Judgment of the Court (Third Chamber) of 13 November 2008 – Commission v Italy

(Case C‑437/07)

Failure of a Member State to fulfil obligations – Design and construction of a municipal tramway – Public works contract – Award by means of a procedure for the award of a public works concession – Infringement of Directive 93/37

Approximation of laws – Procedures for the award of public works contracts – Directive 93/37 – Scope (Council Directive 93/37) (see paras 29-38)

Re:

Failure of a Member State to fulfil obligations – Infringement of Articles 43 EC and 49 EC and Articles 7 and 11 of Council Directive 93/37/EEC of 14 June 1993 concerning the coordination of procedures for the award of public works contracts (OJ 1993 L 199, p. 54) – Infringement of the principles of transparency and non‑discrimination – Public works carried out by means of ‘project financing’.

Operative part

The Court:

1.

Declares that, in so far as the Comune di l’Aquila (Commune of Aquila) awarded a public works contract concerning the design and construction of a rubber-tyred tramway for public transport in that town by means of a procedure different from those laid down for the award of public works contracts by Council Directive 93/37/EEC of 14 June 1993 concerning the coordination of procedures for the award of public works contracts, the Italian Republic has failed to fulfil its obligations under that directive;

2.

Orders the Italian Republic to pay the costs.