Case C-323/01: Action brought on 24 August 2001 by Commission of the European Communities against Italian Republic
Date: 2001-11-10
Institutions: Court of Justice
Subjects: European Commission, Italy, action for failure to fulfil an obligation, electricity storage device, waste disposal, waste management

C 317/12

EN

Official Journal of the European Communities

10.11.2001

meaning of Article 1(1) of that directive, including the
exercise of the powers referred to in Article 2(1)(c)
thereof, is precluded from dismissing an application by a
tenderer that is indirectly aimed at obtaining damages,
where the contract award procedure is already tainted by
a material legal infringement attributable to a decision
taken by the contracting authority, other than the decision
being contested by that tenderer, on the ground that if
the contested decision had not been taken the tenderer
would none the less have been harmed for other reasons?

If Question 1 is answered in the negative: Is Council
Directive 93/36/EEC (2) of 14 June 1993 coordinating
procedures for the award of public supply contracts, in
particular Articles 15 to 26 thereof, to be interpreted as
prohibiting a public contracting authority conducting
contract award procedures from taking account of refer-
ences relating to the products offered by tenderers not as
proof of the tenderers’ suitability but to satisfy an award
criterion, such that the fact that those references are given
a negative evaluation would not exclude the tenderer
from the contract award procedure but would merely
result in the tender receiving a lower evaluation, for
example under a points system in which a poor evaluation
of references might be offset by a lower price?

If Questions 1 and 3 are answered in the negative: Is it
compatible with the relevant provisions of Community
law, including Article 26 of Directive 93/36/EEC, the
principle of equal treatment and the obligations of the
Communities under international
law for an award
criterion to provide that product references are to be
evaluated on the basis of the number of references alone,
there being no substantive examination as to whether
contracting authorities’ experiences of the product have
been good or bad, and, moreover, that only references
from the geographical area comprising the part of the
Alps within the European Union are to be taken into
account?

Is it compatible — with Community law, in particular
the principle of equal treatment, for an award criterion to
permit opportunities to inspect examples of the subject
of the invitation to tender to receive a positive evaluation
only if available within a 300 kilometre radius of the
authority issuing the invitation to tender?

If Question 3 is answered in the affirmative, or Question 4
or 5 answered in the negative:
Is Article 2(1)(c) of
Directive 89/665/EEC, if necessary considered in conjunc-
tion with other principles of Community law, to be
interpreted as meaning that if the contracting authority’s
infringement consists in imposing an unlawful award
criterion, the tenderer will be entitled to damages only if
he can actually prove that, but for the unlawful award
criterion, he would have submitted the best tender?

3.

4.

5.

6.

(1) OJ 1989 L 395, p. 33.
(2) OJ 1993 L 199, p. 1.

Action brought on 24 August 2001 by Commission of the
European Communities against Italian Republic

(Case C-323/01)

(2001/C 317/20)

An action against the Italian Republic was brought before the
Court of Justice of the European Communities on 24 August
2001 by the Commission of the European Communities,
represented by Richard Wainwright and Roberto Amorosi,
acting as Agents.

The applicant claims that the Court should:

1. Declare that, by failing to adopt and bring into force
within the prescribed period the laws, regulations or
administrative provisions necessary to comply with Com-
mission Directive 98/101/EC (1) of 22 December 1998
to technical progress Council Directive
adapting
91/157/EEC (2) on batteries and accumulators containing
certain dangerous substances, the Italian Republic has
failed to fulfil its obligations under that directive;

2. Order the Italian Republic to pay the costs.

Pleas in law and main arguments

The mandatory nature of the provisions of the third paragraph
of Article 249 and the first paragraph of Article 10 of the EC
Treaty requires Member States to adopt the measures necessary
to transpose directives addressed to them into their domestic
law before the expiry of the period prescribed for doing so.
That period expired on 1 January 2000 without Italy having
brought into force the necessary provisions.

(1) OJ 1999 L 1, p. 1.
(2) OJ 1991 L 78, p. 38.

Appeal brought on 29 August 2001 (by fax on 27 August
2001) by Telefon & Buch Verlagsgesellschaft mbH, against
the judgment delivered on 14 June 2001 by the Fourth
Chamber of the Court of First Instance of the European
Communities in Joined Cases T-357/99 and T-358/99
between Telefon & Buch VerlagsgmbH and the Office for
Harmonisation in the Internat Market (Trade Marks and
Designs) (OHIM)

(Case C-326/01 P)

(2001/C 317/21)

An appeal against the judgment delivered on 14 June 2001 by
the Fourth Chamber of the Court of First Instance of the