# C_2004300EN.01002702.xml

| 4.12.2004 | EN | Official Journal of the European Union | C 300/27 |
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4.12.2004

EN

Official Journal of the European Union

C 300/27

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Action brought on 24 September 2004 by the Commission of the European Communities against the Italian Republic

(Case C-412/04)

(2004/C 300/54)

An action against the Italian Republic was brought before the Court of Justice of the European Communities on 24 September 2004 by the Commission of the European Communities, represented by Klaus Wiedner and Giuseppe Bambara, acting as Agents.

The applicant claims that the Court should:

| — | declare that, by adopting Articles 2(1), 17(12), 27(2), 30(6a), 37b and 37c(1) of Law No 109 of 11 February 1994, as most recently amended by Article 7 of Law No 166 of 1 August 2002; Article 2(5) of Law No 109/94, as most recently amended by Law No 166/2002, to be read in conjunction with Law No 1150 of 1942 and Law No 10 of 1977, as amended and supplemented; Article 28(4) of Law No 109/94, to be read in conjunction with Article 188 of Presidential Decree No 554 of 21 December 1999 and Article 7 of Law No 166/2002, and Article 3(3) of Legislative Decree No 157 of 17 March 1995, the Italian Republic has failed to fulfil its obligations under Directives 93/37/EEC (1), 93/36/EEC (2), 92/50/EEC (3) and 93/38/EEC (4), Articles 43 and 49 EC and the principles of transparency and equal treatment to which they give expression; |
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declare that, by adopting Articles 2(1), 17(12), 27(2), 30(6a), 37b and 37c(1) of Law No 109 of 11 February 1994, as most recently amended by Article 7 of Law No 166 of 1 August 2002; Article 2(5) of Law No 109/94, as most recently amended by Law No 166/2002, to be read in conjunction with Law No 1150 of 1942 and Law No 10 of 1977, as amended and supplemented; Article 28(4) of Law No 109/94, to be read in conjunction with Article 188 of Presidential Decree No 554 of 21 December 1999 and Article 7 of Law No 166/2002, and Article 3(3) of Legislative Decree No 157 of 17 March 1995, the Italian Republic has failed to fulfil its obligations under Directives 93/37/EEC (1), 93/36/EEC (2), 92/50/EEC (3) and 93/38/EEC (4), Articles 43 and 49 EC and the principles of transparency and equal treatment to which they give expression;

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| — | Order the Italian Republic to pay the costs. |
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Order the Italian Republic to pay the costs.

Pleas in law and main arguments:

The Commission notes that, by making those contracts in which the works component is prevalent from the economic point of view but is clearly ancillary to other services subject to the rules on public works contracts, Article 2(1) of Law No 109/94 and Article 3(3) of Legislative Decree No 157 of 17 March 1995 have the effect of removing numerous public service and supply contracts from the purview of the relevant Community legislation, specifically Directives 92/50/EEC and 93/36/EEC.

Since the thresholds for the application of those directives are appreciably lower than those for the application of Directive 93/37/EEC, the effect of the provisions in question is to enable mixed service and works contracts, supply and works contracts or supply, works and service contracts to be awarded in breach of the procedures laid down by Directives 92/50/EEC and 93/36/EEC where the value exceeds the threshold for application of those directives but does not exceed that for public works contracts under Directive 93/37/EEC on the sole ground that, although ancillary, the works component is prevalent from the economic point of view. From that perspective, the provisions in question constitute an infringement of Directives 92/50/EEC and 93/36/EEC.

Rules governing works carried out by private persons which are deductible from urbanisation taxes

Rules governing works carried out by private persons which are deductible from urbanisation taxes

The Commission considers that, in so far as it excludes the duty to comply with the procedures laid down by Directive 93/37/EEC in cases of contracts between private persons and the State relating to a number of works, each of which falls below the threshold for the application of that directive, but whose aggregate value exceeds that threshold, Article 2(5) of Law No 109/94 infringes Directive 93/37/EEC, read in conjunction with Laws No 1150 of 1942 and No 10 of 1977, as subsequently amended and supplemented, which allows contracts for urbanisation works to be awarded directly to the holder of a building permission or development plan.

Rules governing the award of contracts for the design and supervision of works the value of which is below the Community thresholds

Rules governing the award of contracts for the design and supervision of works the value of which is below the Community thresholds

The Commission notes that Articles 17 and 30 of Law No 109/94, which permit the awarding authorities to award such contracts on the basis of trust without complying with any requirement concerning advertising, must be regarded as infringing the principle of transparency set out in Article 49 EC. Furthermore, reliance upon a procedure to ascertain the experience and capacity of suppliers is, in the absence of minimum advertising requirements intended to ensure a level playing field of competition between all persons potentially interested in supplying the services, insufficient in itself to ensure compliance with the principle of transparency.

Rules governing the award of contracts for the supervision of works

Rules governing the award of contracts for the supervision of works

The Commission submits that, in so far as it allows the direct award, without any form of competition, of contracts for services for the supervision of works to the professional practitioner responsible for their design, Article 27(2) of Law No 109/94, having regard to the value of the services awarded and the rules applicable, infringes Directives 92/50/EEC and 93/38/EEC and Articles 43 and 49 EC.

Rules governing the award of contracts for inspection services

Rules governing the award of contracts for inspection services

The Commission considers that the mechanism laid down by Article 28 of Law No 109/94, which permits the direct selection of inspectors by the awarding authorities otherwise than in accordance with their own rules, without provision either for the publication of a tender notice or other forms of direct advertising such as to enable all potential interested suppliers to compete for the award of contracts for inspection services, infringes Directives 92/50/EEC and 93/38/EEC and the principle of transparency as set out in Articles 43 and 49 EC, having regard to the value of those services and the rules applicable.

Rules governing project finance

Rules governing project finance

Article 37a et seq. of Law No 109/94 govern so called ‘project finance’, which is intended to enable public works to be carried out on the basis of proposals submitted by persons independent of the State, referred to as ‘promoters’, by the award of a works concession.

The Commission notes that those rules governing the competitive procedure for the award of the concession give the promoter two advantages over all other potential competitors. First, from the procedural point of view, the promoter is automatically invited to participate in the negotiated procedure for the award of the concession, without any comparison being made between his offer and that of other participants in the earlier tendering procedure. Therefore, even if in that tendering procedure there were more than two offers better than that submitted by the original promoter, the negotiated procedure will nevertheless proceed only as between the two best offers and the promoter. Second, from the substantive point of view, the provision enabling the promoter to amend his offer in the course of the negotiated procedure so as to match that found to be the most suitable by the awarding authority amounts in substance to the promoter being accorded a right of pre-emption for the award of the concession.

The Commission submits that the grant of those advantages to the promoter and not to other potential concessionaires infringes the principle of equal treatment.

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(1)  OJ L 199 of 9. 8.1993, p. 54.

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(2)  OJ L 199 of 9. 8.1993, p. 1.

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(3)  OJ L 209 of 24. 7.1992, p. 1.

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(4)  OJ L 199 of 9. 8.1993, p. 84.

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