Case C-340/04: Reference for a preliminary ruling by the Tribunale Amministrativo Regionale della Lombardia (Sezione Terza) by order of 27 May 2004 in the case Carbotermo SpA against Comune di Busto Arsizio (third party: AGESP s.p.a.)
Date: 2004-10-09
Institutions: Court of Justice
Subjects: company with share capital, fuel, heating, interpretation of the law, local government, public contract, supplies contract

C 251/6

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Official Journal of the European Union

9.10.2004

2. In particular, is Article 4 of the above-mentioned decision
invalid and incompatible with Community law, in that the
Commission:

must pay, albeit only on a temporary basis, an additional
fee for the allocation of the telecommunications network to
the parent company, compatible with the basic principles
laid down in the abovementioned Directive 97/13? (1)

(a) failed in its duty to provide adequate reasons in accord-

ance with Article 253 of the EC Treaty; and/or

(b) infringed the principle of the protection of legitimate

expectations; and/or

(c) infringed the principle of proportionality?

3. In any event, does a correct interpretation of Article 87 et
seq. of the EC Treaty, Article 14 of Council Regulation (EC)
No 659/1999 (2) and the general principles of Community
law,
in particular those mentioned in the grounds of the
order for reference, preclude the application of Article 1 of
Decree Law 282 of 24 December 2002 (converted into Law
27 of 21 February 2003)?

(b) Is a national provision which calculates (it should be
stressed, on a temporary basis) the second and additional
fee charged for the activity carried out
for the parent
company on the basis of what was paid in the past by the
parent company under the previous system of exclusive
rights, with separate franchises
telecommunication
systems for public use and franchises for systems for
private use, consistent with Community law and the inter-
pretation placed thereon by the Fifth Chamber of the Court
of Justice in its judgment of 18 September 2003?

for

(1) OJ L 117, p. 15.

(1) On the tax measures for banks and banking foundations imple-

mented by Italy.

(2) Council Regulation (EC) No 659/1999 of 22 March 1999 laying
down detailed rules for the application of Article 93 of the EC
Treaty , OJ L 83 of 27.03.1999, p. 1.

Reference for a preliminary ruling by the Tribunale
Amministrativo Regionale della Lombardia
(Sezione
Terza) by order of 27 May 2004 in the case Carbotermo
SpA against Comune di Busto Arsizio (third party: AGESP
s.p.a.)

Reference for a preliminary ruling by the Consiglio di
Stato sitting in judicial capacity (Sixth Chamber) by order
of that court of 24 February 2004, in the case of Nuova
Società di Telecomunicazioni SpA against Ministero delle
Comunicazioni (Ministry of Communications)

(Case C-340/04)

(2004/C 251/12)

(Case C-339/04)

(2004/C 251/11)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Consiglio di Stato sitting in
judicial capacity (Sixth Chamber) (Italy) of 24 February 2004,
received at the Court Registry on 9 August 2004, for a preli-
minary ruling in the case of Nuova Società di Telecomunica-
zioni SpA against Ministero delle Comunicazioni (Ministry of
Communications) and ENI SpA on the following questions:

(a) Is a national provision which — having required companies
entitled to provide public utility services, which have estab-
lished telecommunications networks in the past to meet
their own needs under a system of paid franchises, to set
up a separate company to carry out any activity in the field
of
the separate
company, although licensed to provide public services,

telecommunications — provides

that

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of 27 May 2004 of the Tribunale
Amministrativo Regionale della Lombardia, which was received
at the Court Registry on 9 August 2004, for a preliminary
ruling in the case of Carbotermo SpA against Comune di Busto
Arsizio (third party: AGESP s.p.a.) on the following questions:

(1) Is the direct award of a contract for the supply of fuel for
heating appliances in buildings owned by or within the
competence of the Municipality, and relating to operation,
supervision and maintenance (the main value of which lies
in supply), to a joint stock company whose capital is, at
present, held entirely by another joint stock company, of
which the awarding Municipality is, for its part, the major
shareholder (with 99.98 % of the shares), or to a company
(AGESP) in which a direct holding is owned not by the
public authority but by another company (AGESP Holding),
99.98 % of whose capital is presently owned by the public
administration, compatible with Directive 93/36/EEC (1)?

