Case C-462/03: Reference for a preliminary ruling by the Bundesvergabeamt (Wien) by order of that Court of 27 October 2003 in the case of STRABAG AG against Österreichische Bundesbahnen
Date: 2004-01-24
Institutions: Court of Justice
Subjects: interpretation of the law, public service, rail transport, transport network

C 21/12

EN

Official Journal of the European Union

24.1.2004

(C)

(D)

Is this tax on marble compatible with Articles 81 EC to
89 EC (ex Articles 85 to 90 and 92 to 94 of the EC
Treaty), which lay down a series of rules intended to
create a system which will ensure that competition on
the common market is not distorted and which will
remove subsisting impediments in order to attain that
objective?

If the answer to the previous question is ‘No’ — having
regard to the fact that, in respect of the municipality in
which the tax on marble (and derivatives) is levied the
Treaty provides no special measures in favour of the
Italian Republic — is it compatible with Community law
for a legislative provision to impose a pecuniary charge
(the ‘tax on marble’) on goods transported out of one
municipality and intended for other regions of the same
State, or does not that particular charge instead involve
less favourable treatment of goods intended for those
regions in comparison with goods exported in other
Member States, and does not
this pecuniary charge
constitute an impediment to free movement of goods
throughout the European market?

In particular:

1. Are only ‘traditional’ homeopathic medicinal products
subject to the special, simplified registration procedure
under Article 14 et seq. of Directive 2001/83/EC?

2.

If the answer to this question is in the affirmative, can a
medicinal product also be considered ‘traditional’ if it is
manufactured using bibliographically identified homeo-
pathic stocks without having been in actual homeopathic
use in that combination prior to the registration applied
for;

or:

Does the second indent of
the second sentence of
Article 15 of Directive 2001/83/EC permit a Member
State to require that, for registration of a homeopathic
medicinal product that is manufactured using a number
of homeopathic stocks, a bibliography must be produced
that refers to the combination preparation as such?

(1) OJ L 311, p. 67.

Reference for a preliminary ruling by the Verwaltungsge-
richt Berlin by order of that Court of 28 August 2003 in
the case of meta Fackler KG against Federal Republic of
Germany

(Case C-444/03)

(2004/C 21/20)

Reference has been made to the Court of Justice of the
European Communities by order of the Verwaltungsgericht
Berlin (Administrative Court Berlin) of 28 August 2003,
received at the Court Registry on 21 October 2003, for a
preliminary ruling in the case of meta Fackler KG against
Federal Republic of Germany on the following questions:

Reference for a preliminary ruling by the Bundesverga-
beamt (Wien) by order of that Court of 27 October 2003
in the case of STRABAG AG against Österreichische
Bundesbahnen

(Case C-462/03)

(2004/C 21/21)

Reference has been made to the Court of Justice of the
European Communities by order of the Bundesvergabeamt
(Wien) (Federal Procurement Office, Vienna) of 27 October
2003, received at the Court Registry on 4 November 2003,
for a preliminary ruling in the case of STRABAG AG against
Österreichische Bundesbahnen on the following questions:

1.

Is Article 2(2)(c) of Directive 93/38/EEC (1) to be inter-
preted as meaning that, contrary to the other factual
situations covered by Article 2(2) of the Directive, in the
area of transport ‘merely’ the operation of networks is to
be considered a sectoral activity?

Is the rule contained in Paragraph 39(2) No 7a of
the
Arzneimittelgesetz (Law on Medicinal Products, ‘AMG’) com-
patible with Directive 2001/83/EC of the European Parliament
and of the Council of 6 November 2001 (1) (‘Directive 2001/
83/EC’) in so far as it refuses registration for a medicinal
product composed of bibliographically identified homeopathic
constituents if its ‘administration as a homeopathic medicinal
product is not generally known’?

2. Which activities fall within the scope of ‘the operation of
networks providing a service to the public in the field of
transport by railway’ under Article 2(2)(c) of Directive
93/38/EEC? To what extent are, in particular, measures
in the field of infrastructure to be subsumed under this
heading? To what extent are such measures in the field of
infrastructure to be classified under the heading ‘provision
of networks’?

