Judgment — ECLI:EU:C:2008:102
Date: 2008-02-21
Language of the case: Italian
Court formation: Second Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Right of establishment;Approximation of laws;Freedom to provide services
Concepts: General;Admissibility and examination of applications, forms of order sought and pleas in law;Conduct of procurement procedures;Contracts excluded from EU rules or subject to special arrangements, but having a cross-border interest;Mixed contracts;Advertising of the contract
Procedure: Action for failure to fulfil obligations - successful;Action for failure to fulfil obligations - unfounded;Action for failure to fulfil obligations - inadmissible
Origin: Italy

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 his 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 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-195/04 Commission v Finland [2007] ECR I‑3351, paragraph 22). 104 In this case, the Commission's application does not satisfy those requirements so far as the present complaint is concerned. 105 By its application, the Commission seeks a declaration that the Italian Republic has failed to fulfil obligations under Directives 92/50, 93/36, 93/37 and 93/38 and Articles 43 EC and 49 EC. In the sixth complaint, it fails to state precisely which of those directives and/or provisions of the Treaty the Italian Republic is supposed to have infringed by allegedly infringing the principle of equal treatment. 106 Moreover, as far as concerns Articles 43 EC and 49 EC, those articles do not lay down a general obligation of equal treatment but contain, as is clear from the case-law cited in paragraph 66 of this judgment, a prohibition on discrimination on the basis of nationality. The Commission does not give any particulars regarding the existence of such discrimination in this complaint. 107 Therefore, the sixth complaint must be declared inadmissible. 108 Having regard to all the foregoing considerations, it must be held that, by adopting: – Article 2(1) of Law No 109/1994, the Italian Republic has failed to fulfil its obligations under Directives 92/50, 93/36 and 93/37; – Article 2(5) of Law No 109/1994, the Italian Republic has failed to fulfil its obligations under Directive 93/37; and – Articles 27(2) and 28(4) of Law No 109/1994, the Italian Republic has failed to fulfil its obligations under Directives 92/50 and 93/38. Costs 109 Under Article 69(3) of the Rules of Procedure, the Court may order that the costs be shared or decide that each party is to bear its own costs where each party succeeds on some and fails on other heads. Since the Commission has been partly unsuccessful with respect to the second, fourth and fifth complaints, unsuccessful with respect to the third complaint and the sixth complaint has been declared inadmissible, and the Italian Republic has been unsuccessful on the first complaint and partly unsuccessful with respect to the second, fourth and fifth complaints, each party is to bear its own costs. 110 Under Article 69(4) of the Rules of Procedure, the Member States which have intervened in the proceedings are to bear their own costs. On those grounds, the Court (Second Chamber) hereby: 1. Declares that, by adopting: – Article 2(1) of Law No 109 of 11 February 1994 – Framework Law on public works (legge quadro in materia di lavori pubblici), as amended by Law No 166 of 1 August 2002, the Italian Republic has failed to fulfil its obligations under Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts, Council Directive 93/36/EEC of 14 June 1993 coordinating procedures for the award of public supply contracts, and Council Directive 93/37/EEC of 14 June 1993 concerning the coordination of procedures for the award of public works contracts as amended by European Parliament and Council Directive 97/52/EC of 13 October 1997; – Article 2(5) of Law No 109/1994 as amended, the Italian Republic has failed to fulfil its obligations under Directive 93/37 as amended; and – Articles 27(2) and 28(4) of Law No 109/1994 as amended, the Italian Republic has failed to fulfil its obligations under Directive 92/50 and Council Directive 93/38/EEC of 14 June 1993 coordinating the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors; 2. Dismisses the action as to the remainder; 3. Orders the Commission of the European Communities and the Italian Republic to bear their own costs; 4. Orders the French Republic, the Kingdom of the Netherlands and the Republic of Finland to bear their own costs. [Signatures] * Language of the case: Italian.