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Cite as: [2009] EUECJ C-199/7_O, [2009] EUECJ C-199/07_O

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OPINION OF ADVOCATE GENERAL

Sharpston

delivered on 9 July 2009 (1)

Case C-199/07

Commission of the European Communities

Hellenic Republic

(Treaty infringement proceedings Public procurement Procedures of entities operating in the water, energy, transport and telecommunications sectors Criteria for the exclusion of candidates)

In this case which concerns a particular procurement procedure for design and consultancy services organised by the Greek railway authority, the Commission alleges that Greece is in breach of its obligations under Council Directive 93/38/EEC ('the Directive'), (2) the principle of equal treatment embodied in Article 12 EC, Article 49 EC which guarantees the freedom to provide services within the Community, and the principle of mutual recognition of professional qualifications.

Relevant Community legislation

Article 12 EC prohibits discrimination on the grounds of nationality.

Article 49 EC prohibits restrictions on the freedom to provide services in respect of nationals who are established in a Member State other than that of the person for whom the services are intended.

The Directive

The Directive coordinates the procurement procedures of entities which are public authorities or public undertakings (3) operating in the water, energy, transport and telecommunications sectors.

The Directive provides for three types of procedure:

'open procedures', in which all interested suppliers, contractors or service providers may submit tenders;

'restricted procedures', in which only candidates invited by the contracting entity may submit tenders;

'negotiated procedures', in which the contracting entity consults suppliers, contractors or service providers of its choice and negotiates the terms of the contract with one or more of them. (4)

'Design contests' are defined as national procedures which enable a contracting entity to acquire a plan or design selected by a jury after having been put out to competition. (5)

Article 4(1) provides that when organising, inter alia, design contests, contracting entities must apply procedures which are adapted to the provisions of the Directive. Article 4(2) states: 'Contracting entities shall ensure that there is no discrimination between different suppliers, contractors or service providers.'

Contracts awarded by entities carrying out activities in the transport sector where the estimated value (net of VAT) is not less than EUR 400 000 in the case of supply and service contracts or EUR 5 000 000 in the case of works contracts fall within the scope of the Directive. (6)

Articles 30 to 38 (Chapter V of the Directive) cover the qualification, the selection and the award aspects of a procurement procedure. Article 31 provides:

'1. Contracting entities which select candidates to tender in restricted procedures or to participate in negotiated procedures shall do so according to objective criteria and rules which they lay down and which they shall make available to interested suppliers, contractors or service providers.

2. The criteria used may include the criteria for exclusion specified in Article 23 of Directive 71/305/EEC and in Article 20 of Directive 77/62/EEC. (7)

3. The criteria may be based on the objective need of the contracting entity to reduce the number of candidates to a level which is justified by the need to balance the particular characteristics of the contract award procedure and the resources required to complete it. The number of candidates selected must, however, take account of the need to ensure adequate competition.'

The criteria on which contracting entities are to base the award of contracts are set out in Article 34, the relevant paragraphs of which provide:

'1. Without prejudice to national laws, regulations or administrative provisions on the remuneration of certain services, the criteria on which the contracting entities shall base the award of contracts shall be:

(a) the most economically advantageous tender, involving various criteria depending on the contract in question, such as: delivery or completion date, running costs, cost-effectiveness, quality, aesthetic and functional characteristics, technical merit, after-sales service and technical assistance, commitments with regard to spare parts, security of supplies and price; or

(b) the lowest price only.

2. In the case referred to in paragraph 1(a), contracting entities shall state in the contract documents or in the tender notice all the criteria which they intend to apply to the award, where possible in descending order of importance.'

Directive 92/13/EEC

Council Directive 92/13/EEC (8) provides that Member States must take the measures necessary to ensure that decisions taken by contracting entities may be reviewed effectively on the grounds that such decisions have infringed Community law in the procurement field or national rules implementing that law. (9) Article 2(6) of Directive 92/13 provides:

'The effects of the exercise of the powers referred to in paragraph 1 on a contract concluded subsequent to its award shall be determined by national law. Furthermore, except where a decision must be set aside prior to the award of damages, a Member State may provide that, after the conclusion of a contract following its award, the powers of the body responsible for the review procedures shall be limited to awarding damages to any person harmed by an infringement.'

