Case C-259/07: Action brought on 31 May 2007 — Commission of the European Communities v Kingdom of Sweden
Date: 2007-08-04
Institutions: Court of Justice
Subjects: European Commission, Publications Office of the European Union, Sweden, action for failure to fulfil an obligation, award of contract, dissemination of information, national implementing measure, public contract

C 183/22

EN

Official Journal of the European Union

4.8.2007

Action brought on 31 May 2007 — Commission of the
European Communities v Kingdom of Sweden

Form of order sought

(Case C-257/07)

(2007/C 183/37)

Language of the case: Swedish

Parties

Applicants: Commission of the European Communities (repre-
sented by: D. Kukovec and K. Nyberg, acting as Agents)

Defendants: Kingdom of Sweden

Form of order sought

the European Parliament and of

— Declare that, by failing to adopt the laws, regulations and
administrative provisions necessary to comply with Directive
2004/17/EC (1) of
the
Council of 31 March 2004 coordinating the procurement
procedures of entities operating in the water, energy, trans-
port and postal services sectors (the procurement directive)
or
in any event by failing to inform the Commission
thereof, the Kingdom of Sweden has failed to fulfil its obli-
gations under that directive;

— Order the Kingdom of Sweden to pay the costs.

Pleas in law and main arguments

The period for implementation of
31 January 2006.

the Directive expired on

(1) OJ L 134, 30.4.2004, p. 1.

the European Parliament and of

— Declare that, by failing to adopt the laws, regulations and
administrative provisions necessary to comply with Directive
2004/18/EC (1) of
the
Council of 31 March 2004 on the coordination of proce-
dures for the award of public works contracts, public supply
contracts and public service contracts or in any event by
failing to inform the Commission thereof, the Kingdom of
Sweden has failed to fulfil its obligations under that direc-
tive;

— order the Kingdom of Sweden to pay the costs.

Pleas in law and main arguments

The period for implementation of
31 January 2006.

the Directive expired on

(1) OJ L 134, 30.4.2004, p. 114.

Action brought on 31 May 2007 — Commission of the
European Communities v Kingdom of Sweden

(Case C-259/07)

(2007/C 183/39)

Language of the case: Swedish

Parties

Applicants: Commission of the European Communities (repre-
sented by: D. Kukovec and K. Nyberg, acting as Agents)

Action brought on 31 May 2007 — Commission of the
European Communities v Kingdom of Sweden

Defendants: Kingdom of Sweden

(Case C-258/07)

(2007/C 183/38)

Language of the case: Swedish

Parties

Applicants: Commission of the European Communities (repre-
sented by: D. Kukovec and K. Nyberg, acting as Agents)

Form of order sought

to

necessary

provisions

— Declare that, by failing to adopt the laws, regulations and
administrative
comply with
Commission Directive 2005/51/EC (1) of 7 September 2005
amending Annex XX to Directive 2004/17/EC (2) and
Annex VIII to Directive 2004/18/EC (3) of
the European
Parliament and the Council on public procurement or in any
event by failing to inform the Commission thereof,
the
Kingdom of Sweden has failed to fulfil its obligations under
that directive;

Defendants: Kingdom of Sweden

— order the Kingdom of Sweden to pay the costs.

4.8.2007

EN

Official Journal of the European Union

C 183/23

Pleas in law and main arguments

The period for implementation of
31 January 2006.

the Directive expired on

(1) OJ L 257, 1.10.2005, p. 127.
(2) OJ L 134, 30.4.2004, p. 1.
(3) OJ L 134, 30.4.2004, p. 114.

connected with the buyer, provided that the duration of the
non-compete obligation does not exceed the period of occu-
pancy of the premises and land by the buyer’, be interpreted,
where it mentions leasing, as referring to a situation in which
the supplier/lessor also initially owned the land and the installa-
tions, or on the contrary does the reference to the leasing of the
service station cover all those titles which may by operation of
law give the supplier a proprietary right in the service station
alone, with the consequence that the supplier can lease it to the
owner of the land without being required to comply with the
time limitations which the rules impose in respect of exclusive
purchasing agreements?

