ddrg/super_eurlex huggingface dataset:
Case C-5/97

Ballast Nedam Groep NV

v

Belgian State

Reference for a preliminary ruling from the Raad van State, Belgium

‛Freedom to provide services — Public-works contracts — Registration of contractors — Relevant entity’

Opinion of Advocate General La Pergola delivered on 23 October 1997 I-7551

Judgment of the Court (Third Chamber), 18 December 1997 I-7557

Summary of the Judgment

Approximation of laws — Tendering procedures for public-works contracts — Directives 71/304 and 71/305 — Registration of contractors — Application made by a parent company not carrying out the works itself but relying, in order to prove its capacities, on references relating to its subsidiaries — Resources of subsidiaries available to parent company — Requirement on part of national authority to take account of those references

(Council Directives 71/304 and 71/305)

Directive 71/304, concerning the abolition of restrictions on freedom to provide services in respect of public works contracts and on the award of public works contracts to contractors acting through agencies or branches, and Directive 71/305, concerning the coordination of procedures for the award of public works contracts, are to be interpreted as meaning that the authority competent to decide on an application for registration submitted by a dominant legal person of a group is under an obligation, where it is established that that person actually has available to it the resources of the companies belonging to a group that are necessary to carry out the contracts, to take account of the references of those companies in assessing the suitability of the legal person in question, in accordance with the criteria mentioned in Articles 23 to 28 of Directive 71/305.
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1 Agriculture - Uniform legislation - Protection of geographical indications and designations of origin for agricultural products and foodstuffs - Regulation No 2081/92 - Power of the Member States to adopt derogations - Condition - Existence of an express rule - Amendment of a registered designation, in breach of the Community procedure - Not permissible

(Council Regulation No 2081/92, Art. 17)

2 Agriculture - Uniform legislation - Protection of geographical indications and designations of origin for agricultural products and foodstuffs - Compound designation registered pursuant to the simplified procedure - Absence of any indication concerning a limit to the protection - Protection extending to all the terms in the designation - Conclusion not binding

(Council Regulation No 2081/92, Art 17; Commission Regulation No 1107/96)

Summary

3 Under the system introduced by Regulation No 2081/92 on the protection of geographical indications and designations of origin for agricultural products and foodstuffs, where Member States have the power to adopt decisions, even of a provisional nature, which derogate from the provisions of the regulation, that power is derived from express rules. Any alteration of an element of the product specification, such as the name of the product, that is to say the registered designation of origin, can therefore be procured only within the framework of the Community arrangements and procedures laid down by the regulation.

Thus, since the entry into force of the aforementioned regulation, and in the case of a designation of origin for which a Member State has requested registration in accordance with the simplified procedure laid down in Article 17, which applies to names already in existence when the regulation entered into force, the Member State in question may not, by adopting provisions of national law, alter that name and protect it at national level.

4 As regards a `compound' designation of origin, registered in accordance with the simplified procedure laid down in Article 17 of Regulation No 2081/92 on the protection of geographical indications and designations of origin for agricultural products and foodstuffs, the fact that there is no footnote in the annex to Regulation No 1107/96 specifying that registration is not sought for one of the parts of that designation does not necessarily mean that each of its constituent parts is protected.

There is nothing in the latter regulation to suggest that the use of the system of footnotes has such a purpose. Furthermore, under the system of protection created by Regulation No 2081/92, questions concerning the protection to be accorded to the various constituent parts of a name and, in particular, the question whether a generic name or a protected constituent part may be concerned, are matters which fall for determination by the national court on the basis of a detailed analysis of the facts presented before it by the parties concerned.
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Freedom of movement for persons - Freedom of establishment - Independent commercial agents - Directive 86/653 - National rule which makes the validity of an agency contract conditional upon the commercial agent being entered in the appropriate register - Not permissible

(Council Directive 86/653, Art. 1(2) and 13(2))

Summary

Directive 86/653 on the coordination of the laws of the Member States relating to self-employed commercial agents precludes a national rule which makes the validity of an agency contract conditional upon the commercial agent being entered in the appropriate register.