Background to the infringement proceedings

The contested procedure

The following facts are uncontested.

On 24 October 2003 notice of a competition for various engineering and associated design services in the context of the development of the Thriaso Pedio complex on the outskirts of Athens ('the contested procedure') was published in the Official Journal of the European Union. It was stated to be an open procedure. The contracting entity was ERGA OSE AE.

ERGA OSE AE is a public entity which supplies public services in the area of railway transport. The estimated value of the contract for which notice of the contested procedure was issued was EUR 3 240 000; well above the thresholds in Article 14(1)(c) of the Directive.

The notice of the contested procedure was issued by the contracting entity in accordance with the national legal requirements then in force, namely Law 716/1977. (10)

Section III of the competition notice covered the legal, economic financial and technical information that candidates were required to provide. The relevant terms are set out below:

'...

(2.1) Information concerning the individual situation of ... service providers and the formalities necessary to assess their minimum economic and technical capacity:

(2.1.3) Technical capacity - Supporting evidence required: A. Expressions of interest will be accepted if submitted by

(a) Greek consultancy firms which are enrolled in the corresponding national register and possess a certificate:

...

(b) Foreign consultancy firms, constituted under the legislation of a Member State of the European Union or the EEA and which have their central administration, principal place of business or statutory seat within the European Union or the EEA ... Foreign consultants must possess formal and substantive qualifications for each category of study corresponding to those required for Greek consultants who are enrolled in the Greek register of Consultants, and consultancy firms must have staff for each category of study corresponding to the staff required for Greek consultancy firms

It is stressed that foreign consultancy firm/consultants who submitted an expression of interest in ERGA OSE AE tendering procedure in the six months preceding the date of their expression of interest in the present competition and who declared qualifications corresponding to certificate categories different from those now being asked for will not be accepted.' (11)

Section IV of the contested notice covers the procedural aspects of the competition.

'(1) Nature of procedure: open

...

(2) Award criteria:

the most economically advantageous offer, in conformity with the following criteria ...:

Taking account of Article 34(1)(a) of Directive 93/38/EEC, the contract will be awarded in accordance with the following criteria:

1. Specific and general experience, in particular design work on similar projects either by consultancy firms or consultants and their scientific staff.

2. Real capacity to conduct a study within the timescale planned together with obligations assumed regarding the carrying-out of other studies and the specific scientific and operational staff proposed to conduct the study in question as well as the equipment in relation to the object of the study ...'

It is common ground that the reference to categories of qualifications in clause III 2.1.3.b ('the contested clause') reflects the fact that Greece operates a system of classification of engineers which groups them into categories according to the length, level and complexity of their studies, and further classifies engineering firms in groups according to the classifications of their engineers. A corresponding system of classification did not exist for foreign consultancy firms and consultants; consequently such firms were not obliged to be registered in this way.

Pre-litigation procedure

During 2004 the Commission received two complaints from a firm which stated that it did not submit an application for the contested procedure, because it considered itself necessarily excluded on the ground that it was a foreign firm and it had taken part less than six months previously in a competition with the same contracting entity, with a classification different from that asked for in the contested procedure.

Examining that complaint, the Commission took the view that the criterion in the contested clause of the competition notice (i) introduced a ground of exclusion additional to those exhaustively listed in Article 31(2) of Directive 93/38 and (ii) discriminated against foreign consultancy firms or consultants in breach of the Greek authorities' obligations under Community law.

On 28 June 2005, the Commission wrote to the Greek authorities to investigate the complaint. The Greek authorities replied on 22 July 2005.

Dissatisfied with the response that it had received, the Commission sent Greece a letter of formal notice on 18 October 2005.

