Case C-437/07: Action brought on 19 September 2007 — Commission of the European Communities v Italian Republic
Date: 2007-12-08
Institutions: Court of Justice
Subjects: Italy, action for failure to fulfil an obligation, means of public conveyance, public contract, public transport, service concession, works contract

C 297/24

EN

Official Journal of the European Union

8.12.2007

4. If Article 2(2) of Regulation No 2777/2000 is valid, does
this Regulation then preclude the Member States from
passing on the costs for carrying out BSE tests to the market
participants?

5. Must the last sentence of Article 5(4) of Directive 85/73/EEC
on the financing of veterinary inspections and controls (6)
by Directives 89/662/EEC (7), 90/425/EEC (8),
covered
90/675/EEC (9) and 91/496/EEC (10), as amended and conso-
lidated by Council Directive 96/43/EC, be interpreted as
meaning that this Directive does not preclude the Member
State from passing on the costs of the BSE tests which were
carried out? If so, what requirements must be met by a fee
for the BSE tests which were carried out?

(1) Commission Decision of 29 November 2000 (OJ 2000 L 305,

p. 35).

p. 47).

(2) Commission Regulation of 18 December 2000 (OJ 2000 L 321,

(3) Council Regulation of 17 May 1999 (OJ 1999 L 160, p. 103).
(4) Federal Republic of Germany v Commission [2003] ECR I-10333.
(5) Council Regulation (EC) No 1254/1999 of 17 May 1999 on the
(OJ 1999

common organisation of the market in beef and veal
L 160, p. 21).

(6) Council Directive of 29 January 1985 on the financing of health
inspections and controls of fresh meat and poultrymeat (OJ 1985
L 32, p. 14).

(7) Council Directive of 11 December 1989 concerning veterinary
checks in intra-Community trade with a view to the completion of
the internal market (OJ 1990 L 151, p. 40).

(8) Council Directive of 26 June 1990 concerning veterinary and
zootechnical checks applicable in intra-Community trade in certain
live animals and products with a view to the completion of the
internal market (OJ 1990 L 224, p. 29).

(9) Council Directive of 10 December 1990 laying down the principles
governing the organization of veterinary checks on products entering
the Community from third countries (OJ 1990 L 373, p. 1).

(10) Council Directive of 15 July 1991 laying down the principles
governing the organisation of veterinary checks on animals entering
the Community from third countries and amending Directives
89/662/EEC, 90/425/EEC and 90/675/EEC (OJ 1991 L 268, p. 56).

Action brought on 19 September 2007 — Commission of
the European Communities v Italian Republic

(Case C-437/07)

(2007/C 297/39)

Language of the case: Italian

Defendant: Italian Republic

Forms of order sought

The applicant claims that the Court should:

— declare that,

for

in so far as the Comune di L'Aquila has
awarded a public works contract
the design and
construction of a rubber tramway for public transport in the
town of L'Aquila by means of a procedure akin to the
‘project financing’ procedure, designed to culminate in the
award of a works concession, and amended the preliminary
project on which the tenders were to be based after publica-
tion of the contract notice, the Italian Republic has failed to
fulfil its obligations under Council Directive 93/37/EEC (1)
of 14 June 1993 concerning the coordination of procedures
for the award of public works contracts and, in particular,
Articles 7 and 11 thereof, as well as its obligations under
Articles 43 EC and 49 EC and the principles of transparency
and non-discrimination which constitute
corollary
thereto;

the

— order the Italian Republic to pay the costs.

Pleas in law and main arguments

The Comune di L'Aquila (Municipality of L'Aquila) has awarded
a public works contract for the design and construction of a
rubber tramway for public transport in the town of L'Aquila by
means of a ‘project financing’ procedure designed to culminate
in the award of a works concession, not a public works
contract. The Comune di L'Aquila also amended — after publi-
cation of the contract notice — the preliminary project on
which the tenders were to be based.

In consequence, the award of

In the view of the Commission, the agreement between the
Comune di L'Aquila and the construction group concerned
constitutes a public works contract for the purposes of Com-
that contract by
munity law.
means of a procedure akin to the ‘project financing’ procedure,
designed to culminate in the award of a works concession, is
contrary to the rules laid down in Directive 93/37 and, in par-
ticular, to Articles 7 and 11 thereof. Furthermore, the amend-
ment, after publication of the contract notice, of the project on
which the tenders were to be based is incompatible with the
principles of transparency and non-discrimination, on which the
freedom of establishment and the freedom to provide services,
as provided for in Articles 43 EC and 49 EC, are based.

Parties

(1) OJ 1993 L 199, p. 54.

Applicant: Commission of the European Communities (repre-
sented by: C. Zadra and D. Kukovec, Agents)