Case C-538/07: Reference for a preliminary ruling from the Tribunale Amministrativo Regionale per la Lombardia (Italy) lodged on 3 December 2007 — Assitur Srl v Camera di Commercio, Industria, Artigianato e Agricoltura di Milano
Date: 2007-12-03
Institutions: Court of Justice
Subjects: interpretation of the law, invitation to tender, services contract, shareholding

C 37/16

EN

Official Journal of the European Union

9.2.2008

Appeal brought on 30 November 2007 by William Prym
GmbH & Co. KG and Prym Consumer GmbH against
the judgment of
Instance (Second
the Court of First
Chamber) delivered on 12 September 2007 in Case T-30/05
William Prym GmbH & Co. KG and Prym Consumer
the European
GmbH & Co. KG v Commission of

Communities

(Case C-534/07 P)

(2008/C 37/21)

Language of the case: German

Parties

Appellants: William Prym GmbH & Co. KG and Prym Consumer
GmbH (represented by: H.-J. Niemeyer and Ch. Hermann,
lawyers)

Other party to the proceedings: Commission of
Communities

the European

Form of order sought

1. To set aside the judgement of the Court of First Instance of
the European Communities of 12 September 2007 in Case
T-30/05, in so far as it affects the appellants,

2. To annul Commission Decision C(2004) 4221 final of
26 October 2004 (Case COMP/F-1/38.338 — PO/Needles),
in so far as it affects the appellants,

In the alternative, to annul or reduce the fine imposed on
the appellants by Article 2 of that decision,

3. In the alternative to the second form of order sought, to
refer the case back to the Court of First Instance for judg-
ment,

4. To order the respondents in the appeal proceedings to pay

the costs of the whole proceedings.

— The Court of First Instance was wrong to hold that there
was no infringement of the duty to state reasons under
It wrongly considered the inadequate
Article 253 EC.
the markets
the size of
analysis by the Commission of
considered to be relevant in the case and in relation to the
concrete effects of the infringement on the market to be of
no legal significance.

— The Court of First Instance infringed the Guidelines on the
Method of Setting Fines. It determined the gravity of the
infringement by reference merely to the abstract form of the
infringement and treated the lowest amount of an aggra-
vating category as representing a minimum amount which
could not be reduced. It also refused to treat the voluntary
termination of the infringement as an attenuating circum-
stance, and in so doing infringed the principles of the rule
of law and equal treatment.

— Lastly, the Court of First Instance infringed the principle of
proportionality. It applied the Guidelines on the Method of
Setting Fines in determining the gravity of the infringement
in a manner that was equally as formalistic and one-sided to
the detriment of the appellants as the respondents in these
proceedings had done. In addition, it failed to undertake the
simultaneous weighting of all the relevant circumstances of
the case that the principle of proportionality requires, and
instead merely examined the proportionality of the fine in
relation to discrete criteria that were considered on their
own in every case.

Reference for a preliminary ruling from the Tribunale
Amministrativo Regionale per
(Italy)
lodged on 3 December 2007 — Assitur Srl v Camera di
Commercio, Industria, Artigianato e Agricoltura di Milano

Lombardia

la

(Case C-538/07)

(2008/C 37/22)

Language of the case: Italian

Pleas in law and main arguments

Referring court

— The Court of First Instance was wrong to conclude that the
separation of
the originally unified ‘hard haberdashery’
procedure into the ‘hard haberdashery: needles’ and ‘hard
haberdashery:
fasteners’ procedures without providing
reasons for that separation did not infringe the appellants'
rights of defence, in particular their right to a fair hearing.

— In refusing to determine whether the separation of

the
‘haberdashery’ procedure was unlawful because the infringe-
ment at issue was a single and continuing one, the Court of
First Instance contravened the principle that access to justice
must not be denied and the fundamental right to judicial
protection.

