Case C-414/08 P: Appeal brought on 23 September 2008 by Sviluppo Italia Basilicata SpA against the judgment delivered on 8 July 2008 in Case T-176/06 Sviluppo Italia Basilicata SpA v Commission of the European Communities
Date: 2008-09-23
Institutions: Court of Justice
Subjects: European Community, General Court (EU), Italy, appeal, economic support, infringement of EU law, small and medium-sized enterprises

22.11.2008

EN

Official Journal of the European Union

C 301/23

the

3. If BH is covered by the legislative implementation of the
Directive, do the requirements of Article 7 of the Directive
concerning ‘adequate protection and guarantees to enable them to
perform properly the duties which have been assigned to them’
preclude an implementation of Article 7 of the Directive in
section 8 of
[Law on informing and consulting
employees], which reads as follows: ‘The representatives who are
to be informed and consulted on behalf of the employees shall be
protected against dismissal or other adverse consequences for their
conditions of employment in the same manner as union representa-
tives in the same or a similar professional field’, if the implemen-
tation does not contain a high standard of protection against
dismissal for professional groups which are not covered by a
collective agreement?

(1) OJ 2002 L 80, p. 29.

Reference for a preliminary ruling from High Court of
Justice (England and Wales)
(Queen's Bench Division),
Leeds District Registry, made on 18 September 2008 —
Uniplex (UK) Ltd v NHS Business Services Authority

(Case C-406/08)

(2008/C 301/36)

Language of the case: English

proceedings are to be brought promptly and in any event
within 3 months from the date when grounds for the
bringing of the proceedings first arose, unless the Court
considers that there is good reason for extending the period,
to be interpreted, in light of Directive 89/665/EEC (2), Arti-
cles 1 and 2, and the Community law principle of equiva-
lence and the Community law requirement for effective legal
protection, and/or the principle of effectiveness, and having
regard to any other relevant principles of EC law, as confer-
ring an individual and unconditional right upon the tenderer
against the contracting authority such that the time for the
bringing of proceedings challenging such a tender exercise
and award starts running as from the date when the
tenderer knew or ought to have known that the procure-
ment procedure and award infringed EC public procurement
law or as from the date of breach of the applicable public
procurement provisions; and

(b) in either event how is a national court then to apply (i) any
requirement for proceedings to be brought promptly and
(ii) any discretion as to extending the national
limitation
period for the bringing of such proceedings?

(1) Directive 2004/18/EC 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 (OJ L 134, p. 114).

the European Parliament and of

(2) 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 L 395, p. 33).

Referring court

High Court of Justice (Queen's Bench Division)

Appeal brought on 23 September 2008 by Sviluppo Italia
Basilicata SpA against the judgment delivered on 8 July
2008 in Case T-176/06 Sviluppo Italia Basilicata SpA v
Commission of the European Communities

Parties to the main proceedings

Applicant: Uniplex (UK) Ltd

Defendant: NHS Business Services Authority

Questions referred

Where an economic operator is challenging in national proceed-
ings the award of a framework agreement by a contracting
authority following a public procurement exercise in which he
was a tenderer and which was required to be conducted in
accordance with Directive 2004/18/EC (1) (and applicable imple-
menting national provisions), and is
in those proceedings
seeking declarations and damages for breach of applicable
public procurement provisions as regards that exercise and
award:

(Case C-414/08 P)

(2008/C 301/37)

Language of the case: Italian

Parties

Appellants: Sviluppo Italia Basilicata SpA (represented by:
F. Sciaudone, R. Sciaudone and A. Neri, avvocati)

(a) is a national provision such as Regulation 47(7)(b) of the
Public Contracts Regulations 2006 which states that those

Other party to the proceedings: Commission of
Communities

the European

C 301/24

EN

Official Journal of the European Union

22.11.2008

Form of order sought

21 September 2000 in Case C-462/98 P Mediocurso v Commis-
sion (2).

The appellant claims that the Court of Justice should:

— set aside the judgment of the Court of First Instance of 8 July
2008 in Case T-176/06 (‘the judgment under appeal’) and
refer the case back to the Court of First Instance for judg-
ment in the light of such guidance as the Court of Justice
may provide;

— order the Commission to pay the costs of

the present
proceedings, as well as those incurred in the proceedings in
Case T-176/06.

