Case C-295/05: Reference for a preliminary ruling from the Tribunal Supremo, Sala de lo Contencioso-Administrativo, by order of that court of 1 April 2005 in Asociación Nacional de Empresas Forestales v Transformación Agraria S.A (TRAGSA) and Administración del Estado
Date: 2005-10-15
Institutions: Court of Justice
Subjects: award of contract, competition law, interpretation of the law, legal status, organisation, public works

C 257/2

EN

Official Journal of the European Union

15.10.2005

Reference for a preliminary ruling from the Bundesge-
richtshof by order of that court of 30 June 2005 in crim-
inal proceedings against Jürgen Kretzinger

(Case C-288/05)

(2005/C 257/03)

warrant and the surrender procedures between Member
States (OJ 2002 L 190, p. 1) into national law, the (first)
State in which judgment was given is in a position at
any time to enforce its judgment which, under national
law, is final and binding;

(b) the fact that a request for judicial assistance by the State
in which judgment was given, with a view to extraditing
the convicted person or enforcing judgment within that
State, could not automatically be complied with because
judgment was given in absentia?

(Language of the case: German)

(1) OJ 2000 L 239, p. 19

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Bundesgerichtshof of 30
June 2005, received at the Court Registry on 19 July 2005, for
a preliminary ruling in criminal proceedings against Jürgen
Kretzinger on the following questions concerning the interpre-
tation of Article 54 of
the Convention implementing the
Schengen Agreement of 14 June 1985 between the Govern-
the
ments of
Federal Republic of Germany and the French Republic on the
gradual abolition of checks at their common borders (‘CISA’):

the Benelux Economic Union,

the States of

1. Is it a criminal prosecution of ‘the same acts’ within the
meaning of Article 54 of the CISA (1) if a defendant has
been convicted by an Italian court of importing contraband
foreign tobacco into Italy and of being in possession of it
there, as well as of failing to pay duty at the border on
importing the tobacco, and is subsequently convicted by a
German court — in connection with his earlier receipt of
the same goods in Greece — of being party to evasion in
relation to the (technically) Greek import duty that arose
when the goods were previously imported by third parties,
in so far as the defendant had intended from the outset to
transport the goods to Great Britain via Italy, after taking
delivery of them in Greece?

2. Has a penalty ‘been enforced’ or is it ‘actually in the process
of being enforced’ within the meaning of Article 54 of the
CISA

(a) if the defendant was given a custodial sentence, the
enforcement of which was suspended in accordance
with the law of the State in which judgment was given;

(b) if the defendant was for a short time taken into police
custody and/or held on remand pending trial, and that
detention would count towards any subsequent enforce-
ment of the penalty of imprisonment under the law of
the State in which judgment was given?

3. Is the interpretation of the notion of enforcement for the

purposes of Article 54 of the CISA affected by

(a) the fact that, having transposed the Council Framework
Decision of 13 June 2002 on the European arrest

Reference for a preliminary ruling from the Tribunal
Supremo, Sala de lo Contencioso-Administrativo, by order
of that court of 1 April 2005 in Asociación Nacional de
Forestales v Transformación Agraria S.A
Empresas

(TRAGSA) and Administración del Estado

(Case C-295/05)

(2005/C 257/04)

(Language of the case: Spanish)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Tribunal Supremo, Sala de
lo Contencioso-Administrativo, (Supreme Court, Chamber for
contentious administrative proceedings) of 1 April 2005,
received at the Court Registry on 21 July 2005, for a preli-
minary ruling in the proceedings between Asociación Nacional
(National Association of Forestry
de Empresas Forestales
Companies) and Transformación Agraria S.A (TRAGSA) and
Administración del Estado on the following questions:

1. Does Article 86(1) of the Treaty [establishing the European
Community] permit a Member State to grant ex lege to a
public undertaking a legal regime which allows it to execute
public works without being subject to the general rules on
the award of public contracts by tender, where there are no
special circumstances of urgency or public interest, both
below and above the financial threshold laid down by the
European Directives in this regard?

