Case C-333/08: Action brought on 18 July 2008 — Commission of the European Communities v French Republic
Date: 2008-07-18
Institutions: Court of Justice
Subjects: EU Member State, European Commission, France, action for failure to fulfil an obligation, food production, foodstuffs legislation, innovation, intra-EU trade

C 285/16

EN

Official Journal of the European Union

8.11.2008

Form of order sought

— Declare that:

by adopting and maintaining in force Article 44-1 of Decree
No 2005-1308 of 20 October 2005, Article 46-1 of Decree
No 2005-1742 of 30 December 2005 and Article 80-1-1
in so far as
of Decree No 2006-975 of 1 August 2006,
those provisions provide for the possibility for contracting
authorities and/or contracting entities to reduce the reason-
able time-limit to be complied with between the notice of
tender and the signature of the contract without any limit in
time and without any objective condition laid down
previously in the national legislation,

and

by adopting and maintaining in force Article 144-1 of the
new Code of Civil Procedure, as amended by Decree
No 2005-1308 of 20 October 2005, in so far as that provi-
sion provides for a time-limit of 10 days for the response
from the contracting authority and/or the contracting entity
concerned prohibiting any precontractual interim measures
before that response and without that time period having
any suspensory effect on the time-limit to be complied with
between the notice of
the
contract,

tender and the signature of

the French Republic has failed to fulfil its obligations under
Directive 89/665/EEC (1) and Directive 92/13/EEC (2), as
interpreted by the Court of Justice in Case C-81/98 Alcatel
and Case C-212/02 Commission v Austria and, more specifi-
cally, Article 2(1) of Directive 89/665/EEC and Article 2(1)
of Directive 92/13/EEC.

— order the French Republic to pay the costs.

Pleas in law and main arguments

signature of the relevant contract. Since an unsuccessful tenderer
may not bring an action during the time for responding to the
formal notice, equivalent to 10 days, a response given by the
contracting authority upon expiry of that time-limit deprives
the unsuccessful tenderer of all effective legal remedies, because
by that time the contract will have already been signed.

(1) Council Directive 89/665/EEC of 21 December 1989 on the coordi-
nation of the laws, regulations and administrative provisions relating
to the application of review procedures to the award of public
supply and public works contracts (OJ 1989 L 395, p. 33), as
amended by Council Directive 92/50/EEC of 18 June 1992 relating
to the coordination of procedures for the award of public service
contracts (OJ 1992 L 209, p. 1).

(2) Council Directive 92/13/EEC of 25 February 1992 coordinating the
laws, regulations and administrative provisions relating to the appli-
cation of Community rules on the procurement procedures of enti-
ties operating in the water, energy, transport and telecommunications
sectors (OJ 1992 L 76, p. 14).

Action brought on 18 July 2008 — Commission of the
European Communities v French Republic

(Case C-333/08)

(2008/C 285/27)

Language of the case: French

Parties

Applicant: Commission of the European Communities (repre-
sented by: B. Stromsky, Agent)

The Commission puts forward two pleas in law in support of
its action.

Defendant: French Republic

in urgent cases,

the minimum time-limit

By its first plea, the Commission criticises the defendant for
having allowed contracting authorities,
to
to be
reduce to under 10 days
complied with between the notice of award of tender to all
tenderers and the signature of
the relevant contract. The
urgency referred to in the French legislation is left to the discre-
tion of the contracting authority, without any objective condi-
tion being required. However, that same legislation contains no
guarantee that the number of days by which the time-limit is
reduced will be brought to the attention of the tenderers, which
could
precontractual
tenderers
proceedings against a decision to award a contract at a stage
when the relevant contract has already been signed. Such a
situation is clearly contrary to the objective pursued by Direc-
tives 89/665/EEC and 92/13/EEC, supported by the Court's
case-law, consisting in putting in place effective and rapid reme-
dies targeting unlawful decisions by contracting authorities at a
stage when there is still time to correct violations.

bringing

those

lead

to

By its second plea, the Commission also criticises the defendant
for having disregarded the practical effectiveness of those direc-
tives by providing in the French legislation for a compulsory
preliminary phase of formal notice to the contracting authority,
which does not have a suspensory effect on the time-limit to be
complied with between the notice of award of contract and the

Form of order sought

— declare that, by providing, in respect of technological adju-
vants and foodstuffs in the preparation of which were used
technological adjuvants originating from other Member
States where they were lawfully manufactured and/or placed
on the market, for a scheme of prior authorisation which
does not comply with the principle of proportionality, the
French Republic has failed to fulfil
its obligations under
Article 28 EC;

— order the French Republic to pay the costs.

