Case C-412/04: Action brought on 24 September 2004 by the Commission of the European Communities against the Italian Republic
Date: 2004-12-04
Institutions: Court of Justice
Subjects: European Commission, Italy, action for failure to fulfil an obligation, award of contract, infringement of EU law, public contract, services contract, supplies contract, works contract

4.12.2004

EN

Official Journal of the European Union

C 300/27

a. the right to dispose of the goods as owner has passed
to the purchaser and the goods have been supplied
by the supplier by placing them at the disposal of the
purchaser, on an ex works contract of sale whereby
the purchaser assumes responsibility for removing
the goods to a different Member State from that of
supply, at a secure warehouse located in the suppli-
er's Member State, where the contractual documents
the
and/or other documentary evidence state that
intention is that the goods should then be trans-
ported onwards towards a destination in another
Member State, but the goods have not yet physically
left the territory of the Member State of Supply; or

b. the right to dispose of the goods as owner has passed
to the purchaser and the goods have commenced,
but not necessarily completed, their journey towards
a different Member State (in particular, the goods
have not yet physically left
the
Member State of supply); or

the territory of

c. the right to dispose of the goods as owner has passed
to the purchaser and the goods have left the territory
the Member State of supply on their journey
of
towards a second Member State; or

d. the right to dispose of the goods as owner has passed
to the purchaser and the goods can also be shown to
have actually arrived in the Member State of destina-
tion?

authorities

competent

3. In the relevant circumstances, where a supplier acting in
good faith has tendered to the competent authorities in his
Member State, after submission of a repayment claim, objec-
tive evidence which at the time of its receipt apparently
supported his right to exempt goods under Article 28cA(a)
initially accepted that
and the
evidence for the purpose of exemption,
in what circum-
stances (if any) may the competent authorities in the
Member State of supply nevertheless subsequently require
the supplier to account for VAT on those goods where
further evidence comes to their attention that either (a) casts
doubt upon the validity of
the earlier evidence or (b)
demonstrates that the evidence submitted was materially
false, but without the knowledge or the involvement of the
supplier?

4. Is the answer to question 3 above affected by the fact that
there was evidence that the purchaser made returns to the
tax authorities in the Member State of destination, where
those returns included as intra-Community acquisitions the
purchases the subject matter of these claims, the purchaser
entered an amount purporting to represent acquisition tax
and also claimed the same amount as input tax in accord-
ance with Article 17(2)(d) of the Sixth Directive?

(1) of the Sixth Council Directive 77/388/EEC of 17 May 1977 on the
harmonization of the laws of the Member States relating to turnover

taxes — Common system of value added tax: uniform basis of
assessment (OJ L 145, 13.06.1977, p. 1).

Reference for a preliminary ruling by the Tribunale ammi-
nistrativo regionale per la Puglia by order of 22 July 2004
in the case pending before it between Associazione Nazio-
nale Autotrasporto Viaggiatori — A.N.A.V. and Comune di
Bari and A.M.T.A.B. Servizio SpA

(Case C-410/04)

(2004/C 300/53)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Tribunale amministrativo
regionale per la Puglia (Regional Administrative Court
for
Apulia) of 22 July 2004, received at the Court Registry on 27
September 2004, for a preliminary ruling in the case of Asso-
ciazione Nazionale Autotrasporto Viaggiatori — A.N.A.V.
against Comune di Bari and A.M.T.A.B. Servizio SpA on the
following question:

‘Is the part of paragraph V of Article 113 of Legislative Decree
No 267/00 as amended by Article 14 of Decree Law No 269/
03 that sets no limit on the freedom of a public authority to
choose between the different methods of awarding a contract
for the provision of a public service, and, in particular, between
an award as a result of a public and open tender procedure and
direct award to a company wholly controlled by the authority,
compatible with Community law, and, in particular, with the
obligations to ensure transparency and freedom of competition
pursuant to Articles 46, 49 and 86 of the Treaty?’

Action brought on 24 September 2004 by the Commission
of the European Communities against the Italian Republic

(Case C-412/04)

(2004/C 300/54)

Justice of

An action against the Italian Republic was brought before the
the European Communities on 24
Court of
September 2004 by the Commission of the European Commu-
nities, represented by Klaus Wiedner and Giuseppe Bambara,
acting as Agents.

