Case C-187/04: Action brought on 22 April 2004 by the Commission of the European Communities against the Italian Republic
Date: 2004-07-10
Institutions: Court of Justice
Subjects: European Commission, Italy, action for failure to fulfil an obligation, award of contract, motorway, works contract

10.7.2004

EN

Official Journal of the European Union

C 179/3

Action brought on 22 April 2004 by the Commission of
the European Communities against the Italian Republic

Action brought on 22 April 2004 by the Hellenic Republic
against the Commission of the European Communities

(Case C-187/04)

(2004/C 179/05)

(Case C-189/04)

(2004/C 179/06)

An action against the Italian Republic was brought before the
Court of Justice of the European Communities on 22 April
2004 by the Commission of the European Communities, repre-
sented by K. Wiedner and G. Bambara, acting as Agents.

The applicant claims that the Court should:

— Declare that, since ANAS S.p.A. awarded the concession for
the Valtrompia
the construction and management of
motorway to the Società per l'autostrada Brescia-Verona-
Vicenza-Padova p.a., by direct concession by means of a
contract signed on 7 December 1999 without prior publi-
cation of a contract notice, and where the requirements for
such a concession were not met, the Italian Republic has
failed to fulfil
its obligations under Council Directive
93/37/EEC (1) of 14 June 1993 coordinating the procedures
for the award of public works contracts and in particular
Articles 3(1) and 11(3), (6) and (7) thereof;

An action against the Commission of the European Commu-
nities was brought on 22 April 2004 before the Court of
Justice of the European Communities by the Hellenic Republic,
legal adviser of the
represented by Panayiotis Milonopoulos,
Community law section of
the
legal service of
the special
Ministry of Foreign Affairs and by Vasilios Kiriazopoulos, of
the State legal service, with an address for service in Luxem-
bourg at the Greek Embassy, 27 Rue Marie-Adelaide.

The applicant claims that the Court should:

— Declare void the offsetting by the Commission of the Euro-
pean Communities of
the amount of EUR 565,656.80
(participation by the Ministry of Foreign Affairs in the
construction of a common European Union diplomatic
representation in Abouja, Nigeria)
included in the total
amount of offset of EUR 1,653,298.54 from the amount
made available to Greece in the context of the relevant
support programme.

— Order the Commission of the European Communities to

— Order the Italian Republic to pay to the costs.

pay the costs.

Pleas in law and main arguments:

Pleas and main arguments

According to the Commission, ANAS's concession relating to
the construction and management of the Valtrompia motorway
without prior publication of a contract notice does not comply
with Directive 93/37/EEC and in particular with Articles 3(1)
and 11(3), (6) and (7) thereof.

Article 3 of the Directive provides for the application of certain
advertising rules at Community level where the contracting
authorities conclude a public works concession contract if the
value of that contract exceeds EUR 5 million. In particular,
under Article 11(3) of the directive, contracting authorities
wishing to award a works concession contract must make
known that intention by means of a contract notice to be sent,
pursuant to Article 11(7) of the directive, to the Office for Offi-
cial Publications of the European Communities.

Since the contract for the construction and management of the
Valtrompia motorway is worth approximately EUR 640
million, it clearly should have been the subject of publication
in the Official Journal of the European Communities.

(1) OJ L 199 of 9.8.1993, p. 54.

The Hellenic Republic maintains that the Commission did not
pay due heed to the fact that the Additional memorandum of
understanding was not ratified by Hellenic Republic and applies
without
the Hellenic Republic in the
Abouja II project.

the participation of

Nor was sufficient credence paid by the defendant
to the
substantive acknowledgement by the Hellenic Republic of its
debts arising out of its participation in the Abouja I project.

In that connection the Hellenic Republic maintains that the
Commission of the European Communities infringed the prin-
ciples governing collection of amounts and the provision, clear-
ance and confirmation of liabilities, as well as the principles
governing collection by means of offsetting.

In light of the foregoing the Hellenic Republic maintains that
by issuing the offsetting notice the Commission infringed
substantive provisions of law, that is to say, on the one hand,
the provisions of Regulation No 3342/02 and, on the other,
the provisions of Article 15 of the initial memorandum of
understanding.