Case C-2/04: Reference for a preliminary ruling by the Magistrates' Court, Bitonto, by order of that court of 20 December 2003 in the case of Nicolò Tricarico against Assitalia Assicurazioni
Date: 2004-04-03
Institutions: Court of Justice
Subjects: competition law, insurance company, interpretation of the law, motor vehicle insurance, third-party insurance

3.4.2004

EN

Official Journal of the European Union

C 85/13

Reference for a preliminary ruling by the Oberlandesger-
icht Innsbruck by order of that Court of 16 December
2003 in the case of 1) Christine Dodl, 2) Petra Oberhol-
lenzer against Tiroler Gebietskrankenkasse

(Case C-543/03)

(2004/C 85/19)

Reference has been made to the Court of Justice of the
European Communities by order of the Oberlandesgericht
Innsbruck (Higher Regional Court Innsbruck) of 16 December
2003, received at the Court Registry on 29 December 2003,
for a preliminary ruling in the case of 1) Christine Dodl, 2)
Petra Oberhollenzer against Tiroler Gebietskrankenkasse on
the following questions:

1)

Is Article 73 of Regulation (EEC) No 1408/71 of the
Council of 14 June 1971 (1) on the application of social
security schemes to employed persons, to self-employed
persons and to members of their families moving within
the Community, in conjunction with Article 13 of that
regulation, as amended, to be interpreted as extending
even to employed persons whose employment relation-
ships are still in existence but do not involve any duty to
carry out work or pay remuneration (unpaid leave) or
any social security obligations under national law?

2)

If the answer to the first question should be in the
affirmative:

Is the State of the place of employment responsible for
the benefit payment in such a case even if the employed
person and those members of his or her family for whom
family benefit such as Austrian ‘Kinderbetreuungsgeld’
(child-care allowance) might be payable have not lived in
the State of the place of employment, particularly during
the period of unpaid leave?

(1) English special edition: Series I Chapter 1971(II) P. 0416.

Reference for a preliminary ruling by the Magistrates’
Court, Bitonto, by order of that court of 20 December
2003 in the case of Nicolò Tricarico against Assitalia
Assicurazioni

(Case C-2/04)

(2004/C 85/20)

Reference has been made to the Court of Justice of the
European Communities by order of the Magistrates’ Court,
Bitonto, of 20 December 2003, received at the Court Registry
on 5 January 2004, for a preliminary ruling in the case of
Nicolò Tricarico against Assitalia Assicurazioni on the follow-
ing questions:

1. Do the facts as found in Judgment No 2199 of the
Consiglio di Stato (Council of State) of 23 April 2002 and
in Judgment No 6139 of the Tribunale Amministrativo
Regionale (Regional Administrative Court), Lazio (Rome)
of 5 July 2001, which are deemed to be set out here in
full, and the decision of the Italian AGCM to which both
those judicial decisions refer (concerning a cartel set up
by various insurance companies in the area of civil
liability for road accidents), constitute infringements of
Community law, in particular of Articles 81 EC and 82
EC?

2. Does an infringement of Articles 81 EC and 82 EC imply
an obligation on the part of the person committing it to
compensate end users, and all
those who are third
parties not involved in the agreement or the abuse but
demonstrate that they have suffered injury, for damage
suffered?

3.

In assessing the amount of damages, in addition to the
restitution of sums charged in breach of Community
rules, is the national court required (again as a matter of
Community law) to award the injured party a sum by way
of punitive damages against those persons responsible
for the prohibited agreement or abuse of a dominant
position?

4. Does Community law also require the payment of

damages for non-material loss?

5. As a matter of Community law, is the national court
required of its own motion to order the payment of
punitive damages or damages for non-material loss?

6.

Is the limitation period of one year for bringing an action
for damages for breach of Articles 81 EC and 82 EC
under Italian law too short and therefore in conflict with
Community law?

7. As a matter of Community law, for the purposes of the
limitation period for bringing an action for damages,
does time begin to run from the day on which the
infringement of Articles 81 EC and 82 EC was committed
or the day on which that infringement came to an end?

8.