The Greek authorities replied on 14 December 2005. They emphasised that the contested clause did not require foreign firms to register, but merely provided a means of establishing their experience. The Greek authorities contended that ERGA OSE AE had not in fact exclude a foreign firm on the basis of that clause.

The Commission considered the response of the Greek authorities to be inadequate, and so issued a reasoned opinion on 4 July 2006. It concluded that the contested clause contravened the Directive, the principle of mutual recognition of diplomas and the principle of equality of treatment, and that it failed to make the distinction between selection and award criteria which is a legal requirement in this field.

On 30 June 2006 the Greek authorities provided a response arguing (i) that the national legislation on which the competition notice was based (Law 716/1977) had been changed, so that any infringement action would be inadmissible; (ii) that the contracts had already been awarded to third parties in good faith and therefore could not be annulled; and (iii) that the contested clause had absolutely no effect on freedom of competition.

Dissatisfied with the Greek authorities' reply to its reasoned opinion the Commission launched the present infringement proceedings.

Admissibility

The Greek authorities argue that the action is inadmissible on three grounds. First, they contend that they complied with the reasoned opinion before its deadline expired. Second, they assert that the scope of the Commission's action extends beyond the objections raised in the pre-litigation procedure. Third, they contend that it is no longer possible to remedy the alleged infringement by annulling the contracts already concluded under the contested procedure, because of certain practical reasons (see points 39 to 41 below) and the effects of Article 2(6) of Directive 92/13.

In my view the Commission's action is admissible.

Compliance with the reasoned opinion

Arguments of the parties

The Greek authorities argue that they complied with the reasoned opinion before the expiry of its deadline, since Law 716/1977 was repealed and replaced by Law 3316/2005 which outlawed the use of provisions such as the contested clause and clarified the distinction between selection and award criteria.

In reply the Commission explains that the subject-matter of the action is not the national legal framework. Therefore, the repeal of Law 716/1977 is irrelevant to the current proceedings.

Assessment

I agree with the Commission.

Given that the Commission's case is based solely upon the contested procedure, the repeal of Law 716/1977 has no bearing on the substance of the Commission's action and therefore cannot render it inadmissible.

Scope of the action

Arguments of the parties

The Greek authorities object that the scope of the action was extended beyond the matters raised during the pre'litigation procedure in two respects. First, they claim that the Commission first raised the complaint that Greece had failed to annul the award procedure in the reasoned opinion, rather than in the letter of formal notice. Second, they argue that the complaint that the violation of Community law is due to a persistent administrative practice is raised for the first time in the Commission's application. Greece also contends that the petitum of the reasoned opinion is vague and imprecise.

The Commission explains that the scope of its action is limited to the contested procedure. In its reply, the Commission expressly confirms that it does not allege that the Greek authorities' violation of Community law is due to a persistent administrative practice.

Assessment

It is well established that the subject-matter of proceedings brought under Article 226 EC is circumscribed by the pre-litigation procedure; and that consequently the Commission's reasoned opinion and the application must be based on the same grounds. (12)

In my view, the Greek Government has failed to demonstrate that the Commission has extended the subject-matter of its action beyond what is set out in the reasoned opinion. The Commission does not seek a declaration that the Greek authorities annul the award procedure. Nor is it alleging a violation of Community obligations due to a persistent administrative practice. (13)

The scope of the action is therefore consistent with the pre-litigation procedure.

The conditions to be fulfilled for bringing an action under Article 226 EC are likewise well established in the Court's case'law. In essence, the application must state the subject-matter of the proceedings and summarise the pleas in law on which it is based, and the statement must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the application. (14)

In my opinion the petitum to the reasoned opinion sets out the grounds of the Commission's complaint in a manner which enables the Greek authorities to be aware of the case against them. I therefore do not agree that the Commission's application is vague and imprecise.

Impossibility of remedying the alleged breach

Arguments of the parties

The Greek authorities argue that it is impossible to remedy the alleged infringement for legal and practical reasons.

