Smanor and Others v Commission [1997] ECR II-1081, paragraph 30; order in Case T-361/99 Meyer v Commissionand EIB [2000] ECR II-2031, paragraph 13; and judgment in Case T-209/00 Lamberts v Ombudsman [2002] ECR II-2203, paragraph 53).

44
Consequently, a claim for compensation based on the Commission's decision not to commence infringement proceedings against a Member State is inadmissible ( Asia Motor France, cited in paragraph 43 above, paragraph 15, and Smanor and Others, cited in paragraph 43 above, paragraph 31).

45
That conclusion is not undermined by the applicants' argument that during the investigation of the complaint the Commission allegedly infringed general principles of law, in particular the applicants' procedural rights, such as the right to be heard or the duty to state reasons.

46
It should be pointed out that the procedural position of parties who have submitted a complaint to the Commission is fundamentally different in the case of a procedure under Article 226 EC from their position in the case of a proceeding under Regulation No 17. According to settled case-law, the Commission is not bound to initiate a procedure under Article 226 EC but has a discretion which excludes the right for individuals to require it to adopt a specific position (see, in particular, Case 247/87 Star Fruit v Commission [1989] ECR 291, paragraph 11, and the order in Case C-422/97 P Sateba v Commission [1998] ECR I-4913, paragraph 42). It follows that, in the case of a procedure under Article 226 EC, it is not open to persons who have lodged a complaint to bring an action before the Community judicature against a decision to take no further action on their complaint; nor do they have any procedural rights, comparable to those they may have in the case of a procedure under Regulation No 17, enabling them to require the Commission to inform them and to grant them a hearing (order in Case T-83/97 Sateba v Commission [1997] ECR II-1523, paragraph 32, upheld on appeal by the order in Sateba v Commission, cited above, paragraph 42).

47
It should also be noted that, as the applicants themselves accept, the findings contained in the Commission's decision not to take further action on Makedoniko Metro's complaint do not have the effect of resolving the dispute between the applicants and the competent national authority as to the lawfulness of the procedure for awarding the public works contracts initiated by that authority. The opinion notified in that decision is a factual element which the national court called upon to give a decision in the dispute may certainly take into account in the course of its examination of the case. However, findings resulting from an examination under Article 226 EC are not binding on national courts (order in Case T-83/97 Sateba v Commission, cited in paragraph 46 above, paragraph 41).

48
Second, the claim for compensation for the damage allegedly suffered by the applicants as a result of the Commission's failure to initiate the procedure provided for in Article 3 of Directive 89/665 is also inadmissible.

49
Article 3(1) of that directive provides that the Commission may invoke the procedure for which the following paragraphs provide when, prior to a contract being concluded, it considers that a clear and manifest infringement of Community provisions in the field of public procurement has been committed during a contract award procedure falling within the scope of Directive 93/37.

50
The clear wording of that provision, which neither derogates from nor replaces Article 226 EC, shows that only the Commission is allowed to use the procedure for which it provides. Since the choice not to make use of such power is not unlawful, it cannot give rise to non-contractual liability on the part of the Community. In fact, even when called on to use it the Commission retains the option of considering the complaint referred to it under Article 226 EC (see, to that effect, Case C-359/93 Commission v Netherlands [1995] ECR I-157, paragraphs 12 and 13; Case C-353/96 Commission v Ireland [1998] ECR I-8565, paragraph 22; order in Case T-83/97 Sateba v Commission, cited in paragraph 46 above, paragraphs 36 and 37, upheld on appeal by order in Case C-422/97 P Sateba v Commission, cited in paragraph 46 above, paragraph 32).

51
In the light of the above, the claim for compensation in this action must be dismissed as inadmissible. In those circumstances, it is not necessary to adopt the measures of organisation of procedure or to order the measures of inquiry proposed by the applicants.

The claim for directions to be issued

52
In their third head of claim the applicants request the Court to direct the Commission to send a memorandum to all its departments in order to restore the name and reputation of [Mikhaniki] and its chairman Mr ... Emfietzoglou.

53
It should be pointed out that the Community judicature may not give directions to a Community institution without encroaching upon the powers of the administration. That principle not only renders inadmissible, in an action for annulment, heads of claim seeking an order requiring a defendant institution to adopt the measures necessary for the enforcement of a judgment by which a decision is annulled, but it is also applicable, in principle, in proceedings in which the Court has unlimited jurisdiction (see, by analogy, Case T-156/89 Valverde Mordt v Court of Justice [1991] ECR II-407, paragraph 150).

54
That head of claim must therefore also be declared inadmissible.

55
In the light of all the preceding considerations, the application must be dismissed in its entirety as inadmissible.


Costs

56
Under Article 87(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. Since the applicants have been unsuccessful, they must be ordered to pay, in addition to their own costs, the costs of the Commission, as applied for in the latter's pleadings.

On those grounds,

THE COURT OF FIRST INSTANCE (Fourth Chamber)

hereby:

1.
Dismisses the application as inadmissible;

2.
Orders the applicants to pay the costs.

Luxembourg, 14 January 2004.

H. Jung

H. Legal

Registrar

President

1 –
Language of the case: Greek.
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