Case C-183/08 P: Appeal brought on 29 April 2008 by the Commission of the European Communities against the judgment delivered on 14 February 2008 in Case T-351/05, Provincia di Imperia v Commission of the European Communities
Date: 2008-04-29
Institutions: Court of Justice
Subjects: EU financing arrangements, European Commission, European Social Fund, Italy, action for annulment (EU)

C 209/20

EN

Official Journal of the European Union

15.8.2008

Since the present case concerns contracts of obvious cross-
border interest, in addition to the obligations under Directives
92/50/EEC and 2004/18/EC the general principles of freedom
of establishment and freedom to provide services under the EC
Treaty were also infringed by the awards that were made
without transparency.

Ambulance services, like transport services and medical services
in the context of the public ambulance service, do not fall
within the exceptions in Article 45 EC in conjunction with
Article 55 EC, under which activities which in a given Member
State are connected, even occasionally, with the exercise of offi-
cial authority are excluded, as far as that State is concerned,
from the chapter of the EC Treaty on freedom of establishment
and freedom to provide services. The exception in Article 45 EC,
which as an exception to the fundamental freedoms must be
is strictly limited to those activities which
interpreted strictly,
constitute as such a direct and specific participation in the exer-
cise of public power. The question of whether public power is
being exercised is not to be answered by reference to the public-
law nature of the activity in question; rather, what is decisive is
the possibility of making use, as against the citizen, of public
powers and powers of coercion.

The Commission is convinced that the award practice in the
field of the ambulance service could, even if foreign providers of
services take part, be designed in such a way that a comprehen-
sive,
rapid and high-quality ambulance service is ensured
throughout the country.

(1) OJ 1992 L 209, p. 1.
(2) OJ 2004 L 134, p. 114.

Appeal brought on 29 April 2008 by the Commission of
the European Communities against the judgment delivered
on 14 February 2008 in Case T-351/05, Provincia di
Imperia v Commission of the European Communities

(Case C-183/08 P)

(2008/C 209/28)

Language of the case: French

Form of order sought

— annul

the judgment of

the Court of First

Instance of

14 February 2008 in Case T-351/05;

— declare that the action brought by the Provincia di Imperia

in that case was inadmissible;

— order the Provincia di
costs in the present case.

Imperia to pay the Commission's

Pleas in law and main arguments

By its appeal, the Commission complains that the judgment
under appeal failed to apply the conditions governing the admis-
sibility of an action for annulment brought under Article 230 EC,
in particular by considering that the applicant at first instance
had an interest in bringing an action. An action for annulment
brought by a natural or legal person is only admissible in so far
as the outcome of the action is likely to produce a benefit for
the applicant. In the present case, the action brought by the
applicant is manifestly inadmissible since a judgment annulling
the contested act would, in itself, in no way produce a ‘benefit’
for that applicant. The granting of a subsidy is effectively a
concession agreed to by the Commission and a party
responding to a call for proposals consequently has no right to
such a subsidy.

Alternatively, the Commission submits that, even if the appli-
cant at first instance did have an interest in bringing an action
on the day it brought its action, that interest would in any event
have disappeared by the time the judgment under appeal was
delivered, since the entire budget set aside for the call for propo-
sals had been used up and the programming had come to an
end.

SA against

Appeal brought on 16 May 2008 by American Clothing
Associates
delivered on
the
28 February 2008 by the Court of First Instance (Fifth
Chamber) in Case T-215/06, American Clothing Associates
SA v OHIM

judgment

(Case C-202/08 P)

(2008/C 209/29)

Language of the case: French

Parties

Appellant: Commission of the European Communities (repre-
sented by: D. Martin and L. Flynn, Agents)

Parties

Other party to the proceedings: Provincia di Imperia

Appellant: American Clothing Associates SA (represented by: P.
Maeyaert, N. Clarembeaux and C. De Keersmaeker, lawyers)