Judgment of the Court (Second Chamber) of  27 October 2005  in Joined Cases C-187/04 and C-188/04: Commission of the European Communities v Italian Republic (Failure of a Member State to fulfil obligations — Directive 93/37/EEC — Public works contracts — Public works concessions — Rules on advertising)
Date: 2006-02-11
Institutions: Court of Justice
Subjects: European Commission, Italy, action for failure to fulfil an obligation, award of contract, motorway, works contract

11.2.2006

EN

Official Journal of the European Union

C 36/11

1. On a proper construction of Clause 8(3) of the Framework Agree-
ment on fixed-term contracts concluded on 18 March 1999, put
into effect by Council Directive 1999/70/EC of 28 June 1999
concerning the framework agreement on fixed-term work concluded
by ETUC, UNICE and CEEP, domestic legislation such as that at
issue in the main proceedings, which for reasons connected with
the need to encourage employment and irrespective of the imple-
mentation of that agreement, has lowered the age above which
fixed-term contracts of employment may be concluded without
restrictions, is not contrary to that provision.

2. Community law and, more particularly, Article 6(1) of Council
Directive 2000/78/EC of 27 November 2000 establishing a
general framework for equal treatment in employment and occupa-
tion must be interpreted as precluding a provision of domestic law
such as that at issue in the main proceedings which authorises,
without restriction, unless there is a close connection with an
indefinite duration concluded
earlier contract of employment of
with the same employer, the conclusion of fixed-term contracts of
employment once the worker has reached the age of 52.

It is the responsibility of the national court to guarantee the full
effectiveness of
the general principle of non-discrimination in
respect of age, setting aside any provision of national law which
may
the period
prescribed for transposition of that directive has not yet expired.

conflict with Community

even where

law,

Genova (Italy), made by decision of 11 February 2004, received
at the Court on 23 March 2004, in the proceedings between
Unicredito Italiano SpA and Agenzia delle Entrate, Ufficio
(Second Chamber), composed of
Genova 1 — the Court
C.W.A. Timmermans, President of the Chamber, C. Gulmann
(Rapporteur), R. Schintgen, G. Arestis and J. Klučka, Judges; C.
Stix-Hackl, Advocate General; M. Ferreira, Principal Adminis-
trator, Registrar, gave a judgment on 15 December 2005, the
operative part of which is as follows:

1. Examination of

the questions

referred has disclosed nothing
capable
of Commission Decision
validity
2002/581/EC of 11 December 2001 on the tax measures for
banks and banking foundations implemented by Italy;

affecting the

of

2. Article 87 et seq. EC, Article 14 of Council Regulation (EC) No
659/1999 of 22 March 1999 laying down detailed rules for the
application of Article 93 of the EC Treaty, and the principles of
legal certainty, proportionality and the protection of
legitimate
expectations cannot preclude a national measure ordering repay-
ment of aid in compliance with a Commission decision which
found that aid to be incompatible with the common market and
examination of which in the light of those provisions and general
principles has not disclosed any factor capable of affecting its
validity.

(1) JO C 146 of 29.5.2004.

(1) OJ C 118 of 30.04.2004.

JUDGMENT OF THE COURT

(Second Chamber)

of 15 December 2005

JUDGMENT OF THE COURT

(Second Chamber)

of 27 October 2005

in Case C-148/04 (Reference for a preliminary ruling
from the Commissione tributaria provinciale di Genova)
Unicredito Italiano SpA v Agenzia delle Entrate, Ufficio
Genova 1 (1)

(State aid — Decision 2002/581/EC — Tax advantages
granted to banks — Statement of reasons for a decision —
Categorisation as State aid — Conditions — Compatibility
with the common market — Conditions — Article 87(3)(b)
and (c) EC — Important project of common European interest
— Development of certain activities — Tax advantages
granted previously — Recovery of the aid — Principle of the
protection of legitimate expectations — Principle of legal
certainty — Principle of proportionality)

(2006/C 36/19)

(Language of the case: Italian)

In Case C-148/04: reference for a preliminary ruling under
Article 234 EC from the Commissione tributaria provinciale di

in Joined Cases C-187/04 and C-188/04: Commission of the
European Communities v Italian Republic (1)

(Failure of a Member State to fulfil obligations — Directive
93/37/EEC — Public works contracts — Public works conces-
sions — Rules on advertising)

(2006/C 36/20)

