Comisión de las Comunidades Europeas contra República Italiana.

• Jurisdiction: European Union
• Celex Number: 61991CJ0272
• ECLI: ECLI:EU:C:1994:167
• Court: Court of Justice (European Union)
• Docket Number: C-272/91
• Procedure Type: Recurso por incumplimiento – fundado
• Date: 26 April 1994

Avis juridique important

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61991J0272

Judgment of the Court of 26 April 1994. - Commission of the European Communities v Italian Republic. - Concession for the lottery computerization system. - Case C-272/91.

European Court reports 1994 Page I-01409

Summary
Parties
Grounds
Decision on costs
Operative part

Keywords

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1. Freedom of movement for persons - Freedom of establishment - Freedom to provide services - Procedures for the award of public supply contracts - Invitation to tender restricting the right to tender for the concession of the lottery computerization system to bodies controlled by the public sector - Contract not relating to activities connected with the exercise of official authority - Not permissible

(EEC Treaty, Arts 52, 55, first para., and 59; Council Directive 77/62, Arts 17 to 25)

2. Approximation of laws - Procedures for the award of public supply contracts - Directive 77/62 - Scope - Certain supplies not constituting traditional forms of sales included

(Council Directives 77/62 and 88/295, Art. 2)

Summary

1. Article 52 of the Treaty on freedom of establishment and Article 59 of the Treaty on freedom to provide services are infringed where a Member State restricts participation in a contract for the concession of the lottery computerization system to bodies the majority of whose capital is held by the public sector where that contract, which relates to the premises, supplies, installations, maintenance, operation and transmission of data and everything else that is necessary for the conduct of the lottery, does not involve any transfer of responsibility to the concessionaire for the various activities inherent in the lottery with the result that the derogation in the first paragraph of Article 55 of the Treaty regarding activities connected with the exercise of official authority does not apply. Such a practice also constitutes an infringement of Articles 17 to 25 of Directive 77/62 coordinating procedures for the award of public supply contracts.

2. The fact that a contract for the supply of an integrated computerized system for the conduct of the lottery which involves the supply of certain goods to the administration stipulates that the system in question is not to become the property of the administration until the end of the contractual relationship with the successful tenderer and that the "price" for that supply is to take the form of an annual payment in proportion to the revenue does not remove the contract from the scope of Directive 77/62 coordinating procedures for the award of public supply contracts. The fact that Article 2 of Directive 88/295 extended the scope of the directive to contracts such as those for the lease, rental or hire purchase, with or without option to buy, of products is a reflection of the Community legislature' s wish to bring within the scope of the directive the supply of products which do not necessarily become the property of the public administration and for which the consideration is fixed in abstract terms.

Parties

In Case C-272/91,

Commission of the European Communities, represented by Antonio Aresu and Rafael Pellicer, members of its Legal Service, acting as Agents, with an address for service in Luxembourg at the office of Georgios Kremlis, a member of its Legal Service, Wagner Centre, Kirchberg,

applicant,

v

Italian Republic, represented by Professor Luigi Ferrari Bravo, Head of the Department for Legal Affairs at the Ministry of Foreign Affairs, acting as Agent, assisted by Ivo M. Braguglia, Avvocato dello Stato, with an address for service in Luxembourg at the Italian Embassy, 5 Rue Marie-Adélaïde,

defendant,

APPLICATION for a declaration that, by failing to make known, for the purposes of publication in the Official Journal of the European Communities, first, at the beginning of 1990, an indicative notice setting out the total procurement by product area of which the estimated value was equal to or greater than ECU 750 000 and which the Italian Finance Ministry envisaged awarding during 1990 and secondly, in November 1990, a notice concerning the invitation to tender for the concession of the lottery computerization system and by restricting participation in that contract exclusively to bodies, companies, consortia and groupings a majority of whose capital, considered individually or in aggregate, was publicly owned, the Italian Republic has failed to fulfil its obligations under Articles 30, 52 and 59 of the EEC Treaty and Articles 9 and 17 to 25 of Council Directive 77/62/EEC of 21 December 1976 coordinating procedures for the award of public supply contracts (Official Journal 1977 L 13, p. 1), as amended by Council Directive 88/295/EEC of 22 March 1988 (Official Journal 1988 L 127, p. 1),

THE COURT,

composed of: O. Due, President, G.F. Mancini, J.C. Moitinho de Almeida (Rapporteur) and M. Díez de Velasco (Presidents of Chambers), C.N. Kakouris, R. Joliet, F.A. Schockweiler, F. Grévisse, M. Zuleeg, P.J.G. Kapteyn and J.L. Murray, Judges,

Advocate General: C. Gulmann,

Registrar: J.-G. Giraud,

having regard to the Report for the Hearing,

after hearing oral argument from the parties at the hearing on 26 May 1993,

after hearing the Opinion of the Advocate General at the sitting on 14 July 1993,

gives the following

Judgment

Grounds

1 By application lodged at the Court Registry at 18 October 1991, the Commission of the European Communities brought an action under Article 169 of the EEC Treaty for a declaration that, by failing to make known, for the purposes of publication in the Official Journal of the European Communities, first, at the beginning of 1990, an indicative notice setting out the total procurement by product...