Case C-199/07: Action brought on 12 April 2007 — Commission of the European Communities v Hellenic Republic
Date: 2007-05-26
Institutions: Court of Justice
Subjects: Greece, action for failure to fulfil an obligation, admission to examinations, energy production, means of public conveyance, public contract, telecommunications, tendering

C 117/20

EN

Official Journal of the European Union

26.5.2007

Questions referred

1. Is Commission Regulation No 314/2002 (1) invalid in the
light of Article 15 of Council Regulation No 1260/2001 on
the markets in the sugar
the common organisation of
sector (2) and in the light of the principles of proportionality
and non-discrimination,
for
in that
calculation of the contribution on production, for the exclu-
sion from the financing requirements of those quantities of
sugar contained in processed products, which are exported
without benefit of an export refund?

it does not provide,

2. In the event that the answer to that question is in the nega-

tive:

Is Regulation No 1686/2005 (3)
invalid in the light of
Commission Regulation No 314/2002 and of Article 15 of
Council Regulation No 1260/2001 and of the principle of
proportionality, in that it fixes a contribution on production
for sugar which is calculated on the basis of an ‘average loss’
per tonne exported, which does not take account of the
quantities exported without a refund, although those same
quantities are included in the total used for evaluation of the
total loss to be financed?

(1) Commission Regulation (EC) No 314/2002 of 20 February 2002
laying down detailed rules for the application of the quota system in
the sugar sector (OJ 2002 L 50, p. 40).

(2) Council Regulation (EC) No 1260/2001 of 19 June 2001 on the
common organisation of the markets in the sugar sector (OJ 2001
L 178, p. 1).

(3) Commission Regulation (EC) No 1686/2005 of 14 October 2005
setting the production levies and the coefficient for the additional
levy in the sugar sector for the 2004/05 marketing year (OJ 2005
L 271, p. 12).

Action brought on 3 April 2007 — Commission of the
European Communities v Federal Republic of Germany

(Case C-192/07)

(2007/C 117/33)

Language of the case: German

Parties

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

Defendant: Federal Republic of Germany

Form of order sought

— declare that, by not adopting the laws, regulations and
administrative provisions necessary to implement Council
Directive 2003/86/EC of 22 September 2003 on the right
to family reunification (1), or, by not informing the Commis-
sion of such provisions, 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

period

The
prescribed
2003/86/EC expired on 3 October 2005.

for

transposition

of Directive

(1) OJ 2003 L 251, p. 12.

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 (repre-
sented by: M. Patakia and D. Kukovec)

Defendant: Hellenic Republic

Form of order sought

— declare that, by introducing de facto an additional criterion
for automatic exclusion beyond those which are expressly
in Article 31(2) of Council Directive
provided for
93/38/EEC (1) of 14 June 1993 coordinating the procure-
ment 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;

The applicant claims that the Court should:

— order the Hellenic Republic to pay the costs.

26.5.2007

EN

Official Journal of the European Union

C 117/21

Pleas in law and main arguments

connection with

The Commission received a complaint concerning irregularities
in
by
design
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’.

announced

contest

a

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 discri-
in breach of
mination against
Article 4(2) of Directive 93/38/EEC.

foreign consultancy firms,

The Commission also submits that that condition in the fore-
going 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 competi-
tion 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 elimi-
nate the infringement alleged against it, since it is the misappli-
cation of
the relevant Community provisions by the Greek
authorities that is at issue, and not a failure adequately to trans-
pose them into Greek law.

the Commission submits

Consequently,
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 qualifica-
tions and Articles 12 and 49 EC.

that

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