Official Journal of the European Union

(Case C-199/07) (<span class="super">1</span>)

(Failure of a Member State to fulfil obligations - Public procurement - Directive 93/38/EEC - Contract notice - Consultancy project - Criteria for automatic exclusion - Qualitative selection and award criteria)

2010/C 11/02

Language of the case: Greek

Parties

Applicant: Commission of the European Communities (represented by: M. Patakia and D. Kukovec, acting as Agents)

Defendant: Hellenic Republic (represented by: D. Tsagkaraki, acting as Agent, and by K. Christodoulou, dikigoros)

Re:

Failure of a Member State to fulfil obligations — Infringement of Articles 4(2), 31(1) and (2) and 34(1)(a) of Council Directive 93/38/EEC of 14 June 1993 coordinating the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors (OJ 1993 L 199, p. 84) and of Articles 12 and 49 EC — Selection of candidates for a restricted or negotiated procedure — Criteria for exclusion

Operative part of the judgment

The Court:

1.Declares that, by reason, firstly, of the exclusion, by virtue of Section III, point 2.1.3(b), second paragraph, of the contract notice in question issued by ERGA OSE on 16 October 2003, numbered 2003/S 205-185214 and 2003/S 206-186119, of foreign consultancy firms or consultants who had submitted an expression of interest in ERGA OSE tendering procedures in the six months preceding the date of their expression of interest in the current competition and who had declared qualifications corresponding to certificate categories different from those now required and, secondly, of the failure to distinguish in Section IV, point 2, of that notice between qualitative selection criteria and award criteria for the contract in question, the Hellenic Republic has failed to fulfil its obligations under Articles 4(2) and 34(1)(a) of Council Directive 93/38/EEC of 14 June 1993 coordinating the procurement procedures of entities operating in the water, energy, transport and telecommunications.

2.Dismisses the remainder of the application.

3.Orders the Commission of the European Communities and the Hellenic Republic to bear their own costs.

* * *

(<span class="super">1</span> OJ C 197, 2.8.2008).