Case C-264/01: Reference for a preliminary ruling by the Oberlandesgericht Düsseldorf by order of that court of 18 May 2001 in the case of 1. AOK Bundesverband, 2. Bundesverband der Betriebskrankenkassen, 3. Bundesverband der Innungskrankenkassen,4. Bundesverband der landwirtschaftlichen Krankenkassen, 5. Verband der Angestelltenkrankenkassen e.V., 6. Verband der Arbeiter-Ersatzkassen, 7. Bundesknappschaft and 8. See-Krankenkasse against Ichthyol-Gesellschaft Cordes, Hermani & Co
Date: 2001-10-27
Institutions: Court of Justice
Subjects: competition law, fixing of prices, health insurance, interpretation of the law, medicinal product

27.10.2001

EN

Official Journal of the European Communities

C 303/5

Reference for a preliminary ruling from the Hof van
Beroep Antwerpen, by orders of that Court of 28 June
in the cases of Belgian State v, respectively,
2001,
(1) E. Van Calster and (2) F. Cleeren (Case C-261/01) and
NV Openbaar Slachthuis (Case C-262/01)

(Cases C-261/01 and C-262/01)

(2001/C 303/06)

Reference has been made to the Court of Justice of the
European Communities by orders of the Hof van Beroep
Antwerpen (Court of Appeal, Antwerp) of 28 June 2001,
received at the Court Registry on 5 July 2001, for a preliminary
ruling in the cases of Belgian State v, respectively, (1) E. Van
Calster and (2) F. Cleeren (Case C-261/01) and NV Openbaar
Slachthuis (Case C-262/01), on the following questions:

5.

6.

If the answer to question 4 is in the negative, does
Community law then permit the persons owing the
contributions, as the beneficiaries of the aid, to raise a
plea of lack of competence with regard to the Com-
mission’s act whereby authorisation was given to
implement the aid measures from which they benefit?

If it is accepted that the respondents, as persons owing
the contributions and/or as beneficiaries of the aid, are
directly and individually concerned by the Commission’s
act and may therefore lawfully raise a plea of lack of
competence, has the Commission exceeded the limits of
its competence in adopting its decision of 30 July 1996
and infringed Article 88(3) (formerly Article 93(3)) of the
EC Treaty?

1.

In the circumstances outlined above is a system of aid
measures compatible with Community law, in particular
with Article 88(3) (formerly Article 93(3)) of the EC
Treaty, which, after its notification, is considered by the
Commission on 30 July 1996 to be compatible with the
common market and under which the Member State
imposes in the general interest, with retroactive effect,
contributions or charges:

Reference for a preliminary ruling by the Oberlandesge-
richt Düsseldorf by order of that court of 18 May 2001 in
the case of 1. AOK Bundesverband, 2. Bundesverband der
Betriebskrankenkassen, 3. Bundesverband der Innungs-
krankenkassen,4. Bundesverband der landwirtschaftli-
chen Krankenkassen, 5. Verband der Angestellten-
krankenkassen e.V., 6. Verband der Arbeiter-Ersatzkassen,
7. Bundesknappschaft and 8. See-Krankenkasse against
Ichthyol-Gesellschaft Cordes, Hermani & Co

— to finance an animal health and production fund,

in Articles 14, 15 and 16 of

— on natural and legal persons whose characteristics
are set out
the
abovementioned law of 23 March 1998, as amended
by the Arbitragehof (Court of Arbitration) in its
judgment of 9 February 2000 in Cases Nos 1414,
1450, 1452, 1453, and 1454,

— because of the activities described in those articles
which took place in the period from 1988 until
21 May 1996 in which those aid measures had not
yet been approved?

(Case C-264/01)

(2001/C 303/07)

Reference has been made to the Court of Justice of the
European Communities by order of the Oberlandesgericht
Düsseldorf of 18 May 2001, received at the Court Registry on
5 July 2001, for a preliminary ruling in the case of 1. AOK
Bundesverband, 2. Bundesverband der Betriebskrankenkassen,
3. Bundesverband der Innungskrankenkassen, 4. Bundesver-
band der landwirtschaftlichen Krankenkassen, 5. Verband der
Angestelltenkrankenkassen e.V., 6. Verband der Arbeiter-
Ersatzkassen, 7. Bundesknappschaft and 8. See-Krankenkasse
against Ichthyol-Gesellschaft Cordes, Hermani & Co. on the
following questions:

2.

3.

(Solely in Case C-262/01) Has the Commission, by
approving the aid measures established by the law of
23 March 1998, also approved their retroactive effect?

1.

Is the Commission’s Decision of 30 July 1996 merely in
the nature of an individual authorisation to a Member
State to implement the planned aid measures?

4. Are the persons owing the contributions directly and
individually concerned by the Commission’s act within
the meaning of Article 230 (formerly Article 173) of the
EC Treaty?

Is Article 81(1) EC to be interpreted as meaning that the
leading associations of statutory sickness funds of a
Member State are to be regarded as associations of
undertakings or, where a leading association is also
a direct provider of statutory sickness insurance, as
undertakings within the meaning of Article 81(1) EC
when they jointly determine the applicable level of
uniform fixed amounts for medicinal products in the
Member State, where such amounts constitute the highest
price at which the statutory sickness funds, who are
required to provide benefits in kind to insured persons,
will purchase and pay for medicinal products and thereby
limit their liability to insured persons?

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?