Case C-371/05: Action brought on  7 October 2005  by the Commission of the European Communities against the Italian Republic
Date: 2006-01-14
Institutions: Court of Justice
Subjects: European Commission, Italy, action for failure to fulfil an obligation, award of contract, computer systems, provision of services, services contract

C 10/8

EN

Official Journal of the European Union

14.1.2006

Pleas in law and main arguments:

The Appellant submits that the Order of the Court of First
Instance dismissing its application as inadmissible should be set
aside on the following grounds:

(a) the Order infringes the Court's duty to state reasons;

(b) the Court of First Instance has erred in its legal assessment

of the facts of the case;

(c) the Order infringes the right to complete and effective judi-

cial protection, and the right to a fair hearing.

subject to the application of Council Directive 92/50/EEC of
18 June 1992 relating to the coordination of procedures for
the award of public service contracts. (1) For that reason in
was necessary in this case to follow the competition proce-
dure in accordance with the provisions of that directive, in
particular the publication of the appropriate contract notice
in the Official Journal of the European Communities within the
meaning of Article 11 and Article 15(2) of that directive.

3. Moreover, according to the applicant, the Italian authorities
did not provide sufficient information to allow it to be
considered that, given the overall arrangement of the legal
relationships
and the
company which received the contract, as well as the activ-
ities of that company, the awarding of the contract in ques-
tion here relates solely to in-house providing and is there-
fore outside the scope of application of the Community
directives governing the award of public contracts.

existing between the Comune

Action brought on 7 October 2005 by the Commission of
the European Communities against the Italian Republic

(1) OJ L 209, p. 1.

(Case C-371/05)

(2006/C 10/17)

(Language of the case: Italian)

An action against the Italian Republic was brought before the
Court of Justice of the European Communities on 7 October
2005 by the Commission of the European Communities, repre-
sented by X. Lewis and L. Visaggio, acting as Agents.

The applicant claims that the Court should:

that

— Declare that by virtue of the fact

the Comune di
Mantova awarded, directly and without prior publication of
the appropriate contract notice in the Official Journal of the
European Communities, the contract for the management,
maintenance and development of the in-house IT services
to the company A.S.I. S.p.A., the Italian Republic has failed
to fulfil its obligations under Directive 92/50/EEC, in par-
ticular Articles 11 and 15(2) thereof;

Reference for a preliminary ruling from the Bundesge-
richtshof, Germany, by order of that court of 26 July 2005
in A Brünsteiner GmbH v Bayerische Motorenwerke AG

(Case C-376/05)

(2006/C 10/18)

(Language of the case: German)

— Order the Italian Republic to pay the costs.

Pleas in law and main arguments

1. Following a complaint, the Commission became aware of
the contract concluded on 2 December 1997, by which the
Comune di Mantova (municipality of Mantova) awarded,
directly and without prior publication of the appropriate
contract notice, the contract for the management, mainte-
nance and development of its in-house IT services to a
company in which it holds an interest, Azienda Servizi
Informativi (‘A.S.I.’) S.p.A. The award was for a period of 15
years, ending on 31 December 2012.

2. The Commission takes the view that

the award to the
company A.S.I. S.p.A. of the contract for the Comune di
Mantova's IT services constitutes a public service contract

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of
the Bundesgerichtshof,
Germany, of 26 July 2005, received at the Court Registry on
12 October 2005, for a preliminary ruling in the proceedings
between A Brünsteiner GmbH and Bayerische Motorenwerke
AG on the following questions:

1. Is the first indent of Article 5(3) of Commission Regulation
(EC) No 1475/95 of 28 June 1995 (1) on the application of
Article 85(3) of the Treaty to certain categories of motor
vehicle distribution and servicing agreements (‘Regulation
(EC) No 1475/95’) to be interpreted so that the need to re-
organise the whole or a substantial part of the network and
the resulting right of the supplier to terminate agreements
with dealers in its distribution network, on one year's
notice, can also arise because the entry into force of
Commission Regulation (EC) No 1400/2002 of 31 July
2002 (2) on the application of Article 81(3) of the Treaty to
categories of vertical agreements and concerted practices in