Case C-136/05: Action brought on 22 March 2005 by the Commission of the European Communities against the Grand Duchy of Luxembourg
Date: 2005-05-14
Institutions: Court of Justice
Subjects: European Commission, Luxembourg, action for failure to fulfil an obligation, case-law (EU), freedom to provide services, legal domicile, legal profession

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.