Case C-29/04: Action brought on 28 January 2004 by the Commission of the European Communities against the Republic of Austria
Date: 2004-03-20
Institutions: Court of Justice
Subjects: Austria, European Commission, action for failure to fulfil an obligation, award of contract, contract, waste disposal

C 71/12

EN

Official Journal of the European Union

20.3.2004

Pleas in law and main arguments

The Spanish authorities have not officially designated as
bathing areas, the beaches Viela/A Videira, Niño do Corvo and
Canabal in the municipality of Moaña (Pontevedra), in spite of
the frequent presence of bathers on those beaches. In the
absence of a ban on bathing, the presence of bathers requires
the designation of those beaches as bathing waters, for the
In the absence of such a
purpose of Directive 76/160.
designation, those three beaches have not been subject to the
surveillance required by the Directive.

The waters of the Ría de Vigo do not conform to the guideline
values, laid down by Directive 79/923, for faecal coliforms, in
spite of the fact that nearly all of those waters have been
designated by the Spanish authorities as shellfish waters.
Accordingly, Article 5 of that directive requires the establish-
ment of a programme to reduce pollution in order to ensure
that the designated waters conform to the values fixed in the
Annex to Directive 79/923. However, the pollution-reduction
programme for the Ría de Vigo has not been notified to the
Commission.

(1) OJ 1976 L 31, p. 1; Spanish Special Edition 15/01, p. 133.
(2) OJ 1979 L 281, p. 47; Spanish Special Edition 15/02, p. 156.

Reference for a preliminary ruling by the Tribunal De
Grand Instance de Paris (Third Chamber, Second Division)
by order of that Court of 5 December 2003 in the case of
Société TOD’S SpA (formerly named EMA Srl) and SARL
TOD’S France formerly named DEVA France against S.A.
Heyraud; Voluntary intervener: Sté Technisynthese

(Case C-28/04)

(2004/C 71/18)

Reference has been made to the Court of Justice of the
European Communities by order of the Tribunal De Grand
Instance de Paris (Paris Regional Court) of 5 December 2003,
received at the Court Registry on 28 January 2004, for a
preliminary ruling in the case of Société TOD’S SpA (formerly
named EMA Srl) and SARL TOD’S France formerly named
DEVA France against S.A. Heyraud; Voluntary intervener: Sté
Technisynthese, on the following question:

Does Article 12 of the EC Treaty, which lays down the general
principle of non-discrimination on grounds of nationality,
mean that the right of an author to claim in a Member State
the copyright protection afforded by the law of that State may
not be subject to a distinction based on the country of origin
of the work?

Action brought on 28 January 2004 by the Commission
of the European Communities against the Republic of
Austria

(Case C-29/04)

(2004/C 71/19)

the Republic of Austria was brought
An action against
before the Court of Justice of the European Communities
on 28 January 2004 by the Commission of the European
Communities, represented by Klaus Wiedner, acting as Agent,
with an address for service in Luxembourg.

The applicant claims that the Court should:

1.

declare that the Republic of Austria has failed to fulfil its
obligations under Council Directive 92/50/EEC of 18 June
1992 relating to the coordination of procedures for the
award of public service contracts (1), in that award of the
refuse disposal contract entered into by the town of
Mödling failed to comply with the procedures and
advertising rules laid down in Article 8, in conjunction
with Article 11(1) and Article 15(2), of that directive;

2.

order the Republic of Austria to pay the costs.

Pleas in law and main arguments

On 21 May 1999, the municipality of Mödling decided to use
its own vehicle to carry out its statutory duties relating to
refuse disposal. A company, AbfallGmbH, was incorporated
for this purpose. The whole of the company’s share capital
was held by one member, namely the municipality of Mödling.
The contract for disposal, under which the municipality of
Mödling transferred exclusive responsibility for the collection
and treatment of waste to AbfallGmbH, was entered into on
15 September 1999. The contract was entered into for an
unlimited period and came into force with retrospective effect
on 1 July 1999. Two weeks after the conclusion of the contract
for refuse disposal, the town council of the municipality of
Mödling decided that the municipality of Mödling, as sole
member of AbfallGmbH, should transfer 49 % of its shares to
a private undertaking.

The Republic of Austria is of the opinion that the provisions
of Directive 92/50/EEC do not apply to the award of the waste
disposal contract to AbfallGmbH, as it involved a so-called ‘in-
house’ transaction.

20.3.2004

EN

Official Journal of the European Union

C 71/13

The Commission claims that the agreement of 15 September
1999 to transfer the responsibility for the collection and
treatment of waste from the municipality of Mödling to
AbfallGmbH does not fall to be classified as an ‘internal
transfer’ within the administration of the municipality of
Mödling, as the municipality of Mödling ceased to exercise the
control over AbfallGmbH that it would have over its own
departments. The transfer of responsibility for the carrying out
of public services accordingly involves a public service contract
which was subject to the compulsory tender procedure.

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

Action brought on 29 January 2004 by the Commission
of the European Communities against the Kingdom of
Spain

(Case C-31/04)

(2004/C 71/20)

An action against the Kingdom of Spain was brought before
the Court of Justice of the European Communities on 29 Janu-
ary 2004 by the Commission of the European Communities,
represented by K. Banks and F. Castillo de la Torre, of the
Commission’s Legal Service, with an address for service in
Luxembourg.

Action brought on 29 January 2004 by the Commission
of the European Communities against the French Republic

(Case C-32/04)

(2004/C 71/21)

An action against the French Republic was brought before the
Court of Justice of the European Communities on 29 January
2004 by the Commission of the European Communities,
represented by U. Wölker and F. Simonetti, acting as Agents,
with an address for service in Luxembourg.

The Commission of the European Communities claims that
the Court should:

— declare that, by failing to adopt the laws, regulations
and administrative provisions necessary to comply with
Commission Directive 2001/58/EC of 27 July 2001
amending for the second time Directive 91/155/EEC
defining and laying down the detailed arrangements for
the system of specific information relating to dangerous
preparations in implementation of Article 14 of European
Parliament and Council Directive 1999/45/EC and relat-
ing to dangerous substances in implementation of
Article 27 of Council Directive 67/548/EEC (safety data
sheets) (1), or,
in any event, by failing to inform the
Commission thereof, the French Republic has failed to
fulfil its obligations under that directive;

— order the French Republic to pay the costs.

The applicant claims that the Court should:

Pleas in law and main arguments

— declare that, by failing to adopt the laws, regulations
and administrative provisions necessary to comply with
Directive 2001/29/EC of the European Parliament and of
the Council of 22 May 2001 on the harmonisation of
certain aspects of copyright and related rights in the
information society (1), or in any event by failing to
communicate those provisions to the Commission, the
Kingdom of Spain has failed to fulfil its obligations under
Article 13 of that directive.

— order the Kingdom of Spain to pay the costs.

Pleas in law and main arguments

The period prescribed by the Directive for its transposition
into national law expired on 22 December 2002.

(1) OJ 2001 L 167, p. 10.

The period for transposition of the directive expired on 30 July
2002.

(1) OJ 2001 L 212, p. 24.

Action brought on 29 January 2004 by the Commission
of the European Communities against the Grand Duchy
of Luxembourg

Case C-33/04

(2004/C 71/22)

An action against the Grand Duchy of Luxembourg was
brought before the Court of Justice of the European Communi-
ties on 29 January 2004 by the Commission of the European
Communities, represented by W. Wils and M. Shotter, acting
as Agents, with an address for service in Luxembourg.