Case C-236/04: Action brought on 7 June 2004 against the Grand Duchy of Luxembourg by the Commission of the European Communities
Date: 2004-07-24
Institutions: Court of Justice
Subjects: European Commission, Luxembourg, action for failure to fulfil an obligation, national implementing measure, service, telecommunications, transmission network

24.7.2004

EN

Official Journal of the European Union

C 190/11

Reference for a preliminary ruling by the Tribunale
Amministrativo Regionale del Lazio, Division Ia, by order
of that court of 22 April 2004 in the case of Consorzio
G.f.M. v Ministry of Defence and ‘La Cascina’ s.c.r.l. and
Zilch s.r.l

(Case C-228/04)

(2004/C 190/18)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of Division Ia of the Tribunale
Amministrativo Regionale del Lazio (Regional Administrative
Court, Lazio) of 22 April 2004, received at the Court Registry
for a preliminary ruling in the case of
on 2 June 2004,
Consorzio G.f.M. v Ministry of Defence and ‘La Cascina’ s.c.r.l.
and Zilch s.r.l, on the following questions:

1) Must

subparagraphs

(e) and (f) of Council Directive
92/50/EEC (1)of 18 June 1992 relating to the coordination
of procedures for the award of public service contracts, as
regards only the abovementioned provisions, be interpreted
as meaning that, where the Community legislature employs
the expression ‘has not fulfilled obligations relating to the
payment of social security contributions in accordance with
the legal provisions of the country in which he is estab-
lished or with those of
the contracting
authority’ or ‘has not fulfilled obligations relating to the
payment of taxes in accordance with the legal provisions of
the country of the contracting authority’,
the legislature
intended to refer - solely and exclusively - to a situation in
which the person concerned has
- when the period
prescribed for submitting applications to participate in a
public tendering procedure expires (or in any event before
the award of the contract, as indicated under point III.4
above) - fulfilled those obligations by paying in full and in
time?

the country of

2) Consequently, must

the

Italian national

implementing
measure (Article 12 (d) and (e) of Legislative Decree No 157
of 17 March 1995) – in so far as, unlike the Community
provision cited above, it allows the exclusion from tendering
procedures of persons who ‘are not
in compliance in
respect of obligations relating to the payment of social
security contributions for employees,
in accordance with
Italian legislation or the legislation of the State in which
they are established’ or who ‘are not
in compliance in
respect of obligations relating to the payment of taxes, in
accordance with Italian legislation or the legislation of the
State in which they are established’ - be interpreted with
reference solely to the failure - verifiable at
the date
mentioned above (the expiry of the period prescribed for
submitting applications to participate or immediately before
the award, even provisional, of the contract) - to fulfil those
obligations, without any importance being attached to
subsequent ‘regularisation’ of their position?

3) Or, conversely (if, in the light of the indications set out in
question 2 above, the national measure is held not to be in
harmony with the rationale and function of the Community
provision), may the national legislature be regarded, in the
light of the limitations to which it is subject for the purpose
of giving effect to the Community rules contained in the
Directive at issue, as being entitled to introduce the option
of allowing the admission to a tendering procedure of
persons who, although not ‘in compliance’ when the period
prescribed for participation in the procedure expires, never-
theless show that they can regularise their position (and
have taken positive steps to do so) before the award of the
contract?

4) And, if the interpretation referred to in question 3 above is
held to be workable - thus permitting the introduction of
more flexible rules than would be allowed on a stricter
interpretation of the ‘fulfilment’ of obligations referred to by
the Community legislature - do such rules conflict with
fundamental Community principles, such as the principle of
equal treatment for all citizens of the Union, or – with
regard only to public tendering procedures – that of equal
conditions for all persons who have applied for admission
to such procedures?

(1) OJ L 209 of 24.7.1992, p. 1.

Action brought on 7 June 2004 against the Grand Duchy
the European
of Luxembourg by the Commission of

Communities

(Case C-236/04)

(2004/C 190/19)

An action was brought before the Court of Justice of the Euro-
pean Communities on 7 June 2004 by the Commission of the
European Communities, represented by M. Shotter, acting as
Agent, with an address for service in Luxembourg, against the
Grand Duchy of Luxembourg.

