# C_2007082EN.01001202.xml

| 14.4.2007 | EN | Official Journal of the European Union | C 82/12 |
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14.4.2007

EN

Official Journal of the European Union

C 82/12

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Reference for a preliminary ruling from the Tribunale di Genova (Italy) lodged on 18 January 2007 — Autostrada dei Fiori SpA, AISCAT, Associazione Nazionale dei Gestori delle Autostrade v Government of the Italian Republic, Ministry of Infrastructure and Transport, Ministry of the Economy and Finance and Azienda Nazionale Autonoma delle Strade (ANAS)

(Case C-12/07)

(2007/C 82/24)

Language of the case: Italian

Referring court

Tribunale di Genova

Parties to the main proceedings

Applicants: Autostrada dei Fiori SpA AISCAT, Associazione Nazionale dei Gestori delle Autostrade

Applicants:

Defendants: The Government of the Italian Republic, Ministry of Infrastructure and Transport, Ministry of the Economy and Finance, Azienda Nazionale Autonoma delle Strade (ANAS)

Defendants:

Questions referred

| 1. | Does the Court of Justice consider that a body, which takes the form of a joint-stock company and has the objects, functions and powers of intervention on the market which the Italian legislature has assigned to ANAS spa (as emerge — in particular — from the instrument setting up the new body, the company constitution approved by the Interministerial Decree of 18 December 2002 and the new legislation contained in subparagraphs 82 to 90 of Article 2 of the Decree-Law of 3 October 2006, converted into law with the amendments introduced by the Government's ‘maxi-amendment ’to subparagraph 1034 of Article 1 of the 2007 Financial Law), may be regarded as an undertaking, albeit a public undertaking, for the purposes of Community law, and as such subject to the rules on competition (Article 86 of the EC Treaty)? |
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1.

Does the Court of Justice consider that a body, which takes the form of a joint-stock company and has the objects, functions and powers of intervention on the market which the Italian legislature has assigned to ANAS spa (as emerge — in particular — from the instrument setting up the new body, the company constitution approved by the Interministerial Decree of 18 December 2002 and the new legislation contained in subparagraphs 82 to 90 of Article 2 of the Decree-Law of 3 October 2006, converted into law with the amendments introduced by the Government's ‘maxi-amendment ’to subparagraph 1034 of Article 1 of the 2007 Financial Law), may be regarded as an undertaking, albeit a public undertaking, for the purposes of Community law, and as such subject to the rules on competition (Article 86 of the EC Treaty)?

| 2. | Is legislation such as that at issue here, even as converted by Law No 286 of 2006, which — in contrast to the substantial power of expropriation accorded to a competing public undertaking such as ANAS spa — provides for a ‘possible right to compensation’, compatible with the fundamental right to property, which is protected by Community law? |
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2.

Is legislation such as that at issue here, even as converted by Law No 286 of 2006, which — in contrast to the substantial power of expropriation accorded to a competing public undertaking such as ANAS spa — provides for a ‘possible right to compensation’, compatible with the fundamental right to property, which is protected by Community law?

| 3. | Having regard to the legislation at issue, and in the light of the amendments introduced on its conversion into law and by the so-called ‘maxi-amendment ’to the 2007 Financial Law, does Community law and, in particular, the rules on competition and the internal market (Article 43 et seq and 81 et seq of the EC Treaty) preclude assigning to an undertaking, under full public ownership and having characteristics similar to those of ANAS spa, the administration — on a temporary basis but without stipulating an absolute time-limit — of public services or public infrastructure, without holding a competitive tendering procedure? |
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3.

Having regard to the legislation at issue, and in the light of the amendments introduced on its conversion into law and by the so-called ‘maxi-amendment ’to the 2007 Financial Law, does Community law and, in particular, the rules on competition and the internal market (Article 43 et seq and 81 et seq of the EC Treaty) preclude assigning to an undertaking, under full public ownership and having characteristics similar to those of ANAS spa, the administration — on a temporary basis but without stipulating an absolute time-limit — of public services or public infrastructure, without holding a competitive tendering procedure?

et seq

et seq

| 4. | In relation to public procurement procedures, does Community law preclude a Member State from extending the regime provided for by the public procurement directives to ‘vertical ’transactions set in place by private-law undertakings which have been awarded concessions, with the Member State further reserving for itself the right to appoint the committees evaluating the tenders submitted by the concessionaires? |
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4.

In relation to public procurement procedures, does Community law preclude a Member State from extending the regime provided for by the public procurement directives to ‘vertical ’transactions set in place by private-law undertakings which have been awarded concessions, with the Member State further reserving for itself the right to appoint the committees evaluating the tenders submitted by the concessionaires?

| 5. | In so far as they accord advantages which are not accorded to private-law competitors, and in so far as they are not subject to separate accounting, do financial measures like those implemented in favour of ANAS under subparagraph 12 of Article 7 of Decree-Law No 138 of 2002 and subparagraph 1-quater of Article 7 of Decree-Law No 138 of 2002, as well as subparagraph 453 of Article 1 of the 2005 Financial Law (Law No 311 of 30 December 2004), which enable ANAS to receive loans on preferential terms from the Cassa Depositi e Prestiti spa, as well as measures similar to those contained in subparagraph 299(c) and subparagraph 453 of Article 1 of Law No 311 of 2004 (the 2005 Financial Law), and/or contained in subparagraph 2 of Article 76 of Law No 289 of 2003, under which ANAS receives substantial public contributions which are declared to be intended for infrastructure projects but stipulate no separate accounting requirement, constitute State aid which is prohibited by Article 87 et seq of the EC Treaty? In addition, does a measure such as that extending the concession period awarded to ANAS spa, enabling it to avoid the competitive tendering procedure, as well as a provision of the kind contained in subparagraphs 87 and 88 of Article 2 of Law No 286 of 2006 (converting Decree-Law No 262 of 2006), according to which ANAS spa automatically succeeds — albeit on a temporary basis but with no absolute time-limit — to private-law sub-concessions which have expired, constitute State aid? |
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5.

In so far as they accord advantages which are not accorded to private-law competitors, and in so far as they are not subject to separate accounting, do financial measures like those implemented in favour of ANAS under subparagraph 12 of Article 7 of Decree-Law No 138 of 2002 and subparagraph 1-quater of Article 7 of Decree-Law No 138 of 2002, as well as subparagraph 453 of Article 1 of the 2005 Financial Law (Law No 311 of 30 December 2004), which enable ANAS to receive loans on preferential terms from the Cassa Depositi e Prestiti spa, as well as measures similar to those contained in subparagraph 299(c) and subparagraph 453 of Article 1 of Law No 311 of 2004 (the 2005 Financial Law), and/or contained in subparagraph 2 of Article 76 of Law No 289 of 2003, under which ANAS receives substantial public contributions which are declared to be intended for infrastructure projects but stipulate no separate accounting requirement, constitute State aid which is prohibited by Article 87 et seq of the EC Treaty? In addition, does a measure such as that extending the concession period awarded to ANAS spa, enabling it to avoid the competitive tendering procedure, as well as a provision of the kind contained in subparagraphs 87 and 88 of Article 2 of Law No 286 of 2006 (converting Decree-Law No 262 of 2006), according to which ANAS spa automatically succeeds — albeit on a temporary basis but with no absolute time-limit — to private-law sub-concessions which have expired, constitute State aid?

Cassa Depositi e Prestiti spa

et seq

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