Case C-123/05: Action brought on 15 March 2005 by the Commission of the European Communities against the Italian Republic
Date: 2005-05-14
Institutions: Court of Justice
Subjects: European Commission, Italy, award of contract, competition law, infringement of EU law, public contract, services contract, supplies contract

14.5.2005

EN

Official Journal of the European Union

C 115/15

— Where trading in beef and veal requires the presentation of
certificates of health and origin formally drawn up by the
competent veterinary authority after daily inspections of the
production plant, do the errors, faults or negligent acts
established by a court, which are committed by those
authorities in exercising their powers and lead to incorrect
certification to the detriment of the operators and expor-
ters, constitute force majeure?

Action brought on 15 March 2005 by the Commission of
the European Communities against the Italian Republic

(Case C-123/05)

(2005/C 115/28)

Action brought on 14 March 2005 by the Commission of
the European Communities against the Italian Republic

(Language of the case: Italian)

(Case C-122/05)

(2005/C 115/27)

(Language of the case: Italian)

An action against the Italian Republic was brought before the
Court of Justice of the European Communities on 14 March
2005 by the Commission of the European Communities, repre-
sented by U. Wölker and D. Recchia, members of the Commis-
sion's legal service.

The applicant claims that the Court should:

1. declare that, by failing to adopt all

laws, regulations and
administrative provisions necessary to comply with Direc-
tive 2003/87/EC (1) of the European Parliament and of the
Council of 13 October 2003 establishing a scheme for
greenhouse gas emission allowance trading within the Com-
munity and amending Council Directive 96/61/EC (2) or, in
any event, by failing to notify the Commission of those
provisions, the Italian Republic has failed to fulfil its obliga-
tions under Article 31(1) of that directive;

2. order the Italian Republic to pay the costs.

An action against the Italian Republic was brought before the
Court of Justice of the European Communities on 15 March
2005 by the Commission of the European Communities, repre-
sented by X. Lewis and A. Aresu, members of the Commission's
legal service.

The applicant claims that the Court should:

1. declare that by adopting Article 44 of Law No 724 of 23
December 1994, amending Article 6(2) of Law No 573 of
24 December 1993 so as to permit the renewal of public
service contracts to previous contract-holders, the Italian
Republic has failed to fulfil its obligations under Articles 11,
15 and 17 of Council Directive 92/50/EEC (1) of 18 June
1992 relating to the coordination of procedures for the
award of public service contracts, and Articles 6 and 9 of
Council Directive 93/36/EEC (2) of 14 June 1993 coordi-
nating procedures for the award of public supply contracts,
and Articles 43 EC and 49 EC;

2. order the Italian Republic to pay the costs.

Pleas in law and main arguments

Pleas in law and main arguments

The time-limit for complying with the directive expired on 31
December 2003.

(1) OJ L 275 of 25.10.2003, p. 32.
(2) OJ L 257 of 10.10.1996, p. 26.

The Commission has challenged Article 6(2) of Law No 537 of
1993 as amended by Article 44 of Law No 724 of 1994. In
particular that provision prohibits the tacit renewal of public
contracts for the supply of goods and services but also provides
that ‘within three months of the expiry of the contracts the
administration shall ascertain whether it is convenient and in
the public interest for those contracts to be renewed and, if so,
shall notify the contracting party of its willingness to renew the
contract.’

C 115/16

EN

Official Journal of the European Union

14.5.2005

The Commission submits that those provisions allow public
bodies to award, directly and without any tendering procedure,
new service and supply contracts which are thus awarded
under procedures which do not comply with Community law.
There is an infringement of the principles laid down by Direc-
tive 92/50/EEC and 93/36/EEC respectively on public service
and supply contracts. Furthermore, those provisions infringe
the principles of equality and transparency intended to ensure
the freedoms of establishment and the supply of services under
Articles 43 EC and 49 EC.

(1) OJ 1992 L 209 of 24.07.1992, p. 1.
(2) OJ 1993 L 199 of 09.08.1993, p. 1.

Action brought on 22 March 2005 by the Commission of
the European Communities against the Grand Duchy of
Luxembourg

(Case C-136/05)

(2005/C 115/29)

(Language of the case: French)

An action against
the Grand Duchy of Luxembourg was
brought before the Court of Justice of the European Commu-
nities on 22 March 2005 by the Commission of the European
represented by Enrico Traversa and Denis
Communities,
Martin, acting as Agents, with an address for service in Luxem-
bourg.

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

— declare that, by having failed to adopt the measures neces-
sary to comply with the judgment delivered by the Court
on 6 March 2003 in Case C-478/01 concerning the obliga-
tion for patent agents, when supplying services, to opt for
domicile with an approved agent,
the Grand Duchy of
Luxembourg has failed to fulfil its duties under Articles 49
EC and 10 EC,

— order the Grand Duchy of Luxembourg to pay the costs.

Pleas in law and main arguments

In its judgment delivered on 6 March 2003 in Case C-478/01,
the Court ruled that:

‘[H]aving regard to the requirement
that patent agents,
when supplying services, should elect domicile with an
approved agent, and having regard to the fact that the
supply information
Luxembourg Government did not
concerning the precise conditions for the application of
Article 85(2) of the Law of 20 July 1992 amending the
rules on patents and Articles 19 and 20 of the Law of 28
December 1998 governing access to craft trades, business
and industry, and to certain liberal professions, the Grand
Duchy of Luxembourg has failed to fulfil
its obligations
under Article 49 EC and Article 10 EC respectively.’

In accordance with the procedure laid down in Article 228 EC,
by letter of 19 December 2003 the Commission reminded the
Grand Duchy of Luxembourg that it was required to comply
with its obligations under the judgment delivered in Case C-
478/01 and invited it to submit observations within a period of
two months.

That letter having gone unanswered, the Commission sent a
reasoned opinion to the Luxembourg authorities by letter on 9
July 2004.

No reply was given to the reasoned opinion either.

The Luxembourg authorities having answered neither the letter
of formal notice nor the reasoned opinion, it is unarguable that
they have not, to date, taken the measures necessary to comply
with the judgment delivered in Case C-478/01.

In accordance with the second sentence of the second sub-
paragraph of Article 228(2), the Commission has specified in
its application the amount of
the lump sum or penalty
payment to be paid by the Member State concerned that it
considers appropriate in the circumstances.

In this instance, the Commission takes the view that a penalty
payment of EUR 9 100 a day fits the seriousness and duration
of the infringement and takes into consideration the need to
give this penalty payment the required deterrent effect.