‘MICHAILOPOULOS & ASSOCIATES’ represented a distinguished public work contractor company in a case before the Council of the State regarding the concession contracts of the four highways (motorways) in Greece, that led to the Court delivering its 880/2016 judgement, in which many issues of major importance regarding the admissibility of the judicial remedies of the act of annulment and the remedy of article 8 of law 3886/2010 were decided.
In particular, it was decided that:
1. Disputes regarding the legality of explicit or implicit administrative measures, with which a public contract validated by law is altered, in accordance with a provision of the contract, even if with the validating law dictates that the contract gets law-binding force, and which are caused by a third party, not a member of the contract, do not have their cause in the contract, but in its validating law and from them arise, therefore, annulment disputes.
2. The substantive cases which arise from the legal remedy of article 8 of law 3886/2010 do not have the public contract as a cause and therefore are not in the area of jurisdiction of the court competent for judging disputes arising from the implementation of the public contract, but in the area of jurisdiction of the Administrative Courts of Appeal and the Council of the State, in accordance with the provisions of law 3886/2016.
3. The disputed administrative measures are related, as related are the also disputed altering agreements, so far as they are based on the same provisions of the original concession contracts and the same reasons are provided against them. It is admissible therefore, that they are disputed with the same document, which contains both and the remedy of article 8 of law 3886/2010 and an act of annulment.
4. The legally protected interest required for the successful exercise of the act of annulment must be present cumulatively at three time points: at the time of the issue of the contested administrative measure, at the time of its contestation before the Council of the State and at the time of the discussion of the case before the aforementioned Court. This rule, which is deduced, according to case law, from the article 47 of presidential decree 18/89, is applied also in cases which arise during the procedure of award of public contracts.
5. Tax clearance, as a condition for participation in the legal procedures for the award of the public contract, which must have taken place for the award of the contested public works, must be present at the time of the issue of the contested administrative measures, at the time of the award of the contested altering concession contracts, and at the time of the application of the act of annulment before the Council of the State, in order to establish a legally protected interest, required for the application both of the act of annulment and of the legal remedy of article 8 of law 3886/2010.
