CELEX: C2001/245/19
Language: en
Date: 2001-09-01 00:00:00
Title: Case C-252/01: Action brought on 29 June 2001 by the Commission of the European Communities against the Kingdom of Belgium

C 245/10               EN                   Official Journal of the European Communities                                        1.9.2001
Appeal brought on 2 July 2001 by Mario Costacurta                      Action brought on 29 June 2001 by the Commission
against the order delivered on 7 June 2001 by the Second               of the European Communities against the Kingdom of
Chamber of the Court of First Instance of the European                                                Belgium
Communities in Case T-328/00 between Mr Costacurta
    and the Commission of the European Communities
                                                                                                 (Case C-252/01)
                        (Case C-251/01 P)
                                                                                                 (2001/C 245/19)
                         (2001/C 245/18)
                                                                       An action against the Kingdom of Belgium was brought before
                                                                       the Court of Justice of the European Communities on 29 June
An appeal against the order delivered on 7 June 2001 by the            2001 by the Commission of the European Communities,
Second Chamber of the Court of First Instance of the European          represented by H. van Lier, acting as Agent, assisted by
Communities in Case T-328/00 between Mr Costacurta and                 J. Stuyck, advocaat.
the Commission of the European Communities was brought
before the Court of Justice of the European Communities on
2 July 2001 by Mario Costacurta, represented by Mr Petit,              The applicant claims that the Court should:
of the Luxembourg Bar, with an address for service in
Luxembourg.
                                                                       1.    Pursuant to the first paragraph of Article 226 EC, declare
                                                                             that:
The appellant claims that the Court should:
                                                                             —     by failing, in respect of a contract to perform
—     find the present appeal admissible;                                          services involving coastal surveillance by means of
                                                                                   aerial photography, to place a notice in the Official
—     find the appeal well founded as to the substance;                            Journal of the European Communities, as required under
                                                                                   Directive 92/50/EEC (1) relating to the coordination
—     order, if the Rules of Procedure of the Court of Justice                     of procedures for the award of public service
      allow it, the present appeal to be joined to the appeal                      contracts; and
      against the order of the Court of First Instance (Second
      Chamber) of 7 June 2001 in Case T-328/00 concerning                    —     by unjustifiably awarding the contract in question
      the same dispute and lodged this day;                                        through application of a negotiated procedure with-
                                                                                   out prior publication of a notice,
—     set aside the order delivered by the Court of First Instance
      (Second Chamber) of 7 June 2001 in Case T-328/00
      Costacurta v Commission;                                               the Kingdom of Belgium has failed to fulfil its obligations
                                                                             under that directive, in particular Articles 11(3) and 15(2)
—     make a decision as to how Case T-328/00 Costacurta v                   thereof;
      Commission is to proceed in accordance with Article 54
      of the Rules of Procedure of the Court of Justice;               2.    order the Kingdom of Belgium to pay the costs.
—     order the Commission of the European Communities
      already to pay the costs of the interlocutory proceedings
      and of the present appeal;
                                                                       Pleas in law and main arguments
—     reserve the costs as to the substance; find, none the less,
      that Article 88, rather than Article 87(2), of the Rules of
      Procedure of the Court of First Instance are applicable;         According to the Commission, the Belgian Government has
                                                                       failed to demonstrate that performance of the services in
                                                                       question involves special security measures, since undertakings
—     reserve to the appellant all other rights, dues, pleas and       holding the required military security certificate may perform
      actions.                                                         the contract without thereby taking any such special security
                                                                       measures into account.
Pleas in law an main arguments
                                                                       Although the contract in question involves services relating to
                                                                       aerial photography which, considered in se, ought to come
                                                                       under the [United Nations Central Product Classification] CPC
The pleas and main arguments are the same as those in Case
                                                                       Category No 87504.1 as ‘specialty photography services’, it
C-250/01 P.
