Case C-393/06: Reference for a preliminary ruling from the Vergabekontrollsenat des Landes Wien (Austria) lodged on 22 September 2006 — Ing. Aigner, Wasser-Wärme-Umwelt GmbH v Fernwärme Wien GmbH
Date: 2006-12-16
Institutions: Court of Justice
Subjects: award of contract, competition law, heating, interpretation of the law, public contract, services contract, supplies contract, works contract

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