The Commission claims that the Court should:

1. Declare that, by not taking the legislative, regulatory and

administrative measures necessary to comply with:

— Directive 2002/19/EC of the European Parliament and
of the Council of 7 March 2002 on access to, and inter-
connection of, electronic communications networks and
associated facilities (‘Access Directive’); (1)

C 190/12

EN

Official Journal of the European Union

24.7.2004

— Directive 2002/20/EC of the European Parliament and
of the Council of 7 March 2002 on the authorisation of
electronic
services
(‘Authorisation Directive’); (2)

communications networks

and

— Directive 2002/21/EC of the European Parliament and
of the Council of 7 March 2002 on a common regula-
tory framework for electronic communications networks
and services (‘Framework Directive’); (3)

— Directive 2002/22/EC of the European Parliament and
of the Council of 7 March 2002 on universal service
and users' rights relating to electronic communications
networks and services (‘Universal Service Directive’); (4)

or, in any event, by not communicating those provisions to
the Commission,
the Grand Duchy of Luxembourg has
failed to fulfil its obligations under Article 18 of the Access
Directive, Article 18 of the Authorisation Directive, Article
28 of
the
Universal Service Directive.

the Framework Directive and Article 38 of

2. Order the Grand Duchy of Luxembourg to pay the costs.

Pleas in law and principal arguments:

The time-limit given for transposition of the directives was 24
July 2003.

(1) OJ L 108 of 24.4.2002, p. 7.
(2) OJ L 108 of 24.4.2002, p. 21.
(3) OJ L 108 of 24.4.2002, p. 33.
(4) OJ L 108 of 24.4.2002, p. 51.

Action brought on 7 June 2004 by the Commission of the
European Communities against the French Republic

(Case C-238/04)

(2004/C 190/20)

An action against the French Republic was brought before the
Court of Justice of the European Communities on 7 June 2004
by the Commission of the European Communities, represented
by O. Beynet and A. Whelan, acting as Agents, with an address
for service in Luxembourg.

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

1. declare that, by failing to transpose correctly Articles 1 and
2(3) of Directive 90/388/EEC on competition in the markets
for telecommunications services, (1) as amended by Direc-
tives 95/51/EC (2) and 96/19/EC, (3) the French Republic has
failed to fulfil its obligations under that directive and under
the third paragraph of Article 249 EC;

2. order the French Republic to pay the costs.

Pleas in law and main arguments:

French legal rules entail a problem of compatibility with Com-
munity law on the conditions for licensing the provision of
telecommunications services by cable providers.

As regards the provision of telephony services, French legisla-
tion imposes an obligation to consult communes, or associa-
tions of communes, before the issue of a licence for the provi-
sion of a telephone service on cable networks. That obligation
gives rise to a number of problems from the point of view of
Article 2(3) of Directive 90/388, as amended by Directive
96/19/EC, namely lack of
transparency in the consultation
procedure, the disproportionate degree of discretion afforded to
town councils when coming to their decisions, uncertainty as
to whether the procedure is objective on account of the links
between certain town councils and providers, the discrimina-
tory aspect of a procedure which does not apply to other
providers of telecommunications services and risk of discrimi-
nation as between the various cable providers.

The rules by virtue of which cable providers must systemati-
cally inform all communes
in which their networks are
installed impose on those providers an additional obligation in
contrast to the general freedom to provide services applicable
to other providers of telecommunications services. Since there
are no objective factors such as to justify this differential treat-
ment, the French rules are discriminatory in this respect and
infringe the provisions of Article 1 in conjunction with Article
2(3) of Directive 90/388/EEC, as amended by Directives
95/51/EC and 96/19/EC.

(1) OJ L 192 of 24.7.1990, p. 10.
(2) Commission Directive 95/51/EC of 18 October 1995 amending
Directive 90/388/EEC with regard to the abolition of the restrictions
on the use of cable television networks for the provision of already
liberalised telecommunications services (OJ L 256 of 26.10.1995, p.
49).

(3) Commission Directive 96/19/EC of 13 March 1996 amending
Directive 90/388/EEC with regard to the implementation of full
competition in telecommunications markets (OJ L 73 of 13.3.1996,
p. 13).