Case C-525/03: Action brought on 16 December 2003 by the Commission of the European Communities against the Italian Republic
Date: 2004-03-06
Institutions: Court of Justice
Subjects: European Commission, Italy, action for failure to fulfil an obligation, award of contract, fire protection, services contract, supplies contract

C 59/6

EN

Official Journal of the European Union

6.3.2004

Court taken into account that neither the former rules nor the
new Regulations include a reference to audits. The audit
proposed by ECHO had a discriminatory character in so far as
there was no justification given for undertaking such an audit
once the German Foreign Office had confirmed the legal status
of IH as a charitable organisation.

(1) OJ C 31, 8.2.2003, p. 21.
(2) of the Council, of 20 June 1996, concerning humanitarian aid (OJ

L 163, 2.7.1996, p. 1).

Action brought on 15 December 2003 by the Commission
of the European Communities against Biotrast AE, Anoni-
mi Eteria Tekhnologion Aikhmis

(Case C-523/03)

(2004/C 59/09)

An action against Biotrast AE, Anonomi Eteria Tekhnologion
Aikhmis, was brought before the Court of Justice of the
European Communities on 15 December 2003 by the Com-
mission of the European Communities, represented by Dimitris
Triantafillou, of its Legal Service, and by Nikolaos Koroyian-
nakis, of the Athens Bar, with an address for service in
Luxembourg. The applicant claims that the Court should:

order the defendant:

(a)

to pay the amount of EUR 730 726,81, representing a
capital sum of EUR 661 838,82 and daily interest of EUR
68 887,99, from the date on which the debit note fell
due with interest at 4,77 % until 31.12.2002 and 6,77 %
from 11.2003;

(b)

to pay interest in the amount of EUR 122,75 per day
from 31.10.2003 until the debt is repaid in full;

(c)

to pay the costs.

Pleas in law and main arguments

(a) There is an obligation to repay the amount unduly paid

by the Commission.

(b) The date on which interest became payable.

Action brought on 16 December 2003 by the Commission
of the European Communities against G. & E. Gianniotis
EPE, trading as ‘Nosokomio Agia Eleni’

(Case C-524/03)

(2004/C 59/10)

An action against G. &. E. Gianniotis EPE, trading as ‘Nosoko-
mio Agia Eleni’ was brought before the Court of Justice of
the European Communities on 16 December 2003 by the
Commission of the European Communities, represented by
Dimitri Triandafilou of its Legal Service, assisted by Nicolao
Korogiannakis, of the Athens Bar, with an address for service
in Luxembourg.

The applicant claims that the Court should order the defendant:

(a)

to pay the amount of EUR 236 977,73, comprising the
principal sum of EUR 212 010,17 and daily interest of
EUR 24 697,76 from the date of each debit note until
31 October 2003;

(b)

to pay interest in the amount of EUR 42,16 per day as
from 31 October 2003 until payment in full of the debt;

(c)

to pay the costs.

Pleas in law and main arguments

(a)

Liability to repay the amount unduly paid by the Com-
mission;

(b) Date on which interest became payable.

Action brought on 16 December 2003 by the Commission
of the European Communities against the Italian Republic

(Case C-525/03)

(2004/C 59/11)

An action against the Italian Republic was brought before the
Court of Justice of the European Communities on 16 December
2003 by the Commission of the European Communities,
represented by Klaus Wiedner and Claudio Loggi, acting as
Agents.

6.3.2004

EN

Official Journal of the European Union

C 59/7

The applicant claims that the Court should:

— Declare that, by adopting Article 1, second subparagraph
and first, second and third subparagraphs of Article 2 of
Order No 3231 of the President of the Council of
Ministers of 24 July 2002, which allow for private
negotiations by way of derogation from the provisions of
the Community directives on public supply and service
contracts, and in particular, from the common rules on
advertising and participation laid down by Titles III and
IV of Directive 93/36/EEC (1) and III and V of Directive
92/50/EEC (2), for the acquisition of aircraft to combat
forest fires and for the acquisition of firefighting services
and which similarly allow for such negotiations for the
acquisition of technical and computer equipment and
two-way radios, without any of the lawful conditions for
derogation from those common rules being satisfied and,
in any event, without ensuring any form of direct
advertising such as to permit a competitive comparison
between potential tenderers, the Italian Republic has
failed to fulfil its obligations under Council Directive 93/
36/EEC of 18 June 1992 and Articles 43 and 49 of the
EC Treaty;

— Order the Italian Republic to pay the costs.

Pleas in law and main arguments

State Forest Department of two-way radio equipment for
communication with firefighting aircraft and for the acqui-
sition and/or implementation, again on behalf of that Depart-
ment, of air services for fighting forest fires, in the last case
providing, in terms similar to the provision in respect of the
acquisition of firefighting aircraft, that the relevant contracts
may also be entered into in derogation from the legislation
transposing the Community directives on public contracts
and, in particular, Directives 92/50/EEC and 93/36/EEC.

The Commission further considers that,
in those cases,
recourse cannot be had to private negotiations and that, in any
case, no evidence of the existence of the conditions required
for recourse to such negotiations was provided by the Italian
authorities.
the conditions under
Article 6(2) and (3) of Directive 93/36/EEC and Article 11(2)
and (3) of Directive 92/50/EEC is satisfied.

In particular, none of

(1) OJ L 199 of 9.8.1993, p. 1.
(2) OJ L 209 of 24.7.1992, p. 1.

Contracts for the supply of aircraft fall within the scope of
Directive 93/36/EEC which governs the award procedure for
public supply contracts.

Action brought on 15 December 2003 by the Commission
of the European Communities against the Kingdom of the
Netherlands

Pursuant to Article 6 of the directive, the contracting auth-
orities are to award supply contracts by the open or restricted
procedures. Recourse to the negotiated procedure is permitted
only in the cases expressly provided for in paragraphs 2 and 3
of that article. Article 6(3) includes, amongst the cases in
which the negotiated procedure is permitted, that where,
for reasons of extreme urgency brought about by events
unforeseeable by the contracting authorities, and for which
those authorities are not responsible, the time limits laid down
for the competitive procedures with prior publication cannot
be observed.

The Commission points out that, in the present case, none of
the conditions laid down by Article 6 of Directive 93/36/EEC
for derogation from the provisions of that directive appears to
apply and that, in particular, there do not appear to be reasons
of urgency such as to permit the contracting authority to avail
itself of the derogation under Article 6(3)(d) of the directive.

The Commission further points out that the contested order
lays down numerous other possibilities for resorting to private
negotiations, namely for the acquisition of
the material
necessary to equip the Department of Civil Protection with
technical and computer systems, for the acquisition by the

(Case C-527/03)

(2004/C 59/12)

An action against the Kingdom of the Netherlands was brought
before the Court of Justice of the European Communities on
15 December 2003 by the Commission of the European
Communities, represented by K. Simonsson and W. Wils,
acting as Agents.

The applicant claims that the Court should:

1.

declare that, by failing to adopt the laws, regulations
and administrative provisions necessary to comply with
Directive 2000/59/EC (1) of the European Parliament and
of the Council of 27 November 2000 on port reception
facilities for ship-generated waste and cargo residues, or,
in any event, by failing to notify the Commission of those
measures, the Kingdom of the Netherlands has failed to
fulfil its obligations under that directive;