Case C-16/07 P: Appeal brought on 22 January 2007 by Marguerite Chetcuti against the judgment of the Court of First Instance (Fourth Chamber) delivered on 8 November 2006 in Case T-357/04: Chetcuti v Commission
Date: 2007-04-14
Institutions: Court of Justice
Subjects: European Commission, European official, action by staff, appeal, competition (EU), equal treatment, recruitment, servant (EU)

14.4.2007

EN

Official Journal of the European Union

C 82/13

Parties to the main proceedings

Applicants: Autostrada dei Fiori SpA AISCAT, Associazione
Nazionale dei Gestori delle Autostrade

Defendants: The Government of the Italian Republic, Ministry of
Infrastructure and Transport, Ministry of
the Economy and
Finance, Azienda Nazionale Autonoma delle Strade (ANAS)

Questions referred

1. Does the Court of Justice consider that a body, which takes
the form of a joint-stock company and has the objects, func-
tions and powers of intervention on the market which the
Italian legislature has assigned to ANAS spa (as emerge — in
particular — from the instrument setting up the new body,
the company constitution approved by the Interministerial
Decree of 18 December 2002 and the new legislation
contained in subparagraphs 82 to 90 of Article 2 of the
Decree-Law of 3 October 2006, converted into law with the
amendments introduced by the Government's ‘maxi-amend-
ment’ to subparagraph 1034 of Article 1 of the 2007 Finan-
cial Law), may be regarded as an undertaking, albeit a public
undertaking, for the purposes of Community law, and as
such subject to the rules on competition (Article 86 of the
EC Treaty)?

2. Is legislation such as that at issue here, even as converted by
Law No 286 of 2006, which — in contrast to the substantial
power of expropriation accorded to a competing public
undertaking such as ANAS spa — provides for a ‘possible
right
to compensation’, compatible with the fundamental
right to property, which is protected by Community law?

3. Having regard to the legislation at issue, and in the light of
the amendments introduced on its conversion into law and
by the so-called ‘maxi-amendment’ to the 2007 Financial
Law, does Community law and, in particular, the rules on
competition and the internal market (Article 43 et seq and
81 et seq of the EC Treaty) preclude assigning to an under-
taking, under full public ownership and having characteristics
similar to those of ANAS spa, the administration — on a
temporary basis but without stipulating an absolute time-
limit — of public services or public infrastructure, without
holding a competitive tendering procedure?

4. In relation to public procurement procedures, does Com-
munity law preclude a Member State from extending the
regime provided for by the public procurement directives to
‘vertical’ transactions set in place by private-law undertakings
which have been awarded concessions, with the Member
State further reserving for itself the right to appoint the
committees evaluating the tenders submitted by the conces-
sionaires?

5. In so far as they accord advantages which are not accorded
to private-law competitors, and in so far as they are not
subject to separate accounting, do financial measures like
those
sub-
implemented in favour of ANAS under
paragraph 12 of Article 7 of Decree-Law No 138 of 2002
and subparagraph 1-quater of Article 7 of Decree-Law No

138 of 2002, as well as subparagraph 453 of Article 1 of
the 2005 Financial Law (Law No 311 of 30 December
2004), which enable ANAS to receive loans on preferential
terms from the Cassa Depositi e Prestiti
spa, as well as
measures similar to those contained in subparagraph 299(c)
and subparagraph 453 of Article 1 of Law No 311 of 2004
(the 2005 Financial Law), and/or contained in subparagraph
2 of Article 76 of Law No 289 of 2003, under which ANAS
receives substantial public contributions which are declared
to be intended for infrastructure projects but stipulate no
separate accounting requirement, constitute State aid which
is prohibited by Article 87 et seq of the EC Treaty? In addi-
tion, does a measure such as that extending the concession
period awarded to ANAS spa, enabling it
to avoid the
competitive tendering procedure, as well as a provision of
the kind contained in subparagraphs 87 and 88 of Article 2
of Law No 286 of 2006 (converting Decree-Law No 262 of
2006), according to which ANAS spa automatically succeeds
— albeit on a temporary basis but with no absolute time-
limit — to private-law sub-concessions which have expired,
constitute State aid?