                                                                       covers a much wider remit, closely connected to the monitor-
                                                                       ing programme established by the administration for the
                                                                       coastal zone and which, with a view to guaranteeing the
 ---pagebreak--- 1.9.2001               EN                       Official Journal of the European Communities                                        C 245/11
security of the coast and of its inhabitants, is designed to               Pleas in law and main arguments
acquire an appropriate insight into the dynamics of the coastal
area. The contract thus comes under the categories indicated
by CPC Reference No 86753 (‘surface surveying services’) and
No 86754 (‘map making services’), and thus under the services              The third paragraph of Article 249 EC states that a directive is
indicated in Category No 12 in Annex I A to the directive:                 binding, as to the result to be achieved, on each Member State
‘architectural services; engineering services and integrated               to which it is addressed.
engineering services; urban planning and landscape architec-
tural services; related scientific and technical consulting services ...’
Pursuant to Article 8 of the directive, contracts having as their          The first paragraph of Article 10 EC states that Member States
object services listed in Annex I A are to be awarded in                   are to take all appropriate measures, whether general or
accordance with the provisions of Titles III to VI (which                  specific, to ensure fulfilment of the obligations arising out of
include the placing of an indicative notice and a notice in the            the Treaty or resulting from actions taken by the institutions
Official Journal and the following of an open or restricted                of the Community.
procedure).
                                                                           This obligation deriving directly from the Treaty is repeated
Finally, the Commission is unable to accept the invocation of              expressly in Article 23 of Directive 96/48/EC, according to
Article 11(3(b) of the directive, in particular the technical
                                                                           which the Member States are to amend and adopt their laws,
reasons referred to therein. It is extremely unlikely that there           regulations and administrative provisions so as to authorise
would, in other Member States with a seacoast, not be any                  the use of constituents of interoperability of the trans-
undertakings in a technical and financial position to perform
                                                                           European high-speed rail system and the putting into service
the contract.                                                              and operation of subsystems which comply with the directive,
                                                                           no later than 30 months after entry into force of the directive.
                                                                           They are to inform the Commission thereof forthwith. In this
(1) OJ 1992 L 209, p. 1.                                                   connection, it should be emphasised that even in the absence
                                                                           of the technical specifications for interoperability under Chap-
                                                                           ter II of the directive, Chapters III and IV of the directive are
                                                                           fully in force and applicable.
                                                                           Finland refers to the decision of the Ministry of Transport of
                                                                           3 March 1999, in which the ministry decided to designate
                                                                           Ratahallintokeskus (Rail Administration Centre) as the control
Action brought on 3 July 2001 by Commission of the                         body under Article 20 of Directive 96/48/EC on the interop-
    European Communities against Republic of Finland                       erability of the trans-European high-speed rail system. The
                                                                           Ministry of Transport also invited the Ratahallintokeskus to
                                                                           take account when making technical decisions of the technical
                          (Case C-254/01)                                  specifications of interoperability adopted on the basis of the
                                                                           above directive.
                         (2001/C 245/20)
                                                                           Apart from that decision, Finland has not notified any other
                                                                           legislative or administrative measures on the basis of which
An action against the Republic of Finland was brought before               the Commission could find that Finnish legislation together
the Court of Justice of the European Communities on 3 July                 with the administrative measures in force authorise the use of
2001 by the Commission of the European Communities,                        constituents of interoperability of the trans-European high-
represented by M. Huttunen and M. Wolfcarius, with an                      speed rail system and the putting into service and operation of
address for service in Luxembourg.                                         subsystems which comply with the directive. Finland has
                                                                           notified only that it is preparing an overall recasting of railway
                                                                           legislation and that the aim is to include in the amendments
The applicant claims that the Court should:                                adequate provisions for implementation of the directive on
                                                                           high-speed rail systems.
1.    Declare that the Republic of Finland has failed to adopt
      the laws, regulations or administrative provisions required
      to comply with Directive 96/48/EC (1) and has thus failed            (1) Council Directive 96/48/EC of 23 July 1996 on the interoperabi-
      to fulfil its obligations under the directive, other than                lity of the trans-European high-speed rail system (OJ L 235 of
      the obligation to notify the responsible body under                      17.9.1996, p. 6).
      Article 20(1);
2.    Order the Republic of Finland to pay the costs.