Case C-400/06: Reference for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands) lodged on 26 September 2006 — Codirex Expeditie BV v Staatssecretaris van Financiën
Date: 2006-12-16
Institutions: Court of Justice
Subjects: Combined Nomenclature, boned meat, frozen product, interpretation of the law

C 310/4

EN

Official Journal of the European Union

16.12.2006

7. If there is no duty to withdraw and recover under Article
23(1) of the coordination regulation, are there other provi-
sions of Community law, such as for example Article 4(1)
of Regulation No 2988/95 (2) of 18 December 1995 on the
protection of the European Communities' financial interests,
which contain a suggestion as to the legal basis on which
the Member State is obliged, directly or through interpreta-
tion in conformity with the regulation of Article 4.49.1 of
the Algemene Wet Bestuursrecht, to withdraw the determin-
ation of, and claim repayment of, subsidies granted in
breach of Community law, such as that in dispute here?

(1) OJ L 374, p. 1.
(2) OJ L 312, p. 1.

2. In the event

that

this is the case only in respect of
contracting authorities: must an undertaking such as Fern-
wärme Wien GmbH. be characterised as a body governed
by public law within the meaning of Directive 2004/17/EC
or Directive 2004/18/EC of the European Parliament and 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 (2) (OJ 2004 L
134, p. 114) (‘Directive 2004/18/EC’) if it provides district
heating in a given area without any real competition, or
must the market for domestic heating, which also includes
energy sources such as gas, oil, coal etc., be taken into
account?

3. Must an activity pursued under competitive conditions by a
company which also pursues activities of a non-industrial or
non-commercial nature be included within the scope of
Directive 2004/17/EC or Directive 2004/18/EC if, through
effective precautions such as separate balance sheets and
accounts, cross-financing of
the activities pursued under
competitive conditions can be excluded?

Reference for a preliminary ruling from the Vergabekon-
trollsenat des Landes Wien (Austria)
lodged on 22
September 2006 — Ing. Aigner, Wasser-Wärme-Umwelt
GmbH v Fernwärme Wien GmbH

(1) OJ L, 134, p. 1.
(2) OJ L, 134, p. 114.

(Case C-393/06)

(2006/C 310/06)

Language of the case: German

Referring court

Vergabekontrollsenat des Landes Wien

Parties to the main proceedings

Applicant: Ing. Aigner, Wasser-Wärme-Umwelt GmbH

Reference for a preliminary ruling from the Hoge Raad
der Nederlanden (Netherlands) lodged on 26 September
2006 — Codirex Expeditie BV v Staatssecretaris van
Financiën

(Case C-400/06)

(2006/C 310/07)

Language of the case: Dutch

Defendant: Fernwärme Wien GmbH

Referring court

Questions referred

Hoge Raad der Nederlanden

1. Must Directive 2004/17/EC of the European Parliament and
of the Council of 31 March 2004 coordinating the procure-
ment procedures of entities operating in the water, energy,
transport and postal services sectors (1) (OJ 2004 L 134, p.
1) (‘Directive 2004/17/EC’) be interpreted as meaning that a
contracting entity which pursues one of the sectoral activ-
ities referred to in Article 3 of that directive also falls within
the scope of that directive in relation to an activity pursued
in parallel under competitive conditions?

Parties to the main proceedings

Appellant: Codirex Expeditie BV

Respondent: Staatssecretaris van Financiën

16.12.2006

EN

Official Journal of the European Union

C 310/5

Questions referred

1. Must subheading 0202 30 50 of the Combined Nomencla-
ture (CN) be interpreted as meaning that frozen (boned)
meat derived from the part of the forequarter of the bovine
animal referred to in Additional Note 1.A.(h)(11) to Chapter
the CN may qualify for classification under that
2 of
in question is a
subheading only if
connected cut?

the cut of meat

2. If the answer to Question 1 means that meat in loose
portions may also qualify for classification under subheading
is it sufficient for classification under that
0202 30 50,
subheading that it has been established that the imported
consignment of meat consists of cuts of frozen meat all of
which are derived from the part of the forequarter referred
to in Additional Note 1.A.(h)(11) to Chapter 2 of the CN, or
must that consignment of meat, as a whole, or the indivi-
dual constituent parts thereof (cartons) also satisfy other
criteria or have other additional characteristics?

Reference for a preliminary ruling from the Hoge Raad
der Nederlanden (Netherlands) lodged on 27 September
2006 — Op- en Overslagbedrijf Van der Vaart B.V. v
Staatssecretaris van Financiën

sified as grated cheese or as powdered cheese under the
subheading 0406 20, in other words:

a) Can a product which is fat free or virtually fat free, be

classified under this subheading?

b) Can a product which consists of casein and more than
50 % moisture (serum/whey) and having the appearance
of regular granules 2 to 4 mm in size, be classified
under this subheading?

Reference for a preliminary ruling from the Bundesger-
ichtshof
lodged on 28 September 2006 —
Quelle AG v Bundesverband der Verbraucherzentralen
und Verbraucherverbände

(Germany)

(Case C-404/06)

(2006/C 310/09)

Language of the case: German

(Case C-402/06)

(2006/C 310/08)

Language of the case: Dutch

Referring court

Bundesgerichtshof

Referring court

Hoge Raad der Nederlanden

Parties to the main proceedings

Applicant: Op- en Overslagbedrijf Van der Vaart B.V.

Defendant: Staatssecretaris van Financiën

Questions referred

1. Must the heading 0406 of the CN be interpreted in such a
way that it can accommodate the classification of a product
obtained from curdled milk from which (a great deal of) the
serum has been extracted, of a whey-albumin content, by
weight, not exceeding 2 percent, and of which the albumins
were broken down during a drying process lasting 24 to
36 hours through the action of an added enzyme?

Parties to the main proceedings

Defendant, appellant and respondent: Quelle AG

Plaintiff, respondent and appellant: Bundesverband der Verbrau-
cherzentralen und Verbraucherbände

Question referred

Are the provisions of Article 3(2) in conjunction with the first
subparagraph of Article 3(3) and Article 3(4), or of the third
subparagraph of Article 3(3) of Directive 1999/44/EC (1) of the
European Parliament and of the Council of 25 May 1999 on
certain aspects of the sale of consumer goods and associated
guarantees to be interpreted as precluding national legislation
which provides that, where consumer goods are brought into
conformity with the contract by means of delivery of replace-
ment goods, the seller may require compensation from the
consumer for use of the goods originally delivered, which were
not in conformity with the contract?

If question 1 is answered in the affirmative:

(1) OJ 1999 L 171, p. 12.

2. What criteria are to be used with regard to fat content and
appearance to determine whether a product should be clas-