Pleas in law and main arguments

By its action, the Commission complains of the restrictions on
trade resulting from the French legislation relating to technolo-
gical adjuvants. By introducing a system of prior authorisation
for those products and for foodstuffs in the preparation of
which were used technological adjuvants originating from other
Member States where they were lawfully manufactured and/or
placed on the market, that legislation makes the marketing of
those foodstuffs and adjuvants more onerous and costly, thereby
hindering intra-Community trade.

8.11.2008

EN

Official Journal of the European Union

C 285/17

According to the Commission, a scheme of prior authorisation
may, in certain circumstances, be justified on grounds of public
health, but such a scheme would,
in any event, have to
satisfy the criterion of proportionality and comply with the
conditions laid down in the case-law, including those set out in
Case C-24/00 Commission v France [2004] ECR I-1277. In the
present case, a number of those conditions are not satisfied, as
the procedures provided for by that legislation are not easily
accessible, expeditious and susceptible to challenge by way of
legal proceedings in the event of authorisation being refused.

to decisions of the Community judicature, Article 235 EC, the
second paragraph of Article 288 EC and Article 13 of the
European Convention for the Protection of Human Rights and
in paragraph 39 of the
Fundamental Freedoms inasmuch as,
contested order, the Court of First Instance that the commence-
ment of the appellants actions before the national courts neither
suspended nor interrupted the limitation period, whereas in its
earlier decisions, which are now res judicata, the Court encour-
aged it to continue its action before the national courts.

In its second plea, the appellant complains of several errors
committed by the Court of First Instance in assessing the condi-
tions for non-contractual liability concerning distortion of the
facts and the forms of order sought in the appellant's applica-
tion, the second paragraph of Article 288 EC and Article 230 EC
with regard,
in particular to the alleged confirmation of the
Commission's position by the national courts and the assess-
ment made of the period in which the damage was suffered.

In its third and final plea, the appellant invokes an infringement
of Article 4(2) and Article 2(1)(3) of Regulation No 684/92 (1)
inasmuch as the Court of First Instance erroneously accepted the
interpretation and wrongly characterised the
Commission's
the appellant's competitors as
activities of
regular
from
therefore
and
services’
authorisation, whereas they are in fact parallel or temporary
services (Article 2(1)(3)), subject to the same rules as the regular
services operated by the appellant.

‘special
exempt

(Article

4(2))

(1) OJ 1992 L 74, p. 1.

Action brought on 24 July 2008 — Commission of the
European Communities v Kingdom of Belgium

(Case C-342/08)

(2008/C 285/29)

Language of the case: French

Appeal brought on 21 July 2008 by Transports Schiocchet
— Excursions SARL against the order of the Court of First
Instance (Fourth Chamber) delivered on 19 May 2008
in Case T-220/07 Transports Schiocchet — Excursions v
Commission

(Case C-335/08 P)

(2008/C 285/28)

Language of the case: French

Parties

Appellant: Transports Schiocchet — Excursions SARL (repre-
sented by: D. Schönberger, lawyer)

Other party to the proceedings: Commission of
Communities

the European

Form of order sought

— Annul the order of the Court of First Instance of 19 May

2008;

— Decide the case definitively by granting the applications

sought at first instance;

— In the alternative, remit

the case to the Court of First

Instance;

— Order the Commission to pay the costs in their entirety.

Pleas in law and main arguments

Parties

The appellant puts forward three pleas in law in support of its
appeal.

Applicant: Commission of the European Communities (repre-
sented by: G. Rozet and A. Sipos, acting as Agents)

In its first plea, the appellant claims that the Court of First
Instance infringed the principle of legal certainty which applies

Defendant: Kingdom of Belgium