4.5.2013

Official Journal of the European Union

C 129/8

(Case C-96/13)

2013/C 129/15

Language of the case: Greek

Parties

Applicant: European Commission (represented by: M. Patakia and A. Tokár)

Defendant: Hellenic Republic

Form of order sought

The Commission requests the Court to:

—declare that, by inserting terms in the open invitation to tender for the provision of services to support the production operation of OPS-IKA (the integrated information system of the Idrima Kinonikon Asfalision (Social Security Institution; ‘the IKA’)) and of the IKA’s website and to expand the databases, for a period of 30 months (invitation to tender No L30/POY/9/5-6-2009 — published in the Official Journal of the European Union under No 2009/S110-159234), under which, first, the tenderers had to have experience in the performance of similar contracts for a Greek insurance body and, second, experience of the subcontractors could not establish experience of the tenderers, the Hellenic Republic has failed to fulfil its obligations under Article 2, and Articles 44(2) and 48 in conjunction with Article 2, of Directive 2004/18/EC; (<a id="ntc1-C_2013129EN.01000801-E0001" href="#ntr1-C_2013129EN.01000801-E0001"> (<span class="super">1</span>)</a>

—order the Hellenic Republic to pay the costs.

Pleas in law and main arguments

1.The pleaded infringement of Articles 44(2) and 48 of Directive 2004/18, in conjunction with Article 2, concerns the tender procedure of the IKA, as contracting authority, relating to the provision of services to support the production operation of OPS-IKA (the integrated information system of the IKA) and of the IKA’s website and to expand the databases.

2.The Commission considers that the term of the invitation to tender requiring experience in achieving an integrated information system for a social security institution in Greece constitutes a geographical condition that infringes the principles of equal treatment and non-discrimination as laid down in Articles 2, 44(2) and 48 of Directive 2004/18.

3.It is noted that, in their responses to the Commission’s reasoned opinion, the Greek authorities assumed the obligation to make all the changes in accordance with the Commission’s complaint, accepting in essence the alleged infringement.

4.Also, the Commission considers that the term of the invitation to tender which provides that experience of the tenderer’s subcontractors does not establish experience of the tenderer infringes Article 48 of Directive 2004/18 since, as a result of that term, tenderers cannot rely on third parties’ experience in order to demonstrate that they have the required technical ability to perform the contract concerned.

5.In their response, the Greek authorities gave the commitment that the tender documentation for the new procurement procedure would expressly provide for the possibility for economic operators submitting tenders to rely on the relevant experience of third-party entities such as subcontractors, accepting in essence also the abovementioned second complaint of the Commission.

6.Nevertheless, the Greek authorities failed to set a specific date for a new invitation to tender and instead decided to extend the duration of the previous contract, invoking grounds relating to the internal legal order.

7.The Commission therefore established that the pleaded infringement of the aforesaid provisions of Directive 2004/18 is continuing, without the grounds invoked being capable of justifying the infringement, and brought an action for declaration of that infringement before the Court of Justice.

(<span class="super">1</span>) Language of the case: Greek.