Case C-481/06: Action brought on 24 November 2006 — Commission of the European Communities v Hellenic Republic
Date: 2006-12-30
Institutions: Court of Justice
Subjects: European Commission, Greece, action for failure to fulfil an obligation, award of contract, competition law, supplies contract

C 326/48

EN

Official Journal of the European Union

30.12.2006

Reference for a preliminary ruling from the Tribunale
civile di Genova (Italy) lodged on 21 November 2006 —
Consel Gi. Emme Srl v Sistema Logistico dell'Arco Ligure e
Alessandrino Srl (SLALA)

Action brought on 23 November 2006 — Commission of
the European Communities v Hellenic Republic

(Case C-467/06)

(2006/C 326/97)

Language of the case: Italian

Parties

(Case C-479/06)

(2006/C 326/98)

Language of the case: Greek

Referring court

Tribunale civile di Genova

Parties to the main proceedings

Applicant: Consel Gi. Emme Srl

Defendant: Sistema Logistico dell'Arco Ligure e Alessandrino Srl
(SLALA)

Question referred

1. Does Community law (with particular reference to Articles
43 EC and 49 EC, 82 EC, 86 EC and 87 EC) preclude a
Member State from entrusting public services and the
management of public infrastructure — on the basis of
special legislation with characteristics similar to those of the
provisions introduced into Italian law by Article 12 of
Decree-Law No 262/06 of 3 October 2006 — to private-law
companies (in this case, ANAS spa) which, at the same time,
perform the function of regulating and controlling the par-
ticular market (of the kind conferred on ANAS spa by the
legislation at issue), and are in a position to determine the
substance, progress and possible termination of the contract
of concession which exists between the State and competi-
tors of the body on which that role has been conferred?

2. Is a rule (such as the rule introduced by the Italian State
under the aforementioned Article 12 of Decree-Law No
262/06 of 3 October 2006) which integrates or actually
modifies (in particular by replacing them with a sole agree-
ment, adopted by administrative act) the contractual agree-
ments already in place, thereby substantially changing the
balance of contractual relations, compatible with Community
law (from the perspective of Community law itself or, at
law with Community relevance, concerning the
least, of
freedom to engage in commercial activities, in the light of
the case-law of the Court of Justice on this point)?

Applicant: Commission of the European Communities (repre-
sented by: M. Patakia and D. Lawunmi)

Defendant: Hellenic Republic

Form of order sought

The Court is asked to:

the European Parliament and of

— declare that, by failing to adopt the laws, regulations and
administrative provisions necessary to comply with Directive
2004/26/EC (1) of
the
Council of 21 April 2004 amending Directive 97/68/EC on
the approximation of the laws of the Member States relating
to measures against the emission of gaseous and particulate
pollutants from internal combustion engines to be installed
in non-road mobile machinery, and in any event by failing
to inform the Commission of those provisions, the Hellenic
Republic has failed to fulfil its obligations under that direc-
tive;

— order the Hellenic Republic to pay the costs.

Pleas in law and main arguments

The period prescribed for transposing Directive 2004/26/EC
into domestic law expired on 20 May 2005.

(1) OJ L 146 of 30.04.04, p. 1.

Action brought on 24 November 2006 — Commission of
the European Communities v Hellenic Republic

(Case C-481/06)

(2006/C 326/99)

Language of the case: Greek

Parties

Applicant: Commission of the European Communities (repre-
sented by: M. Patakia and X. Lewis)

Defendant: Hellenic Republic

30.12.2006

EN

Official Journal of the European Union

C 326/49

Form of order sought

Action brought on 24 November 2006 — Commission of
the European Communities v Portuguese Republic

— declare that, by retaining in force Article 7(2) of Law
2955/2001, and by means of the Joint Ministerial Decisions
(DI6a/ik 38611 and DI6a/ik 38609 of 12 April 2005)
implementing that provision,
the Hellenic Republic has
its obligation flowing from Article 6(3) of
failed to fulfil
Directive 93/36/EEC (1) coordinating procedures for
the
award of public supply contracts and its obligation, as laid
down by the case-law of the Court of Justice of the Euro-
pean Communities, to ensure effective and fair competition;

Parties

(Case C-482/06)

(2006/C 326/100)

Language of the case: Portuguese

— order the Hellenic Republic to pay the costs.

Applicant: Commission of the European Communities (repre-
sented by: E. Montaguti and G. Braga da Cruz, acting as Agents)

Pleas in law and main arguments

The Commission received a complaint relating to the provision
of Greek legislation which has placed all material for medical
use into categories and set a specific maximum price for each
category. That provision, in conjunction with the joint minis-
terial decisions implementing it, constitutes a legislative frame-
work which allows the direct award of public supply contracts
for whole groups of the foregoing products which are classified
as not comparable.

In the light of the case-law of the Court of Justice, the Commis-
sion considers that
the legislative framework in question is
contrary to Article 6(3) of Directive 93/36 coordinating proce-
dures for the award of public supply contracts and to the obliga-
tion to ensure effective and fair competition. Inasmuch as that
provision is in the nature of an exception, it must be interpreted
narrowly and it is not possible to allow direct awards for whole
categories of products. Also, contracting authorities must make
sure that effective competition is preserved and ensure transpar-
ency in the public supply field, which is not possible with direct
awards, apart from the exceptional cases laid down in Article 6
(3) of Directive 93/36.

the

existence of

The Greek authorities did not contest the Commission's submis-
sions or
and
announced their intention to amend the legislative provision at
issue. Nevertheless, no such amendment had been made known
up until the date on which the action was brought.

the alleged infringement

The Commission consequently considers
the Hellenic
Republic has failed to fulfil its obligation under Article 6(3) of
Directive 93/36 and its obligation to ensure effective and fair
competition.

that

(1) OJ No L 199, 9.8.1993, p. 1.

Parties

Defendant: Portuguese Republic

Form of order sought

— a declaration that, by failing to adopt (all) the laws, regula-
tions and administrative provisions necessary to comply
with Directive 2003/98/EC (1) of the European Parliament
and of the Council of 17 November 2003 on the re-use of
public sector information or,
in any event, by failing to
communicate those provisions to the European Commission,
the Portuguese Republic has failed to fulfil
its obligations
under Article 12 of that directive;

— an order that the Portuguese Republic should pay the costs.

Pleas in law and main arguments

The period prescribed for transposition of the directive into
national law expired on 1 July 2005.

(1) OJ 2003 L 345, p. 90.

Action brought on 24 November 2006 — Commission of
the European Communities v Federal Republic of Germany

(Case C-485/06)

(2006/C 326/101)

Language of the case: German

Applicant: Commission of the European Communities (repre-
sented by: M. Condou and W. Bogensberger, acting as Agents)

Defendant: Federal Republic of Germany