# C_2009044EN.01001102.xml

| 21.2.2009 | EN | Official Journal of the European Union | C 44/11 |
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21.2.2009

EN

Official Journal of the European Union

C 44/11

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Judgment of the Court (Grand Chamber) of 16 December 2008 (reference for a preliminary ruling from the Simvoulio tis Epikratias — Greece) — Michaniki AE v Ethniko Simvoulio Radiotileorasis, Ipourgos Epikratias

(Case C-213/07) (1)

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(Public works contracts - Directive 93/37/EEC - Article 24 - Grounds for excluding participation in a contract - National measures establishing an incompatibility between the public works sector and that of the media)

(2009/C 44/18)

Language of the case: Greek

Referring court

Simvoulio tis Epikratias

Parties to the main proceedings

Applicant: Michaniki AE

Applicant:

Defendants: Ethniko Simvoulio Radiotileorasis, Ipourgos Epikratias

Defendants:

Interveners in support of the defendants: Elliniki Technodomiki Techniki Ependitiki Viomichaniki AE, successor in law to Pantechniki AE, Sindesmos Epikhiriseon Periodikou Tipou

Interveners in support of the defendants:

Re:

Reference for a preliminary ruling — Simvoulio tis Epikratias — Interpretation of Article 24 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) — Question of whether or not the list of grounds for excluding a contractor from participation in the contract is exhaustive

Operative part of the judgment

| (1) | The first paragraph of Article 24 of Council Directive 93/37/EEC of 14 June 1993 concerning the coordination of procedures for the award of public works contracts, as amended by European Parliament and Council Directive 97/52/EC of 13 October 1997, must be interpreted as listing exhaustively the grounds based on objective considerations of professional quality which are capable of justifying the exclusion of a contractor from participation in a public works contract. However, that directive does not preclude a Member State from providing for further exclusionary measures designed to ensure observance of the principles of equal treatment of tenderers and of transparency, provided that such measures do not go beyond what is necessary to achieve that objective; |
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(1)

The first paragraph of Article 24 of Council Directive 93/37/EEC of 14 June 1993 concerning the coordination of procedures for the award of public works contracts, as amended by European Parliament and Council Directive 97/52/EC of 13 October 1997, must be interpreted as listing exhaustively the grounds based on objective considerations of professional quality which are capable of justifying the exclusion of a contractor from participation in a public works contract. However, that directive does not preclude a Member State from providing for further exclusionary measures designed to ensure observance of the principles of equal treatment of tenderers and of transparency, provided that such measures do not go beyond what is necessary to achieve that objective;

| (2) | Community law must be interpreted as precluding a national provision which, whilst pursuing the legitimate objectives of equal treatment of tenderers and of transparency in procedures for the award of public contracts, establishes an irrebuttable presumption that the status of owner, partner, main shareholder or management executive of an undertaking active in the media sector is incompatible with that of owner, partner, main shareholder or management executive of an undertaking which contracts with the State or a legal person in the public sector in the broad sense to perform a works, supply or services contract. |
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(2)

Community law must be interpreted as precluding a national provision which, whilst pursuing the legitimate objectives of equal treatment of tenderers and of transparency in procedures for the award of public contracts, establishes an irrebuttable presumption that the status of owner, partner, main shareholder or management executive of an undertaking active in the media sector is incompatible with that of owner, partner, main shareholder or management executive of an undertaking which contracts with the State or a legal person in the public sector in the broad sense to perform a works, supply or services contract.

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(1)  OJ C 140, 23.6.2007.

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