# C_2007297EN.01002101.xml

| 8.12.2007 | EN | Official Journal of the European Union | C 297/21 |
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8.12.2007

EN

Official Journal of the European Union

C 297/21

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Action brought on 13 September 2007 — Commission of the European Communities v Kingdom of Spain

(Case C-423/07)

(2007/C 297/35)

Language of the case: Spanish

Parties

Applicant: Commission of the European Communities (represented by: D. Kukovec, agent and M. Canal Fontcuberta, abogada)

Applicant:

Defendant: Kingdom of Spain

Defendant:

Form of order sought

| — | declare that, by not including, in the works to be awarded by concession in the concession notice and in the tendering specifications relating to the award of a public concession for the construction, maintenance and operation of the motorway links to Segovia and Ávila, and for the maintenance and operation of the Villalba-Adanero section of the same motorway, works which were subsequently awarded, the Kingdom of Spain has failed to fulfil its obligations under Article 3 and Article 11(3), (6), (7), (11) and (12) of Directive 93/37/EEC (1), and under the principles of the EC Treaty, in particular the principle of equality of treatment and non-discrimination; |
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declare that, by not including, in the works to be awarded by concession in the concession notice and in the tendering specifications relating to the award of a public concession for the construction, maintenance and operation of the motorway links to Segovia and Ávila, and for the maintenance and operation of the Villalba-Adanero section of the same motorway, works which were subsequently awarded, the Kingdom of Spain has failed to fulfil its obligations under Article 3 and Article 11(3), (6), (7), (11) and (12) of Directive 93/37/EEC (1), and under the principles of the EC Treaty, in particular the principle of equality of treatment and non-discrimination;

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| — | order Kingdom of Spain to pay the costs. |
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order Kingdom of Spain to pay the costs.

Pleas in law and main arguments

Under Royal Decree 1724/99 of 5 November the Ministry for Infrastructure and Transport awarded a public works concession for the construction, maintenance and operation of the following sections of toll motorway: the A-6 toll motorway link to Segovia, and the A-6 toll motorway link to Ávila, and for the maintenance and operation from 2018 of the Villalba-Adanero section of the A-6 toll motorway. In the context of awarding that concession, there were awarded many other works of which notice had not been given, to a value greater than the total value of the published works, and which were in part outside the geographical area of the concession.

First, the Commission claims that the Kingdom of Spain has infringed Article 3 of Directive 93/37 and consequently Article 11(3), (6), (7), (11) and (12) of the same directive by awarding works without prior public notice. The Commission states that all the works awarded should have been published in the Official Journal in accordance with the provisions of Directive 93/37.

Secondly, the Commission considers that there is no information either in the notice or in the tendering specifications which would enable tenderers to bid for works on sections other than the A-6 toll motorway links to Ávila and Segovia such as those which were subsequently awarded. The Commission considers therefore that the Spanish authorities have infringed the principle of equality of treatment by accepting a tender which manifestly did not comply with the essential conditions set out in the published notice and tendering specifications.

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(1)  Council Directive of 14 June 1993 concerning the coordination of procedures for the award of public works contracts (OJ 1993 L 199, p. 54).

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