# C_2007117EN.01002002.xml

| 26.5.2007 | EN | Official Journal of the European Union | C 117/20 |
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26.5.2007

EN

Official Journal of the European Union

C 117/20

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Action brought on 12 April 2007 — Commission of the European Communities v Hellenic Republic

(Case C-199/07)

(2007/C 117/34)

Language of the case: Greek

Parties

Applicant: Commission of the European Communities (represented by: M. Patakia and D. Kukovec)

Applicant:

Defendant: Hellenic Republic

Defendant:

Form of order sought

| — | declare that, by introducing de facto an additional criterion for automatic exclusion beyond those which are expressly provided for in Article 31(2) of Council Directive 93/38/EEC (1) of 14 June 1993 coordinating the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors, to the detriment of foreign consultancy firms, and by failing to distinguish in the contest in question between qualitative selection criteria and award criteria, the Hellenic Republic has failed to fulfil obligations flowing from Community legislation on public procurement, more specifically Articles 4(2), 31(1) and (2) and 34(1)(a) of Directive 93/38/EEC, as interpreted by the Court of Justice of the European Communities, the principle of mutual recognition of formal qualifications which is governed by Community law on public procurement, and Articles 12 and 49 of the Treaty; |
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declare that, by introducing de facto an additional criterion for automatic exclusion beyond those which are expressly provided for in Article 31(2) of Council Directive 93/38/EEC (1) of 14 June 1993 coordinating the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors, to the detriment of foreign consultancy firms, and by failing to distinguish in the contest in question between qualitative selection criteria and award criteria, the Hellenic Republic has failed to fulfil obligations flowing from Community legislation on public procurement, more specifically Articles 4(2), 31(1) and (2) and 34(1)(a) of Directive 93/38/EEC, as interpreted by the Court of Justice of the European Communities, the principle of mutual recognition of formal qualifications which is governed by Community law on public procurement, and Articles 12 and 49 of the Treaty;

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| — | order the Hellenic Republic to pay the costs. |
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order the Hellenic Republic to pay the costs.

Pleas in law and main arguments

The Commission received a complaint concerning irregularities in connection with a design contest announced by ERGA OSA AE in 2003 for ‘Studies relating to building and electrical-engineering works and installations — first phase of the group of stations in the Thriasio Plain’.

In light of the Court's case-law, the Commission submits that the condition for consultancy firms' participation in the design contest which envisages their grading, in accordance with the Greek system, in classes, and indeed in the ‘specified ’classes, introduces de facto a ground of exclusion beyond the grounds of exclusion which are expressly mentioned in Article 31(2) of Directive 93/38/EEC, and amounts in some instances to discrimination against foreign consultancy firms, in breach of Article 4(2) of Directive 93/38/EEC.

The Commission also submits that that condition in the foregoing notice of competition infringes the principle of mutual recognition of diplomas, certificates or other evidence of formal qualifications and Articles 12 and 49 EC.

The Commission further contends that the notice of competition does not separate the selection and award stages and confuses the selection criteria with the award criteria, in breach of Articles 31 and 34 of Directive 93/38/EEC.

Finally, the Commission contends that the repeal, relied on by the Greek authorities, of a law previously in force did not eliminate the infringement alleged against it, since it is the misapplication of the relevant Community provisions by the Greek authorities that is at issue, and not a failure adequately to transpose them into Greek law.

Consequently, the Commission submits that the Hellenic Republic has failed to fulfil its obligations under Articles 4(2), 31(1) and (2) and 34(1)(a) of Directive 93/38/EEC and has infringed the principle of mutual recognition of formal qualifications and Articles 12 and 49 EC.

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(1)  OJ L 199, 9.8.1993, p. 84.

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