As regards the legal reasons, they contend that the contested procedure cannot be revoked and the contracts which have been awarded under it cannot be annulled at national level. In particular, the national legislation implementing Article 2(6) of Directive 92/13 means that the powers of the body responsible for review are restricted to awarding damages.

The Commission argues that Directive 92/13 does not apply to the current action and that Greece cannot therefore rely on it.

As regards the practical reasons, the Greek authorities allege that the project is part-financed by the Communities and as such is subject to a timetable which cannot be changed.

It is also argued that if the contested procedure were to be annulled and re-run it would distort competition.

Assessment

The arguments on the legal effect of annulment relate to the rights and remedies of an injured party at national level. In my view those issues are not relevant to the matters that must be determined in the current infringement proceedings.

More particularly, Directive 92/13 requires Member States to ensure that decisions taken by contracting entities may be reviewed effectively at national level for breaches of the Community rules in the public procurement field. (15) It is therefore concerned with remedies in national proceedings where an individual seeks redress before national authorities. Infringement proceedings under Article 226 EC are of an entirely different character. Such actions take place at Community level; and the issue is whether the Member State is in breach of its obligations under Community law. Accordingly, Directive 92/13 is irrelevant to the present proceedings.

The Greek authorities have submitted no evidence to substantiate their claims that practical reasons make it impossible to render the contested procedure compliant. It is therefore unnecessary to consider that argument further.

In those circumstances the action is admissible.

The declaration sought

The Commission seeks a declaration that, by introducing de facto an additional criterion for automatic exclusion beyond those which are expressly provided for in Article 31(2) of the Directive, to the detriment of foreign consultancy firms, and by failing to distinguish in the contest in question between qualitative selection and award criteria Greece has failed to fulfil the obligations flowing from Community legislation on public procurement, more specifically Articles 4(2), 31(1) and (2) and 34(1)(a) of the Directive as interpreted by the Court, the principle of mutual recognition of formal qualifications which is governed by Community law on public procurement and Articles 12 and 49 EC.

The grounds on which the declaration is sought give rise to two preliminary remarks.

First, the legal and factual basis upon which the declaration is sought must be clear. Secondly, the Commission bears the burden of proof in proceedings under Article 226 EC and must place before the Court the information to establish that the obligation in question has not been fulfilled. (16)

Substantive arguments of the parties

The Commission raises six grounds of complaint which I have grouped together as follows. First, I examine the alleged breach of the criteria concerning qualifications, selection and award procedures. Secondly, I consider the alleged breach of the principles of non-discrimination and transparency.

Breach of the criteria concerning qualifications, selection and award procedures

Article 31(1) and (2) of the Directive

Article 31 opens with an express reference to restricted and negotiated procedures. (17) The contested procedure was, however, an open procedure. (18) It is therefore necessary to consider whether, and if so to what extent, the Commission can claim that Greece has breached its obligations under Article 31 during the contested procedure.

In response to questions posed at the hearing, the Commission conceded that Article 31 does not expressly refer to the open procedure, but argued that its provisions should apply by analogy. It is not entirely clear what the Commission meant by that; and the Commission did not elaborate further during the oral procedure.

However, in its application the Commission refers to Commission v Spain, (19)Teckal (20) and Commission v Spain (21) in support of its position. In those cases, the Court held that the only permissible exceptions to the scope of application of the public procurement directives are those which are exhaustively and expressly mentioned therein. It may therefore be that the Commission's argument is that the only grounds on which a contracting entity may exclude a candidate from a tendering procedure, irrespective of whether the procedure applied is restricted, negotiated or open, are those expressly listed in Article 31(2).

That argument requires one to take the general principle derived from those cases as to when the directives should apply and to use it to redraft a specific provision of a particular directive in order to extend that provision's scope from specific procedures to all procedures.

I do not consider that to be appropriate.