9.10.2004

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Official Journal of the European Union

C 251/7

(2) Must the requirement that the undertaking to which the
supply contract is awarded directly carry out the essential
part of its activities with the controlling authority be ascer-
tained by applying Article 13 of Directive 93/38/EC (2) and
can it be concluded that it has been satisfied where that
undertaking derives the majority of its turnover from the
controlling public authority or, alternatively, in the territory
of that authority?

(1) Council Directive 93/36/EEC of 14 June 1993 coordinating proce-

dures for the award of public supply contracts.

(2) OJ 1993, L 199 of 9.8.1993, p. 1.

constitute the opening of insolvency proceedings for the
purposes of that Regulation by virtue of the Irish legal
provision (section 220(2) of
the Companies Act, 1963)
deeming the winding up of the company to commence at
the date of the presentation of the petition?

than that

in which the registered office of

3. Does Article 3 of the said Regulation, in combination with
Article 16, have the effect that a Court in a Member State
other
the
company is situate and other than where the company
conducts the administration of its interests on a regular
basis in a manner ascertainable by third parties, but where
insolvency proceedings are first opened has jurisdiction to
open main insolvency proceedings?

4. Where,

(a) the registered offices of a parent company and its

subsidiary are in two different member states,

(b) the subsidiary conducts the administration of its inter-
ests on a regular basis in a manner ascertainable by
third parties and in complete and regular respect for its
own corporate identity in the member state where its
registered office is situated and

(c) the parent company is in a position, by virtue of its
shareholding and power to appoint directors, to control
and does in fact control the policy of the subsidiary,

in determining the ‘centre of main interests’, are the
governing factors those referred to at (b) above or on the
other hand those referred to at (c) above?

5. Where it is manifestly contrary to the public policy of a
Member State to permit a judicial or administrative decision
to have legal effect in relation to persons or bodies whose
right to fair procedures and a fair hearing has not been
respected in reaching such a decision, is that Member State
bound, by virtue of Article 17 of the said Regulation, to
give recognition to a decision of the courts of another
Member State purporting to open insolvency proceedings in
respect of a company, in a situation where the Court of the
first Member State is satisfied that the decision in question
has been made in disregard of those principles and, in par-
ticular, where the applicant in the second Member State has
refused, in spite of requests and contrary to the Order of the
Court of the second Member State, to provide the provi-
sional liquidator of the company, duly appointed in accord-
ance with the law of the first Member State, with any copy
of the essential papers grounding the application?

(1) Of 29 May 2000 on insolvency proceedings (OJ L 160, 30.6.2000,

p. 1).

Reference for a preliminary ruling by the Supreme Court,
Ireland, by order of that court dated 27 July 2004, in the
matter of Eurofood IFSC Ltd and in the matter of the
Companies Acts 1963 to 2003, Enrico Bondi against Bank
of America N.A., Pearse Farrell (the Official Liquidator),
Director of Corporate Enforcement and the Certificate/
Note holders

(Case C-341/04)

(2004/C 251/13)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Supreme Court, Ireland,
dated 27 July 2004, which was received at the Court Registry
on 9 August 2004, for a preliminary ruling in the matter of
Eurofood IFSC Ltd and in the matter of the Companies Acts
1963 to 2003, Enrico Bondi against Bank of America N.A.,
Pearse Farrell (the Official Liquidator), Director of Corporate
Enforcement and the Certificate/Note holders on the following
questions:

liquidator with powers to take possession of

1. Where a petition is presented to a Court of competent juris-
diction in Ireland for the winding up of an insolvent
company and that Court makes an Order, pending the
making of an Order for winding up, appointing a provi-
the
sional
assets of the company, manage its affairs, open a bank
account and appoint a solicitor all with the effect in law of
depriving the directors of the company of power to act,
does that Order combined with the presentation of the peti-
tion constitute a Judgment opening of insolvency proceed-
ings for the purposes of Article 16, interpreted in the light
of Articles 1 and 2, of Council Regulation (EC) No 1346 of
2000? (1)

2. If the answer to Question 1 is in the negative, does the
presentation, in Ireland, of a petition to the High Court for
the compulsory winding up of a company by the Court