C 300/28

EN

Official Journal of the European Union

4.12.2004

The applicant claims that the Court should:

— declare that, by adopting Articles 2(1), 17(12), 27(2),
30(6a), 37b and 37c(1) of Law No 109 of 11 February
1994, as most recently amended by Article 7 of Law No
166 of 1 August 2002; Article 2(5) of Law No 109/94, as
most recently amended by Law No 166/2002, to be read in
conjunction with Law No 1150 of 1942 and Law No 10 of
1977, as amended and supplemented; Article 28(4) of Law
No 109/94, to be read in conjunction with Article 188 of
Presidential Decree No 554 of 21 December 1999 and
Article 7 of Law No 166/2002, and Article 3(3) of Legisla-
tive Decree No 157 of 17 March 1995, the Italian Republic
its obligations under Directives
has
93/37/EEC (1),
and
93/38/EEC (4), Articles 43 and 49 EC and the principles of
to which they give
transparency and equal
expression;

failed to fulfil

93/36/EEC (2),

92/50/EEC (3)

treatment

— Order the Italian Republic to pay the costs.

Pleas in law and main arguments:

The Commission notes that, by making those contracts in
which the works component is prevalent from the economic
point of view but is clearly ancillary to other services subject to
the rules on public works contracts, Article 2(1) of Law No
109/94 and Article 3(3) of Legislative Decree No 157 of 17
March 1995 have the effect of removing numerous public
service and supply contracts from the purview of the relevant
Community legislation, specifically Directives 92/50/EEC and
93/36/EEC.

Since the thresholds for the application of those directives are
appreciably lower than those for the application of Directive
93/37/EEC, the effect of the provisions in question is to enable
mixed service and works contracts, supply and works contracts
or supply, works and service contracts to be awarded in breach
the procedures laid down by Directives 92/50/EEC and
of
93/36/EEC where the value exceeds the threshold for applica-
tion of those directives but does not exceed that for public
works contracts under Directive 93/37/EEC on the sole ground
that, although ancillary,
the works component is prevalent
from the economic point of view. From that perspective, the
provisions in question constitute an infringement of Directives
92/50/EEC and 93/36/EEC.

Law No 109/94 infringes Directive 93/37/EEC,
read in
conjunction with Laws No 1150 of 1942 and No 10 of 1977,
as subsequently amended and supplemented, which allows
contracts for urbanisation works to be awarded directly to the
holder of a building permission or development plan.

Rules governing the award of contracts for the design and
supervision of works the value of which is below the Com-
munity thresholds

The Commission notes that Articles 17 and 30 of Law No
109/94, which permit the awarding authorities to award such
contracts on the basis of trust without complying with any
requirement concerning advertising, must be regarded as
infringing the principle of transparency set out in Article 49
EC. Furthermore, reliance upon a procedure to ascertain the
experience and capacity of suppliers is,
in the absence of
minimum advertising requirements intended to ensure a level
playing field of competition between all persons potentially
interested in supplying the services,
to
ensure compliance with the principle of transparency.

insufficient

in itself

Rules governing the award of contracts for the supervision of
works

The Commission submits that, in so far as it allows the direct
award, without any form of competition, of contracts for
services for the supervision of works to the professional practi-
tioner responsible for their design, Article 27(2) of Law No
109/94, having regard to the value of the services awarded and
the
infringes Directives 92/50/EEC and
93/38/EEC and Articles 43 and 49 EC.

rules applicable,

Rules governing the award of contracts for inspection services

The Commission considers that the mechanism laid down by
Article 28 of Law No 109/94, which permits the direct selec-
tion of inspectors by the awarding authorities otherwise than
in accordance with their own rules, without provision either
for the publication of a tender notice or other forms of direct
advertising such as to enable all potential interested suppliers
to compete for the award of contracts for inspection services,
infringes Directives 92/50/EEC and 93/38/EEC and the prin-
ciple of transparency as set out in Articles 43 and 49 EC,
having regard to the value of those services and the rules
applicable.

Rules governing works carried out by private persons which
are deductible from urbanisation taxes

Rules governing project finance

The Commission considers that,
in so far as it excludes the
duty to comply with the procedures laid down by Directive
93/37/EEC in cases of contracts between private persons and
the State relating to a number of works, each of which falls
below the threshold for the application of that directive, but
whose aggregate value exceeds that threshold, Article 2(5) of

Article 37a et seq. of Law No 109/94 govern so called ‘project
finance’, which is intended to enable public works to be carried
out on the basis of proposals submitted by persons indepen-
dent of the State, referred to as ‘promoters’, by the award of a
works concession.