Reference for a preliminary ruling from the Audiencia
Provincial de Barcelona (Spain) lodged on 31 May 2007 —
Pedro IV Servicios S.L. v Total España S.A.

(Case C-260/07)

(2007/C 183/40)

Language of the case: Spanish

Referring court

Audiencia Provincial de Barcelona

Parties to the main proceedings

Applicant: Pedro IV Servicios S.L.

Defendant: Total España S.A.

Questions referred

of Commission Regulation

(EEC)
Must Article
12(2)
No 1984/83 (1), which provides that
‘where the agreement
relates to a service station which the supplier lets to the reseller,
or allows the reseller to occupy on some other basis, in law or
in facts, [then] exclusive purchasing obligations or prohibitions
of competition indicated in this Title may, notwithstanding Para-
graph 1(c), be imposed on the reseller for the whole period for
which the reseller in fact operates on the premises’, be inter-
preted as referring to the situation in which the supplier/lessor
initially owned the land and the installations, or on the contrary
does the reference to the ‘letting’ of the service station cover all
those titles which by operation of
law give the supplier a
proprietary right in the service station alone, with the conse-
quence that the supplier can lease it to the owner of the land
without being required to comply with the time limitations
which the rules impose in respect of exclusive purchasing agree-
ments?

(EC) No

2790/1999 (2)

If Commission Regulation
of
22 December 1999 is applicable to the present case, must the
provision in Article 5 that the exemption [in Article 2 of the
regulation] is not to apply if
the exclusive
purchasing agreement exceeds five years, although ‘the time
limitation of five years shall not apply where the contract goods
or services are sold by the buyer from premises and land owned
by the supplier or leased by the supplier from third parties not

the duration of

the indirect

the prohibition of

fixing of purchase or
Must
laid down in Article 81(1)(a) EC and the
selling prices
statement in recital 8 in the preamble to Commission Regu-
lation (EEC) No 1984/83 that ‘further restrictive obligations and
in particular those which limit the reseller's choice of customers
or his freedom to determine his prices and conditions of sale
cannot be exempted under this Regulation’ resale price fixing
not being among the other
restrictions on competition
permitted in Article 11 of that regulation, be interpreted as
including any form of restriction of the reseller's freedom to fix
the retail price, such as where the supplier fixes the distribution
margin of the operator of the service station, by fixing the price
of the fuel which he supplies to the reseller on the most advan-
tageous terms agreed with other service stations that may be
established in Barcelona, provided that the price will never be
higher than the average price fixed by other suppliers with a
significant presence on the market, then adding the minimum
margin which is thought appropriate and thus arriving at the
PVP (retail price), which the supplier does not expressly impose
but which it recommends be charged?

Must the prohibition of the indirect fixing of purchase or selling
prices laid down in Article 81(1)(a) EC, and the inclusion in
Article 4(a) of Commission Regulation (EC) No 2790/1999 of
22 December 1999 of resale price maintenance as a particularly
serious (‘hardcore’) restriction on competition, be interpreted as
including any form of restriction of the reseller's freedom to fix
the retail price, such as where the supplier fixes the distribution
margin of the operator of the service station, by fixing the price
of the fuel which he supplies to the reseller on the most advan-
tageous terms agreed with other service stations that may be
established in Barcelona, provided that the price will never be
higher than the average price fixed by other suppliers with a
significant presence on the market, then adding the minimum
margin which is thought appropriate and thus arriving at the
PVP (retail price), which the supplier does not expressly impose
but which it recommends be charged?

(1) Commission Regulation (EEC) No 1984/83 of 22 June 1983 on the
application of Article 85 (3) of the Treaty to categories of exclusive
purchasing agreements (OJ 1983 L 173, p. 5).

(2) Commission Regulation (EC) No 2790/1999 of 22 December 1999
on the application of Article 81(3) of the Treaty to categories of
vertical agreements and concerted practices (OJ 1999 L 336, p. 21).