In the present case, it is common ground that the contested procedure fell within the scope of Directive 93/38. The general principle laid down by the Court in those cases is therefore already satisfied. It seems to me to be entirely different and impermissible to use that general principle to rewrite a text that opens with the words, 'Contracting entities which select candidates to tender in restricted procedures or to participate in negotiated procedures ...' so as to render everything that follows applicable, not to restricted procedures and negotiated procedures, but to all procedures. The obvious and natural reading is that the provision applies to the two procedures expressly identified. It does not apply to the remaining procedure (the open procedure used to award the contested contract).

Three further factors reinforce that interpretation of Article 31.

First, if the draftsman had wished what followed the opening words of the article to apply to all procedures, nothing could have been simpler to express. He had only to omit the words 'which select candidates to tender in restricted procedures or to participate in negotiated procedures'.

Second, the language used in the next subparagraph (Article 31(2)) strongly suggests that the criteria for exclusion there listed even for restricted and negotiated procedures are not exhaustive. To illustrate the point: the English text states 'The criteria used may include the criteria specified in Article 23 of Directive 71/305/EEC and in Article 20 of Directive 77/62/EEC.' The French text has 'Les critères utilisés peuvent inclure ceux d'exclusion énumérés à l'article 23 de la directive 71/305/CEE et à l'article 20 de la directive 77/62/CEE' and the German 'Die angewandten Kriterien können die in Artikel 23 der Richtlinie 71/305/EWG und Artikel 20 der Richtlinie 77/62/EWG angegebenen Ausschließungsgründe einschließen'. (22) The words 'may include' in the various language versions of the text indicate (so far as I can tell, quite consistently) that the selection criteria referred to are indicative, not exhaustive.

Third, that reading is reinforced by the third subparagraph. Article 31(3) contains further permissive language (that contracting authorities 'may' base the criteria for exclusion on a particular ground, not that they 'must') and directly relates the ground there identified ('the objective need to reduce the number of candidates to a level which is justified by the need to balance the particular characteristics of the contract award procedure and the resources required to complete it') to restricted and negotiated procedures. In open procedures, there is (by definition) no initial reduction of the number of candidates: rather, 'all interested suppliers, contractors or service providers may submit tenders'. (23) The safeguard clause contained in the final sentence of Article 31(3) ('The number of candidates selected must, however, take account of the need to ensure adequate competition') is likewise perfectly intelligible in the context of restricted and negotiated procedures, but meaningless when applied to open procedures. Nothing can 'ensure adequate competition' more than throwing the procedure open to all comers.

Finally, the Commission seeks to place some reliance on La Cascina and Others. (24) However, I do not agree that that assists the Court in interpreting Article 31 of the Directive. In La Cascina and Others the Court held that Article 29 of Directive 92/50/EC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts (25) lays down (exhaustively) the seven grounds for excluding candidates from participation in a contract. However, Article 31 of the Directive is structured differently from Article 29 of Directive 92/50. Article 31(1) contains the mandatory elements, which are that candidates shall be selected according to 'objective criteria and rules which they lay down' and provides that contracting entities 'shall make [these] available to interested suppliers, contractors or service providers'. Unlike Article 29, Article 31(2) and (3) then allow Member States some discretion as to the exclusion criteria that they may apply.

I therefore conclude that the Commission's complaint that the contested procedure was in breach of Article 31(1) and (2) is misconceived.

Article 34(1)(a) of the Directive

The Commission contends that, in breach of their obligations under Article 34(1)(a), the Greek authorities failed to distinguish in this particular contest between qualitative selection criteria and award criteria.

In a restricted or negotiated procedure, the tendering procedure comprises two stages: a first stage at which (applying selection criteria) the contracting entity selects the candidates whom it invites to submit applications or to enter into negotiations; and a second stage at which (applying award criteria) the contracting entity decides to whom the contract should be awarded.

In an open procedure, the contracting entity merely has to decide (from amongst those interested service providers who submit applications) to whom the contract should be awarded.

The contested procedure was an open procedure.

It is therefore unclear to me upon what basis the Commission alleges that the contracting entity conducted a two-stage process which involved applying both selection and award criteria.

