Case C-414/01: Action brought on 17 October 2001 by the Commission of the European Communities against the Kingdom of Spain
Date: 2001-12-08
Institutions: Court of Justice
Subjects: European Commission, Spain, action for failure to fulfil an obligation, consumer protection, distance selling

C 348/20

EN

Official Journal of the European Communities

8.12.2001

Action brought on 17 October 2001 by the Commission
of the European Communities against the Italian Republic

(Case C-412/01)

(2001/C 348/35)

Article 36(2) of the Directive and is in breach of the general
principle of transparency in that it makes it possible to
subdivide the objective criteria for assessing bids into sub-
categories before the envelopes are unsealed. Finally, the
Commission claims that, by failing to notify it of the adoption
of DPCM No 116/97 the Italian Republic has also infringed
Article 44(2) of the Directive.

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

An action against the Italian Republic was brought before the
Court of Justice of the European Communities on 17 October
2001 by the Commission of the European Communities,
represented by Michel Nolin, acting as Agent, assisted by
Massimo Moretto, avvocato.

The applicant claims that the Court should:

(Decree of

— Declare that, by including in Article 2 of Decreto del
Presidente del Consiglio dei Ministri
the
President of the Council of Ministers — DPCM), No 116
of 27 February 1997, by reference to Article 14 of
Decreto Legislativo (Legislative Decree) No 157 of
17 March 1995, among the criteria for awarding con-
tracts which the awarding authorities may take into
consideration when determining the most economically
advantageous offer,
the selection criteria listed in
Article 32 of Directive 92/50/EEC (1) and by including
among the criteria for awarding contracts the provision
of quality assurance together with ‘further information as
may be required by the awarding authorities with the
purpose of matching the bidder with the service under
tender’, and by failing, furthermore, to communicate to
the Commission the text of DPCM No 116/97, the Italian
Republic has failed to fulfil its obligations under Directive
92/50/EEC and, in particular, Articles 23, 32, 36 and 44
thereof,

— Order the Italian Republic to pay the costs.

Action brought on 17 October 2001 by the Commission
of the European Communities against the Kingdom of
Spain

(Case C-414/01)

(2001/C 348/36)

An action against The Kingdom of Spam was brought
before the Court of Justice of the European Communities on
the European
17 October 2001 by the Commission of
Communities, represented by I. Martı´nez del Peral, acting as
Agent, with an address for service in Luxembourg at the office
of L Escobar, of the Commission Legal Service, C-254 Wagner
Centre.

The applicant claims that the Court should:

— Declare that, by failing to adopt and bring into force the
laws, regulations and administrative provisions necessary
to comply with Directive 97/7/EC of
the European
Parliament and of the Council of 20 May 1997 on
the protection of consumers in respect of distance
contracts (1), or, in any event, by failing to communicate
to the Commission the adoption of such provisions, the
Kingdom of Spain has failed to fulfil its obligations, under
Article 15(1) of that Directive,

— Order the Kingdom of Spain to pay the costs.

Pleas in law and main arguments

Pleas in law and main arguments

The Commission takes the view that the contested provisions
of DPCM No 116/97 are clearly in conflict with Directive
92/50/EEC, inasmuch as they provide for the application of
assessment criteria concerning the technical ability of compet-
ing bidders additionally at the stage of determining the most
financially advantageous offer, thereby blurring the distinction
between the selection and awarding stages. Furthermore, the
Commission is of the view that the DPCM in question infringes

Under Article 15(1) of Directive 97/7/EC, the Kingdom of
Spain should have adopted the measures necessary to comply
therewith by 4 June 2000.

(1) OJ 1997 L 144, p. 19.