Judgment of the Court (Fourth Chamber) of 6 May 2010 (reference for a preliminary ruling from the Simvoulio tis Epikratias (Greece)) — Club Hotel Loutraki AE, Athinaïki Techniki AE, Evangelos Marinakis v Ethniko Simvoulio Radiotileorasis, Ipourgos Epikratias (C-145/08) and Aktor Anonimi Tekhniki Etairia (Aktor ATE) v Ethniko Simvoulio Radiotileorasis (C-149/08)

(Joined Cases C-145/08 and C-149/08) (1)

(Directive 92/50/EEC - Public service contracts - Service concessions - Mixed contract - Contract including the transfer of a block of shares in a public casino business - Contract under which the contracting authority entrusts to the contracting undertaking the management of a casino business and the execution of a development plan consisting in upgrading the casino premises and improving the surrounding area - Directive 89/665/EEC - Decision of the contracting authority - Effective and rapid remedies - National procedural law - Criteria for the award of damages - Prior annulment of the unlawful act or omission or a finding of its nullity by the competent court - Members of a consortium in a public procurement procedure - Decision adopted in the context of that procedure by an authority other than the contracting authority - Action brought, individually, by some members of the consortium - Admissibility)

(2010/C 179/02)

Language of the case: Greek

Referring court

Simvoulio tis Epikratias

Parties to the main proceedings

Applicants: Club Hotel Loutraki AE, Athinaïki Techniki AE, Evangelos Marinakis

Defendants: Ethniko Simvoulio Radiotileorasis, Ipourgos Epikratias

Interveners in support of the defendants: Athens Resort Casino AE Simmetokhon, Ellaktor AE, formerly Elliniki Tekhnodomiki TEV AE, Regency Entertainment Psikhagogiki kai Touristiki AE, formerly Hyatt Regency Xenodokhiaki kai Touristiki (Ellas) AE, Leonidas Bompolas (C-145/08)

and

Applicant: Aktor Anonimi Tekhniki Etairia (Aktor ATE)

Defendant: Ethniko Simvoulio Radiotileorasis

Intervening party: Mikhaniki AE (C-149/08)

Re:

Reference for a preliminary ruling — Simvoulio tis Epikratias — Interpretation of Articles 3(2), 9, 14 and 16 of Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts (OJ 1992 L 209, p. 1) — Scope — Mixed agreement involving a contract for the sale of shares and a service concession — Interpretation of Articles 1(3) and 2 of Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts (OJ 1989 L 395, p. 33) — National legislation prohibiting members of a consortium without legal personality that has submitted a tender from bringing individually legal actions against acts falling within the procedure for award of the contract

Operative part of the judgment

1.

A mixed contract of which the main object is the acquisition by an undertaking of 49 % of the capital of a public undertaking and the ancillary object, indivisibly linked with that main object, is the supply of services and the performance of works does not, as a whole, fall within the scope of the directives on public contracts.

2.

European Union law, in particular the right to effective judicial protection, precludes a national rule, such as that at issue in the main proceedings, interpreted as meaning that the members of a temporary association, tenderer in a public procurement procedure, are deprived of the possibility of seeking, individually, compensation for the loss which they suffered individually as a result of a decision adopted by an authority, other than the contracting authority, involved in that procedure in accordance with the applicable national rules, which is such as to influence the conduct of that procedure.

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(1)  OJ C 142, 7.6.2008.