The complainant did not submit an application in the contested procedure, because it considered itself to be excluded automatically by the wording of clause 2.1.3 of section III of the competition notice. The Commission has not placed any evidence before the Court, whether in respect of the contested procedure or other tendering procedures, to substantiate its allegation that the Greek authorities have failed to distinguish between the selection and award criteria.

Accordingly, I conclude that this ground of complaint is unfounded.

Breach of the principle of mutual recognition under the Directive

The Commission alleges that the Greek authorities have failed to fulfil their obligation to apply the principle of mutual recognition. The Commission identifies no substantive provision of the Directive in support of this contention, but states that it is basing itself upon recitals 34 and 36 in the preamble to the Directive. (26) However, it is settled case-law that the preamble to a Community act does not have binding force. (27)

There is therefore no basis for considering that argument further.

Therefore, there remain two issues for the Court to consider: whether the Greek authorities are in breach of their Treaty obligations concerning the mutual recognition of formal qualifications and whether the way the contested procedure was handled breached the principles of non-discrimination and transparency (the arguments under Article 4(2) of the Directive and Articles 12 EC and 49 EC).

Mutual recognition of formal qualifications under the Treaty

The principle of mutual recognition of formal qualifications is derived from the Court's case-law on freedom of establishment. (28) It is, however, equally applicable to the provision of services. (29)

The Commission argues that the effect of the contested clause is to prevent candidates from proving their qualifications and experience on the basis of the rules that would apply in their home Member States.

The Greek authorities dispute the Commission's interpretation of the contested clause, contending that establishing proof of technical experience and qualifications is less onerous for foreign than it is for national firms. They assert that no candidate was excluded from participation in the competition on the basis of the contested clause.

The complainant itself did not submit an application, because it considered itself necessarily to be excluded from the contested procedure. Whether or not the Greek authorities would have recognised its formal qualifications was therefore never put to the test. Nor has the Commission submitted any evidence to the Court to demonstrate that the contracting entity failed to recognise the formal qualifications of a candidate from another Member State who did submit an application for consideration in the contested procedure.

It follows that this ground of complaint should be dismissed as unfounded.

Breach of the principles of non-discrimination and transparency

Article 4(2) of the Directive

It is common ground that the contested procedure falls within the scope of the Directive (30) and accordingly that ERGA OSE AE is subject to its rules.

Article 4(2) of the Directive provides that contracting entities 'shall ensure' that there is no discrimination between different suppliers, contractors or service providers.

In its case-law on public procurement, the Court refers interchangeably to 'the principle of non-discrimination' and 'the principle of equal treatment'. It has stated in terms that the principle of equal treatment lies at the heart of the public procurement directives. (31) It has likewise explained that the principle of non-discrimination in public procurement is a specific enunciation of the eponymous general principle of Community law. (32)

The principle of equal treatment implies, in turn, an obligation of transparency which governs all procedures for the award of public contracts, (33) in order to afford to all potential candidates equality of opportunity in formulating their applications to participate. (34)

The obligation of transparency requires a contracting entity to ensure that all potential applicants have ready access to the conditions that apply concerning the submission of applications. That includes information on the formal qualifications required of candidates in order to participate. As the Court stated in Commission v France: (35) '... Article 4(2) of the Directive, in prohibiting any discrimination between tenderers, also protects those who are discouraged from tendering because they have been placed at a disadvantage by the procedure followed by a contracting entity'.

In that case, the Court held that the publication of limited information in the Official Journal of the European Communities amounted to discrimination, because those candidates who had access to the additional information published in the national journal were at an advantage since they had the full facts available to them concerning the exact scope of the projected works. (36)

Did the Greek authorities satisfy the requirements of Article 4(2) in relation to the contested procedure?