Since entry in a register is not referred to as a condition for protection under the Directive, it follows that protection under the Directive is not conditional upon entry in a register. As regards the form of the agency contract, Article 13(2) of the Directive permits Member States to `provide that an agency contract shall not be valid unless evidenced in writing'. It follows, on the one hand, that the Directive starts from the principle that the contract is not subject to any formal requirement, whilst leaving it open to the Member States to require it to be in writing. On the other hand, by referring only to the requirement that the contract be in writing in order to be valid, the Community legislature dealt exhaustively with the matter in that provision. Member States may therefore not impose any condition other than requiring that a written document be drawn up.
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1 Preliminary rulings - Jurisdiction of the Court - Need for a preliminary ruling - To be determined by the national court

(EC Treaty, Art. 177)

2 ECSC - Aid to the steel industry - Definition - Application to large insolvent undertakings of a system derogating from the rules of ordinary law relating to insolvency - Covered - Conditions

(ECSC Treaty, Art. 4(c))

Summary

1 It is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court.

2 The expression `aid', for the purposes of Article 4(c) of the ECSC Treaty, necessarily implies advantages granted directly or indirectly through State resources or constituting an additional charge for the State or for bodies designated or established by the State for that purpose.

In that connection, the possible loss of tax revenue for the State as a result of the application, by ministerial decree, to large undertakings in difficulties of a system derogating from the rules of ordinary law relating to insolvency - on account of the absolute prohibition on individual actions for enforcement and the suspension of interest on all debts owed by the undertaking in question, and the correlated reduction in creditors' profits - does not in itself justify treating that system as aid. That consequence is an inherent feature of any statutory system laying down a framework for relations between an insolvent undertaking and the general body of creditors.

On the other hand, application of such a system to an undertaking within the meaning of Article 80 of the ECSC Treaty is to be regarded as giving rise to the grant of State aid, prohibited by Article 4(c) of the ECSC Treaty, where it is established that the undertaking

- has been permitted to continue trading in circumstances in which it would not have been permitted to do so if the rules of ordinary law relating to insolvency had been applied, or

- has enjoyed one or more advantages, such as a State guarantee, a reduced rate of tax, exemption from the obligation to pay fines and other pecuniary penalties or waiver in practice of public debts wholly or in part, which could not have been claimed by another insolvent undertaking in connection with the application of the rules of ordinary law relating to insolvency.

In either case, the result might be an additional burden for the public authorities, compared to the situation that would have arisen if the usual insolvency rules had been applied.

Furthermore, having regard to the class of undertakings covered by the legislation and the scope of the discretion enjoyed by the national authorities when authorising an insolvent undertaking under special administration to continue trading, that legislation meets the condition that it should relate to a specific undertaking, which is one of the defining features of State aid.
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Actions for annulment - Natural or legal persons - Measures of direct and individual concern to them - Decision of the Commission granting exemption to a selective distribution system - Undertaking in competition with the authorised distributors which has never applied for entry to the network and has not participated in the administrative procedure before the Commission but belongs to an association which has participated in that procedure - Inadmissibility - Undertaking a party to proceedings before a national court concerning the lawfulness of the distribution system - No effect

(EC Treaty, Arts 85(3), 173, fourth para., and 177; Council Regulation No 17, Art. 19(3))

Summary

A decision granting exemption to a selective distribution system cannot be regarded as being of individual concern, within the meaning of the fourth paragraph of Article 173 of the Treaty, to an undertaking in competition with the authorised distributors which has not participated in the administrative procedure or applied to the supplier for admission to the selective distribution network, since it is in a situation which cannot be distinguished from that of numerous other economic operators on the parallel market.

Such an undertaking cannot claim to be distinguished individually to a degree sufficient for the purpose of Article 173 because a sector-based organisation of which it is a member has participated in the administrative procedure leading to the adoption of the contested decision. While the extension of the right to bring proceedings to associations defending the interests of their members may offer procedural advantages, the participation of such associations in that procedure cannot relieve their members of the need to establish a link between their individual situation and the action of the association.

Nor is it necessary, in order for the position of interested undertakings for the purpose of Article 19(3) of Regulation No 17 to be judicially protected, that those undertakings be regarded as individually concerned by a decision where they have not exercised their right to make their views known to the Commission.

It has no bearing that such an undertaking is a party to proceedings brought before a national court by an authorised distributor for infringement of national law on unfair competition and that the lawfulness of the decision granting the exemption is relevant to the outcome of those proceedings. The fact that such proceedings have been instituted before the expiry of the time-limit for challenging the decision granting the exemption is a matter of pure chance and not directly linked to that decision.

