Case C-423/07: Action brought on 13 September 2007 — Commission of the European Communities v Kingdom of Spain
Date: 2007-12-08
Institutions: Court of Justice
Subjects: Spain, action for failure to fulfil an obligation, award of contract, motorway, public contract, works contract

8.12.2007

EN

Official Journal of the European Union

C 297/21

— the term ‘the northern area’ refers to the area of the
Republic of Cyprus over which the Government of the
Republic of Cyprus does not exercise effective control.

Does the suspension of the application of the acquis commu-
nautaire in the northern area by Article 1(1) of Protocol
No 10 of the Act of Accession 2003 of Cyprus to the EU
preclude a Member State Court from recognising and enfor-
cing a judgment given by a Court of the Republic of Cyprus
sitting in the Government-controlled area relating to land in
the northern area, when such recognition and enforcement is
sought under Council Regulation (EC) No 44/2001 of
22 December 2000 on jurisdiction and the recognition and
enforcement of
commercial
matters (1) (‘Regulation 44/2001’), which is part of the acquis
communautaire?

judgments

in civil

and

2. Does Article 35(1) of Regulation 44/2001 entitle or bind a
Member State court to refuse recognition and enforcement
of a judgment given by the Courts of another Member State
concerning land in an area of the latter Member State over
which the Government of that Member State does not exer-
cise effective control? In particular, does such a judgment
conflict with Article 22 of Regulation 44/2001?

3. Can a judgment of a Member State court, sitting in an area
of that State over which the Government of that State does
exercise effective control, in respect of land in that State in
an area over which the Government of that State does not
exercise effective control, be denied recognition or enforce-
ment under Article 34(1) of Regulation 44/2001 on the
grounds that as a practical matter the judgment cannot be
enforced where the land is situated, although the judgment is
enforceable
the
Member State?

in the Government-controlled area of

4. Where

— a default judgment has been entered against a defendant;

— the defendant then commenced proceedings in the Court

of origin to challenge the default judgment; but

the proceedings in sufficient time and in such a way as to
enable him to arrange for his defence prior to the entry of
the original default judgment? Does it make a difference if
the hearing entailed only consideration of the defendant's
defence to the claim.

5. In applying the test in Article 34(2) of Regulation 44/2001
of whether the defendant was ‘served with the document which
instituted the proceedings or with an equivalent document in suffi-
cient time and in such a way as to enable him to arrange for his
defence’ what factors are relevant to the assessment? In par-
ticular:

(a) Where service in fact brought the document to the atten-
tion of
to consider the
actions (or inactions) of the defendant or his lawyers
after service took place?

the defendant,

is it relevant

(b) What if any relevance would particular conduct of, or
difficulties experienced by, the defendant or his lawyers
have?

(c) Is it relevant

the defendant's lawyer could have
entered an appearance before judgment in default was
entered?

that

(1) OJ L 12, p. 1.

Action brought on 13 September 2007 — Commission of
the European Communities v Kingdom of Spain

(Case C-423/07)

(2007/C 297/35)

Language of the case: Spanish

— his application was unsuccessful following a full and fair
hearing on the ground that he had failed to show any
arguable defence (which is necessary under national law
before such a judgment can be set aside),

Parties

can that defendant resist enforcement of the original default
judgment or the judgment on the application to set aside
under Article 34(2) of Regulation 44/2001, on the ground
that he was not served with the document which instituted

Applicant: Commission of the European Communities (repre-
sented by: D. Kukovec, agent and M. Canal Fontcuberta,
abogada)

Defendant: Kingdom of Spain

C 297/22

EN

Official Journal of the European Union

8.12.2007

Form of order sought

— declare that, by not including, in the works to be awarded
by concession in the concession notice and in the tendering
specifications relating to the award of a public concession
for the construction, maintenance and operation of
the
motorway links to Segovia and Ávila, and for the mainte-
nance and operation of the Villalba-Adanero section of the
same motorway, works which were subsequently awarded,
the Kingdom of Spain has failed to fulfil
its obligations
under Article 3 and Article 11(3), (6), (7), (11) and (12) of
Directive 93/37/EEC (1), and under the principles of
the
EC Treaty, in particular the principle of equality of treatment
and non-discrimination;

— order Kingdom of Spain to pay the costs.

Reference for a preliminary ruling from High Court of
Justice (England and Wales), Queen's Bench Division,
Administrative Court made on 14 September 2007 — The
Queen on the application of Mark Horvath v Secretary of
State for Environment, Food and Rural Affairs

(Case C-428/07)

(2007/C 297/36)

Language of the case: English

Pleas in law and main arguments

Referring court

the

construction, maintenance and operation of

Under Royal Decree 1724/99 of 5 November the Ministry for
Infrastructure and Transport awarded a public works concession
for
the
following sections of toll motorway: the A-6 toll motorway link
to Segovia, and the A-6 toll motorway link to Ávila, and for the
maintenance and operation from 2018 of the Villalba-Adanero
section of the A-6 toll motorway. In the context of awarding
that concession,
there were awarded many other works of
which notice had not been given, to a value greater than the
total value of the published works, and which were in part
outside the geographical area of the concession.

First, the Commission claims that the Kingdom of Spain has
infringed Article 3 of Directive 93/37 and consequently
Article 11(3), (6), (7), (11) and (12) of the same directive by
awarding works without prior public notice. The Commission
states that all the works awarded should have been published in
the Official Journal in accordance with the provisions of Direc-
tive 93/37.

Secondly, the Commission considers that there is no informa-
tion either in the notice or in the tendering specifications which
would enable tenderers to bid for works on sections other than
the A-6 toll motorway links to Ávila and Segovia such as those
which were subsequently awarded. The Commission considers
therefore that the Spanish authorities have infringed the prin-
ciple of equality of treatment by accepting a tender which mani-
festly did not comply with the essential conditions set out in the
published notice and tendering specifications.

(1) Council Directive of 14 June 1993 concerning the coordination of
procedures for the award of public works contracts (OJ 1993 L 199,
p. 54).

High Court of
Division, Administrative Court

Justice (England and Wales), Queen's Bench

Parties to the main proceedings

Applicant: Mark Horvath

Defendant: Secretary of State for Environment, Food and Rural
Affairs

Questions referred

1. Where a Member State has provided for a system of devolved
government, in relation to which powers are retained to the
central state authorities to act for the whole of the territory
of the Member State to ensure compliance with that Member
State's obligations under Community law,
in relation to
Council Regulation (EC) No 1782/2003 establishing
the
common rules
common agricultural policy and establishing certain support
schemes
(EEC)
No 2019/93, (EC) No 1452/2001, (EC) No 1453/2001, (EC)
No 1454/2001,
(EC)
(EEC) No 2358/71,
No 1254/1999,
and (EC) No 2529/2001 (1) (‘the Council Regulation’):

(EC) 1868/94,
(EC) No 1673/2000,

farmers and amending Regulations

(EC) No 1251/1999,

schemes under

for direct

support

for

a) Can a Member State include requirements relating to the
maintenance of visible public rights of way in its stan-
dards of good agricultural and environmental condition
under Article 5 and Annex IV to Council Regulation
1782/2003?