Case C-12/07: Reference for a preliminary ruling from the Tribunale di Genova (Italy) lodged on 18 January 2007 — Autostrada dei Fiori SpA, AISCAT, Associazione Nazionale dei Gestori delle Autostrade v Government of the Italian Republic, Ministry of Infrastructure and Transport, Ministry of the Economy and Finance and Azienda Nazionale Autonoma delle Strade (ANAS)
Date: 2007-04-14
Institutions: Court of Justice
Subjects: award of contract, company with share capital, competition law, interpretation of the law, public contract, public sector, service concession

C 82/12

EN

Official Journal of the European Union

14.4.2007

Re:

Reference for a preliminary ruling — Krajský súd v Prešove —
Interpretation of Article 6 EU and Article 1 of the Protocol to
the Convention on the Protection of Human Rights and Funda-
mental Freedoms, signed in Paris on 20 March 1952 — Prop-
erty law — National legislation under which electrical installa-
tions may be placed on private land without the owners being
entitled to compensation

Operative part of the order

The Court of Justice of the European Communities clearly has no juris-
diction to answer the questions referred by the Krajský súd v Prešove V
by decisions of 2 May and 21 July 2006.

(1) OJ C 249 of 14.10.2006.

Action brought on 13 December 2006 — Commission of
the European Communities v Italian Republic

(Case C-503/06)

(2007/C 82/23)

Language of the case: Italian

Parties

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

Defendant: Italian Republic

Form of order sought

— Declare that, since the Regione Liguria has adopted and
applies rules concerning authorisation to derogate from the
system of protection for wild birds which fail to satisfy the
of Directive
conditions
79/409/EEC (1), the Italian Republic has failed to fulfil
its
obligations under Article 9 of that directive.

in Article

down

laid

9

— order the Italian Republic to pay the costs.

Pleas in law and main arguments

Following receipt of a complaint, the Commission was apprised
of the fact that the Regione Liguria had approved Law No 34 of
October 2001 for the purpose of regulating procedures for the
adoption of derogations from the system of protection for wild
birds provided for under Article 9 of the abovementioned direc-
tive. That regional law was amended by Regional Law No 31 of
13 August 2002.

In the Commission's opinion, Regional Law No 34/2001, as
amended, authorises the lawful hunting of bird species protected
under that directive in so far it:

— identifies generally and in the abstract and without any time
limitation the species which are subject to the derogation,
whereas the derogation constitutes an exceptional regulatory
measure to be adopted upon verification that certain condi-
tions of a scientific nature are met;

— does not lay down an obligation, as regards individual dero-
gation measures, to state one of the abstract reasons why it
is possible to grant a derogation under Article 9 of the
directive and does not lay down an obligation to explain the
practical reason why a particular measure is dictated by the
need relied upon as an abstract reason.

— it fails to provide that checks are to be made to ensure that
no other satisfactory solutions are available or to provide
any indication of the authority empowered to declare that
the conditions under Article 9 of the directive are satisfied.

The fact that Regional Law No 34/2001, as amended, is incom-
patible with the directive is reflected in the specific measures
authorising hunting, which fail to establish that no other satis-
factory solutions are available and fail to mention either the
abstract reason for which or the specific grounds on which the
derogation is necessary.

On 31 October 2006, after the expiry of the period prescribed
in the reasoned opinion, the Regione Liguria repealed Regional
Law No 34/2001, as amended, by Regional Law No 35/2006 of
31 October 2006 and adopted Regional Law No 36/2006,
which authorises hunting derogations that disclose the same
incompatibilities with Article 9 of the abovementioned directive
as those complained of above relating to the earlier regional
legal framework.

(1) Council Directive 79/409/EEC of 2 April 1979 concerning the

conservation of wild birds, OJ 1979 L 103, p. 1.

Reference for a preliminary ruling from the Tribunale di
Genova (Italy) lodged on 18 January 2007 — Autostrada
dei Fiori SpA, AISCAT, Associazione Nazionale dei Gestori
delle Autostrade v Government of the Italian Republic,
Ministry of Infrastructure and Transport, Ministry of the
Economy and Finance and Azienda Nazionale Autonoma
delle Strade (ANAS)

(Case C-12/07)

(2007/C 82/24)

Language of the case: Italian

Referring court

Tribunale di Genova

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;