CELEX: C2006/022/13
Language: en
Date: 2006-01-28 00:00:00
Title: Case C-399/05: Action brought on  15 November 2005  by the Commission of the European Communities against the Hellenic Republic

28.1.2006   
            
            
               EN
            
            
               Official Journal of the European Union
            
            
               C 22/7
            
         Action brought on 15 November 2005 by the Commission of the European Communities against the Hellenic Republic
   (Case C-399/05)
   (2006/C 22/13)
   Language of the case: Greek
   An action against the Hellenic Republic was brought before the Court of Justice of the European Communities on 15 November 2005 by the Commission of the European Communities, represented by M. Patakia, Commission Legal Adviser, and A.X.P. Lewis, of the Commission's Legal Service, with an address for service in Luxembourg.
   The Commission claims that the Court should:
   
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               declare that, because the Dimosia Epikhirisi Ilektrismou (Public Power Corporation; 'DEI') admitted to the final stage of the tender procedure which it had opened for the construction and bringing into operation of a thermal power station in Lavrio two companies which did not meet the relevant conditions in the invitation to tender and the tender documents, the Hellenic Republic has failed to fulfil its obligations under Article 4(2) of Directive 93/38/EC (1) and under the principles of transparency and of equal treatment of tenderers;
            
         
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               order the Hellenic Republic to pay the costs.
            
         Pleas in law and main arguments
   
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               The Commission received a complaint relating to the carrying out of, and in particular to the failure to observe tender conditions in, a DEI tendering procedure for the construction and bringing into operation of a thermal power station in Lavrio.
            
         
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               In light of the Court of Justice's case-law, the Commission submits that, for reasons of equality and transparency, DEI was obliged to reject the tenders of companies which did not meet conditions that DEI itself laid down in the invitation to tender and in the specification, that is to say possession of experience in the planning and management of turn-key contracts and the offer of maintenance of the gas turbine exclusively by its manufacturer.
            
         
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               The Commission considers that the content of those conditions is clear and that they should have been observed by DEI however strict they may be, so as to ensure equal treatment not only of the tenderers but also of interested parties who could have taken part in the tender procedure in question had they known that the contracting authority would adhere to conditions other than those which it itself had laid down by means of the invitation to tender.
            
         
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               Also, in the Commission's submission, the need for swift award of the contracts in question, which is invoked by the Greek authorities, does not justify the failure to observe during the tender procedure conditions which the contracting authority itself laid down.
            
         
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               The Commission considers that the Hellenic Republic has failed to fulfil its obligations under Article 4(2) of Directive 93/38/EC and under the principles of transparency and of equal treatment of tenderers.
            
         
      (1)  OJ No L 199, 9.8.1993, p. 84.