Case C-340/04: Judgment of the Court (First Chamber) of  11 May 2006  (Reference for a preliminary ruling from the Tribunale amministrativo regionale della Lombardia (Italy)) — Carbotermo SpA, Consorzio Alisei v Comune di Busto Arsizio, AGESP SpA (Directive 93/36/EEC — Public supply contracts — Award of contract without a call for tenders — Award of the contract to an undertaking in which the contracting authority has a shareholding)
Date: 2006-07-15
Institutions: Court of Justice
Subjects: company with share capital, fuel, heating, interpretation of the law, local government, public contract, supplies contract

15.7.2006

EN

Official Journal of the European Union

C 165/5

Re:

Failure by a Member State to fulfil its obligations — Art. 12(1)
of and Annex VI to Council Directive 92/43/EEC of 21 May
1992 on the conservation of natural habitats and of wild fauna
and flora (OJ 1992 L 206, p. 7) — Authorisation by the autho-
rities of Castilla y León of hunting with snares in private
hunting areas

contract for the supply and management of fuel and heating
for heating appliances in buildings belonging to a municipality
— Award to a company the shares of which are held by
another company in which the municipality is a majority share-
holder

Operative part of the judgment

Operative part of the judgment

The Court rules:

The Court:

1. Dismisses the action;

2. Orders the Commission of the European Communities to pay the

costs.

(1) OJ C 179, 10.07.2004.

Judgment of the Court (First Chamber) of 11 May 2006
(Reference for a preliminary ruling from the Tribunale
amministrativo regionale della Lombardia (Italy)) — Carbo-
termo SpA, Consorzio Alisei v Comune di Busto Arsizio,
AGESP SpA

(Case C-340/04) (1)

(Directive 93/36/EEC — Public supply contracts — Award of
contract without a call for tenders — Award of the contract
to an undertaking in which the contracting authority has a
shareholding)

1. Council Directive 93/36/EEC of 14 June 1993 coordinating
procedures for the award of public supply contracts precludes the
direct award of a public supply and service contract, the main
value of which lies in supply, to a joint stock company whose
Board of Directors has ample managerial powers which it may
exercise independently and whose share capital is, at present, held
entirely by another joint stock company whose majority share-
holder is, in turn, the contracting authority.

2. Article 13 of Council Directive 93/38/EEC of 14 June 1993
coordinating the procurement procedures of entities operating in
the water, energy, transport and telecommunications sectorsmust
not be applied in the assessment of the requirement relating to the
inapplicability of Directive 93/36, according to which the under-
taking to which a supply contract was awarded directly must carry
out the essential part of its activities with the controlling authority.

3. In order to determine whether an undertaking carries out the essen-
tial part of its activities with the controlling authority, for the
purpose of deciding on the applicability of Directive 93/36,
account must be taken of all the activities which that undertaking
carries out on the basis of an award made by the contracting
authority, regardless of who pays for those activities, whether it be
the contracting authority itself or the user of the services provided;
the territory where the activities are carried out is irrelevant.

(2006/C 165/09)

Language of the case: Italian

(1) OJ C 251, 09.10.2004.

Referring court

Tribunale amministrativo regionale della Lombardia

Parties to the main proceedings

Applicants: Carbotermo SpA, Consorzio Alisei

Defendants: Comune di Busto Arsizio, AGESP SpA

Intervener: Associazione Nazionale Imprese Gestione servizi
tecnici integrati (AGESI)

Re:

Reference for a preliminary ruling — Tribunale Amministrativo
Regionale della Lombardia (Italy) — Interpretation of Council
Directive 93/36/EEC of 14 June 1993 coordinating procedures
for the award of public supply contracts (OJ 1993 L 199, p. 1)
and of Article 13 of Council Directive 93/38/EEC of 14 June
1993 coordinating the procurement procedures of entities
operating in the water, energy, transport and telecommunica-
tions sectors (OJ 1993 L 199, p. 84) — Direct award of a

Judgment of the Court (First Chamber) of 18 May 2006
(reference for a preliminary ruling from the Oberster
Gerichtshof) — Land Oberösterreich v ČEZ a.s.

(Case C-343/04) (1)

(Brussels Convention — Article 16(1)( a) — Exclusive juris-
diction in matters relating to property — Action for cessation
of a nuisance caused, or likely to be caused, to land by the
activities of a nuclear power station situated on the territory
of a neighbouring State — Not applicable)

(2006/C 165/10)

Language of the case: German

Referring court

Oberster Gerichtshof