Case C-426/04 P: 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)
Date: 2004-12-04
Institutions: Court of Justice
Subjects: European Agency for Reconstruction, General Court (EU), action for annulment (EU), servant (EU), termination of a contract

C 300/32

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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.

4.12.2004

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Official Journal of the European Union

C 300/33

The appellant claims that the Court should:

case of Finanzamt Eisleben against Feuerbestattungsverein Halle
e.V., on the following question:

— set aside that the judgment of the Fourth Chamber of the
Court of First Instance of 7 July 2004 in Case T-175/03
(Norbert Schmitt v European Agency for Reconstruction) in
full.

Giving judgment itself,

Is a private taxable person able to rely on the second sub-
paragraph of Article 4(5) of Council Directive 77/388/EEC (1)
where that
taxable person is in competition with a body
governed by public law and asserts that the non-taxation or
undertaxation of that body is unlawful?

— dismiss the action for annulment of the decision of the EAR
of 25 February 2003 terminating the contract of the appli-
cant at first instance as a member of the temporary staff;

(1) OJ L 145, p. 1.

— order the applicant at first instance and respondent on

appeal to pay the costs of the appeal.

Pleas and main arguments:

The Court of First Instance disregarded the prohibition on
ruling ultra petita in basing its decision on pleas and arguments
that had neither been raised directly nor elaborated upon to the
requisite legal standard by the applicant at first instance.

Furthermore, the Court of First Instance made an error of law
in interpreting clause 4 of
the temporary staff contract
concluded with Mr Schmitt as limiting the Agency's right to
terminate the contract to situations arising from a significant
reduction in, or cessation of, the Agency's operations before
the end of its mandate.

Reference for a preliminary ruling by the Bundesgericht-
shof by decision of that court of 29 June 2004 in the case
of Massachusetts Institute of Technology

(Case C-431/04)

(2004/C 300/63)

Lastly, the Court of First Instance also made an error of law in
considering that the legitimate expectations of the applicant at
first instance had been infringed when it is apparent from the
judgment that no clear and unconditional assurance, complying
and in accordance with the rules of the conditions of employ-
ment of other servants had been given to him in relation to his
remaining in post until the end of the Agency's actual mandate.

Reference has been made to the Court of Justice of the Euro-
pean Communities by decision of
the Bundesgerichtshof
(Federal Court of Justice) (Germany) of 29 June 2004 received
at the Court Registry on 7 October 2004, for a preliminary
ruling in the case of Massachusetts Institute of Technology on
the following questions:

1. Does the term ‘combination of active ingredients of a medic-
inal product’ within the meaning of Article 1(b) of Council
Regulation 1768/92 of 18 June 1992 concerning the crea-
tion of a supplementary protection certificate for medicinal
products (1) mean that the components of the combination
must all be active ingredients with a therapeutic effect?

2. Is there a ‘combination of active ingredients of a medicinal
product’ also where a combination of substances comprising
two components of which one component is a known
substance with a therapeutic effect for a specific indication
and the other component renders possible a pharmaceutical
form of the medicinal product that brings about a changed
efficacy of the medicinal product for this indication (in-vivo
implantation with controlled release of the active ingredient
to avoid toxic effects)?

Reference for a preliminary ruling by the Bundesfinanzhof
by order of that court of 8 July 2004 in the case of Finan-
zamt Eisleben against Feuerbestattungsverein Halle e.V.

(Case C-430/04)

(2004/C 300/62)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Bundesfinanzhof (Federal
Finance Court) (Germany) of 8 July 2004 received at the Court
Registry on 7 October 2004, for a preliminary ruling in the

(1) OJ L 182, p. 1.