Is there a conflict between Community competition law
and/or the fundamental principles of Community law
(with reference in particular to Article 6(1) and Article 13
of the European Convention on Human Rights) and a
national provision having an effect similar to that in the
second paragraph of Article 3 of Italian Law No 287 of
10 October 1990 which requires a consumer or a third
party who has suffered damage as a result of an agreement
which is unlawful and void under Article 81 EC or an
abuse of a dominant position unlawful under Article 82
EC and who seeks to obtain damages to make an
application to a court other than the one which has
jurisdiction ratione loci, ratione materiae and for the
value of the dispute in accordance with the ordinary
national rules on jurisdiction, Article 33 of Law No 287/
90 involving an increase in the cost and duration of the
case which would not occur had the ordinary national
rules on jurisdiction ratione loci, ratione materiae and for
the value of the dispute applied?

C 85/14

EN

Official Journal of the European Union

3.4.2004

9.

Is there a conflict between Community competition law
and/or the fundamental principles of Community law
(with reference in particular to Article 6(1) and Article 13
of the European Convention on Human Rights) and a
national provision which requires a consumer or a third
party who has suffered damage as a result of an agreement
which is unlawful and void under Article 81 EC or an
abuse of a dominant position unlawful under Article 82
EC and who seeks to obtain damages to make an
application to a court other than the one which has
jurisdiction ratione loci on the basis of the registered
office (sede) of the subsidiary of the insurance company
with which they entered into a contract or in the court
district in which the injured party is resident, having
regard also to the difference in legal costs which each
approach involves?

withdraw the invitation to tender (withdrawal decision
analogous to the award decision) amenable to review in
any case, since the applicant is entitled to have that
decision set aside if the relevant conditions are met,
notwithstanding the possibility, once withdrawal has
taken place, of obtaining an award of damages?

(1) OJ L 395, p. 33.

10. Does Community law require national courts to disapply
national rules in conflict with Community law or rather
to interpret them so as to comply with Community law?

Action brought on 26 January 2004 by the Commission of
the European Communities against the Hellenic Republic

(Case C-22/04)

(2004/C 85/22)

An action against the Hellenic Republic was brought before
the Court of Justice of the European Communities on 26 Janu-
ary 2004 by the Commission of the European Communities,
represented by Thomas van Rijn and Maria Kondou-Durande,
Legal Advisers in its Legal Service.

The Commission claims that the Court should:

— declare that, by failing to ensure that fishing vessels which
fly its flag and must be equipped with devices for position
monitoring by means of satellite were in fact equipped,
according to the type of vessel, on 30 June 1998 or
1 January 2000, the Hellenic Republic has failed to fulfil
its obligations under Article 3 of Council Regulation
(EEC) No 2847/93 (1) of 12 October 1993;

— order the Hellenic Republic to pay the costs.

Pleas in law and arguments

The period for transposition of the regulation into national
law expired on 1 January 2000.

(1) OJ L 261, 20.10.1993, p. 1.

Reference for a preliminary ruling by the Bundesverga-
beamt (Austria) by order of that Court of 12 January 2004
in the case of Koppensteiner GmbH against Bundesimmo-
biliengesellschaft m.b.H.

(Case C-15/04)

(2004/C 85/21)

Reference has been made to the Court of Justice of the
European Communities by order of the Bundesvergabeamt
(Austria) (Federal Procurement Office) of 12 January 2004,
received at the Court Registry on 20 January 2004, for a
preliminary ruling in the case of Koppensteiner GmbH against
Bundesimmobiliengesellschaft m.b.H. on the following ques-
tions:

1. Are the provisions of Article 1 in conjunction with
Article 2(1)(b) of Council Directive 89/665/EEC of
21 December 1989 (1) so unconditional and sufficiently
precise that, in the event of withdrawal of the invitation
to tender after the opening of tenders, an individual is
entitled rely on those provisions directly before the
national courts and to seek a review of the withdrawal?

2.

If Question 1 must be answered in the negative, are
Article 1 in conjunction with Article 2(1)(b) of Council
Directive 89/665/EEC of 21 December 1989 to be
interpreted as meaning that Member States are obliged
to make a contracting authority’s decision, prior to
it will
withdrawal of

the invitation to tender,

that