Appeal brought on 22 January 2007 by Marguerite Chet-
cuti against the judgment of the Court of First Instance
(Fourth Chamber) delivered on 8 November 2006 in Case
T-357/04: Chetcuti v Commission

(Case C-16/07 P)

(2007/C 82/25)

Language of the case: French

Parties

Appellant: Marguerite Chetcuti
avocat)

(represented by: M.-A. Lucas,

Other party to the proceedings: Commission of
Communities

the European

Form of order sought

— set aside the judgment of the Court of First Instance of the
European Communities (Fourth Chamber) of 8 November
2006 in Case T-357/04 Chetcuti v Commission;

— grant the form of order sought by the appellant before the

Court of First Instance and therefore:

— annul the decision of the competition selection board of
22 June 2004 rejecting, on the basis of point III of
competition notice COM/PA/04 of 6 April 2004, the
appellant's candidature;

C 82/14

EN

Official Journal of the European Union

14.4.2007

— annul the subsequent acts of the competition procedure,
and in particular the list adopted by the selection board
of candidates meeting the conditions fixed by the notice
of competition, the Commission decision determining
on that basis the number of posts to be filled, the list of
suitable candidates adopted by the selection board on
completion of its task, and the appointment decisions
taken by the appointing authority on that basis;

In the alternative, the appellant claims lastly that the judgment
under appeal is inadequately reasoned in so far as the Court of
First Instance did not respond to its argument that the competi-
tion notice contains an internal contradiction because that
notice appears to exclude the candidatures of auxiliary staff, but
for the calculation of professional experience that
to admit
acquired as a member of the auxiliary staff in certain function
groups.

— order the Commission to pay the costs at first instance;

— order the Commission to pay the costs of the proceedings

before the Court of Justice.

Pleas in law and main arguments

The appellant puts forward a single plea in law in support of
her appeal, alleging infringement by the Court of First Instance
of the concept of internal competition within the meaning of
Articles 4 and 29(1)(b) of the Staff Regulations in the version in
force at the time of publication of the competition notice, of
the objective assigned to recruitment by Article 27 and the first
paragraph of Article 4 of those regulations, and of the principle
of equal treatment or, at the very least, of the obligation to state
reasons.

In that plea, the appellant asserts, in essence, that it is apparent
from the case-law of the Court of Justice and the Court of First
Instance that the expression ‘competition internal to the institu-
tion’ concerns all the persons in the service of the institution
because of a connection under public law, including auxiliary
staff, and that the Court of First Instance misconstrued that
case-law and the meaning of the expression ‘internal competi-
tion’ by focusing on the main purpose of
the competition,
defined on the basis of subjective qualifications, rather than on
its intrinsic nature, defined on the basis of objective conditions
of admission to the competition stipulated in the competition
notice.

The appellant claims next that, whilst it cannot be denied that
the appointing authority has wide discretion when specifying in
the competition notice the conditions of admissibility to that
competition, that discretion must always be exercised according
to the requirements of the posts to be filled and the interest of
the service, so that the argument that auxiliary staff can be
excluded on the basis that, unlike officials and temporary staff,
they have not had to prove, at the time of their initial recruit-
ment, that they are of the highest standard of ability, efficiency
and integrity cannot be accepted. Proof of such qualities must
be apparent simply from success in the pre-selection tests and
selection tests provided for by the competition notice. The same
is moreover true as regards proof of aptitude to carry out the
tasks of the posts to be filled.

Reference for a preliminary ruling from the Tribunale
Amministrativo Regionale per il Lazio (Italy) lodged on
25 January 2007 — Confcooperativa Friuli Venezia Giulia,
Luigi Soini, Azienda Agricola Vivai Pinat Mario e figlio v
Ministero delle Politiche Agricole, Alimentari e Forestali,
Regione Friuli Venezia Giulia

(Case C-23/07)

(2007/C 82/26)

Language of the case: Italian

Referring court

Tribunale Amministrativo Regionale per il Lazio (Italy)

Parties to the main proceedings

Applicants: Confcooperativa Friuli Venezia Giulia, Luigi Soini,
Azienda Agricola Vivai Pinat Mario e Figlio

Defendants: Ministero delle Politiche Agricole, Alimentari e Fore-
stali, Regione Friuli Venezia Giulia

Questions referred

1. Is the Treaty of Accession of the Republic of Hungary to the
European Union (OJEC L 236 of 23 September 2003) to be
interpreted as meaning, with regard to the names of wines
produced in Hungary and in the European Community, that,
with effect from 1 May 2004, only the provisions of Com-
munity legislation referred to in Regulation No 1493/99 (1)
and Regulation No 753/2002 (2), as amended by Regulation
No 1429/2004 (3), are applicable?

2. Does Article 52 of Regulation No 1493/99 constitute an
adequate legal basis on which the European Commission
may abolish the use of the name of a wine (in the present
case, ‘Tocai friulano’) which derives from a vine variety that
is lawfully entered in the appropriate registers of the Italian
State and is referred to in relevant Community regulations?