Case C-129/04: Referencefor a preliminary ruling by the Conseil d'Etat (Belgium) Administrative Division,by judgment of that court of 25 February 2004 inthe case Espace Trianon SA and Société wallonne de location-financement SA(SOFIBAIL) against the Office communautaire et régional de la formation professionelleet de l'emploi (FOREM)
Date: 2004-04-30
Institutions: Court of Justice
Subjects: association, award of contract, interpretation of the law, supplies contract, works contract

C 106/36

EN

Official Journal of the European Union

30.4.2004

1. On a true interpretation of Article 11 of the Council Direc-
tive (1), when a product is supplied pursuant to a contract of
sale by a French manufacturer to its wholly owned English
subsidiary, and then by the English company to another
entity, is the product put into circulation:

Reference for a preliminary ruling by the Rechtbank van
Eerste Aanleg te Dendermonde, by decision of that court
of 19 January 2004, in the case of Het Openbaar Ministerie
against (1) Annic Andréa Raemdonck and (2) the company
Raemdonck-Janssens BVBA

(a) when it leaves the French company; or

(b) when it reaches the English company; or

(c) when it leaves the English company; or

(d) when it reaches the entity receiving the product from

the English company?

2. Where proceedings asserting rights conferred on the clai-
mant pursuant to the Council Directive in respect of an
allegedly defective product are
instituted against one
company (A) in the mistaken belief that A was the producer
of the product when in fact the producer of the product
was not A but another company (B), is it permissible for a
Member State under its national
laws to confer a discre-
tionary power on its courts to treat such proceedings as
‘proceedings against the producer’ within the meaning of
Article 11 of the Council Directive?

3. Does Article 11 of the Council Directive, correctly inter-
preted, permit a Member State to confer a discretionary
power on a court to allow B to be substituted for A as a
defendant to proceedings of the kind referred to in Question
2 above (‘the relevant proceedings’) in circumstances where:

(a) the period of 10 years referred to in Article 11 has

expired;

(b) the relevant proceedings were instituted against A

before the 10 year period expired; and

(c) no proceedings were instituted against B before the
expiry of the 10 year period in respect of the product
which caused the damage alleged by the claimant?

(1) Council Directive 85/374/EEC of 25 July 1985 on the approxima-
tion of the laws, regulations and administrative provisions of the
Member States concerning liability for defective products (OJ L 210,
07.08.1985, p. 29).

(Case C-128/04)

(2004/C 106/61)

Reference has been made to the Court of Justice of the Euro-
pean Communities by the Rechtbank van Eerste Aanleg te
Dendermonde (Court of First Instance in Dendermonde) for a
preliminary ruling by decision of 19 January 2004, received at
the Court Registry on 9 March 2004, in the case of Het Open-
baar Ministerie (Public Prosecutor's Office) against (1) Annic
Andréa Raemdonck and (2) the company Raemdonck-Janssens
BVBA on the following question:

Must the terms ‘materials or equipment‘ as contained in Article
13(1)(g) of Council Regulation (EEC) No 3820/85 (1) of 20
December 1985 on the harmonisation of certain social legisla-
tion relating to road transport be construed as covering only
’tools and instruments‘ or do those terms, on the contrary, also
cover the goods required for the performance of construction
work, which may be transported together with or separate
from the tools and instruments, such as building materials or
cables?

(1) OJ 1985 L 370, pp 1-7.

Reference for a preliminary ruling by the Conseil d'Etat
(Belgium) Administrative Division, by judgment of that
court of 25 February 2004 in the case Espace Trianon SA
and Société wallonne de location-financement SA (SOFI-
BAIL) against the Office communautaire et régional de la
formation professionelle et de l'emploi (FOREM)

(Case C-129/04)

(2004/C 106/62)

Reference has been made to the Court of Justice of the Euro-
pean Communities by the Conseil d'Etat (Belgium), Administra-
tive Division, of the 25 February 2004, which was received at
the Court Registry on 9 March 2004, for a preliminary ruling
in the case of Espace Trianon SA and Société wallonne de loca-
tion-financement SA (SOFIBAIL) against the Office communau-
taire et régional de la formation professionelle et de l'emploi
(FOREM).

