Case C-215/06: Action brought on  11 May 2006  — Commission of the European Communities v Ireland
Date: 2006-07-29
Institutions: Court of Justice
Subjects: European Commission, Ireland, action for failure to fulfil an obligation, environmental impact, environmental law

C 178/20

EN

Official Journal of the European Union

29.7.2006

Question(s) referred

Defendant: Ireland

1. Does the rule laid down in Article 30(4) of Directive
93/37/EEC (1) or the similar rule contained in Article 55 (1)
and (2) of Directive 2004/18/EC (2) (where that is regarded
as the relevant provision), that, where tenders appear to be
abnormally low in relation to the works, the contracting
authority shall, before it may reject those tenders, request,
in writing, details of the constituent elements of the tender
which it considers relevant and shall verify those constituent
elements taking account of the explanations received, consti-
tute a fundamental principle of Community law, such as to
transcend the formal bounds set by the value of
the
contracts mentioned in Article 6 of Directive 93/37/EC and
is it, therefore, capable of applying also to contracts when
their value does not cross that threshold?

2. Is

the rule established by Article 30(4) of Directive
93/37/EEC or the similar rule contained in Article 55(1) and
(2) of Directive 2004/18/EC (where that is regarded as the
relevant provision), according to which, if tenders appear to
be abnormally low in relation to the works, the contracting
authority shall, before it may reject those tenders, request,
in writing, details of the constituent elements of the tender
which it considers relevant and shall verify those constituent
elements taking account of the explanations received, while
not presenting the characteristics of a fundamental principle
of Community law, nevertheless an implied consequence of
or a ‘principle deriving from’ the principle of competition,
considered in conjunction with the principles of administra-
tive transparency and non-discrimination on grounds of
nationality and is it therefore, as such, directly binding,
taking precedence over possibly incompatible national
provisions adopted by the Member States to regulate public
works contracts to which Community law is not directly
applicable?

(1) OJ 199, p. 54.
(2) OJ 134, p. 114.

The applicant claims that the Court should:

1. declare that, by failing to adopt all measures necessary to
ensure that projects which are within the scope of Directive
85/337/EEC on the assessment of
the effects of certain
public and private projects on the environment (1) either
before or after modification by Directive 97/11/EC (2) are,
first
before they are executed are in whole or in part,
considered with regard to the need for an environmental
impact as assessment and, secondly, where likely to have
significant effects on the environment by virtue, of their
nature, size or location, made subject to an assessment with
regard to their effects in accordance with Articles 5 to 10 of
Directive 85/337/EEC, Ireland has failed to comply with the
obligations that it has under Articles 2, 4 and 5 to 10 of
Directive 85/337/EEC, and

— by failing to adopt all measures necessary to ensure that
the development consents given for and the execution of
wind-farm developments and associated works at Derry-
brien, County Galway were preceded by an assessment
with regard to their effects in accordance with Articles 5
to 10 of Directive 85/337/EEC,
Ireland has failed to
comply with the obligations that it has under Articles 2,
4 and 5 to 10 of the said Directive 85/337/EEC;

2. order Ireland to pay the costs of these proceedings.

Pleas in law and main arguments

Action brought on 11 May 2006 — Commission of the
European Communities v Ireland

The Commission submits that
Ireland's implementation of
Council directive 85/337/CEE (the Impact Assessment Direc-
tive) is and has been deficient for the following reasons:

(Case C-215/06)

(2006/C 178/32)

Language of the case: English

Ireland has failed to take measures to ensure that checks are
made to ascertain whether proposed works are liable to have
significant effects on the environment
in accordance with
Article 2(1) of the Impact Assessment Directive. Ireland's legis-
lation does not provide that
those effects are assessed in
accordance with Articles 5 to 10 of the directive.

Parties

Applicant: Commission of the European Communities (repre-
sented by: D. Recchia and D. Lawunmi, Agents)

The system in Ireland which allows an application for retention
permission to be made after a development has been executed
in whole or in part without consent undermines the preventive
objectives of the Impact Assessment Directive.

29.7.2006

EN

Official Journal of the European Union

C 178/21

The enforcement regime in Ireland does not guarantee the
effectiveness of the application of the Impact Assessment Direc-
tive. Consequently Ireland has failed to fulfil its general obliga-
tion under article 249 of the Treaty to ensure that the directive
is applied effectively

which co-ordinates the procedures for the award of public
works contracts,
in particular under Articles 3 and 12
thereof.

— Order the Italian Republic to pay the costs of the proceed-

ings.

There have been a number of particular deficiencies in relation
to the undertaking of environmental impact assessments for a
wind farm at Derrybrien, County Galway, which amount to a
manifest breach of the directive.

(1) OJ L 175, p. 40.
(2) OJ L 73, p. 5.

Action brought on 12 May 2006 — Commission of the
European Communities v Italian Republic

(Case C-217/06)

(2006/C 178/33)

Language of the case: Italian

Pleas in law and main arguments

The Commission considers that the Agreement of 2 October
1991 between the commune of Stintino and Maresar is a
public works contract under Community law. The
said
contract, the subject of which is works with a value (around
EUR 16 million) clearly greater than the threshold for the
application of the Directive, which was in force at that time,
should have been awarded in accordance with the rules laid
down by that Directive.

As regards the Italian authority's arguments put forward to
in
justify their non-fulfilment, the Commission recalls that,
accordance with settled case-law, a Member State cannot rely
on internal difficulties to justify failure to fulfil obligations
derived from Community law.

(1) OJ L 185, p. 5.

Parties

Applicant: Commission of the European Communities (repre-
sented by: X. Lewis, agent, M. Mollica, lawyer)

Reference for a preliminary ruling from the Audiencia
Nacional, Sala de lo Contencioso-Administrativo (España)
of 15 May 2006 — Asociacion Profesional de Empresas de
Reparto y Manipulado de Correspondencia. v Administra-
ción del Estado (Ministerio de Educación y Ciencia)

Defendant: Italian Republic

Form of order sought

— Declare that, as the commune of Stintino awarded directly
through Agreement No 7/91 of 2 October
to Maresar,
1991 and connected measures, a public works contract
concerning the execution of the works mentioned in Reso-
lution No 48 of the municipal council of Stintino of 14
December 1989, particularly the 'detailed design and
construction of the works for the technological and struc-
tural adaptation, rehauling and completion of the water
supply and drainage networks, the road network, the build-
ings and service facilities in the town centre, the tourist
areas in and outside the territory of the commune of Stin-
tino, including the clean-up and depollution of the coast
and the tourist centres situated in that commune', without
following the procedures laid down by Council Directive
71/305/EEC (1) and,
in particular, without publishing a
notice of invitation to tender in the Official Journal of the
European Communities, the Commission of the European
Communities considers that the Italian Republic has failed
to fulfil its obligations under Council Directive 71/305/EEC,

(Case C-220/06)

(2006/C 178/34)

Language of the case: Spanish.

Referring court

Audiencia Nacional, Sala de lo Contencioso-Administrativo
(National High Court, Chamber for Contentious Administrative
Proceedings)

Parties to the main proceedings

Applicant: Asociacion Profesional de Empresas de Reparto y
Manipulado de Correspondencia

Defendant: Ministerio de Educación y Ciencia