Case C-425/04: Action brought on 4 October 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, harmonisation of standards, national implementing measure, rail transport, technical rule, trans-European network

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.