Case C-398/06: Judgment of the Court (Seventh Chamber) of 10 April 2008 — Commission of the European Communities v Kingdom of the Netherlands (Failure of a Member State to fulfil obligations — Right of residence of nationals of Members States of the European Union and of the European Economic Area who are non-active and pensioned persons — National legislation and administrative practice requiring personal resources sufficient for a stay of at least a year in the host Member State)
Date: 2008-04-10
Institutions: Court of Justice
Subjects: EU law - national law, EU national, European Commission, Netherlands, action for failure to fulfil an obligation, residence permit, retired person

C 128/10

EN

Official Journal of the European Union

24.5.2008

Re:

Reference for a preliminary ruling — Vergabekontrollsenat des
Landes Wien — Interpretation of Article 2(1) and of Article 3
of Directive 2004/17/EC of the European Parliament and of the
Council of 31 March 2004 coordinating the procurement
procedures of entities operating in the water, energy, transport
and postal services sectors (OJ 2004 L 134, p. 1) and interpreta-
tion of Article 1(9) of Directive 2004/18/EC of the European
Parliament and of the Council of 31 March 2004 on the coordi-
nation of procedures for the award of public works contracts,
public supply contracts and public service contracts (OJ 2004
L 134, p. 114) — Award of contract for heating equipment —
The contracting authority is an undertaking controlled by the
City of Vienna providing public services (district heating) —
Body governed by public law — Assessment of the condition of
competition — Application of European market award proce-
dures also to activities carried out under competitive conditions
(in the present case, air conditioning systems) — Contamination
theory — No cross-subsidies

Operative part of the judgment

1. A contracting entity, within the meaning of Directive 2004/17/EC
of the European Parliament and of the Council of 31 March 2004
coordinating the procurement procedures of entities operating in the
water, energy, transport and postal services sectors is required to
apply the procedure laid down in that directive only for the award
of contracts which relate to activities carried out by that entity in
one or more of the sectors listed in Articles 3 to 7 of that directive.

2. An entity such as Fernwärme Wien GmbH is to be regarded as a
body governed by public law within the meaning of the second sub-
paragraph of Article 2(1)(a) of Directive 2004/17 and the second
the
subparagraph of Article 1(9) of Directive 2004/18/EC of
European Parliament and of the Council of 31 March 2004 on
the coordination of procedures for
the award of public works
contracts, public supply contracts and public service contracts.

3. All contracts awarded by an entity which is a body governed by
public law, within the meaning of Directive 2004/17 or Directive
2004/18, which relate to activities carried out by that entity in
one or more of the sectors listed in Articles 3 to 7 of Directive
2004/17 must be subject to the procedures laid down in that
directive. However, all other contracts awarded by such an entity in
connection with the exercise of other activities are covered by the
procedures laid down in Directive 2004/18. Each of these two
directives applies without distinction between the activities carried
out by that entity to accomplish its task of meeting needs in the
general interest and activities which it carries out under competitive
conditions, and even where there is an accounting system intended
to make a clear internal separation between those activities in order
to avoid cross financing between those sectors.

Judgment of the Court (Seventh Chamber) of 10 April
the European Communities v
2008 — Commission of

Kingdom of the Netherlands

(Case C-398/06) (1)

(Failure of a Member State to fulfil obligations — Right of
residence of nationals of Members States of the European
Union and of the European Economic Area who are non-active
and pensioned persons — National legislation and administra-
tive practice requiring personal resources sufficient for a stay
of at least a year in the host Member State)

(2008/C 128/15)

Language of the case: Dutch

Parties

Applicant: Commission of the European Communities (repre-
sented by: M. Condou-Durande and R. Troosters, acting as
Agents)

Defendant: Kingdom of the Netherlands (represented by: H.G.
Sevenster and D.J.M. de Grave, Agents)

Intervener in support of the form of order sought by the defendant:
United Kingdom of Great Britain and Northern Ireland (repre-
sented by: E. O'Neill, Agent, and J. Stratford, Barrister)

Re:

Failure of a Member State to fulfil obligations — Infringement
of the Community rules on the residence of citizens of the
Union — National legislation and administrative practice which
require that, in order to obtain a residence permit, non-active
and pensioned persons must have adequate personal resources

Operative part of the judgment

The Court:

in order to obtain a residence permit, nationals of

1. Declares that, by maintaining in force national provisions under
the
which,
the European Economic Area who are
European Union and of
non-active and retired must prove that
they have sustainable
resources, the Kingdom of the Netherlands has failed to fulfil its
obligations under Council Directive 68/360/EEC of 15 October
1968 on the abolition of restrictions on movement and residence
within the Community for workers of Member States and their
families, Council Directive 90/364/EEC of 28 June 1990 on the
right of residence and Council Directive 90/365/EEC of 28 June
1990 on the right of residence for employees and self-employed
persons who have ceased their occupational activity;

2. Orders the Kingdom of the Netherlands to pay the costs;

3. Orders the Kingdom of Great Britain and Northern Ireland to bear

its own costs.

(1) OJ C 310, 16.12.2006.

(1) OJ C 294, 2.12.2006.