Pleas in law and main arguments

the Court of First

By the judgment under appeal,
Instance
dismissed the action brought by Sviluppo Italia Basilicata SpA
for (i) annulment of Commission Decision C(2006) 1706 of
20 April 2006 (‘the contested decision’) reducing the financial
assistance from the European Regional Development Fund
(ERDF) in favour of a global grant for the purposes of imple-
menting measures for the encouragement of small and medium-
sized enterprises (SMEs) operating in the Basilicata Region of
Italy, and (ii) damages for the harm suffered by Sviluppo Italia
Basilicata SpA following, and in consequence of, the adoption of
that decision.

In support of the forms of order sought, the appellant alleges
various errors of law on the part of the Court of First Instance.

First,
the appellant maintains that, by addressing in reverse
order the various pleas in law relied upon by Sviluppo Italia
Basilicata SpA in support of its action at first instance, the
Court of First Instance manifestly distorted the meaning and
overall scope of the application.

Secondly, the appellant submits that the judgment under appeal
contains various errors of law in relation to the interpretation
and application of the Global Grant, the Agreement, and Data-
sheet No 19 in the Annex to Decision 97/322/EC (1) According
to the appellant, the Court of First Instance did not understand
the true content and purpose,
the above
measures, of Measure 2 of the Global Grant. In consequence,
the interpretative analyses that the Court of First Instance then
went on to make in relation to certain significant concepts
(e.g.
‘durata’
(duration)) were flawed on account of that serious initial error.

in the light of

(commitment),

(expenditure),

‘impegno’

‘spesa’

Thirdly, the appellant maintains that the Court of First Instance
should have concluded that the contested decision was unlawful,
in that it had been adopted on the basis of the alleged breach of
a condition (‘the condition as to use’) which is not laid down in
the decision granting the financial assistance, or in the global
grant programme, and which raises problems relating to legal
certainty and the excessive freedom with which it is applied.

Fourthly, the appellant alleges that the Court of First Instance
misinterpreted — and, in consequence, failed to apply — the
principles laid down by the Court of Justice in its judgment of

Fifthly, the appellant alleges infringement of Articles 25 and 26
of Regulation No 4253/88 (3) as regards the obligations of
supervision and control incumbent upon the Commission. In
particular, the statements made by the Court of First Instance
would ultimately lead to the non-application and the non-obser-
vance of the supervision and monitoring arrangements provided
for in the legislation in question.

Sixthly, the appellant alleges breach of the principles of legal
certainty and the protection of legitimate expectations, in that
the Court of First Instance rejected the complaints put forward
by Sviluppo Italia Basilicata SpA on the erroneous premiss that
the expectations generated by the Commission (inter alia,
through the behaviour of the Monitoring Committee) were in
any event incompatible with the applicable provisions and could
not therefore be protected.

the appellant maintains that

Seventhly,
the Court of First
Instance distorted the clear sense of the evidence and infringed
the general principles relating to the burden of proof, in that it
refused to recognise as established facts either the evidence
provided by Sviluppo Italia Basilicata SpA or certain facts which
constituted common ground.

Eighthly, the appellant alleges breach of the Community case-
law relating to the application of the principle of proportionality
in cases where Community funding is reduced, in that the Court
of First Instance did not take into account the circumstances
which would have led the financial adjustment to be less severe.

As regards the grounds of appeal relating to the claim for
damages, the appellant alleges above all that erroneous and
inadequate reasons were given in the judgment under appeal for
dismissing the application for compensation, as regards the
harm attributable to the Community's liability in respect of
unlawful acts.

Lastly,
the appellant alleges that erroneous and inadequate
reasons were given in the judgment under appeal for dismissing
the application for compensation, as regards the harm attribu-
table to the Community's liability in respect of
lawful acts
(‘objective liability’).

(1) Commission Decision of 23 April 1997 modifying the decisions
approving the Community support frameworks, the single program-
ming documents and the Community initiative programmes in
respect of Italy (OJ 1997 L 146, p. 11).

(2) [2000] ECR I-7183.
(3) Council Regulation (EEC) No 4253/88 of 19 December 1988 laying
down provisions for implementing Regulation (EEC) No 2052/88 as
regards coordination of the activities of the different Structural Funds
between themselves and with the operations of the European Invest-
ment Bank and the other existing financial instruments (OJ 1988
L 374, p. 1).