Case C-234/03: Reference for a preliminary ruling by the Audiencia Nacional by order of that Court of 16 April 2003 in the case of Contse S.A., Vivisol SRL and Oxigen Salud S.A. against INSALUD (now INGESA)
Date: 2003-08-02
Institutions: Court of Justice
Subjects: award of contract, interpretation of the law, provision of services, public contract, single market, works contract

2.8.2003

EN

Official Journal of the European Union

C 184/21

Pleas in law and new arguments

In general terms, for the provisions of an international treaty
to be able to continue to have effect after its natural expiry a
decision in that behalf must be taken in concertation by the
signatory States and only by them.

No joint position was adopted by the signatory States of the
ECSC Treaty, prior
to the expiry thereof, with a view to
extending its validity in its entirety and to providing for a
general transitional regime to ensure the continuance in effect
of all
its provisions. Instead the signatory States allowed the
ECSC Treaty to be extinguished, merely regulating the transfer
of ECSC provisions to the EC regime in regard to certain
sectors. In particular, no joint provision was made in regard
to a transitional regime in competition matters under the ECSC
Treaty. In the case of investigations under way at the time of
expiry of the ECSC Treaty such expiry could not be claimed to
be ‘non-retroactive’ since that would entail the continuance in
effect of its provisions, no right, obligation or legal situation
arising during the currency of the Treaty itself.

From the applicant's point of view, absorption of the ECSC
rules within the EC rules may occur only by way of an
instrument manifesting the common will in that regard of the
signatory states.

Action brought on 28 May 2003 by the Commission of
the Republic of
the European Communities

against

Finland

(Case C-232/03)

(2003/C 184/37)

An action against the Republic of Finland was brought before
the Court of Justice of the European Communities on 28 May
2003 by the Commission of
the European Communities,
represented by D. Martin and I. Koskinen, acting as Agents,
with an address for service in Luxembourg.

The Commission claims that the Court should:

1. Declare that, by preventing cross-frontier workers from
benefiting from certain benefits provided to them by their
employers on the sole ground that the workers in ques-
tion live in the Republic of Finland,
into which the
vehicles owned by their employers have been imported,
the Republic of Finland has failed to fulfil its obligations
under Articles 10 EC and 39 EC;

2. Order Finland to pay the costs.

vehicle registered abroad. They require payment of the car tax
chargeable in Finland before the vehicle may be used. Car tax
is to be levied on vehicles which are used in traffic in Finland,
even to a small extent, unless a specific exception is laid down
by law.

Under the Finnish provisions, car tax is to be paid on a vehicle
before it is used on Finnish territory. If the vehicle is never-
theless used without paying tax in cases in which tax should
have been regarded as paid, the authorities levy tax on the
vehicle.

The Finnish legislation, contrary to Article 39 EC, prevents the
realisation of
freedom of movement of workers, because
employees living in Finland cannot use a car provided by their
employer and registered in another Member State for their
work in Finland, if tax is not paid on the car in Finland. As
a result of the Finnish legislation, employees resident in Finland
cannot accept an offer of work from a neighbouring State of
the European Union where the use in both countries of a car
provided by the employer is part of the work.

Companies operating in another Member State cannot engage
employees living in Finland because they cannot use a car
registered in another country in Finland if Finnish tax has not
been paid on the car. The practice discriminates in particular
against cross-frontier workers living in Finland, who cannot
use a car provided by the employer for daily work journeys
between the home and the workplace. The use of a car
provided by the employer
the
remuneration. A Member State breaches the duty of coopera-
tion under Article 10 EC if
the
Member State prevent freedom of movement in such a way
that workers living in another Member State cannot pursue
their occupation in the other Member State.

is often a regular part of

the national measures of

Reference for a preliminary ruling by the Audiencia
Nacional by order of that Court of 16 April 2003 in the
case of Contse S.A., Vivisol SRL and Oxigen Salud S.A.
against INSALUD (now INGESA)

(Case C-234/03)

(2003/C 184/38)

Pleas in law and main arguments

the possibility for a
Provisions of Finnish legislation limit
person permanently resident in Finland to use in Finland a

the
Reference has been made to the Court of
European Communities by order of
the Audiencia Nacional
(National High Court) of 16 April 2003, received at the Court
Registry on 2 June 2003, for a preliminary ruling in the case
of Contse S.A., Vivisol SRL and Oxigen Salud S.A. against
INSALUD (now INGESA) on the following questions:

