Case C-267/01: Reference for a preliminary ruling by the Oberste Gerichtshof by order of 11 June 2001 in the case of Jaroslav Nyvlt v Flughafen Wien AG
Date: 2001-10-27
Institutions: Court of Justice
Subjects: European Civil Aviation Conference, administrative procedure, civil aviation, interpretation of the law, maintenance

C 303/6

EN

Official Journal of the European Communities

27.10.2001

2.

If the answer to the first question is in the affirmative:

Reference for a preliminary ruling by the Oberste Ge-
richtshof by order of 11 June 2001 in the case of Jaroslav
Nyvlt v Flughafen Wien AG

(a)

(b)

are determinations of fixed amounts as described in
1 above to be regarded as agreements (or decisions)
of the leading associations of statutory sickness
funds which restrict competition,
in particular
within the meaning of Article 81(1)(a) EC, and are
prohibited by Article 81(1) EC?

is question 2(a) to be answered in the affirmative at
least where the object of the regulation concerning
fixed amounts is, inter alia, to exploit all reserves
of medicinal product manufacturers in terms of
economy as regards sale price, and the application
of the regulation concerning fixed amounts in the
Member State so far has had the effect that, of the
finished medicinal product packages offered on the
market that fall within the regulations concerning
fixed amounts, approximately 93 % do not now
exceed the amount fixed for them?

3.

If the answer to either or both of the questions in 2 above
is in the affirmative:

Can a system of fixed amounts as described in questions 1
and 2 be exempted from Article 81(1) EC under
Article 86(2), first sentence, EC, even though when they
determine fixed amounts the leading associations of
statutory sickness funds represent the biggest purchasers
on the medicinal product market, who when taken
together dominate the market, and it would be possible,
as a solution to the problem of trying to reduce costs in
the health sector, to grant power to determine such fixed
amounts to an institution other than a participant in the
medicinal product market, in particular to the Federal
Government or a Federal Minister?

4.

If the answer to question 3 is also in the affirmative:

a) what conditions must be set forth and proved by
the leading associations of statutory sickness funds
so that they may be exempted under Article 86(2),
first sentence, EC in relation to determinations of
fixed amounts?; or

b)

is the grant of an exemption under Article 86(2), first
sentence, EC precluded in any case by Article 86(2),
second sentence, EC owing to the effects the system
of fixed amounts has on trade?

(Case C-267/01)

(2001/C 303/08)

Reference has been made to the Court of Justice of the
European Communities by order of 11 June 2001 of the
Oberste Gerichtshof (Supreme Court), which was received at
the Court Registry on 6 July 2001, for a preliminary ruling in
the case of Jaroslav Nyvlt v Flughafen Wien on the following
questions:

1.

Is Paragraph 145.35 of JAR-145, which forms an annex
to Council Regulation (EEC) No 3922/91 of 16 December
1991 on the harmonisation of technical requirements
and administrative procedures in the field of civil aviation
(OJ 1991 L 373, p. 4), having regard, if necessary, to the
explanation given by the Joint Aviation Authorities (JAA),
to be interpreted as requiring the owner of a maintenance
organisation to maintain records of his staff authorised
to certify aircraft fit for service in such detail that it is
possible to infer from those records not only the area of
responsibility but also the specific jobs performed on
certain aircraft types in a certain period of time (year)?

2.

Is Paragraph 145.35 of JAR-145, which forms an annex
to Council Regulation (EEC) No 3922/91 of 16 December
1991, having regard,
if necessary, to the explanation
given by the Joint Aviation Authorities (JAA), to be
interpreted as meaning that

a)

b)

c)

it requires the owner of the maintenance organis-
ation to hand over those records to staff authorised
to certify aircraft fit for service upon termination of
their employment,

it is sufficient to hand over copies in order to satisfy
that obligation, or

such copies must be confirmed by the employer by
signature?

3. On whom do the obligations which may exist within the
meaning of Question 2 fall where the employer of the
employee authorised to certify aircraft fit for service is
not the owner of the maintenance organisation, but a
third party who has hired the employee from that owner
on the basis of a group relationship or a separate contract
to provide work services?

4. Do the obligations which may exist in accordance with
the answers to Questions 1 to 3 preclude more extensive
national provisions?