24.1.2004

EN

Official Journal of the European Union

C 21/13

3.

transport sector it

is
Inasmuch as in the (railway)
exclusively the operation of networks that is governed by
Directive 93/38/EEC (affirmation of Question 1): Does a
review authority have to refrain from applying a national
provision in which, contrary to the wording of Directive
93/38/EEC, also the ‘provision of networks providing a
service to the public in the field of transport by railway’
is listed as a sectoral activity?

(1) OJ L 199, p. 84.

Reference for a preliminary ruling by the Bundesverga-
beamt (Wien) by order of that Court of 27 October 2003
in the case of Kostmann GesmbH against Österreichische
Bundesbahnen

(Case C-463/03)

(2004/C 21/22)

Reference has been made to the Court of Justice of the
European Communities by order of the Bundesvergabeamt
(Wien) (Federal Procurement Office, Vienna) of 27 October
2003, received at the Court Registry on 4 November 2003,
for a preliminary ruling in the case of Kostmann GesmbH
against Österreichische Bundesbahnen on the following ques-
tions:

1.

Is Article 2(2)(c) of Directive 93/38/EEC (1) to be inter-
preted as meaning that, contrary to the other factual
situations covered by Article 2(2) of the Directive, in the
area of transport ‘merely’ the operation of networks is to
be considered a sectoral activity?

2. Which activities fall within the scope of ‘the operation of
networks providing a service to the public in the field of
transport by railway’ under Article 2(2)(c) of Directive
93/38/EEC? To what extent are, in particular, measures
in the field of infrastructure to be subsumed under this
heading? To what extent are such measures in the field of
infrastructure to be classified under the heading ‘provision
of networks’?

3.

transport sector it

Inasmuch as in the (railway)
is
exclusively the operation of networks that is governed by
Directive 93/38/EEC (affirmation of Question 1): Does a
review authority have to refrain from applying a national
provision in which, contrary to the wording of Directive
93/38/EEC, also the ‘provision of networks providing a
service to the public in the field of transport by railway’
is listed as a sectoral activity?

Reference for a preliminary ruling by the Landgericht
Baden-Baden by order of that Court of 20 October 2003
in the appeal brought by Albert Reiss Beteiligungsge-
sellschaft mbH against Land Baden-Württemberg

(Case C-466/03)

(2004/C 21/23)

Reference has been made to the Court of Justice of the
European Communities by order of the Landgericht Baden-
Baden (Regional Court, Baden-Baden) of 20 October 2003,
received at the Court Registry on 6 November 2003, for a
preliminary ruling in the appeal brought by Albert Reiss
Beteiligungsgesellschaft mbH against Land Baden-Württem-
berg on the following question:

Does Article 10(c) of Council Directive 69/335/EEC of 17 July
1969 (1) concerning indirect taxes on the raising of capital, as
amended by Council Directive 85/303/EEC of 10 June 1985 (2),
also encompass charges for the notarially attested transfer of
shares in a private limited company?

(1) OJ L 249, p. 25.
(2) OJ L 156, p. 23.

Reference for a preliminary ruling by the Finanzgericht
München by order of that Court of 24 June 2003 in
the case of Ikegami Electronics (Europe) GmbH against
Oberfinanzdirektion Nürnberg

(Case C-467/03)

(2004/C 21/24)

Reference has been made to the Court of Justice of the
European Communities by order of the Finanzgericht Mün-
chen (Finance Court, Munich) of 24 June 2003, received at the
Court Registry on 6 November 2003, for a preliminary ruling
in the case of Ikegami Electronics (Europe) GmbH against
Oberfinanzdirektion Nürnberg on the following question:

Is note 5 E of the Combined Nomenclature in the version of
Annex 1 to Regulation (EC) No 2031/2001 (1) of [6 August]
2001, amending Annex I
to Council Regulation (EEC)
No 2658/87 on the tariff and statistical nomenclature and on
the Common Customs Tariff (OJ 2001 L 279) to be interpreted
as meaning that video monitoring apparatus which stores
signals from several video cameras compressed on hard disks
for reproduction on monitors performs a different function
from that of data processing?

(1) OJ L 199, p. 84.

(1) OJ L 279, p. 1.