CELEX: C1996/388/12
Language: en
Date: 1996-12-21 00:00:00
Title: Action brought on 29 October 1996 by the Commission of the European Communities against the Italian Republic (Case C-354/96)

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 :