Justice of

C 184/22

EN

Official Journal of the European Union

2.8.2003

Is it contrary to Articles 12, 43 et seq. and 49 et seq. of the EC
Treaty, and Article 3(2) of Council Directive 92/50/EEC (1) of
18 June 1992 relating to the coordination of procedures for the
award of public service contracts, to include in the general
specifications and special administrative clauses and technical
specifications governing public competitions relating to home
respiratory treatments and other assisted breathing techniques:

1)

the requirement that, in order to qualify to tender, under-
takings must already have offices open to the public in
the province or capital of
the province in which the
service is to be provided;

2)

award criteria which favour:

a)

b)

c)

from undertakings

tenders
established within a
1 000 Km radius of the capital in which the service
is to be provided;

undertakings which already have offices open to the
public in certain towns in that province; or

undertakings which have been providing the service
previously?

(1) OJ L 209 of 18.06.1992, p. 1.

Appeal brought on 2 June 2003 by the Commission of the
European Communities against the judgment delivered on
19 March 2003 by the Third Chamber of the Court of
First Instance of the European Communities in case T-213/
00 (1) between CMA CGM and thirteen other liner ship-
the European
ping companies and the Commission of

Communities

(Case C-236/03 P)

(2003/C 184/39)

An appeal against the judgment delivered on 19 March 2003
by the Third Chamber of the Court of First Instance of the
European Communities in case T-213/00 between CMA CGM
and thirteen other liner shipping companies and the Commis-
the European Communities was brought before the
sion of
Court of Justice of the European Communities on 2 June 2003
by the Commission of the European Communities, represented
by P. Oliver, acting as agent, with an address for service in
Luxembourg.

The Appellant claims that the Court should:

— annul point 1 of

the Court of First
the judgment of
Instance of 19 March 2003 in Case T-213/00 (CMA
CGM v. Commission);

— reject the Respondents' Application in its entirety;

— order the Respondents to pay the Commission's costs.

Pleas in law and main arguments

The Commission submits
the CFI'S ruling contains
that
numerous contradictions and inconsistencies, not to say distor-
the contested judgment would
tions and that, accordingly,
render the division of offenders into groups, which is a key
element of the Guidelines, unworkable. The Commission main-
tains that
followed an approach which is both entirely
reasonable and wholly consonant with the principle of non-
discrimination.

it

In the Commission's submission, the CFI has erred in finding
that the Decision contained inadequate reasoning and has,
in
any event, exceeded the bounds of its jurisdiction.

According to the Commission the contested ruling would
severely fetter the Commission's discretion when setting fines,
to imposing on the
and would be virtually tantamount
Commission a duty to apply a mathematical or ‘scientifically’
verifiable
the
Commission's discretion, and thus its power and duty to
pursue infringements of Articles 81 and 82 of the Treaty.

formula. This would seriously undermine

Finally the Commission contests the CFI's finding that
the
imposition of fines was time-barred and maintains that such
finding is unsustained by any reasoning in the judgment.

(1) OJ C 124, 24.05.2003, p. 18.

Reference for a preliminary ruling from the Tribunal
d'Instance de Roubaix by judgment of
that court of
15 May 2003 in the case of Banque Sofinco SA against
Daniel and Carole Djemoui

(Case C-237/03)

(2003/C 184/40)

the
Reference has been made to the Court of
European Communities by judgment of the Tribunal d'instance
(District Court), Roubaix of 15 May 2003 received at
the
Court Registry on 4 June 2003, for a preliminary ruling in
the case of Banque Sofinco SA against Daniel and Carole
Djemoui on the following questions:

Justice of

1. Must Council Directives 87/102/EC (1) of 22 December
1986 and 90/88/EC (2) of 22 February 1990 be inter-
the
preted as requiring the national court
interpretation of national
law obliging consumer credit
institutions to inform the borrower/consumer in writing
of the current annual percentage rate of charge, before
each renewal of a credit agreement renewable in instal-
ments in which the interest is stipulated to be variable?

to favour