Tribunale Amministrativo Regionale per la Lombardia

Parties to the main proceedings

Applicant: Assitur Srl

Defendant: Camera di Commercio, Industria, Artigianato e Agri-
coltura di Milano

9.2.2008

EN

Official Journal of the European Union

C 37/17

Question referred

Action brought on 30 November 2007 — Commission of
the European Communities v Italian Republic

Does Article 29 of Directive 92/50/EEC (1),
in laying down
for exclusion from participation in service
seven grounds
contracts, give an exhaustive list of cases of exclusion and there-
fore preclude Article 10(1 bis) of Law No 109/94 (now replaced
by Article 34, last paragraph, of Legislative Decree No 136/86)
from imposing a prohibition on simultaneous participation in a
tendering procedure of undertakings which are linked by a rela-
tionship of control?

(1) OJ L 1992 209, p. 1.

(Case C-540/07)

(2008/C 37/24)

Language of the case: Italian

Parties

Applicant: Commission of the European Communities (repre-
sented by: R. Lyal and A. Aresu, acting as Agents)

Defendant: Italian Republic

Form of order sought

Action brought on 30 November 2007 — Commission of
the European Communities v Italian Republic

The applicant claims that the Court should:

(Case C-539/07)

(2008/C 37/23)

Language of the case: Italian

Parties

Applicant: Commission of the European Communities (repre-
sented by: E. Montaguti and A. Nijenhuis, acting as Agents)

Defendant: Italian Republic

Form of order sought

The applicant claims that the Court should:

— declare that, by failing, for all calls to the single European
emergency call number ‘112’, to make call-tracing informa-
tion available, within the limits of technical feasibility, to the
authorities called upon to act in cases of emergency, the
Italian Republic has failed to fulfil
its obligations under
Article 26(3) of Directive 2002/22/EC (1);

— order the Italian Republic to pay the costs.

Pleas in law and main arguments

The period for transposing Directive 2002/22/EC expired on
24 July 2003.

(1) Directive 2002/22/EC of

the
Council of 7 March 2002 on universal service and users' rights
relating to electronic
and services
communications networks
(Universal Service Directive) (OJ 2002 L 108, p. 51).

the European Parliament and of

— declare that, by keeping in force a tax system which is more
onerous for dividends distributed to companies established
in the other Member States and in the States Party to the
Agreement on the European Economic Area compared to
that applied to domestic dividends, the Italian Republic has
failed to fulfil its obligations under Articles 56 EC and 40 of
the Agreement on the European Economic Area concerning
the free movement of capital between the Member States
and that between the States Party to the agreement in ques-
tion, as well as its obligations under Article 33 of that agree-
ment in relation to the freedom of establishment between
the States Party to that agreement;

— order the Italian Republic to pay the costs.

Pleas in law and main arguments

The European Commission refers to the Italian legislation in
force in the matter, also that under the Treaty, which subjects
the distribution of dividends to non-Italian companies (outgoing
dividends) to tax treatment which is significantly less favourable
than that applied to the distribution of dividends to Italian
companies (domestic dividends).

The European Commission submits that such legislation, which,
however, the Italian Government is about to amend, is contrary
to the principle of the free movement of capital, since it has a
negative effect on the profits and investment decisions of
non-resident shareholders in Italian companies, making it, at the
same time, more difficult for the same Italian companies to raise
capital abroad. It should therefore be declared to be a clear
infringement of Article 56 EC, which prohibits any restriction
on the free movement of capital between the Member States,
and of Article 40 of the Agreement on the European Economic
Area (EEA Agreement), which governs in a similar manner the
same free movement between the States Party to that agree-
ment.

Moreover, in the European Commission's submission, such legis-
lation may also conflict with the right of establishment as laid
down by Article 31 of the EEA Agreement, since it is applicable
also to controlling shareholdings in Italian companies owned by
companies established in the States Party to that agreement,
shareholdings for which their tax system harmonised to Com-
munity Directive 90/435/EEC (1) does not apply.