15.10.2005

EN

Official Journal of the European Union

C 257/3

2. Is such a legal regime compatible with the provisions of
Council Directives 93/36/EEC (1) and 93/37/EEC of 14 June
1993, (2) European Parliament
and Council Directive
97/52/EC of 13 October 1997 (3) and Commission Directive
2001/78[/EC] (4) amending the three previous directives —
legislation recently recast
in European Parliament and
Council Directive 2004/18/EC of 31 March 2004? (5)

3. Are the statements contained in the judgment of the Court
of Justice of the European [Communities] (6) of 8 May 2003
in Case C-349/97 Spain v Commission applicable in any
event to TRAGSA and its subsidiaries, in the light of the rest
of the case-law of the European Court regarding public
procurement and in view of the fact that the Administration
entrusts to TRAGSA a large number of works which are not
subject to the rules governing free competition, and that
this situation might cause considerable distortion of the rele-
vant market?

(1) Council Directive 93/36/EEC of 14 June 1993 coordinating proce-
dures for the award of public supply contracts (OJ L 199, p. 1).
(2) Council Directive 93/37/EEC of 14 June 1993 concerning the coor-
dination of procedures for the award of public works contracts (OJ
L 199, p. 54).

(3) European Parliament and Council Directive 97/52/EC of 13 October
1997 amending Directives 92/50/EEC, 93/36/EEC and 93/37/EEC
concerning the coordination of procedures for the award of public
service
supply contracts and public works
contracts respectively (OJ L 328, p. 1).

contracts, public

(4) Commission Directive 2001/78/EC of 13 September 2001
amending Annex IV to Council Directive 93/36/EEC, Annexes IV, V
and VI to Council Directive 93/37/EEC, Annexes III and IV to
Council Directive 92/50/EEC, as amended by Directive 97/52/EC,
and Annexes XII
to Council Directive
93/38/EEC, as amended by Directive 98/4/EC (Directive on the use
of standard forms in the publication of public contract notices) (OJ
L 285, p. 1).

to XV, XVII and XVIII

(5) Directive 2004/18/EC of

the
Council of 31 March 2004 on the coordination of procedures for
the award of public works contracts, public supply contracts and
public service contracts (OJ L 134, p. 114).

the European Parliament and of

Barcelona (Provincial High Court, Barcelona) (Spain) of 7 June
2005, received at the Court Registry on 3 August 2005, for a
preliminary ruling in the proceedings between Sociedad
General de Autores y Editores de España (SGAE) and Rafael
Hoteles SL on the following questions:

1. Does the installation in hotel rooms of television sets to
is sent by
which a satellite or terrestrial television signal
cable constitute an act of communication to the public
which is covered by the harmonisation of national
laws
protecting copyright provided for in Article 3 of Directive
2001/29/EC (1) of
the
Council of 22 May 2001?

the European Parliament and of

2. Is the fact of deeming a hotel room to be a strictly domestic
location, so that communication by means of television sets
to which is fed a signal previously received by the hotel is
not regarded as communication to the public, contrary to
the
by Directive
2001/29/EC of the European Parliament and of the Council
of 22 May 2001?

protection

copyright

pursued

of

3. For the purposes of protecting copyright in relation to acts
of communication to the public provided for in Directive
2001/29/EEC of
the
Council of 22 May 2001, can a communication that is
effected through a television set inside a hotel bedroom be
regarded as public because successive viewers have access to
the work?

the European Parliament and of

(1) Directive 2001/29/EC of

the
Council of 22 May 2001 on the harmonisation of certain aspects of
copyright and related rights in the information society (OJ L 167, of
22.6.2001 p. 10).

the European Parliament and of

(6) [2003] ECR I–3851.

Reference for a preliminary ruling from the Audiencia
Provincial de Barcelona (Spain) by order of that court of 7
June 2005 in Sociedad General de Autores y Editores de
España (SGAE) v Rafael Hoteles SL

(Case C-306/05)

(2005/C 257/05)

(Language of the case: Spanish)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Audiencia Provincial de

Reference for a preliminary ruling from the Juzgado de lo
Social No 1 of San Sebastián (Spain) by order of that court
of 6 July 2005 in Yolanda Del Cerro Alonso v Osakidetza
(Servicio Vasco de Salud) (Basque Health Service)

(Case C-307/05)

(2005/C 257/06)

(Language of the case: Spanish)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Juzgado de lo Social No 1
of San Sebastián (Spain) of 6 July 2005, received at the Court
Registry on 4 August 2005, for a preliminary ruling in the
proceedings between Yolanda Del Cerro Alonso and Osakidetza
(Servicio Vasco de Salud)
(Basque Health Service) on the
following questions: