Case C-424/04: Action brought on 4 October 2004 by the Commission of the European Communities against the French Republic
Date: 2004-12-04
Institutions: Court of Justice
Subjects: European Commission, France, action for failure to fulfil an obligation, award of contract, borrowing, contract, provision of services, public contract, restriction on competition, services contract

4.12.2004

EN

Official Journal of the European Union

C 300/31

Reference for a preliminary ruling by the Audiencia
Provincial de Barcelona (15th Chamber) by decision of
that court of 28 June 2004 in the case of Matratzen
Concord AG against Hukla Gemany SA

pension at the age of 60 had she been held to be a woman
as a matter of national law?

(2) If so, from what date should the Court's ruling on question

1 have effect?

(Case C-421/04)

(2004/C 300/57)

(1) Council Directive 79/7/EEC of 19 December 1978 on the progres-
sive implementation of the principle of equal treatment for men and
women in matters of social security (OJ L 6, 10.01.1979, p. 24).

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of
the Audiencia Provincial
(Provincial Court)
(15th Chamber), Barcelona (Spain) of 28
June 2004, received at the Court Registry on 1 October 2004,
for a preliminary ruling in the case of Matratzen Concord AG
against Hukla Gemany SA on the following question:

‘May the validity of the registration of a trade mark in a
Member State, where that trade mark is devoid of any distinc-
tive character or serves,
in trade, to designate the product
which it covers or its kind, quality, quantity, intended purpose,
value, geographical origin or other characteristics of goods, in
the language of another Member State when that language is
not the language spoken in the first Member State, as may be
the case so far as concerns use of the Spanish trade mark
“MATRATZEN” to designate mattresses and related products,
constitute a disguised restriction on trade between Member
States?’

Reference for a preliminary ruling by a Social Security
Commissioner, London, by direction of that tribunal dated
14 September 2004, in the case of Sarah Margaret Richards
against Secretary of State for Work and Pensions

(Case C-423/04)

(2004/C 300/58)

Reference has been made to the Court of Justice of the Euro-
pean Communities by direction of a Social Security Commis-
sioner, London, dated 14 September 2004, which was received
at the Court Registry on 4 October 2004 for a preliminary
ruling in the case of Sarah Margaret Richards and Secretary of
State for Work and Pensions on the following questions:

Action brought on 4 October 2004 by the Commission of
the European Communities against the French Republic

(Case C-424/04)

(2004/C 300/59)

An action against the French Republic was brought before the
Court of Justice of the European Communities on 4 October
2004 by the Commission of the European Communities, repre-
sented by K. Wiedner and B. Stromsky, acting as Agents, with
an address for service in Luxembourg.

The Commission claims that the Court should:

1. declare that, by failing to provide for an obligation on
contracting authorities to ensure genuine competition by
the presence of a minimum of five tenderers in restricted
procedures, even where no range is prescribed, the French
its obligations under Article
Republic has failed to fulfil
19(2) of Council Directive 93/36/EEC of 14 June 1993, (1)
Article 27(2) of Council Directive 92/50/EEC of 18 June
1992 (2) and Article 22(2) of Council Directive 93/37/EEC
of 14 June 1993; (3)

2. declare that, by excluding from the scope of the French
Code of Public Procurement contracts concerning loans or
financial undertakings, whether intended to cover financing
or liquidity requirements, not connected with real property
transactions, the French Republic has failed to fulfil its obli-
gations under Article 1(a)(vii) of Council Directive
92/50/EEC of 18 June 1992 and Article 1(4)(c)(iv) of
Council Directive 93/38/EEC of 14 June 1993; (4)

3. declare that, by providing that public contracts concerning

(1) Does Directive 79/7 (1) prohibit the refusal of a retirement
pension to a male-to-female transsexual until she reaches
the age of 65 and who would have been entitled to such a

— legal services,

— social and health services,

C 300/32

EN

Official Journal of the European Union

4.12.2004

— recreational, cultural and sports services,

Action brought on 4 October 2004 by the Commission of
the European Communities against the Italian Republic