The Conseil d'Etat (Belgium), Administrative Division, asks the
Court of Justice to give a preliminary ruling on the following
questions:

30.4.2004

EN

Official Journal of the European Union

C 106/37

1) Does Article 1 of Council Directive 89/665/EEC on the
Council Directive 89/665/EEC of 21 December 1989 on the
coordination of
the laws, regulations and administrative
provisions relating to the application of review procedures
to the award of public supply and public works (1) contracts
preclude a provision of national law, such as the first para-
graph of Article 19 of the Laws of the Conseil d'Etat, conso-
interpreted as
lidated on 12 January 1973, which is
requiring the members of a consortium without
legal
personality, which, as such, has participated in a procedure
for the award of a public contract and has not been
awarded that contract, to act together, in their capacity as
associates or in their own names,
in order to bring an
action against the decision awarding the contract?

2) Would the answer

to Question 1 be different

members of
action of one of its members is inadmissible?

the consortium acted all

if
together, but

the
the

3) Does Article 1 of Council Directive 89/665/EEC on the
Council Directive 89/665/EEC of 21 December 1989 on the
coordination of
the laws, regulations and administrative
provisions relating to the application of review procedures
to the award of public supply and public works contracts
preclude a provision of national law, such as the first para-
graph of Article 19 of the Laws of the Conseil d'Etat, conso-
lidated on 12 January 1973, which is interpreted as prohi-
biting a member of such a consortium from bringing an
action individually, either in its capacity as an associate, or
in its own name, against
the decision awarding the
contract?

(1) OJ L 395, 30.12.1989, p. 33.

Action brought on 11 March 2004 by the Commission of
the European Communities against the Hellenic Republic

(Case C-130/04)

(2004/C 106/63)

An action against the Hellenic Republic was brought before the
Court of Justice of the European Communities on 11 March
2004 by the Commission of the European Communities, repre-
sented by Luis Escobar Guerrero and Dimitris Triantafillou,
members of its Legal Service.

The Commission claims that the Court should:

1. declare, pursuant to Article 226 of the Treaty establishing
the European Community, that the Hellenic Republic has
failed to fulfil its obligations under Council Regulation (EC)
No 1172/98 (1) on statistical returns in respect of
the
carriage of goods by road;

2. order the Hellenic Republic to pay the costs.

Pleas in law and main arguments

According to the settled case-law of the Court of Justice of the
European Communities, a Member State may not rely on
domestic circumstances or difficulties to justify failure to
comply with its obligations and the time-limits prescribed
under Community law.

(1) OJ L 163 of 6.6.1998, p. 1.

Reference for a preliminary ruling by the Employment
Tribunal, Leeds, by order of that court dated 9 March
2004, in the case of C. D. Robinson-Steele against R. D.
Retail Services Ltd.

(Case C-131/04)

(2004/C 106/64)

Reference has been made to the Court of Justice of the Euro-
pean Communities by an order of the Employment Tribunal,
Leeds, dated 9 March 2004, which was received at the Court
Registry on 11 March 2004, for a preliminary ruling in the
case of C. D. Robinson-Steele and R. D. Retail Services Ltd on
the following questions:

1. Is Article 7 of Council Directive 93/104/EC (1) consistent
with provisions of national law which allow pay for annual
leave to be included in a worker's hourly remuneration and
paid as part of remuneration for working time but not paid
in respect of a period of leave actually taken by the worker?

2. Does Article 7.2 preclude the national tribunal from giving
credit to an employer for such payments when it seeks to
give to the applicant an effective remedy according to
powers contained in national regulations?

(1) of 23 November 1993 concerning certain aspects of the organiza-

tion of working time (OJ L 307, 13.12.1993, p. 18).