Case C-385/06: Reference for a preliminary ruling from the Raad van State (Netherlands) lodged on 18 September 2006 — Sociaal Economische Samenwerking West-Brabant v Algemeene Directie voor de Arbeidsvoorziening
Date: 2006-12-16
Institutions: Court of Justice
Subjects: European Investment Bank, Structural Funds, application of EU law, balance of payments assistance, competence of the Member States, coordination of financing, interpretation of the law, redemption

16.12.2006

EN

Official Journal of the European Union

C 310/3

3. If so, is that interpretation limited by general legal principles
which form part of Community law, in particular the princi-
ples of legal certainty and the protection of legitimate expec-
tations?

4. If the answer to the third question is in the affirmative, the
question arises in relation to that limitation whether the
national principles of legal certainty and the protection of
legitimate expectations which underlie Article 4.49.1 of the
Algemene Wet Bestuursrecht (General Law on Administra-
tive Law) can be more far-reaching than general principles
of Community law, especially the principles of
legal
legitimate expectations
certainty and the protection of
which are to be complied with when applying the coordina-
tion regulation.

5. Is it of any relevance, having regard to Article 10 EC when
applying the Community law principles of legal certainty
and the protection of legitimate expectations, that the bene-
ficiary is a legal person under public law?

(1) OJ L 374, p. 1.

Structural Funds between themselves and with the opera-
tions of the European Investment Bank and the other
existing financial
instruments, as amended by Council
Regulation No 2082/93 of 20 July 1993 (‘the coordina-
tion regulation’) confer authority to withdraw an order
on the granting of a subsidy and to claim back the sum
paid, on the basis that Article 23 of the coordination
regulation requires the Member State to do that in so far
as irregularities or negligence within the meaning of the
said Article 23 are involved?

2. If not, is a national legal provision like Article 4.49.1 of the
Algemene Wet Bestuursrecht (General Law on Administra-
tive Law), on the basis of which the authority may withdraw
the determination of the subsidy or amend it to the detri-
ment of the beneficiary if (a) there are facts or circumstances
of which it could not reasonably have been aware at the
time the subsidy was determined and which would have
resulted in a lower subsidy being determined than that in
the order on the granting of the subsidy, (b) the determin-
ation of the subsidy was made in error and the beneficiary
knew this or should have known it, or
the
determination of
the beneficiary has not
fulfilled the obligations attached thereto, to be interpreted,
pursuant to Article 10 EC in conjunction with Article 249
EC, in a manner that conforms to the regulation?

the subsidy,

(c) after

Reference for a preliminary ruling from the Raad van
lodged on 18 September 2006 —
State (Netherlands)
Sociaal Economische Samenwerking West-Brabant v Alge-
meene Directie voor de Arbeidsvoorziening

3. If so, is that interpretation limited by general legal principles
which form part of Community law, in particular the princi-
ples of legal certainty and the protection of legitimate expec-
tations?

(Case C-385/06)

(2006/C 310/05)

Language of the case: Dutch

Referring court

Raad van State (Netherlands)

4. If the answer to the third question is in the affirmative, the
question arises in relation to that limitation whether the
national principles of legal certainty and the protection of
legitimate expectations which underlie Article 4.49.1 of the
Algemene Wet Bestuursrecht (General Law on Administra-
tive Law) can be more far-reaching than general principles
of Community law, especially the principles of
legal
certainty and the protection of
legitimate expectations
which are to be complied with when applying the coordina-
tion regulation.

Parties to the main proceedings

Applicant: Sociaal Economische Samenwerking West-Brabant

Defendant: Algemeene Directie voor de Arbeidsvoorziening

5. Is it of any relevance, having regard to Article 10 EC when
applying the Community law principles of legal certainty
and the protection of legitimate expectations, that the bene-
ficiary is a legal person under public law?

Question(s) referred

1. a) Can the Member State or one of its authorities derive a
competence directly from a regulation — without a basis
in national law?

b) If so, does Article 23(1) of Council Regulation (EEC) No
4253/88 (1) of 19 December 1988, laying down provi-
sions for implementing Regulation (EEC) No 2052/88 as
the different
regards coordination of

the activities of

6. Does it follow from Article 23(1) of the coordination regu-
lation that the determination of the subsidy is to be with-
drawn and the sums paid are to be recovered if it is estab-
lished that the Member State has already repaid an unduly
granted subsidy to the European Social Fund, or has in any
event made a ruling to that effect, if, either on the basis of
Article 23(1) of the coordination regulation or on the basis
of Article 4.49.1 of the Alegemene Wet Bestuursrecht inter-
preted in accordance with the regulation, the determination
of the subsidy is to be withdrawn and the sums paid are to
be recovered?

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