— educational services and occupational qualification and

integration services

are to be subject, as regards their award, only to the obliga-
tions relating to the definition of services by reference to
standards where they exist, and to the sending of an award
notice, without expressly specifying that the rules and prin-
ciples of the Treaty are to be complied with, the French
its obligations flowing from
Republic has failed to fulfil
the Treaty
compliance with the principles and rules of
(Article 49), and in particular the principle of equal treat-
ment and the principle of transparency of which adequate
publicity is the corollary;

4. order the French Republic to pay the costs.

Pleas in law and main arguments

The French Code of Public Procurement is incompatible in
certain respects with the rules and principles of the EC Treaty
and the Community directives relating to public procurement.

First, by failing to provide for an obligation on the contracting
authority to ensure the presence of a minimum of
five
tenderers where no range is prescribed, the French Republic is
in breach of the obligation in the Community directives to
ensure genuine competition in certain restricted procedures for
the award of public contracts.

The French Republic is also in breach of its obligations by
excluding from the scope of the French Code of Public Procure-
ment contracts concerning loans or financial undertakings,
whether intended to cover financing or liquidity requirements,
not connected with real property transactions. Those contracts
relate to the provision of services and thus fall within the scope
of the directives. Nor may they be regarded as covered by the
exception concerning securities and other financial instruments.

(Case C-425/04)

(2004/C 300/60)

An action against the Italian Republic was brought before the
Court of Justice of the European Communities on 4 October
2004 by the Commission of the European Communities, repre-
sented by Wouter Wils and Claudio Loggi, acting as Agents.

The applicant claims that the Court should:

— declare that, by failing to adopt the laws, regulations and
administrative provisions necessary to comply with Direc-
tive 2001/16/EC (1) of the European Parliament and of the
Council of 19 March 2001 on the interoperability of the
trans-European conventional rail system or, in any event,
by failing to communicate those provisions to the Commis-
sion, the Italian Republic has failed to fulfil its obligations
under Article 27 of that directive;

— order the Italian Republic to pay the costs.

Pleas in law and main arguments:

The period for transposition of the directive expired on 20
April 2003.

(1) OJ L 110 of 20.04.2001, p. 1.

Finally,
the exclusion of certain service contracts from the
scope of the obligation to ensure an adequate degree of publi-
city constitutes a breach of the principle of non-discrimination
as laid down in Article 49 EC and of the principle of transpar-
ency.

Appeal brought on 4 October 2004 by the European
Agency for Reconstruction (EAR) against the judgment
delivered on 7 July 2004 by the Fourth Chamber of the
Court of First Instance of the European Communities in
Case T-175/03 between Norbert Schmitt and the European
Agency for Reconstruction (EAR)

(1) Council Directive 93/36/EEC coordinating procedures for the award

of public supply contracts (OJ L 199 of 9.8.1993, p. 1).

(2) Council Directive 92/50/EEC relating to the coordination of proce-
dures for the award of public service contracts (OJ L 209 of
24.7.1992, p. 1).

(3) Council Directive 93/37/EEC concerning the coordination of proce-
dures for the award of public works contracts (OJ L 199 of
9.8.1993, p. 54).

(4) Council Directive 93/38/EEC coordinating the procurement proce-
dures of entities operating in the water, energy, transport and tele-
communications sectors (OJ L 199 of 9.8.1993, p. 84).

(Case C-426/04 P)

(2004/C 300/61)

An appeal against the judgment delivered on 7 July 2004 by
the Fourth Chamber of the Court of First Instance of the Euro-
pean Communities in Case T-175/03 between Norbert Schmitt
and the European Agency for Reconstruction (EAR) was
brought before the Court of Justice of the European Commu-
nities on 4 October 2004 by the European Agency for Recon-
struction (EAR), represented by Albert Coolen, Jean-Noël Louis,
Etienne Marchal and Sébastien Orlandi, avocats.