Judgment — ECLI:EU:C:2008:624
Date: 2008-11-13
Language of the case: Italian
Court formation: Third Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Right of establishment;Approximation of laws;Freedom to provide services
Concepts: Concept of public contract
Procedure: Action for failure to fulfil obligations - successful;Action for failure to fulfil obligations - decision unnecessary
Origin: Italy

Action brought on 19 September 2007 - Commission of the European Communities v Italian Republic (Case C-437/07) Language of the case: Italian Parties Applicant: Commission of the European Communities (represented by: C. Zadra and D. Kukovec, Agents) Defendant: Italian Republic Forms of order sought The applicant claims that the Court should : declare that, in so far as the Comune di L'Aquila has awarded a public works contract for the design and construction of a rubber tramway for public transport in the town of L'Aquila by means of a procedure akin to the "project financing" procedure, designed to culminate in the award of a works concession, and amended the preliminary project on which the tenders were to be based after publication of the contract notice, the Italian Republic has failed to fulfil its obligations under Council Directive 93/37/EEC1 of 14 June 1993 concerning the coordination of procedures for the award of public works contracts and, in particular, Articles 7 and 11 thereof, as well as its obligations under Articles 43 EC and 49 EC and the principles of transparency and non-discrimination which constitute the corollary thereto; order the Italian Republic to pay the costs. Pleas in law and main arguments The Comune di L'Aquila (Municipality of L'Aquila) has awarded a public works contract for the design and construction of a rubber tramway for public transport in the town of L'Aquila by means of a "project financing" procedure designed to culminate in the award of a works concession, not a public works contract. The Comune di L'Aquila also amended - after publication of the contract notice - the preliminary project on which the tenders were to be based. In the view of the Commission, the agreement between the Comune di L'Aquila and the construction group concerned constitutes a public works contract for the purposes of Community law. In consequence, the award of that contract by means of a procedure akin to the "project financing" procedure, designed to culminate in the award of a works concession, is contrary to the rules laid down in Directive 93/37 and, in particular, to Articles 7 and 11 thereof. Furthermore, the amendment, after publication of the contract notice, of the project on which the tenders were to be based is incompatible with the principles of transparency and non-discrimination, on which the freedom of establishment and the freedom to provide services, as provided for in Articles 43 EC and 49 EC, are based. ____________ 1 - OJ 1993 L 199, p. 54.