CELEX: C1998/327/18
Language: en
Date: 1998-10-24 00:00:00
Title: Action brought on 4 September 1998 by the Commission of the European Communities against the French Republic (Case C-327/98)

C 327/12              EN                  Official Journal of the European Communities                                    24.10.98
Supplementary to the first three questions:                          Action brought on 4 September 1998 by the Commission
                                                                     of the European Communities against the French Republic
4. Is a contracting entity which falls within the scope                                       (Case C-327/98)
     ratione personae of Directive 93/38/EEC obliged,                                          (98/C 327/18)
     where a contract concluded by it contains elements of
     a service contract within the meaning of Article 1(4)(a)
     of Directive 93/38/EEC together with elements of a
     different contractual nature which are not within the           An action against the French Republic was brought before
     scope of that directive, to sever the part of the overall       the Court of Justice of the European Communities on
     contract which is subject to Directive 93/38/EEC, in so         4 September 1998 by the Commission of the European
     far as that is technically possible and economically            Communities, represented by Richard Wainwright,
     reasonable, and make that part the subject of a                 Principal Legal Adviser, and Olivier Couvert-CasteÂra, a
     procurement procedure under Article 1(7) of that                national civil servant on secondment to its legal Service,
     directive, as the Court of Justice held in Case C-3/            acting as Agents, with an address for service in
     88 (3) before the entry into force of Directive 92/50/          Luxembourg at the office of Carlos Gómez de la Cruz,
     EEC with respect to a contract which was not subject            Wagner Centre, Kirchberg.
     as a whole to Council Directive 77/62/EEC (4)?
                                                                     The applicant claims that the Court should:
If that question is answered in the affirmative,
                                                                     Ð declare that, by failing within the prescribed time-limit
5. Is the contractual concession of the exclusive right                  to adopt the laws, regulations and administrative
     to operate a service for financial gain, which will                 measures necessary in order to comply with Articles 9,
     give the service provider an income which cannot                    10, 11, 12 and 14 of Council Directive 93/15/EEC of
     be determined but which in the light of general                     5 April 1993 on the harmonization of the provisions
     experience will not be inconsiderable and may be                    relating to the placing on the market and supervision
     expected to exceed the costs of providing the service,              of explosives for civil uses (1), the French Republic has
     to be regarded as payment for the provision of the                  failed to fulfil its obligations under the EC Treaty;
     service, as the Court of Justice held in Case C-272/
     91 (5) in connection with a supply contract and a right
     ceded by the public authorities in lieu of payment?             Ð order the French Republic to pay the costs.
Supplementary to the above questions:
                                                                     Pleas in law and main arguments adduced in support:
6. Are the provisions of Article 1(4)(a) and (c) of
     Directive 93/38/EEC to be interpreted as meaning that           Under Article 19(1) of Directive 93/15/EEC, Member
     a contract which provides for the provision of services         States are required to bring into force the provisions
     within the meaning of Annex XVI A, category 15,                 necessary to comply with Articles 9, 10, 11, 12, 13 and 14
     loses the nature of a service contract and becomes a            of that directive before 30 September 1993.
     supply contract if the result of the service is the
     production of a large number of identical tangible
     objects which have an economic value and thus                   The Commission has received no communication from
     constitute goods within the meaning of Articles 9 and           the French authorities regarding the adoption of the
     30 of the EC Treaty?                                            provisions referred to above.
                                                                     (1) OJ L 121, 15.5.1993, p. 20.
If that question is answered in the affirmative,
7. Is the judgment of the Court of Justice in Case C-3/88
     to be interpreted as meaning that such a supply
     contract is to be severed from the other components
     of the service contract and made the subject of a
     procurement procedure under Article 1(7) of Directive           Action brought on 4 September 1998 by the Commission
     93/38/EEC, in so far as this is technically possible and        of the European Communities against the Kingdom of
     economically reasonable?                                                                     Belgium
                                                                                              (Case C-328/98)
(1) OJ L 209, 24.7.1992, p. 1.
(2) OJ L 199, 9.8.1993, p. 84.                                                                 (98/C 327/19)
(3) [1989] ECR 4035.
(4) OJ L 13, 15.1.1977, p. 1.
(5) [1992] ECR I-3929.                                               An action against the Kingdom of Belgium was brought
                                                                     before the Court of Justice of the European Communities
                                                                     on 4 September 1998 by the Commission of the European