Case C-252/01: Action brought on 29 June 2001 by the Commission of the European Communities against the Kingdom of Belgium
Date: 2001-09-01
Institutions: Court of Justice
Subjects: Belgium, European Commission, action for failure to fulfil an obligation, award of contract, provision of services, works contract

C 245/10

EN

Official Journal of the European Communities

1.9.2001

Appeal brought on 2 July 2001 by Mario Costacurta
against the order delivered on 7 June 2001 by the Second
Chamber of the Court of First Instance of the European
Communities in Case T-328/00 between Mr Costacurta
and the Commission of the European Communities

(Case C-251/01 P)

(2001/C 245/18)

An appeal against the order delivered on 7 June 2001 by the
Second Chamber of the Court of First Instance of the European
Communities in Case T-328/00 between Mr Costacurta and
the Commission of the European Communities was brought
before the Court of Justice of the European Communities on
2 July 2001 by Mario Costacurta, represented by Mr Petit,
of
the Luxembourg Bar, with an address for service in
Luxembourg.

The appellant claims that the Court should:

— find the present appeal admissible;

— find the appeal well founded as to the substance;

— order, if the Rules of Procedure of the Court of Justice
allow it, the present appeal to be joined to the appeal
against the order of the Court of First Instance (Second
Chamber) of 7 June 2001 in Case T-328/00 concerning
the same dispute and lodged this day;

— set aside the order delivered by the Court of First Instance
(Second Chamber) of 7 June 2001 in Case T-328/00
Costacurta v Commission;

— make a decision as to how Case T-328/00 Costacurta v
Commission is to proceed in accordance with Article 54
of the Rules of Procedure of the Court of Justice;

— order the Commission of the European Communities
already to pay the costs of the interlocutory proceedings
and of the present appeal;

— reserve the costs as to the substance; find, none the less,
that Article 88, rather than Article 87(2), of the Rules of
Procedure of the Court of First Instance are applicable;

— reserve to the appellant all other rights, dues, pleas and

actions.

Pleas in law an main arguments

The pleas and main arguments are the same as those in Case
C-250/01 P.

Action brought on 29 June 2001 by the Commission
of the European Communities against the Kingdom of
Belgium

(Case C-252/01)

(2001/C 245/19)

An action against the Kingdom of Belgium was brought before
the Court of Justice of the European Communities on 29 June
2001 by the Commission of the European Communities,
represented by H. van Lier, acting as Agent, assisted by
J. Stuyck, advocaat.

The applicant claims that the Court should:

1.

Pursuant to the first paragraph of Article 226 EC, declare
that:

— by failing,

in respect of a contract to perform
services involving coastal surveillance by means of
aerial photography, to place a notice in the Official
Journal of the European Communities, as required under
Directive 92/50/EEC (1) relating to the coordination
of procedures for the award of public service
contracts; and

— by unjustifiably awarding the contract in question
through application of a negotiated procedure with-
out prior publication of a notice,

the Kingdom of Belgium has failed to fulfil its obligations
under that directive, in particular Articles 11(3) and 15(2)
thereof;

2.

order the Kingdom of Belgium to pay the costs.

Pleas in law and main arguments

According to the Commission, the Belgian Government has
failed to demonstrate that performance of the services in
question involves special security measures, since undertakings
holding the required military security certificate may perform
the contract without thereby taking any such special security
measures into account.

Although the contract in question involves services relating to
aerial photography which, considered in se, ought to come
under the [United Nations Central Product Classification] CPC
Category No 87504.1 as ‘specialty photography services’, it
covers a much wider remit, closely connected to the monitor-
ing programme established by the administration for the
coastal zone and which, with a view to guaranteeing the

1.9.2001

EN

Official Journal of the European Communities

C 245/11

security of the coast and of its inhabitants, is designed to
acquire an appropriate insight into the dynamics of the coastal
area. The contract thus comes under the categories indicated
by CPC Reference No 86753 (‘surface surveying services’) and
No 86754 (‘map making services’), and thus under the services
indicated in Category No 12 in Annex I A to the directive:
‘architectural services; engineering services and integrated
engineering services; urban planning and landscape architec-
tural services; related scientific and technical consulting services ...’
Pursuant to Article 8 of the directive, contracts having as their
object services listed in Annex I A are to be awarded in
accordance with the provisions of Titles III to VI (which
include the placing of an indicative notice and a notice in the
Official Journal and the following of an open or restricted
procedure).

Finally, the Commission is unable to accept the invocation of
Article 11(3(b) of the directive,
in particular the technical
reasons referred to therein. It is extremely unlikely that there
would, in other Member States with a seacoast, not be any
undertakings in a technical and financial position to perform
the contract.

(1) OJ 1992 L 209, p. 1.

Action brought on 3 July 2001 by Commission of the
European Communities against Republic of Finland

(Case C-254/01)

(2001/C 245/20)

An action against the Republic of Finland was brought before
the Court of Justice of the European Communities on 3 July
2001 by the Commission of the European Communities,
represented by M. Huttunen and M. Wolfcarius, with an
address for service in Luxembourg.

The applicant claims that the Court should:

1. Declare that the Republic of Finland has failed to adopt
the laws, regulations or administrative provisions required
to comply with Directive 96/48/EC (1) and has thus failed
to fulfil its obligations under the directive, other than
the obligation to notify the responsible body under
Article 20(1);

2. Order the Republic of Finland to pay the costs.

Pleas in law and main arguments

The third paragraph of Article 249 EC states that a directive is
binding, as to the result to be achieved, on each Member State
to which it is addressed.

The first paragraph of Article 10 EC states that Member States
are to take all appropriate measures, whether general or
specific, to ensure fulfilment of the obligations arising out of
the Treaty or resulting from actions taken by the institutions
of the Community.

interoperability of

This obligation deriving directly from the Treaty is repeated
expressly in Article 23 of Directive 96/48/EC, according to
which the Member States are to amend and adopt their laws,
regulations and administrative provisions so as to authorise
the trans-
the use of constituents of
European high-speed rail system and the putting into service
and operation of subsystems which comply with the directive,
no later than 30 months after entry into force of the directive.
They are to inform the Commission thereof forthwith. In this
connection, it should be emphasised that even in the absence
of the technical specifications for interoperability under Chap-
ter II of the directive, Chapters III and IV of the directive are
fully in force and applicable.

Finland refers to the decision of the Ministry of Transport of
3 March 1999, in which the ministry decided to designate
Ratahallintokeskus (Rail Administration Centre) as the control
body under Article 20 of Directive 96/48/EC on the interop-
erability of the trans-European high-speed rail system. The
Ministry of Transport also invited the Ratahallintokeskus to
take account when making technical decisions of the technical
specifications of interoperability adopted on the basis of the
above directive.

Apart from that decision, Finland has not notified any other
legislative or administrative measures on the basis of which
the Commission could find that Finnish legislation together
with the administrative measures in force authorise the use of
constituents of interoperability of the trans-European high-
speed rail system and the putting into service and operation of
subsystems which comply with the directive. Finland has
notified only that it is preparing an overall recasting of railway
legislation and that the aim is to include in the amendments
adequate provisions for implementation of the directive on
high-speed rail systems.

(1) Council Directive 96/48/EC of 23 July 1996 on the interoperabi-
lity of the trans-European high-speed rail system (OJ L 235 of
17.9.1996, p. 6).