In any event, whilst the undertaking concerned cannot in those circumstances bring an application for the annulment of the decision, it remains able to plead before national courts, adjudicating in accordance with Article 177, that the decision was unlawful.
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1 Preliminary rulings - Reference to the Court - National court or tribunal within the meaning of Article 177 of the Treaty - Definition - Body competent to hear appeals concerning the award of public contracts

(EC Treaty, Art. 177)

2 Approximation of laws - Review procedures concerning the award of public supply and public works contracts - Directive 89/665 - Bodies responsible for review procedures - Applicability of the guarantee provisions of the second subparagraph of Article 2(8) of the directive - Conditions - Bodies of a judicial character - Not applicable

(Council Directive 89/665, Art. 2(8), second subpara.)

Summary

1 In order to determine whether a body making a reference for a preliminary ruling is a court or tribunal within the meaning of Article 177 of the Treaty, which is a question governed by Community law alone, account must be taken of a number of factors, such as whether the body is established by law, whether it is permanent, whether its jurisdiction is compulsory, whether its procedure is inter partes, whether it applies rules of law and whether it is independent. Those criteria are satisfied by the Tiroler Landesvergabeamt (Public Procurement Office of the Land of Tyrol), established by the Law of the Land of Tyrol on the Award of Contracts to review procedures for the award of public contracts.

It is apparent from the provisions on its composition and functioning that that body complies with the first five criteria, and that the independence of its members is guaranteed by the application of the General Law on Administrative Procedure, which contains very specific provisions on the circumstances in which members of the body in question must withdraw, failure to comply with that obligation constituting a procedural defect which may be challenged by the parties concerned. In addition, under the Land law, the giving of instructions to members of the Tiroler Landesvergabeamt in the performance of their duties is prohibited.

2 The conditions set out in Article 2(8) of Council Directive 89/665 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts do not apply to provisions such as those governing the composition and functioning of the Tiroler Landesvergabeamt, since the guarantee provisions in that article do not apply to a body responsible for review procedures which is of a judicial character.

It is only if Member States have chosen to give jurisdiction over such reviews to bodies which are not of a judicial character that their decisions must be capable of being the subject of judicial review or of review by another body which must satisfy the particular requirements of Article 2(8) of the directive, so as to guarantee an adequate review.
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Approximation of laws - Procedures for the award of public supply contracts - Directive 77/62 - Contracting authorities - Bodies corresponding to legal persons governed by public law - Annex I to Directive 77/62 - Public authorities whose public supply contracts are subject to control by the State

(Council Directive 77/62, Art. 1(b) and Annex I, Point VI)

Summary

A body such as Coillte Teoranta (Irish Forestry Board) is a contracting authority within the meaning of Article 1(b) of Directive 77/62 coordinating procedures for the award of public supply contracts.

Such a body, which has legal personality and does not award public contracts on behalf of the State or a regional or local authority, cannot be regarded as being the State or a regional or local authority, but constitutes a body corresponding to legal persons governed by public law within the meaning of Article 1(b) of Directive 77/62 in conjunction with Point VI (Ireland) of Annex I thereto, where the State may exercise control, at least indirectly, over the award of public supply contracts.
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1 Member States - Obligations - Implementation of directives - Failure to fulfil obligations - Justification - Not permissible

(EC Treaty, Art. 169)

2 Actions for failure to fulfil obligations - Examination by the Court of the merits - Situation to be taken into account - Situation at the end of the period laid down in the reasoned opinion

(EC Treaty, Art. 169)

3 Environment - Conservation of wild birds - Directive 79/409 - Special conservation measures - Obligations of Member States - Obligation to provide special protection areas with an adequate legal protection regime - Scope

(Council Directive 79/409, Art. 4(1) and (2))

4 Environment - Conservation of wild birds - Directive 79/409 - Special conservation measures - Obligations of Member States - Obligation to take steps to avoid pollution and deterioration of habitats - Breach - Condition - Area classified or to be classified as a special protection area

(Council Directive 79/409, Art. 4(1), (2) and (4))

Summary

1 A Member State may not plead provisions, practices or circumstances existing in its internal legal system in order to justify a failure to comply with the obligations and time-limits laid down in a directive.

2 In an action under Article 169 of the Treaty, the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing at the end of the period laid down in the reasoned opinion.

3 Article 4(1) and (2) of Directive 79/409 on the conservation of wild birds requires the Member States to provide the special protection areas referred to therein with a legal protection regime that is capable, in particular, of ensuring both the survival and reproduction of the bird species listed in Annex I to the directive and the breeding, moulting and wintering of migratory species which are regular visitors, albeit not listed in that annex.