The Greek authorities argue that the contested clause does not exclude potential participants. In their view, it merely indicated that diplomas and official attestations, and proof of general technical experience, were required to demonstrate that the tenderer possessed a specified minimal technical competence. Greece argues that foreign consultancy firms or consultants had, indeed, certain advantages over national tenderers, in as much as they were permitted to show that they met the conditions by any appropriate means, including taking account of prior declarations concerning their experience. Moreover, Greece reiterates that any candidate in doubt as to his position had merely to request clarification from the adjudicating authority.

The Commission contends that the contested clause can only be interpreted as meaning that foreign design or consultancy firms would be classified according to the classification of previous qualifications submitted to the contracting entity (in the previous six months). The Commission points out that this condition dissuaded the complainant from participating in the contested procedure. The Commission also considers that the contested clause introduced a supplementary condition which is particularly difficult for foreign design or consultancy firms to meet.

I agree with the Commission.

First, in my view the contested clause was inherently likely to have a dissuasive effect on foreign consultancy firms or consultants, because it indicates (expressly) that they would not be accepted as candidates in certain specific circumstances.

Second, the Greek authorities have not shown that information clarifying how the candidature of consultancy firms or consultants would be handled was readily accessible to potential candidates when the competition notice was published.

Finally, I do not accept the Greek authorities' argument that, because potential foreign candidates in doubt as to their eligibility could have made enquiries with the contracting entity if they wished to establish their position, there was no dissuasive effect. Transparency requires that the potential tenderer be able to decide, on the basis of the published information readily available to him, whether or not to submit a tender. It is not sufficient that, if he takes the initiative and goes to the trouble and expense of making further detailed enquiries, he can establish the true position. (37) That is so a fortiori where (as here) the published terms of the invitation to tender indicate expressly that a particular category of potential candidates from other Member States, to which he belongs, will be excluded from consideration.

It is, moreover, clear that at least one potential candidate (the complainant) was indeed dissuaded from submitting an application.

I therefore conclude that the contested procedure failed to meet the requirements of Article 4(2) of the Directive.

Articles 12 and 49 EC

Discrimination based on nationality which prevents or hinders the taking up of the freedom to provide services is, of course, prohibited under Article 49 EC the specific expression, as regards services, of the general prohibition on discrimination based on nationality found in Article 12 EC.

However, since the contested procedure falls within the scope of the Directive, it is unnecessary to consider the application of those Treaty provisions of Community law. (38)

Costs

Both the Commission and the Greek Government have asked for costs. In my view, the Commission is entitled to succeed on one ground only of its application. The way in which the proceedings have been conducted by the parties has not been particularly helpful to the Court in defining the parameters of the case and clarifying the arguments on which each side relies.

Pursuant to the first subparagraph of Article 69(3) of the Rules of Procedure, each party should therefore bear its own costs.

Conclusion

I therefore propose that the Court should:

declare that, by including the contested clause in the competition notice (2003/S 205-185214) without providing further information on the eligibility of foreign consultancy firms or consultants to submit their candidature, the Greek authorities have failed to comply with their obligations under Article 4(2) 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;

dismiss the remainder of the application;

order each party to bear their own costs.

1 Original language: English.

2 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) as amended by Directive 98/4/EC of the European Parliament and of the Council of 16 February 1998 (OJ 1998 L 101, p. 1) and Commission Directive 2001/78/EC of 13 September 2001 (OJ 2001 L 285, p. 1).

3 Article 2(1)(a) of the Directive.

4 Article 1(7).

5 Article 1(16).

6 Article 14(1)(c).

7 In brief, Article 23 of Council Directive 71/305/EEC of 26 July 1971 concerning the coordination of procedures for the award of public works contracts (OJ 1971 L 185, p. 5) provides that any contractor, and Article 20 of Council Directive 77/62/EEC of 21 December 1976 coordinating procedures for the award of public supply contracts (OJ 1977 L 13, p. 1) provides that any supplier, who is bankrupt, convicted of an offence concerning his professional conduct, has failed to meet his obligations to pay tax or social security or is guilty of serious misrepresentation in supplying information that is requested under either of the two Directives regarding any of those matters, is to be excluded from participation in the contract.

8 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).

