Commission of the European Communities v Hellenic Republic.
Date: 2009-11-12
23. The Commission alone is competent to decide whether it is appropriate to bring proceedings against a Member State for failure to fulfil its obligations and to determine the conduct or omission attributable to the Member State concerned on the basis of which those proceedings should be brought. It may therefore ask the Court to find that, in not having achieved, in a specific case, the result intended by the directive, a Member State has failed to fulfil its obligations (Joined Cases C‑20/01 and C‑28/01 Commission  v Germany  [2003] ECR I‑3609, paragraph 30, and the case-law cited). Accordingly, the repeal of Law 716/1977 and the adoption of a new law before expiry of the time-limit set in the reasoned opinion do not render the present action devoid of purpose.
24. Secondly, it must be pointed out that, in accordance with the case-law of the Court, Article 2(6) of Directive 89/665, the content of which is identical to that of Article 2(6) of Directive 92/13, cannot affect an action brought under Article 226 EC (Case C‑503/04 Commission  v Germany  [2007] ECR I‑6153, paragraph 34). Those directives, by requiring the Member States to take the measures necessary to ensure that decisions taken by the contracting authorities may be reviewed effectively, cannot be regarded as also regulating the relationship between the Member States and the Community and thus affecting the application of Article 226 EC (see, to that effect, Case C‑275/08 Commission  v Germany  [2009] ECR I‑0000, paragraphs 33 and 35).
26. Furthermore, it must be noted that, when the time-limit of two months prescribed in the reasoned opinion expired, that is to say, on 4 September 2006, the contract at issue had not run its full course, although that is the condition required under the settled case-law of the Court for the Commission’s action to be considered inadmissible (see, inter alia, Case C‑394/02 Commission  v Greece  [2005] ECR I‑4713, paragraph 18, and the case-law cited, and Case C‑237/05 Commission  v Greece  [2007] ECR I‑8203, paragraph 29).
37. In that regard, it is clear that, in accordance with the settled case-law of the Court, the principle of equal treatment entails the principle of transparency. Those principles, which constitute the basis of the Community directives on public procurement, mean, in particular, that tenderers, even potential tenderers, must generally be on an equal footing and have equality of opportunity in formulating the terms of their applications to take part and their tenders (see, to that effect, Case C‑470/99 Universale-Bau and Others  [2002] ECR I‑11617, paragraph 93, and Case C‑213/07 Michaniki  [2008] ECR I‑0000, paragraphs 44 and 45 and the case-law cited).
39. In addition, the Court has held that Article 4(2) of Directive 93/38, in prohibiting any discrimination between tenderers, also protects those who were discouraged from tendering because they were placed at a disadvantage by the procedure followed by a contracting entity (Case C‑16/98 Commission  v France  [2000] ECR I‑8315, paragraph 109).
51. In that regard, it is apparent from case-law that, while the Community directives on public procurement do not in theory preclude the examination of the tenderers’ suitability and the award of the contract from taking place simultaneously, the two procedures are nevertheless distinct and are governed by different rules (see, by analogy, Case 31/87 Beentjes  [1988] ECR 4635, paragraphs 15 and 16, and Case C‑532/06 Lianakis and Others [2008] ECR I‑251, paragraph 26).
52. The suitability of tenderers is to be checked by the authorities awarding contracts in accordance with the criteria of economic and financial standing and of technical capability (the ‘qualitative selection criteria’) referred to, in the present case, in Articles 30 and 31 of Directive 93/38 (see, by analogy, Beentjes , paragraph 17, and Lianakis and Others , paragraph 27).
53. By contrast, the award of contracts is based on the criteria set out, in the present case, in Article 34(1) of that directive, namely, the lowest price or the economically most advantageous tender (see, by analogy, Beentjes , paragraph 18, and Lianakis and Others , paragraph 28).
54. However, although in the latter case, as is attested by the use of the expression ‘for example’, Article 34(1) of Directive 93/38 does not set out an exhaustive list of the criteria which may be chosen by the contracting authorities, and therefore leaves it open to the authorities awarding contracts to select the criteria on which they propose to base their award of the contract, their choice is nevertheless limited to criteria aimed at identifying the tender which is economically the most advantageous (see, by analogy, Beentjes , paragraph 19; Case C‑19/00 SIAC Construction  [2001] ECR I‑7725, paragraphs 35 and 36; Case C‑513/99 Concordia Bus Finland  [2002] ECR I‑7213, paragraphs 54 and 59; Case C‑315/01 GAT  [2003] ECR I‑6351, paragraphs 63 and 64; and Lianakis and Others , paragraph 29).
55. Therefore, ‘award criteria’ do not include criteria that are not aimed at identifying the tender which is economically the most advantageous, but are instead essentially linked to the evaluation of the tenderers’ ability to perform the contract in question (see, by analogy, Lianakis and Others , paragraph 30).