CELEX: C2003/146/35
Language: en
Date: 2003-06-21 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

21.6.2003              EN                       Official Journal of the European Union                                              C 146/21
Pleas in law and main arguments                                         a)     Can an administrative measure which, on the terms and
                                                                               for the purposes stated in the reasoning, imposes on
                                                                               certain undertakings using the electricity transmission
If — as is the case with the Municipality of the City of Munich                network an increased charge for access and use in order
— the conditions for the existence of a body governed by                       to finance general revenue charges of the electricity
                                                                               system be regarded as a State aid for the purposes of
public law are met, there is no need under the directive to
draw a distinction, in the case of every requested provision of                Article 87 et seq. EC
services, as to whether such services are provided in the general
interest and are commercial in nature. It is for that reason            b)     Must the principles established in Directive 96/92 (1)
irrelevant that, in the present case, the City of Munich, in                   concerning the liberalisation of the internal electricity
connection with the provision of a service for a third party,                  market and in particular Article 7 and 8 thereof concern-
burns waste in its own incineration plant and does not effect                  ing operation of the electricity transmission network be
the transport to that plant itself but relies on a private                     interpreted as precluding the possibility for the Member
undertaking to do so. If a public body tenders successfully for                State to adopt measures imposing for a transitional period
a contract but is obliged to subcontract out certain services in               on certain undertakings for access to and use of the
order to ensure provision of the overall service, that public                  transmission network an increased charge in order to
body must apply the procedures set out in Directive 92/50.                     offset the overvaluation of hydroelectric and geothermal
                                                                               electricity occasioned, as stated in the reasoning, by the
                                                                               altered legislative framework and to finance general
The obligation to end breaches of the Community law on the                     revenue charges of the electricity system.
award of contracts even by terminating contracts that have
already been concluded can also not be placed in question by
Article 2(6) of Directive 89/665 (2), which deals with ex post          (1 ) Directive 96/92/EC of the European Parliament and of the Council
facto review of potential breaches of the Community law on                   of 19 December 1996 concerning common rules for the internal
tendering. A Treaty infringement can be treated as terminated                market in electricity (OJ L 27 of 30.1.1997, p. 20).
only once the Member State concerned recognises the illegal
nature of its action and the breach has been completely
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)
Reference for a preliminary ruling by the Consiglio di                                              (2003/C 146/36)
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
                                                                        An action against the Italian Republic was brought before the
                                                                        Court of Justice of the European Communities on 24 March
                 (Case C-128/03 and C-129/03)                           2003 by the Commission of the European Communities,
                                                                        represented by Niels Bertil Rasmussen and Luigi Cimaglia,
                                                                        acting as Agents.
                          (2003/C 146/35)
                                                                        The applicant claims that the Court should:
Reference has been made to the Court of Justice of the                  —      Declare that, by failing to designate Community trade
European Communities by order of the Consiglio di Stato                        mark courts and tribunals of first and second instance, or
(Council of State) of 14 January 2003, received at the Court                   in any event by failing to forward to the Commission,
Registry on 24 March 2003, for a preliminary ruling in the                     within the prescribed period, a list of such courts and
appeal brought by AEM SpA (C-128/03) and by AEM Torino                         tribunals indicating their names and territorial jurisdic-
SpA (C-129/03) against l’Autorità per l’energia elettrica e per                tion, the Italian Republic has failed to fulfil its obligations
il gas; Third party: ENEL Produzione SpA on the following                      under Article 91 of Council Regulation (EC) No 40/94 (1)
questions:                                                                     of 20 December 1993 on the Community trade mark;