Action brought on 7 July 2009 — Commission of the European Communities v Republic of Cyprus

(Case C-251/09)

2009/C 233/09

Language of the case: Greek

Parties

Applicant: Commission of the European Communities (represented by: C. Zadra and I. Khatzigiannis)

Defendant: Republic of Cyprus

Form of order sought

Pleas in law and main arguments

The Arkhi Ilektrikou Kiprou (Electricity Authority of Cyprus) is stated to have infringed Directives 93/38/EEC and 92/13/EEC in the course of the tendering procedure under reference number 40/2005 which related to a contract for the design, supply and construction of the fourth unit of the Vasilikos Power Station.

The Commission submits that the infringement of Articles 4(2) and 31(1) of Directive 93/38 is due to the grounds for rejection of the complainant’s tender and acceptance of that of the other tenderer on the basis of a criterion which was not referred to clearly in the call for tenders.

So far as concerns the infringement of Directive 92/13, a measure relating to procedure, the Commission submits (i) that, inasmuch as the contracting authority itself created by its conduct a state of uncertainty as to the interpretation to be given to the grounds which resulted in the rejection of the complainant’s tender, it infringed Directive 92/13 as interpreted in the light of the objective of effectiveness pursued by that directive, and (ii) that the contracting authority cannot give reasons for its decision by simply referring to the evaluation reports.

(1)  Council Directive 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).

(2)  Council Directive of 25 February 1992 coordinating the laws, regulations and administrative provisions relating to the application of Community rules on the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors (OJ 1992 L 76, p. 14).