Commission of the European Communities v Italian Republic.
Date: 2008-02-21
7. Category No 12 of Annex XVI A is identical to Category No 12 in Annex I A to Directive 92/50.
42. According to settled case-law, the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation obtaining in the Member State at the end of the period laid down in the reasoned opinion (see, inter alia, Case C-114/02 Commission  v France  [2003] ECR I-3783, paragraph 9, and Case C-433/03 Commission v Germany  [2005] ECR I-6985, paragraph 32).
46. Furthermore, it follows from the 16th recital in the preamble to Directive 92/50, read in conjunction with Article 1(a) of Directive 93/37, that a contract may be regarded as a public works contract only if its object corresponds to the definition given in the preceding paragraph and that works that are ancillary rather than the object of the contract do not justify treating the contract as a public works contract.
47. It is, moreover, clear from the case-law of the Court that, where a contract contains both elements relating to a public works contract and elements relating to another type of contract, it is the main purpose of the contract that determines which Community directive on public procurement is to be applied in principle (see Case C-220/05 Auroux and Others  [2007] ECR I-385, paragraph 37).
49. The assessment must be made in the light of the essential obligations which predominate and which, as such, characterise the transaction, as opposed to those which are only ancillary or supplementary in nature and are required by the very purpose of the contract; the value of the various matters covered by the contract is, in that regard, just one criterion among others to be taken into account for the purposes of the assessment.
65. First of all, the Community legislature expressly made a policy choice to exclude contracts under a certain threshold from the advertising regime which it introduced and therefore did not impose any specific obligation with respect to them.
66. Furthermore, where it is established that such a contract is of certain cross-border interest, the award, in the absence of any transparency, of that contract to an undertaking located in the same Member State as the contracting authority amounts to a difference in treatment to the detriment of undertakings which might be interested in the contract but which are located in other Member States. Unless it is justified by objective circumstances, such a difference in treatment, which, by excluding all undertakings located in another Member State, operates mainly to the detriment of the latter undertakings, amounts to indirect discrimination on the basis of nationality, prohibited under Articles 43 EC and 49 EC (see, to that effect, as regards Directive 92/50, Case C‑507/03 Commission  v Ireland  [2007] ECR I‑0000, paragraphs 30 and 31 and the case-law cited).
67. Since, as the Advocate General has observed, in point 56 of his Opinion, under Article 249 EC directives are binding as to the result to be achieved upon each Member State to which they are addressed and since the Community legislature excluded certain contracts from the scope of Directive 93/37, in particular by laying down thresholds, the Member States are not required to adopt, in the legislation transposing that directive, provisions recalling the obligation to comply with Articles 43 EC and 49 EC, which is applicable only in the circumstances set out in paragraph 66 of this judgment.
68. The fact that the Italian legislature did not adopt such provisions with respect to public contracts for infrastructure works executed by the holder of a building permit or an approved estate plan the value of which is below the threshold for application of Directive 93/37, for cases where the existence of a certain cross-border interest is established, does not call into question the applicability of Articles 43 EC and 49 EC to those contracts.
70. Second, as regards the scope of Article 2(5) of Law No 109/1994 in the light of the requirements of Directive 93/37, according to settled case‑law the fact that a provision of national law allowing direct execution by the holder of a building permit or an approved estate plan of infrastructure works which offset the whole or part of the contribution payable in respect of the permit forms part of a set of urban development regulations which are of a special nature and pursue a specific aim that is separate from Directive 93/37 is not sufficient to exclude the direct execution of works from the scope of the directive when the elements needed to bring it within the scope of the directive are present (see Ordine degli Architetti and Others , paragraph 66).
81. It is settled case‑law, as stated in paragraph 66 of this judgment, that public service contracts falling outside the scope of Directive 92/50 which have been shown to be of certain cross-border interest remain subject to the fundamental freedoms laid down by the Treaty in the circumstances specified in the case-law set out in that paragraph.
89. It must be observed, in the first place, that the only permitted exceptions to the application of Directives 92/50 and 93/38 are those which are exhaustively and expressly mentioned therein (see, by way of analogy, Case C-107/98 Teckal  [1999] I‑8121, paragraph 43, and Case C-340/04 Carbotermo and Consorzio Alisei  [2006] ECR I-4137, paragraph 45).
103. It is clear from Article 38(1)(c) of the Rules of Procedure of the Court of Justice and from the case-law relating to that provision, that an application must state the subject-matter of the proceedings and a summary of the pleas in law on which the application is based, and that that statement must be sufficiently clear and precise to enable the defendant to prepare his defence and the Court to rule on the application. It is therefore necessary for the essential points of law and of fact on which a case is based to be indicated coherently and intelligibly in the application itself and for the heads of claim to be set out unambiguously so that the Court does not rule ultra petita  or indeed fail to rule on an objection (Case C-195/04 Commission  v Finland  [2007] ECR I‑3351, paragraph 22).