Case C-128/03 and C-129/03: Reference for a preliminary ruling by the Consiglio di Stato by order of that Court of 14 January 2003 in the appeal brought by AEM SpA (C-128/03) and by AEM Torino SpA (C-129/03) against l'Autorità per l'energia elettrica e per il gas; Third party: ENEL Produzione SpA
Date: 2003-06-21
Institutions: Court of Justice
Subjects: electrical energy, energy distribution, interpretation of the law, liberalisation of the market, price of energy, transport network

21.6.2003

EN

Official Journal of the European Union

C 146/21

Pleas in law and main arguments

If — as is the case with the Municipality of the City of Munich
— the conditions for the existence of a body governed by
public law are met, there is no need under the directive to
draw a distinction, in the case of every requested provision of
services, as to whether such services are provided in the general
interest and are commercial in nature. It is for that reason
irrelevant that,
in the present case, the City of Munich, in
connection with the provision of a service for a third party,
burns waste in its own incineration plant and does not effect
the transport
itself but relies on a private
undertaking to do so. If a public body tenders successfully for
a contract but is obliged to subcontract out certain services in
order to ensure provision of the overall service, that public
body must apply the procedures set out in Directive 92/50.

to that plant

The obligation to end breaches of the Community law on the
award of contracts even by terminating contracts that have
already been concluded can also not be placed in question by
Article 2(6) of Directive 89/665 (2), which deals with ex post
facto review of potential breaches of the Community law on
tendering. A Treaty infringement can be treated as terminated
only once the Member State concerned recognises the illegal
nature of its action and the breach has been completely
brought to an end.

( 1) OJ 1992 L 209, p. 1.
( 2) OJ 1989 L 395, p. 33.

Reference for a preliminary ruling by the Consiglio di
Stato by order of that Court of 14 January 2003 in the
appeal brought by AEM SpA (C-128/03) and by AEM
Torino SpA (C-129/03) against l’Autorità per l’energia
elettrica e per il gas; Third party: ENEL Produzione SpA

(Case C-128/03 and C-129/03)

(2003/C 146/35)

a)

Can an administrative measure which, on the terms and
for the purposes stated in the reasoning,
imposes on
certain undertakings using the electricity transmission
network an increased charge for access and use in order
to finance general revenue charges of
the electricity
system be regarded as a State aid for the purposes of
Article 87 et seq. EC

b) Must the principles established in Directive 96/92 (1)
concerning the liberalisation of the internal electricity
market and in particular Article 7 and 8 thereof concern-
ing operation of the electricity transmission network be
interpreted as precluding the possibility for the Member
State to adopt measures imposing for a transitional period
on certain undertakings for access to and use of the
transmission network an increased charge in order to
offset the overvaluation of hydroelectric and geothermal
electricity occasioned, as stated in the reasoning, by the
altered legislative framework and to finance general
revenue charges of the electricity system.

(1) Directive 96/92/EC of the European Parliament and of the Council
of 19 December 1996 concerning common rules for the internal
market in electricity (OJ L 27 of 30.1.1997, p. 20).

Action brought on 24 March 2003 by the Commission of
the European Communities against the Italian Republic

(Case C-130/03)

(2003/C 146/36)

An action against the Italian Republic was brought before the
Court of Justice of the European Communities on 24 March
2003 by the Commission of the European Communities,
represented by Niels Bertil Rasmussen and Luigi Cimaglia,
acting as Agents.

The applicant claims that the Court should:

Reference has been made to the Court of Justice of the
European Communities by order of the Consiglio di Stato
(Council of State) of 14 January 2003, received at the Court
Registry on 24 March 2003, for a preliminary ruling in the
appeal brought by AEM SpA (C-128/03) and by AEM Torino
SpA (C-129/03) against l’Autorità per l’energia elettrica e per
il gas; Third party: ENEL Produzione SpA on the following
questions:

— Declare that, by failing to designate Community trade
mark courts and tribunals of first and second instance, or
in any event by failing to forward to the Commission,
within the prescribed period, a list of such courts and
tribunals indicating their names and territorial jurisdic-
tion, the Italian Republic has failed to fulfil its obligations
under Article 91 of Council Regulation (EC) No 40/94 (1)
of 20 December 1993 on the Community trade mark;