Official Journal of the European Union

C 317/25

(Case C-466/10)

()

2010/C 317/44

Language of the case: Greek

Parties

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

Defendant: Hellenic Republic

Form of order sought

The Court is asked to:

—declare that, by applying a negotiated procedure, without prior publication of a contract notice, in connection with the handling of dangerous medical waste of an infectious nature from health establishments falling under the responsibility of the First D.Y.P.E. (Regional Health Authority) of Attiki, the Hellenic Republic has infringed its obligations under Article 28 of Directive 2004/18/EC [of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts] inasmuch as none of the conditions governing the derogations provided for in Article 31 of the Directive is satisfied, in particular the conditions of Article 31(1)(c), which justify a departure from the general rule and application of the exceptional procedure provided for by the said article;

—order the Hellenic Republic to pay the costs.

Pleas in law and main arguments

1.Following a complaint submitted to it, the European Commission examined the invitation issued by the Committee for Health Supplies regarding participation in a negotiated tendering procedure, without prior publication of a contract notice, in connection with the handling of dangerous medical waste of an infectious nature from health establishments falling under the responsibility of the First Regional Health Authority of Attiki.

2.The Commission points out that the publication of a contract notice with clearly defined conditions is required as a general rule, whereas the negotiated procedure without prior publication of a contract notice is allowed only as an exception, in very specific circumstances which are defined in Articles 30 and 31 of Directive 2004/18/EC and which should be interpreted restrictively, while the burden of proving that there are actually exceptional circumstances justifying a derogation is borne by those relying on the provisions in question.

3.In that connection, the Commission considers that, on the basis of the invitation in question, it appears that, although the contracting authority availed itself of the exceptional procedure provided for in Article 31(1)(c) of Directive 2004/18/EC, it has not shown that the conditions laid down in that provision were satisfied and justified application of the procedure in question.

4.The Commission considers that by, applying the negotiated procedure without prior publication of a contract notice, the contracting authority infringed its obligations under Article 28 of the directive, in so far as none of the conditions governing the derogation provided for in Article 31 of the directive was satisfied and in particular the conditions of Article 31(1)(c), which justify a departure from the general rule and application of the exceptional procedure provided for in the said article.