A protection regime under which - for want of any specific substantive measures, except in relation to hunting - the only status enjoyed by a special protection area is that of State-owned land and of a maritime game reserve is incapable of providing adequate protection for the purposes of those provisions.

4 Under Article 4(4) of Directive 79/409 on the conservation of wild birds, Member States are required to take appropriate steps to avoid pollution and deterioration of the habitats of the species concerned, even in relation to an area which has not been classified as a special protection area provided that, under the directive, it should have been so classified. It follows that any infringement of that provision presupposes that the area in question is one of the most suitable territories in number and size for the conservation of protected species, within the meaning of the fourth subparagraph of Article 4(1) of the directive which lays down the criteria for such classification.

In this connection, the mere fact that a site has been included by a Member State in an inventory of important areas for bird conservation does not prove that it ought to have been classified as a special protection area.
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Freedom of movement for persons - Freedom of establishment - Freedom to provide services - Direct insurance - Directives 73/239 and 79/267 - Member States prohibited from prescribing certain rules as to the choosing of assets by insurance undertakings - National legislation prohibiting undertakings from owning, as part of their free assets, shares in a public limited liability company corresponding to more than 5% of the total voting rights - Not compatible - Direct effect of certain provisions of Community law

(Council Directives 73/239, Art. 18(1), 79/267, Art. 21(1), 92/49, Art. 26, and 92/96, Art. 27)

Summary

$$On a proper construction of Article 18(1) of the First Directive (73/239) on the coordination of laws, regulations and administrative provisions relating to the taking-up and pursuit of the business of direct insurance other than life assurance, as amended by Article 26 of Directive 92/49, and of Article 21(1) of the First Directive (79/267) on the coordination of laws, regulations and administrative provisions relating to the taking-up and pursuit of the business of direct life assurance, as amended by Article 27 of Directive 92/96 - which provide that Member States must not prescribe any rules as to the choice, by insurance undertakings, of assets that need not be used as cover for the technical provisions - a rule of national law may not prohibit insurance undertakings from holding, as their free assets, shares representing more than 5% of all the voting rights in a domestic or foreign public limited company without administrative authorisation.

It is clear from the very wording of the provisions at issue that the Member States must abstain from enacting any rules as to the choice of assets constituting the free assets of insurance undertakings, whether in relation to the quality or to the quantity of such assets.

Moreover, the above provisions are sufficiently precise and unconditional to be relied upon before the national court as against the national authorities, rendering inapplicable any contrary rule of domestic law.
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1 Tax provisions - Harmonisation of laws - Excise duties - Directives 92/12 and 92/81 - Mineral oils exempted from duty - Domestic charges applied, for specific purposes, to exempted products - Prohibited - Taxation of aviation fuel for purposes other than private pleasure flying - Not permissible

(Council Directives 92/12, Art. 3(2), and 92/81, Art. 8(1)(b))

2 Tax provisions - Harmonisation of laws - Excise duties - Directive 92/81 - Mineral oils exempted from duty - Exemption of aviation fuel for purposes other than private pleasure flying - Possibility for individuals to rely on the relevant provision

(Council Directive 92/81, Art. 8(1)(b))

Summary

1 Article 8(1) of Directive 92/81 on the harmonisation of the structures of excise duties on mineral oils precludes the collection of an environmental protection tax levied on domestic commercial aviation and calculated by reference to data on fuel consumption and emissions of hydrocarbons and nitric oxide in the course of an average flight by the type of aircraft used. A domestic tax of that kind, which is levied on the consumption of fuel since there is a direct and inseverable link between fuel consumption and the polluting substances emitted in the course of such consumption, is incompatible with the harmonised tax system introduced by Directive 92/12 on the general arrangements for products subject to excise duty and on the holding, movement and monitoring of such products, and by Directive 92/81. To allow the Member States to levy another indirect tax on products which, as in this case, must be exempted from harmonised excise duty under Article 8(1)(b) of Directive 92/81 would render that provision entirely ineffective.

2 The obligation, imposed by Article 8(1)(b) of Directive 92/81 on the harmonisation of the structures of excise duties on mineral oils, to exempt from the harmonised excise duty mineral oils supplied for use as aviation fuel for purposes other than private pleasure flying is sufficiently clear, precise and unconditional to confer on individuals the right to rely on it in proceedings before national courts in order to contest national rules incompatible with that obligation.