Case C-485/06: Action brought on 24 November 2006 — Commission of the European Communities v Federal Republic of Germany
Date: 2006-12-30
Institutions: Court of Justice
Subjects: European Commission, Germany, action for failure to fulfil an obligation, fight against crime, illegal migration, national implementing measure, organised crime, transit

30.12.2006

EN

Official Journal of the European Union

C 326/49

Form of order sought

Action brought on 24 November 2006 — Commission of
the European Communities v Portuguese Republic

— declare that, by retaining in force Article 7(2) of Law
2955/2001, and by means of the Joint Ministerial Decisions
(DI6a/ik 38611 and DI6a/ik 38609 of 12 April 2005)
implementing that provision,
the Hellenic Republic has
its obligation flowing from Article 6(3) of
failed to fulfil
Directive 93/36/EEC (1) coordinating procedures for
the
award of public supply contracts and its obligation, as laid
down by the case-law of the Court of Justice of the Euro-
pean Communities, to ensure effective and fair competition;

Parties

(Case C-482/06)

(2006/C 326/100)

Language of the case: Portuguese

— order the Hellenic Republic to pay the costs.

Applicant: Commission of the European Communities (repre-
sented by: E. Montaguti and G. Braga da Cruz, acting as Agents)

Pleas in law and main arguments

The Commission received a complaint relating to the provision
of Greek legislation which has placed all material for medical
use into categories and set a specific maximum price for each
category. That provision, in conjunction with the joint minis-
terial decisions implementing it, constitutes a legislative frame-
work which allows the direct award of public supply contracts
for whole groups of the foregoing products which are classified
as not comparable.

In the light of the case-law of the Court of Justice, the Commis-
sion considers that
the legislative framework in question is
contrary to Article 6(3) of Directive 93/36 coordinating proce-
dures for the award of public supply contracts and to the obliga-
tion to ensure effective and fair competition. Inasmuch as that
provision is in the nature of an exception, it must be interpreted
narrowly and it is not possible to allow direct awards for whole
categories of products. Also, contracting authorities must make
sure that effective competition is preserved and ensure transpar-
ency in the public supply field, which is not possible with direct
awards, apart from the exceptional cases laid down in Article 6
(3) of Directive 93/36.

the

existence of

The Greek authorities did not contest the Commission's submis-
sions or
and
announced their intention to amend the legislative provision at
issue. Nevertheless, no such amendment had been made known
up until the date on which the action was brought.

the alleged infringement

The Commission consequently considers
the Hellenic
Republic has failed to fulfil its obligation under Article 6(3) of
Directive 93/36 and its obligation to ensure effective and fair
competition.

that

(1) OJ No L 199, 9.8.1993, p. 1.

Parties

Defendant: Portuguese Republic

Form of order sought

— a declaration that, by failing to adopt (all) the laws, regula-
tions and administrative provisions necessary to comply
with Directive 2003/98/EC (1) of the European Parliament
and of the Council of 17 November 2003 on the re-use of
public sector information or,
in any event, by failing to
communicate those provisions to the European Commission,
the Portuguese Republic has failed to fulfil
its obligations
under Article 12 of that directive;

— an order that the Portuguese Republic should pay the costs.

Pleas in law and main arguments

The period prescribed for transposition of the directive into
national law expired on 1 July 2005.

(1) OJ 2003 L 345, p. 90.

Action brought on 24 November 2006 — Commission of
the European Communities v Federal Republic of Germany

(Case C-485/06)

(2006/C 326/101)

Language of the case: German

Applicant: Commission of the European Communities (repre-
sented by: M. Condou and W. Bogensberger, acting as Agents)

Defendant: Federal Republic of Germany

C 326/50

EN

Official Journal of the European Union

30.12.2006

Form of order sought

Pleas in law and main arguments

The applicant claims that the Court should:

— declare that, by failing to adopt the laws, regulations and
administrative provisions necessary to implement Council
Directive 2002/90/EC of 28 November 2002 defining the
facilitation of unauthorised entry, transit and residence (1),
or, in any event, by not communicating those provisions to
the Commission, the Federal Republic of Germany has failed
to fulfil its obligations under that directive;

— order the Federal Republic of Germany to pay the costs.

Pleas in law and main arguments

The period for
December 2004.

implementing the Directive expired on 5

(1) OJ 2002 L 328, p. 17.

Action brought on 27 November 2006 — Commission of
the European Communities v Hellenic Republic

(Case C-489/06)

(2006/C 326/102)

Language of the case: Greek

Parties

Applicant: Commission of the European Communities (repre-
sented by: M. Patakia and X. Lewis)

Defendant: Hellenic Republic

Form of order sought

— declare that, by rejecting tenders in respect of medical
devices bearing the CE certification marking, without, in any
event, the competent contracting authorities of Greek hospi-
tals having followed the procedure set out
in Directive
93/42/EEC, the Hellenic Republic has failed to fulfil its obli-
gations under Article 8(2) of Directive 93/36/EEC of 14
June 1993 (1) coordinating procedures for the award of
public supply contracts and Articles 17 and 18 of Council
Directive 93/42/EEC of 14 June 1993 (2)
concerning
medical devices;

— order the Hellenic Republic to pay the costs.

The Commission received a complaint relating to the phenom-
enon of rejection of medical devices, in the context of calls for
competition for supplies to public hospitals in Greece, on
grounds relating to the ‘general sufficiency and safety of use’
thereof, notwithstanding their certification with the CE marking,
and without, in any event, the procedure provided for in Direc-
tive 93/42/EEC concerning medical devices being followed.

Under Directive 93/36/EEC coordinating procedures for the
award of public supply contracts, the tender procedures must be
conducted on the basis of the relevant national technical stan-
dards implementing European standards, of European technical
approvals or of common technical specifications. The Commis-
sion considers that, by deciding in the instances at issue that the
CE marking did not constitute an appropriate and binding guar-
antee of the suitability of the products in the tenders, without
any of the prescribed exceptions which justify divergence from
the directive's provisions being applicable, the Greek contracting
authorities infringed the obligations owed by them in that
regard under Article 8(2).

At the same time, the Commission points out an infringement
of Directive 93/42/EEC concerning medical devices, which lays
down specific and exclusive procedures for certifying such
devices and placing them on the market, as well as for
contesting their suitability. The information available to the
Commission reveals continual breach, by the competent Greek
authorities which have rejected tenders, of the legal procedures
for checking the suitability of medical devices. None of the
stages of the procedure provided for in Article 18 of the direc-
tive was observed where the correctness of certification —
pursuant to Article 17 of the directive — with the CE marking
was disputed.

Also,
in the Commission's submission, the Greek authorities'
claim that the measures which they have taken to eliminate the
abovementioned phenomenon are sufficient is contradicted by
the very facts and, in any event, in accordance with the Court of
Justice's case-law, the existence of national procedures which are
designed to deal with every infringement relating to public
procurement does not justify infringement of the relevant Com-
munity rules by the Member State.

The Commission considers therefore that the Hellenic Republic
has infringed its obligations under Directive 93/36/EEC, in par-
ticular Article 8(2), and under Directive 93/42/EEC, in particular
Articles 17 and 18.

(1) OJ No L 199, 9.8.1993, p. 1.
(2) OJ No L 169, 12.7.1993, p. 1.