CELEX: C2003/124/15
Language: en
Date: 2003-05-24 00:00:00
Title: Case C-128/03 and C-129/03: Reference for a preliminary ruling by the Consiglio di Stato by order of that Court of 14 January 2003 in the appeal brought by AEM SpA (C-128/03) and by AEM Torino SpA (C-129/03) against l'Autorità per l'energia elettrica e per il gas; Third party: ENEL Produzione SpA

24.5.2003              EN                       Official Journal of the European Union                                               C 124/9
The obligation to end breaches of the Community law on the                     electricity occasioned, as stated in the reasoning, by the
award of contracts even by terminating contracts that have                     altered legislative framework and to finance general
already been concluded can also not be placed in question by                   revenue charges of the electricity system.
Article 2(6) of Directive 89/665 (2), which deals with ex post
facto review of potential breaches of the Community law on
tendering. A Treaty infringement can be treated as terminated           (1 ) Directive 96/92/EC of the European Parliament and of the Council
only once the Member State concerned recognises the illegal                  of 19 December 1996 concerning common rules for the internal
nature of its action and the breach has been completely                      market in electricity (OJ L 27 of 30.1.1997, p. 20).
brought to an end.
( 1) OJ 1992 L 209, p. 1.
( 2) OJ 1989 L 395, p. 33.
                                                                        Action brought on 24 March 2003 by the Commission of
                                                                          the European Communities against the Italian Republic
                                                                                                    (Case C-130/03)
                                                                                                    (2003/C 124/16)
Reference for a preliminary ruling by the Consiglio di
Stato by order of that Court of 14 January 2003 in the
appeal brought by AEM SpA (C-128/03) and by AEM                         An action against the Italian Republic was brought before the
Torino SpA (C-129/03) against l’Autorità per l’energia                  Court of Justice of the European Communities on 24 March
  elettrica e per il gas; Third party: ENEL Produzione SpA              2003 by the Commission of the European Communities,
                                                                        represented by Niels Bertil Rasmussen and Luigi Cimaglia,
                                                                        acting as Agents.
                 (Case C-128/03 and C-129/03)
                                                                        The applicant claims that the Court should:
                          (2003/C 124/15)
                                                                        —      Declare that, by failing to designate Community trade
                                                                               mark courts and tribunals of first and second instance, or
                                                                               in any event by failing to forward to the Commission,
                                                                               within the prescribed period, a list of such courts and
Reference has been made to the Court of Justice of the                         tribunals indicating their names and territorial jurisdic-
European Communities by order of the Consiglio di Stato                        tion, the Italian Republic has failed to fulfil its obligations
(Council of State) of 14 January 2003, received at the Court                   under Article 91 of Council Regulation (EC) No 40/94 (1)
Registry on 24 March 2003, for a preliminary ruling in the                     of 20 December 1993 on the Community trade mark;
appeal brought by AEM SpA (C-128/03) and by AEM Torino
SpA (C-129/03) against l’Autorità per l’energia elettrica e per         —      Order the Italian Republic to pay the costs.
il gas; Third party: ENEL Produzione SpA on the following
questions:
(a)   Can an administrative measure which, on the terms and             Pleas in law and main arguments
      for the purposes stated in the reasoning, imposes on
      certain undertakings using the electricity transmission
      network an increased charge for access and use in order           Under the second paragraph of Article 249 of the Treaty
      to finance general revenue charges of the electricity             establishing the European Community, regulations are binding
      system be regarded as a State aid for the purposes of             in their entirety and directly applicable in all Member States.
      Article 87 et seq. EC
                                                                        In the present case, Article 91 of Regulation (EC) No 40/94
(b)   Must the principles established in Directive 96/92 (1)            imposes an obligation on Member States to designate, in
      concerning the liberalisation of the internal electricity         accordance with their own national legal systems, national
      market and in particular Article 7 and 8 thereof concern-         courts and tribunals of first and second instance with jurisdic-
      ing operation of the electricity transmission network be          tion in matters of infringement and validity of Community
      interpreted as precluding the possibility for the Member          trade marks, and to forward to the Commission a list
      State to adopt measures imposing for a transitional period        of designated Community trade mark courts and tribunals
      on certain undertakings for access to and use of the              indicating their names and territorial jurisdiction. The final
      transmission network an increased charge in order to              date for compliance with these obligations was 15 March
      offset the overvaluation of hydroelectric and geothermal          1997.