9 Article 1 of Directive 92/13.

10 Law 716/1977 was subsequently repealed and replaced by Law 3316/2005.

11_ Translated from the contract notice (2003/S 205-185214) which appears in the notice published in the Official Journal. The final paragraph (which I have highlighted for emphasis), is the element which is contested by the Commission and the only part of the contested notice that is referred to in its application.

12 Case C-195/04 Commission v Finland [2007] ECR I-3351, paragraph 18 and the case-law cited there.

13 See for example, Case C-489/06 Commission v Greece [2009] ECR I-0000, paragraph 48, for those elements that need to be established to demonstrate that a Member State has failed to fulfil its obligations on the basis of an administrative practice.

14 Commission v Finland, cited at footnote 12, paragraph 22 and the case-law cited there.

15 Article 1 of Directive 92/13.

16 Case C-532/03 Commission v Ireland [2007] ECR I-11353, paragraph 29 and the case-law cited there.

17 Article 31(1).

18 See point 17.

19 Case C-71/92 [1993] ECR I-5923.

20 Case C-107/98 [1999] ECR I-8121.

21 Case C-84/03 [2005] ECR I-139.

22 See, in similar vein, 'Los criterios empleados podrán incluir ...', 'I criteri utilizzati possono comprendere ...', 'De gehanteerde criteria kunnen ... omvatten', and 'Os critérios utilizados podem incluir ...' in the Spanish, Italian, Dutch and Portuguese language versions.

23 See Article 1(7), set out at point 5 above, and compare the definitions of open, restricted and negotiated procedures.

24 Joined Cases C-226/04 and C-228/04 [2006] ECR I-1347, paragraph 22.

25 OJ 1992 L 209, p. 1.

26 Recital 34 states that the Community rules on mutual recognition of formal qualifications apply when evidence of such qualification is required for participation in a design contest. Recital 36 states that the principle of mutual recognition applies within the Directive's field of application. It is trite law that the recitals serve to set out the reasons for the substantive provisions, as required by Article 253 EC.

27 See Case C-136/04 Deutsches Milch-Kontor [2005] ECR I-10095, paragraph 32 and the case-law cited there.

28 See, for example, Case C-340/89 Vlassopoulou [1991] ECR I-2357, paragraphs 15 to 17 and Case C-255/01 Markopoulos and Others [2004] ECR I-9077, paragraph 63 and the case-law cited there.

29 It is settled case-law that Article 49 EC requires not only the elimination of all discrimination on grounds of nationality against service providers, but also the abolition of any restriction which is liable to prohibit, impede or render less advantageous the activities of a service provider established in another Member State where he lawfully provides similar services. See for example, Case C-389/05 Commission v France [2008] ECR I-0000, paragraph 57.

30 See point 14.

31 Case C-213/07 Michaniki [2008] ECR I-0000, paragraphs 44 and 45 and the case-law cited there.

32 Case C-458/03 Parking Brixen [2005] ECR I-8585, paragraph 48 and Case 810/79 à'berschär [1980] ECR 2747, paragraph 16.

33 See, for example, Case C-87/94 Commission v Belgium [1996] ECR I-2043, paragraphs 51 to 54; Case C-324/98 Telaustria and Telefonadress [2000] ECR I-10745, paragraph 61 and La Cascina and Others cited in footnote 24, paragraph 32.

34 Case C-470/99 Universale-Bau and Others [2002] ECR I-11617, paragraph 93.

35 Case C-16/98 [2000] ECR I-8315, paragraph 109, where the Court examined Article 4(2) of the Directive.

36 See Case C-16/98 Commission v France, cited in footnote 35, paragraph 111.

37 I do not suggest that the transparency obligation is breached where a more detailed information pack can be acquired by the potential tenderer on simple application to the contracting entity: see my Opinion in Case C-241/06 Lämmerzahl [2007] ECR I-8415, points 70 to 73.

38 See, by analogy, Case C-341/05 Laval [2007] ECR I-11767, paragraphs 54 and 55.