Case C-376/05: Reference for a preliminary ruling from the Bundesgerichtshof, Germany, by order of that court of  26 July 2005  in A Brünsteiner GmbH v Bayerische Motorenwerke AG
Date: 2006-01-14
Institutions: Court of Justice
Subjects: after-sales service, commercial contract, contract terms, exclusive distribution agreement, interpretation of the law, motor car, restriction on competition

C 10/8

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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

14.1.2006

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Official Journal of the European Union

C 10/9

the motor vehicle sector (‘Regulation (EC) No 1400/2002’)
required far-reaching changes to the distribution systems
previously used by suppliers and their dealers under Regu-
lation (EC) No 1475/95 which were exempted under that
regulation?

2. If the first question is to be answered in the negative:

Is Article 4 of Regulation (EC) No 1400/2002 to be inter-
preted so that, exceptionally, the existence of agreements
which are restrictive of competition in a motor vehicle deal-
ership agreement which constitute hardcore restrictions
(‘grey clauses’) under that regulation did not, on expiry of
the one-year transitional period on 30 September 2003, laid
down in Article 10 of the Regulation, preclude the applica-
tion of the exemption from the prohibition under Article
81(1) EC for all agreements restrictive of competition in the
dealership agreement,
that agreement was concluded
when Regulation (EC) No 1475/95 was still applicable,
adapted to the
regulation and
exempted by that regulation?

requirements of

that

if

Is this still the case where the result under Community law
is the invalidity of all contractual provisions restrictive of
competition, whereas under national law, the result is that
the entire dealership agreement is invalid?

(1) OJ L 145, 29.6.1995, p. 25
(2) OJ L 203, 1.8.2002, p. 30

Reference for a preliminary ruling from the Consiglio di
Stato by order of that court of 19 April 2005 in Centro
Europa 7 Srl v Ministero delle Comunicazioni e Autorità
per le Garanzie nelle Comunicazioni, Direzione Generale
Autorizzazioni e Concessioni Ministero delle Comunica-
zioni

(Case C-380/05)

(2006/C 10/19)

(Language of the case: Italian)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Consiglio di Stato of 19
April 2005, received at the Court Registry on 18 October
2005, for a preliminary ruling in the proceedings between
Centro Europa 7 Srl and Ministero delle Comunicazioni
(Ministry of Communications) e Autorità per le Garanzie nelle
Comunicazioni,
(Authority for Security of Communications)
Direzione Generale Autorizzazioni e Concessioni Ministero
for Authorisations
(Directorate General
delle Comunicazioni

and Concessions in the Ministry for Communications) on the
following questions:

1. Does Article 10 of the ECHR, as referred to in Article 6 of
the Treaty on European Union, guarantee pluralism in the
broadcasting sector, thus requiring the Member States to
secure pluralism and competition in the sector based on
an antitrust system which,
in relation to technological
development, secures network access and multiplicity of
operators and renders duopolistic market behaviours
unlawful?

2. Do the provisions of the EC Treaty which secure freedom
to provide services and competition, on the interpretation
provided by the Commission in the interpretative commu-
nication of 29 April 2000 on grants of rights under Com-
munity law, require the principles governing that matter to
be capable of ensuring equal non-discriminatory treatment,
as well as transparency, proportionality and respect for the
rights of individuals; and are those provisions and princi-
ples of the Treaty infringed by Article 3(7) of Italian law
no 249/1997, and by Article 1 of decree-law no 352 of
24 December 2003 converted into Law no 112/2004
(Gasparri law), inasmuch as those provisions enabled indi-
viduals operating networks in breach of the limits laid
down by competition law to continue to operate, thereby
excluding operators, such as the appellant undertaking,
which, though in possession of the relevant rights granted
following a regular competitive procedure, were unable to
carry on the activity in respect of which such rights were
granted because of a failure to allocate frequencies (owing
to their insufficient number or scarcity as a result of the
continued exercise of rights by the owners of networks in
breach of the limits on concentrations under antitrust law).

3. With effect from 25 July 2003, does Article 17 of Direc-
tive 2002/20/EC (1)
(authorisation directive) render that
directive directly effective in the internal legal order and
oblige a Member State which has granted broadcasting
rights (right
to install networks or provide electronic
communication services or the right to use frequencies) to
bring them into line with Community rules; and does that
entail the need actually to allocate the frequencies neces-
sary for carrying on the activity in question.

4. Do Article 9 of framework directive 2002/21/EC (2) and
Article 5 of the authorisation directive providing for trans-
parent and non-discriminatory public procedures (Article
5) conducted on the basis of objective, transparent, non-
discriminatory and proportionate
(Article 9)
preclude a system providing for general authorisation
under national law (Article 23(5) of law no 112/2004); by
permitting the continued operation, under that system of
networks in breach of limits and not selected under a
competitive procedure, do those provisions ultimately
impinge on the Community-law rights under (Article 17(2)
of Directive 2002/20/EC) of other undertakings which are
prevented from operating even though they have been
successful in competitive procedures.

criteria