Opinion of the Advocate General — ECLI:EU:C:2007:28
Date: 2007-01-18
Language of the case: Finnish
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Free movement of goods;Measures having equivalent effect;Quantitative restrictions
Procedure: Action for failure to fulfil obligations - inadmissible
Origin: Finland

summary of the pleas in law on which the application is based, and that that statement must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the application. It is therefore necessary for the essential points of law and of fact on which a case is based to be indicated coherently and intelligibly in the application itself (Case C‑178/00 Italy v Commission [2003] ECR I-303, paragraph 6, judgment of 14 October 2004 in Case C‑55/03 Commission v Spain, not published in the ECR, paragraph 23, and Case C‑199/03 Ireland v Commission [2005] ECR I‑8027, paragraph 50) and for the heads of claim to be set out unambiguously so that the Court does not rule ultra petita or indeed fail to rule on an objection (Case C‑296/01 Commission v France [2003] ECR I‑13909, paragraph 121, and Case C‑255/04 Commission v France [2006] ECR I‑5251, paragraph 24). 23 In the present case, however, the Commission’s application does not fulfil those requirements. 24 By its action, the Commission seeks a declaration that the Republic of Finland failed to comply with its obligations under Article 28 EC on the ground that, in the context of a contract for catering equipment, Senaatti-kiinteistöt infringed fundamental Treaty rules and in particular the principle of non-discrimination, which implies an obligation of transparency. 25 As the Advocate General points out in point 45 of her Opinion, the heads of claim as formulated in the application are ambiguous and do not enable the Court to identify clearly and precisely the misconduct which the Commission imputes to the Republic of Finland, since it brackets together Article 28 EC, fundamental Treaty provisions, the principle of non-discrimination and the obligation of transparency. 26 In addition, even if the Commission’s action were intended to obtain a declaration of infringement of Article 28 EC, neither the heads of claim of the application nor the submissions made in the body of the application identify with clarity and precision which measure is alleged in the present case to constitute a quantitative restriction on imports or a measure having equivalent effect within the meaning of that article. 27 In fact, the Commission merely calls into question the contracting authority’s conduct ‘in the context of a contract for catering equipment’. 28 Furthermore, at no point in the proceedings was the Commission able to state coherently and precisely the facts which provide the basis for the objections on which it relies in support of its application. 29 Thus, in its application the Commission does not furnish any precise evidence in relation to the first call for tenders, but merely states that ‘it was unsuccessful in relation to the acquisition of catering equipment’. 30 In that respect, neither the submissions made in the body of the application nor the Commission’s replies to the Court’s questions at the hearing enable the Court to establish with certainty whether a tender for the supply and installation of catering equipment was submitted to the contracting authority in the context of the call for tenders. 31 By the same token, in its reply the Commission asserts – without, however, demonstrating the truth of that assertion – that at least one of the undertakings which submitted such a tender was not one of the four undertakings contacted by the contracting authority in 2000, and that the lot relating to the supply and installation of catering equipment which was part of the contract announced in the initial call for tenders did not have the same subject-matter as the contract which gave rise to the contacts made during the same year. 32 In those circumstances, the Court does not have sufficient evidence to enable it to appreciate exactly the scope of the infringement of Community law imputed to the Republic of Finland and thus to determine whether there is a breach of obligations as alleged by the Commission (see, to that effect, Commission v United Kingdom, cited above, paragraph 18). 33 Consequently, the action must be dismissed as inadmissible. Costs 34 Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Republic of Finland has applied for costs and the Commission’s action is inadmissible, the Commission must be ordered to pay the costs. On those grounds, the Court (Second Chamber) hereby: 1. Dismisses the action as inadmissible; 2. Orders the Commission of the European Communities to pay the costs. [Signatures] * Language of the case: Finnish.