CELEX: C1996/388/11
Language: en
Date: 1996-12-21 00:00:00
Title: Action brought on 29 October 1996 by the Commission of the European Communities against Ireland (Case C-353/96)

21 . 12 . 96                EN                    Official Journal of the European Communities                                    No C 388/5
2 . order the Federal Republic of Germany to pay the                         Action brought on 25 October 1996 by the Italian
      costs .                                                                      Republic against the Council of the European Union
                                                                                                        ( Case C-352/96 )
Pleas in law and main arguments adduced in support:                                                       ( 96/C 388/ 10 )
The mandatory character of the first paragraph of Article 5                  An action against the Council of the European Union was
and the third paragraph of Article 189 of the EC Treaty                      brought before the Court of Justice of the European
requires Member States to implement directives addressed                     Communities on 25 October 1996 by the Italian Republic,
to them in such a way that they take full effect by the                      represented by its Agent, Professor Umberto Leanza,
expiry of the prescribed period. That period expired on                      assisted by Danilo Del Gaizo, Avvocato dello Stato, with
5 May 1994 in relation to Directive 94/3/EC, and on                          an address for service in Luxembourg at the Italian
30 June 1994 in relation to the other Directives referred to                 Embassy, 5 Rue Marie-Adelaide .
above, without the Federal Republic of Germany having
taken the necessary measures.
                                                                             The applicant claims that the Court should declare null
                                                                             and void Council Regulation ( EC ) No 1522/96 of 24 July
f1)   OJ No   L 250, 7. 10. 1993 , p . 29 .                                  1996 (*) and, in particular, Articles 3 , 4 and 9 thereof.
(2)   OJ No   L 250, 7. 10 . 1993 , p . 31 .
(3)   OJ No   L 250, 7. 10 . 1993 , p . 33 .
(4 )  OJ No   L 256, 14 . 10 . 1993 , p . 19 .                               Pleas in law and main arguments adduced in support:
(5)   OJ No   L 256 , 14 . 10 . 1993 , p . 25 .
(6)   OJ No   L 32, 5 . 2 . 1994, p. 37.
                                                                             The Italian Republic maintains that, by adopting
                                                                             Regulation ( EC ) No 1522/96 and, in particular, Articles 3 ,
                                                                             4 and 9 thereof, the Council of the European Union has
                                                                             infringed GATT Article XXIV ( 6 ), Article 43 of the EC
                                                                             Treaty and the fundamental principle of proportionality. It
Reference for a preliminary ruling from the                                  also argues that the Commission infringed essential
Verwaltungsgerichtshof by order of that Court of                             procedural requirements: specifically, it failed to provide a
8 October 1996 in the case of Clean Car Autoservice                          proper statement of reasons and misused its powers.
           Ges.m.b.H. v. Landeshauptmann von Wien
                             ( Case C-3 50/96 )                              f 1 ) OJ No L 190, 31 . 7. 1996. p . 1 .
                               ( 96/C 388/09
Reference has been made to the Court of Justice
of the European Communities by - an order of                                 Action brought on 29 October 1996 by the Commission
the Verwaltungsgerichtshof (Administrative Court) of                                   of the European Communities against Ireland
8 October 1996 , which was received at the Court Registry                                               ( Case C-353/96 )
on 24 October 1996 , for a preliminary ruling in the case
of Clean Car Autoservice Ges.m.b.H. v. Landeshauptmann                                                      96/C 388/ 11 )
von Wien on the following questions:
                                                                             An action against Ireland was brought before the Court of
1 . Are Article 48 of the EC Treaty and Articles 1 to 3 of                   Justice of the European Communities on 29 October 1996
      Regulation ( EEC ) No 1612/68 (*) to be interpreted as                 by the Commission of the European Communities,
      meaning that employers in the host State also derive                   represented by Mr Richard Wainwright, Principal Legal
      therefrom the right to employ workers who are                          Adviser, acting as Agent, with an address for service in
      nationals of another Member State without being                        Luxembourg at the office of Mr Carlos Gomez de la Cruz,
       bound by conditions which — even if they do not                       member of its Legal Service, Centre Wagner, Kirchberg,
      depend on nationality — are typically linked with                      Luxembourg.
      nationality ?
                                                                             The applicant claims that the Court should:
2 . If employers of the host State have the right stated in
       Question 1 : Are Article 48 of the EC Treaty and                      — declare that, in failing to comply with the provisions
      Articles 1 to 3 of Regulation ( EEC ) No 1612/68 to be                       of Council Directive 77/62/EEC of 21 December 1976
      interpreted as meaning that a provision such as                              coordinating procedures for the award of public
      paragraph 39 ( 2 ) of the Gewerbeordnung 1994, under                         supply contracts ( J ), as amended by Directive 88/295/
      which the owner of a trade may appoint as manager                            EEC (2 ), and, in particular, in failing to publish its call
      for trade law purposes only a person whose residence                         for tender for the supply of fertilizers on behalf of the
      is in the host State (Austria ), is consistent therewith ?                   Irish Forestry Board ( Coillte Teoranta ) in the Official
                                                                                   Journal of the European Communities, Ireland has
                                                                                   failed to fulfil its obligations under the Treaty,
f 1 ) OJ, English Special Edition 1968 ( II ), p. 475 .
