Case C-385/02: Action brought on 28 October 2002 by the Commission of the European Communities against the Italian Republic
Date: 2002-12-21
Institutions: Court of Justice
Subjects: European Commission, Italy, action for failure to fulfil an obligation, administrative procedure, public contract, watercourse, works contract

21.12.2002

EN

Official Journal of the European Communities

C 323/25

Action brought on 1 October 2002 by the Commission
of the European Communities against the Kingdom of the
Netherlands

Reference for a preliminary ruling by the Korkein hallin-
to-oikeus by order of that Court of 10 October 2002 in
the case of Marie Lindfors

(Case C-350/02)

(2002/C 323/35)

(Case C-365/02)

(2002/C 323/36)

An action against the Kingdom of the Netherlands was brought
before the Court of Justice of the European Communities
on 1 October 2002 by the Commission of the European
Communities, represented by M. Shotter and W. Wils, acting
as Agents.

The applicant claims that the Court should:

1. Declare that, by failing to adopt all the laws, regulations
and administrative provisions required to transpose
Articles 6 and 9 of Directive 97/66/EC (1) of the European
Parliament and of the Council of 15 December 1997
concerning the processing of personal data and the
protection of privacy in the telecommunications sector
into national law, or in any event by failing to forward
those provisions to the Commission, the Kingdom of the
Netherlands has failed to fulfil its Treaty obligations;

2. Order the Kingdom of the Netherlands to pay the costs.

Pleas in law and main arguments

Incomplete transposition of Article 6 of Directive 97/66/EC:
in particular Article 11.5 of
the Netherlands legislation,
the Telecommunicatiewet (Telecommunications Law), requires
only that the traffic data referred to in the secondary law be
erased or made anonymous. This provision will be in accord-
ance with the Directive only if the relevant secondary legis-
lation contains an exhaustive citation of all traffic data apart
from those referred to in Article 6(2) and (3) of the Directive.
The Commission has not as yet received any notification of
provisions of secondary legislation with such an exhaustive
citation.

Article 9(a) of the Directive (tracing of malicious or nuisance
calls) has not been transposed, as the Netherlands authorities
have acknowledged.

( 1) OJ 1998 L 24, p. 1.

Reference has been made to the Court of
Justice of the
European Communities by order of the Korkein hallinto-
oikeus (Supreme Administrative Court) of 10 October 2002,
received at the Court Registry on 14 October 2002, for a
preliminary ruling in the case of Marie Lindfors on the
following question:

Is Article 1 of Directive 83/183/EEC on tax exemptions
applicable to permanent imports from a Member State of the
personal property of individuals (1) to be interpreted as mean-
ing that the autovero (car tax) charged under the Autoverolaki
on a vehicle imported into Finland from another Member State
in connection with a transfer of residence is a consumption
tax within the meaning of Article 1(1) of the directive, or is
such autovero a specific duty or tax connected with the use of
such property within the country within the meaning of
Article 1(2)?

(1) OJ L 105 of 23 April 1983, p. 64.

Action brought on 28 October 2002 by the Commission
of the European Communities against the Italian Republic

(Case C-385/02)

(2002/C 323/37)

An action against the Italian Republic was brought before the
Court of Justice of the European Communities on 28 October
2002 by the Commission of the European Communities,
represented by Klaus Wiedner and Roberto Amorosi, acting as
Agents.

The applicant claims that the Court should:

— Declare that the Italian Republic has failed to fulfil its
obligations under Council Directive 93/37/EEC (1) of
14 June 1993 concerning the coordination of procedures
for the award of public works contracts, in particular
Article 7(3) thereof, when the Magistrato per il Po di
Parma, a department of the Ministry of Public Works
(now the Ministry for Infrastructure and Transport),
awarded the contracts for work on the construction and
completion of an expansion basin to hold spate waters of
the River Parma in the area of Marano in the Parma

C 323/26

EN

Official Journal of the European Communities

21.12.2002

municipal district, for the completion of an expansion
basin for the River Enza and for controlling spate
waters in the river Terdoppio-Canale Scolmatore to the
southwest of Cerano by means of a negotiated procedure
which was not preceded by the publication of a tender
notice when there no budgetary resources were available;

— Order the Italian Republic to pay the costs.

Action brought on 6 November 2002 by the Commission
of the European Communities against the Hellenic Repub-
lic

(Case C-390/02)

(2002/C 323/38)

Pleas in law and main arguments

According to the Commission the negotiated procedure, which
was not preceded by the publication of a tender notice,
adopted by the Magistrato del Po di Parma when awarding
contracts relating to the completion of the abovementioned
work, does not conform with the requirements of Directive
93/37/EC.

First, the Commission points out that the aforementioned
awards, although described by the awarding authority as
‘concessions solely for construction work’, must in actual fact
be regarded as public works contracts.

Article 1(d) of the directive defines ‘public works concession’
as a public works contract except for the fact that
the
consideration for the works to be carried out consists either
solely in the right to exploit the construction or in this right
together with payment.

In the present case, however, the persons undertaking the
works have not been accorded any rights in the exploitation
of those works, so that the awards in question must be
regarded as public works contracts, which is not disputed by
the Italian authorities.

Secondly, the Commission points out that Article 6 of the
directive provides that it applies to public works contracts
whose estimated value, including VAT, is EUR 5 000 000 or
greater. Thus, in view of the fact that the value of the contracts
in question exceeds the abovementioned threshold, they were
subject to the requirements of the directive.

( 1) OJ 1993 L 199, p. 54 .

An action against the Hellenic Republic was brought before the
Court of Justice of the European Communities on 6 November
2002 by the Commission of the European Communities,
represented by Georgios Zavvos, of its Legal Service.

The Commission claims that the Court should:

— declare that, by failing to adopt or, in the alternative, to
notify to the Commission, within the time-limit laid
down, the laws, regulations and administrative provisions
necessary to comply fully with Directive 99/42/EC (1) of
the European Parliament and of the Council of 7 June
1999 establishing a mechanism for the recognition of
qualifications in respect of the professional activities
covered by the directives on liberalisation and transitional
measures and supplementing the general systems for the
recognition of qualifications, the Hellenic Republic has
failed to fulfil its obligations under the EC Treaty;

— order the Hellenic Republic to pay the costs.

Pleas in law and main arguments

In accordance with the third paragraph of Article 249 EC,
directives are binding, as to the result to be achieved, upon
each Member State to which they are addressed.

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

It is not disputed by the Hellenic Republic that it must adopt
measures to comply with the abovementioned directive.

The Commission records that until now the Hellenic Republic
has not adopted the appropriate measures for the full incorpor-
ation of the directive at issue into Greek law or, of course,
notified such measures to the Commission.

(1) OJ L 201, 31.7.1999, p. 77.