4.12.2004

EN

Official Journal of the European Union

C 300/29

The Commission notes that those rules governing the competi-
tive procedure for the award of
the concession give the
promoter two advantages over all other potential competitors.
First, from the procedural point of view, the promoter is auto-
matically invited to participate in the negotiated procedure for
the award of the concession, without any comparison being
made between his offer and that of other participants in the
earlier tendering procedure. Therefore, even if in that tendering
procedure there were more than two offers better than that
submitted by the original promoter, the negotiated procedure
will nevertheless proceed only as between the two best offers
and the promoter. Second, from the substantive point of view,
the provision enabling the promoter to amend his offer in the
course of the negotiated procedure so as to match that found
to be the most suitable by the awarding authority amounts in
substance to the promoter being accorded a right of pre-
emption for the award of the concession.

The Appellant claims that the Court should:

1. set aside in whole the decision of the Court of First Instance
dated 8 July 2004 in case T-203/02 (‘the contested deci-
sion’);

2. order the Office for Harmonisation in the Internal Market
(Trade Marks and Designs) (‘OHIM’) to pay the costs of the
proceedings before the Court of Justice;

3. annul the decision of the First Board of Appeal of the Office
for Harmonisation in the Internal Market dated 8 April
2002 in case R 1046/2000-1;

4. order the Office for Harmonisation in the Internal Market
(Trade Marks and Designs) (‘OHIM’) to pay the costs of the
proceedings before the Court of First Instance and OHIM.

The Commission submits that the grant of those advantages to
to other potential concessionaires
the promoter and not
infringes the principle of equal treatment.

Pleas in law and main arguments:

The Appellant submits that the judgment of the Court of First
Instance should be annulled on the following grounds:

(1) OJ L 199 of 9. 8.1993, p. 54.
(2) OJ L 199 of 9. 8.1993, p. 1.
(3) OJ L 209 of 24. 7.1992, p. 1.
(4) OJ L 199 of 9. 8.1993, p. 84.

Appeal brought on 29 September 2004 by The Sunrider
Corporation against the judgment delivered on 8 July
2004 by the Second Chamber of
the Court of First
Instance of the European Communities in case T-203/02 (1)
between The Sunrider Corporation and Office for Harmo-
nisation in the Internal Market (Trade Marks and Designs)
(OHIM), the other party to the proceedings before the
Board of Appeal of OHIM being Juan Espadafor Caba

(Case C-416/04 P)

(2004/C 300/55)

An appeal against the judgment delivered on 8 July 2004 by
the Second Chamber of the Court of First Instance of the Euro-
pean Communities in case T-203/02 between The Sunrider
Corporation and Office for Harmonisation in the Internal
Market (Trade Marks and Designs) (OHIM), the other party to
the proceedings before the Board of Appeal of OHIM being
Juan Espadafor Caba, was brought before the Court of Justice
of the European Communities on 29 September 2004 by The
Sunrider Corporation,
established in Torrance, California
(United States), represented by A. Kockläuner, lawyer.

Infringement of Article 43 Sections 2, 3 CTMR in Conjunction
with Article 15 Section 3 CTMR (Unwarranted Use)

The Court of First Instance misinterpreted Article 43 Sections
2, 3 CTMR in conjunction with Article 15 Section 3 CTMR
inasmuch as it wrongly took into account the use of the trade-
mark made by a third party.

In this respect, the Court of First Instance misinterpreted the
apportionment of the burden of proof given in Article 15
Sections 1, 3 CTMR. Further, the Court of First Instance took
into account non conclusive (implicit) statements and evidence
produced by the opponent. Moreover,
the Court of First
Instance relied on presumptions instead of solid evidence.
Finally, the Court of First Instance would have had to examine
whether or not, in the light of all the relevant matters of fact
and in law, a new decision with the same operative part as the
decision under appeal could lawfully be adopted at the time of
the decision of the Court of First Instance.

Infringement of Article 43 Section 2 CTMR: Non-Satisfactory
Proof of Opposing Trademark

Further, the Court of First Instance infringed Article 43 Section
2 CTMR inasmuch as it misinterpreted the notion of genuine
use within the meaning of Article 43 Section 2 CTMR.

In particular,
reasonably that:

the Court of First

Instance did not consider

— the opponent submitted only three invoices for the year
than

representing a total value of no more

1996,
3,476.00 EUR;