                                                                             — order Ireland to pay the costs .
 ---pagebreak--- No C 388/6                L_EN                 Official Journal of the European Communities                                         21 . 12 . 96
Pleas in law and main arguments adduced in support:                       Action brought on 29 October 1996 by the Commission
                                                                          of the European Communities against the Italian Republic
There are two main issues of contention, of which one is                                             Case C-354/96 )
procedural and the other substantive . The procedural issue                                            96/C 388 / 12
concerns the relationship between the procedures laid
down in Article 169 of the EC Treaty and those provided
for in Directive 89/665/EEC ( 3 ) ( the 'Remedies Directive').
                                                                          An action against the Italian Republic was brought before
The substantive issue concerns the question of the                        the Court of Justice of the European Communities on
interpretation of the expression 'contracting authority'                  29 October 1996 by the Commission of the European
contained in Article 9 of Directive 77/62/EEC as amended
                                                                          Communities, represented by Dimitrios Gouloussis, Legal
at the relevant time ( the ' Supplies Directive').                        Adviser, and Laura Pignataro, of its Legal Service, acting
                                                                          as Agents, with an address for service in Luxembourg at
— The Remedies Directive and Article 169 of the EC                        the office of Carlos Gomez de la Cruz, Wagner Centre,
       Treaty                                                             Kirchberg.
       The Commission accepts that since, unbeknown to it,                The applicant claims that the Court should:
       the contract had already been awarded on 30 May
       prior to the Commission 's communication under
       Article 3 of the Remedies Directive, proceedings under             1 . declare that, by failing to adopt and/or, in any event,
       that Article could not be pursued. The question,                        notify the laws, regulations or administrative
       therefore * of the effect of the national judicial                      provisions necessary to comply with Council Directive
        proceedings is no longer relevant. However, the                        91 /674/EEC f 1 ) of 19 December 1991 on the annual
        Commission does not accept that it is thereby                          accounts    and    consolidated        accounts   of insurance
        prevented from continuing proceedings under                            undertakings, the Italian Republic has failed to fulfil
        Article 169 of the EC Treaty or that such proceedings                  its obligations under that Directive and the EC Treaty;
        would be in any way ' inappropriate'.
                                                                          2 . order the Italian Republic to pay the costs.
— Contracting authority
                                                                          Pleas in law and main arguments adduced in support:
        Paragraphs 2 and 4 to 9 of Article 9 of Directive 77/
        62/EEC as amended ( the relevant Directive at the time
        of the award of the contract ) provides that                      Under Article 189 of the EC Treaty, according to which a
        'contracting authorities' who wish to award a public              directive is to be binding, as to the result to be achieved,
        supply contract shall make known their intention by               upon each Member State to which it is addressed,
        means of a notice to be published in the Official                 Member States are required to observe the time limits laid
       Journal of the European Communities.                               down in directives for their transposition. That time limit
                                                                          expired on 1 January 1994 without the Italian Republic
                                                                          having brought into force the necessary provisions in
        From the correspondence between the Commission                    order to comply with the Directive referred to in the
        and Ireland it appears that the Irish Government                  Commission's application.
        accepts that the contract in question is a public supply
        contract for the purposes of the Directive, but that it
        disputes that Coillte Teoranta is a contracting                    (') OJ No L 374 , 31 . 12 . 1991 , p . 7 .
        authority within the meaning of the Directive .
        Having examined the Forestry Act 1988 as well as the
        memorandum and articles of association of Coillte
        Teoranta , which set out its objects and internal rules,          Reference for a preliminary ruling from the Oberster
        the Commission considers that there are a number of                Gerichtshof, Austria, by order of that Court of 15 October
        provisions which confirm that Coillte Teoranta is a                1996 in the case of Silhouette International Schmied
        'contracting authority' for the purposes of the                    Gesellschaft     mbH          &       Co     KG     v.   Hartlauer
        Directive .                                                                           Handelsgesellschaft mbH
                                                                                                    ( Case C-355/96 )
 ( i ) OJ No L 13 , 15 . 1 . 1977, p. 1 .
 ( 2 ) Council Directive 88/295/EEC of 22 March 1988 amending                                         ( 96/C 388/ 13 )
       Directive 77/62/EEC relating to the coordination of
       procedures on the award of public supply contracts and
       repealing certain provisions of Directive 80/767/EEC ( OJ No        Reference has been made to the Court of Justice of the
       L 127, 20 . 5 . 1988 , p. 1 ).                                      European Communities by an order of the Oberster
 ( 3 ) Council Directive 89/665/EEC of 21 December 1989 on the             Gerichtshof ( Supreme Court ), Austria, of 15 October
       coordination of the laws, regulations and administrative
       provisions relating to the application of review procedures to
                                                                           1996, which was received at the Court Registry on
       the award of public supply and public work contracts ( OJ No        30 October 1996, for a preliminary ruling in the case of
                                                                           Silhouette International Schmied Gesellschaft mbH & Co
       L 395 , 30 . 12 . 1989 , p. 33 ).
                                                                           KG v. Hartlauer Handelsgesellschaft mbH on                         the
                                                                           following questions :