(Language of the case: Italian)

In Joined Cases C-187/04 and C-188/04 Commission of the
European Communities (Agent: K. Wiedner, Lawyer: G.
Bambara) v Italian Republic (Agent: I.M. Braguglia, Lawyer: M.
Fiorilli) — two actions under Article 226 EC for failure to fulfil
obligations, brought on 22 April 2004 — the Court (Second
Chamber), composed of C.W.A Timmermans, President of the
Chamber, J. Makarczyk (Rapporteur), R. Silva de Lapuerta, P.
Kūris and J. Klučka, Judges; D. Ruiz-Jarabo Colomer, Advocate
General; R. Grass, Registrar, gave a judgment on 27 October
2005, in which it:

C 36/12

EN

Official Journal of the European Union

11.2.2006

for

the

contract

construction and management of

1. Declares that, since the public invitation ANAS S.p.A. awarded
the
the
Valtrompia and Pedemontana Veneta Ovest motorways to the
Società per l'autostrada Brescia-Verona-Vicenza-Padova p.a. by
direct concession without prior publication of a contract notice,
where the requirements for such a concession were not met, the
Italian Republic has failed to fulfil its obligations under Council
Directive 93/37/EEC of 14 June 1993 coordinating the proce-
dures for the award of public works contracts and in particular
Articles 3(1) and 11(3), (6) and (7) thereof;

2. Orders the Italian Republic to pay the costs.

(1) OJ C 179 of 10.7.2004
OJ C 168 of 26.6.2004.

JUDGMENT OF THE COURT

(Third Chamber)

of 1 December 2005

in Case C-213/04: Reference for a preliminary ruling from
(Austria) Ewald Burtscher v
the Oberster Gerichtshof

Josef Stauderer (1)

(Free movement of capital — Article 56 EC — Declaration
procedure in respect of the acquisition of built-on land —
Retroactive invalidity of the transaction if declaration by the
purchaser is submitted after the due date)

(2006/C 36/21)

(Language of the case: German)

In Case C-213/04: reference for a preliminary ruling under
Article 234 EC from the Oberster Gerichtshof (Austria), made
by decision of 29 April 2004, received at the Court on 19 May
2004, in the proceedings between Ewald Burtscher and Josef
Stauderer — the Court
(Third Chamber), composed of A.
Rosas, President of the Chamber, J. Malenovský, J. P. Puissochet
(Rapporteur), S. von Bahr and U. Lõhmus, Judges; F.G. Jacobs,
Advocate General; K. Sztranc, Administrator for the Registrar,
gave a judgment on 1 December 2005 in which it ruled:

Article 56(1) EC precludes the application of national legislation such
as the Vorarlberg Land Transfer Law (Vorarlberger Grundverkehrsge-
setz) of 23 September 1993, in its amended version, under which the

mere fact that the requisite declaration of acquisition is submitted
after the due date results in the retroactive invalidity of the property
transaction concerned.

(1) OJ C 190 of 24.07.2004.

JUDGMENT OF THE COURT

(Fifth Chamber)

of 15 December 2005

in Case C-250/04: Commission of the European Commu-
nities v Hellenic Republic (1)

(Failure of a Member State to fulfil obligations — Directive
2002/19/EC — Access
communications
to
networks and associated facilities — Failure to transpose
within the prescribed period)

electronic

(2006/C 36/22)

(Language of the case: Greek)

In Case C-250/04 Commission of the European Communities
(Agents: G. Zavvos and M. Shotter) v Hellenic Republic (Agent:
N. Dafniou) — action for failure to fulfil obligations under
Article 226 EC, brought on 14 June 2004 — the Court (Fifth
the
Chamber),
Chamber, R. Silva de Lapuerta and P. Kūris (Rapporteur),
Judges; A. Tizzano, Advocate General; R. Grass, Registrar, gave
a judgment on 15 December 2005, in which it:

J. Makarczyk, President of

composed of

the laws,

1. Declares that, by failing to adopt

regulations and
administrative provisions necessary to comply with Directive
2002/19/EC of the European Parliament and of the Council of 7
March 2002 on access to, and interconnection of, electronic
communications networks and associated facilities (Access Direc-
tive), the Hellenic Republic has failed to fulfil its obligations under
that directive.

2. Orders the Hellenic Republic to pay the costs.

(1) OJ C 201, 07.08.2004.