Case C-235/07: Action brought on 10 May 2007 — Commission of the European Communities v Federal Republic of Germany
Date: 2007-06-23
Institutions: Court of Justice
Subjects: European Commission, Germany, action for failure to fulfil an obligation, charges for use of infrastructure, rail transport, transport licence, transport safety

23.6.2007

EN

Official Journal of the European Union

C 140/17

Questions referred

Form of order sought

1. Is the list of grounds for excluding public works contractors
contained in Article 24 of Council Directive 93/37/ΕEC of
14 June 1993 concerning the coordination of procedures for
the award of public works contracts (OJ 1993 L 199)
exhaustive?

2. If that list is not exhaustive, does a provision which lays
down (in order to protect transparency in the economic
functioning of the State) that the status of owner, partner,
main shareholder or management executive of a media
incompatible with the status of owner,
undertaking is
partner, main shareholder or management executive of an
undertaking contracting to perform a works, supply or
services contract for the State, or for a legal person in the
public sector in the broad sense, serve purposes which are
compatible with the general principles of Community law
and is that total prohibition on the award of public contracts
to such undertakings compatible with the Community prin-
ciple of proportionality?

3. If, within the meaning of Article 24 of Directive 93/37/ΕEC,
the list of grounds for excluding contractors contained
therein is an exhaustive list or if the national provision at
issue cannot be construed as serving purposes which are
compatible with the general principles of Community law or
if, finally, the prohibition introduced in it is not compatible
with the Community principle of proportionality, does the
above directive, in preventing the inclusion, as grounds for
excluding contractors from public works procurement proce-
dures, of cases where the contractor, its executives (such as
the owner of
its main shareholder,
partner or management executive), or intermediaries acting
for the said executives, work in media undertakings which
are able to exercise an undue influence on the public works
procurement procedure, because of the influence which they
are able to exert in general, infringe the general principles of
the protection of competition and transparency and Article 5
(2) of
the Treaty establishing the European Community
which enacts the principle of subsidiarity?

the undertaking or

— A declaration that, by failing to adopt the laws, regulations
and administrative provisions necessary to comply with
Directive 2004/49/EC of the European Parliament and of
the Council of 29 April 2004 on safety on the Community's
railways and amending Council Directive 95/18/EC on the
licensing of railway undertakings and Directive 2001/14/EC
on the allocation of railway infrastructure capacity and the
levying of charges for the use of railway infrastructure and
safety certification (Railway Safety Directive) (1) and Directive
2004/50/EC of the European Parliament and of the Council
of 29 April 2004 amending Council Directive 96/48/EC on
the interoperability of
the trans-European high-speed rail
system and Directive 2001/16/EC of the European Parlia-
ment and of the Council on the interoperability of the trans-
European conventional rail system (2) or, in any event, by
failing to communicate them to the Commission,
the
Kingdom of Sweden has failed to fulfil its obligations under
that directive

— An order that the Kingdom of Sweden should pay the costs.

Pleas in law and main arguments

The period prescribed for transposition of the Directive expired
on 30 April 2006.

(1) OJ 2004 L 164, p. 44.
(2) OJ 2004 L 164, p. 114.

Action brought on 10 May 2007 — Commission of the
European Communities v Federal Republic of Germany

Action brought on 3 May 2007 — Commission of the
European Communities v Kingdom of Sweden

(Case C-223/07)

(2007/C 140/27)

Language of the case: Swedish

(Case C-235/07)

(2007/C 140/28)

Language of the case: German

Parties

Parties

Applicant: Commission of the European Communities (repre-
sented by: N. Yerrell and P. Dejmek, acting as Agents)

Applicant: Commission of the European Communities (repre-
sented by G. Braun and P. Dejmek, acting as Agents)

Defendant: Kingdom of Sweden

Defendant: Federal Republic of Germany

C 140/18

EN

Official Journal of the European Union

23.6.2007

Form of order sought

— order the Federal Republic of Germany to pay the costs.

— declare that, by not bringing into force the laws, regulations
and administrative provisions necessary to implement Direc-
tive 2004/49/EC (1) of the European Parliament and of the
Council of 29 April 2004 on safety on the Community's
railways and amending Council Directive 95/18/EC (2) on
the
and Directive
2001/14/EC (3) on the allocation of railway infrastructure
capacity and the levying of charges for the use of railway
infrastructure and safety certification (Railway Safety Direc-
tive) into national law, or by not informing the Commission
thereof, the Federal Republic of Germany has failed to fulfil
its obligations under the EC Treaty and that directive;

railway undertakings

licensing of

Pleas in law and main arguments

The period laid down for implementing the directive expired on
30 April 2006.

(1) OJ 2004 L 164, p. 44
(2) OJ 1995 L 143, p. 70
(3) OJ 2001 L 75, p. 29