Action brought on 17 December 2010 — European Commission v Hellenic Republic

(Case C-601/10)

2011/C 63/41

Language of the case: Greek

Parties

Applicant: European Commission (represented by: M. Patakia and D. Kukovec)

Defendant: Hellenic Republic

Form of order sought

Pleas in law and main arguments

The Commission submits that, given that (i) the abovementioned municipalities, as local authorities, are contracting authorities within the meaning of Article 1(b) of Directive 92/50 and Article 1(9) of Directive 2004/18, (ii) contracts for pecuniary interest relating to urban planning services are involved (Article 8 of, in conjunction with category 12 of Annex I A to, Directive 92/50; and Article 20 of, in conjunction with category 12 of Annex II A to, Directive 2004/18) and (iii) the estimated value of each contract complained of exceeds the thresholds prescribed in Article 7 of Directive 92/50 and Article 7 of Directive 2004/18, the contracts in dispute fall within the scope of those directives.

(i)     Infringement of Articles 8 and 11(3) of Directive 92/50

As regards the disputed contracts for additional services that were awarded by the Municipality of Kassandra, the Commission observes that the contracting authority elected for the direct-award procedure without prior publication of a contract notice whereas the conditions, laid down in Articles 8 and 11(3)(e) of Directive 92/50, that allow recourse to that exceptional procedure and are applicable to the contracts in question were not met. More specifically, the condition requiring that there be exceptional circumstances was not met for any of the disputed contracts for additional services.

In the alternative, the Commission states that even if the conditions for the exception under Article 11(3)(e) of Directive 92/50 were met, the amount of the contracts awarded for additional services exceeds the limit, laid down by the directive, of 50 % of the amount of the original contract.

(ii)     Infringement of Articles 20 and 31(4) of Directive 2004/18

As regards the disputed contracts for additional services that were awarded by the Municipalities of Vasilika, Egnatia and Arethousa, the Commission observes that the contracting authorities elected for the direct-award procedure without prior publication of a contract notice whereas the conditions, laid down in Articles 20 and 31(4)(a) of Directive 2004/18, that allow recourse to that exceptional procedure and are applicable to the contracts in question were not met. More specifically, the condition requiring that there be exceptional circumstances was not met for any of the disputed contracts for additional services.

In the alternative, the Commission states that even if the conditions for the exception under Article 31(4)(a) of Directive 2004/18 were met, the amount of the contracts awarded for additional services exceeds the limit, laid down by the directive, of 50 % of the amount of the original contract.

As to the assertion of the Hellenic Republic that the procedure which was followed for the award of the contracts complained of was consistent with the national legal framework in force at the time, the Commission observes that the procedure which was followed was contrary to Directive 92/50 which had already been transposed into Greek law at the time when the foregoing contracts were entered into (and to Directive 2004/18, introduced subsequently). In any event, the Commission states that the procedure in question was not compatible with the national legal framework invoked either.

Given that the Member States may not plead internal circumstances in order to justify a failure to comply with obligations and time-limits resulting from Community law, the Commission considers that, by failing to ensure the adoption and effective application of the measures that are necessary to comply with the requirements of Community law, the Hellenic Republic has failed to fulfil its obligations under Articles 8 and 11(3) of Directive 92/50 and Articles 20 and 31(4) of Directive 2004/18.

(1)  OJ L 209, 24.7.1992, p. 1.

(2)  OJ L 134, 30.4.2004, p. 114.