Case C-445/06: Reference for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 6 November 2006 — Danske Slagterier v Federal Republic of Germany
Date: 2006-12-30
Institutions: Court of Justice
Subjects: EU legal system, application of EU law, interpretation of the law, liability of the State, limitation of legal proceedings, marketing, pigmeat

C 326/36

EN

Official Journal of the European Union

30.12.2006

Action brought on 26 October 2006 — Commission of the
European Communities v Kingdom of Spain

Reference for a preliminary ruling from the Bundesgericht-
shof (Germany) lodged on 6 November 2006 — Danske
Slagterier v Federal Republic of Germany

(Case C-444/06)

(2006/C 326/76)

Language of the case: Spanish

Parties

Applicant: Commission of the European Communities (repre-
sented by: X. Lewis, acting as Agent, C. Fernandez Vicién and I.
Moreno-Tapia Rivas, lawyers)

Defendan: Kingdom of Spain

Form of order sought

— declare that, by failing to provide for a mandatory period
within which the contracting authority has to notify the
decision on the award of the contract to all the bidders, by
failing to provide for a mandatory waiting period between
the decision on the award of the contract and its perfor-
mance and by allowing an annulled contract to continue to
have legal effect, the Kingdom of Spain has failed to fulfil its
obligations under Article 2(1)(a) and (b) of Council Directive
89/665/EEC (1) of 21 December 1989 on the coordination
of
regulations and administrative provisions
relating to the application of review procedures to the award
of public supply and public works contracts

the laws,

— order Kingdom of Spain to pay the costs.

Pleas in law and main arguments

The Commission considers that the Spanish rule on the review
of public contracts is not consistent with Directive 89/665
according to the interpretation given by the Court of Justice in
Case C-81/98 Alcatel Austria and Others [1999] ECR I-7671.

In particular, the Spanish legislation:

does not provide for a mandatory period within which the
contracting authority has to notify the decision on the award of
the contract to all the bidders,

does not provide for a mandatory waiting period between the
decision on the award of the contract and its performance and,

allows an annulled contract to continue to have legal effect.

(1) OJ 1989 L 395, p.33.

(Case C-445/06)

(2006/C 326/77)

Language of the case: German

Referring court

Bundesgerichtshof

Parties to the main proceedings

Applicant: Danske Slagterier

Defendant: Federal Republic of Germany

Questions referred

1. Do Article 5(1)(o) and Article 6(1)(b)(iii) of Council Directive
64/433/EEC (1) of 26 June 1964 on health problems
affecting intra-Community trade in fresh meat, as reenacted
by Council Directive 91/497/EEC (2) of 29 July 1991,
in
conjunction with Article 5(1), Article 7 and Article 8 of
Council Directive 89/662/EEC (3) of 11 December 1989
concerning veterinary checks in intra-Community trade with
a view to the completion of the internal market place produ-
cers and distributors of pigmeat in a legal position which can
give rise to a claim seeking to establish State liability under
Community law in the event of errors of transposition or
application?

2. May the producers and distributors of pigmeat — irrespec-
tive of the answer to the first question — rely on an infrin-
gement of Article 30 of the EC Treaty (Article 28 EC) in
order to substantiate a claim seeking to establish State liabi-
lity under Community law where the transposition and
application of the abovementioned directives are contrary to
Community law?

3. Does Community law require the limitation period for a
claim seeking to establish State liability under Community
law to be interrupted in the light of Treaty infringement
proceedings under Article 226 EC or
to be suspended
pending the end of those proceedings at least where there is
no effective domestic legal remedy to compel the Member
State to transpose a directive?

30.12.2006

EN

Official Journal of the European Union

C 326/37

4. Does the limitation period for a claim which seeks to estab-
lish State liability under Community law and is based on the
inadequate transposition of a directive and an accompanying
(de facto) import ban commence, irrespective of the applic-
able national
law, only with the full transposition of the
in
directive, or can the limitation period begin to run,
accordance with national law, when the first injurious effects
have already been produced and further injurious effects are
transposition has a bearing on the
foreseeable?
full
commencement of
is this true in
the limitation period,
general or only if the directive confers a right on individuals?

If

5. Given that the Member States may not frame the conditions
for reparation of
loss and damage in respect of claims
seeking to establish State liability under Community law less
favourably than those relating to similar domestic claims and
it may not be made virtually impossible or excessively diffi-
cult to obtain reparation, are there, generally, objections to a
national rule under which liability for damages does not
arise where the injured party has wilfully or negligently failed
to avert the damage by employing a legal remedy? Are there
also objections to this ‘primacy of primary legal protection’
where it is subject to the proviso that it must be reasonable
for the party concerned? Is the fact that the relevant court is
likely to be unable to answer the questions of Community
law at issue without making a reference to the Court of
Justice of the European Communities or that Treaty infringe-
ment proceedings under Article 226 EC are already pending
sufficient to make it unreasonable under European Com-
munity law?

(1) OJ, English Special Edition 1963-64, p. 185.
(2) OJ 1991 L 268, p. 69.
(3) OJ 1989 L 395, p. 13.

Parties to the main proceedings

Applicant: A.G. Winkel

Defendant: Minister van Landbouw, Natuur en Voedselkwaliteit

Questions referred

1. Are rules which, as regards the right

require, on the basis of

to a suckler-cow
premium,
the usual animal
husbandry practice, that a cow has calved at least once in the
period which runs from twenty months before to four
months after
the date on which the application period
started and its calf was not removed from the herd within
four months after its birth, compatible with Article 3(f) of
Regulation (EC) (1) No 1254/1999?

2. If the answer to Question 1 is in the negative, what criteria
must be applied to establish whether the herd is intended for
rearing calves for meat production and which cows belong
to that herd?

(1) Regulation (EC) No 1254/1999, of 17 May 1999, on the common
organisation of the market in beef and veal (OJ 1999 L 160, p. 21).

Reference for a preliminary ruling from the College van
Beroep voor het bedrijfsleven (Netherlands) lodged on 31
October 2006 — A.G. Winkel v Minister van Landbouw,
Natuur en Voedselkwaliteit

Reference for a preliminary ruling from the Fővárosi
Bíróság lodged on 2 November 2006 — Vodafone Magyar-
ország Mobil Távközlési Zártkörűen Működő Részvénytár-
saság, Innomed Medical Orvostechnikai Részvénytársaság v
Hungarian State, Budapest Főváros Képviselő-testülete,
Esztergom Város Önkormányzat Képviselő-testülete

(Case C-446/06)

(2006/C 326/78)

(Case C-447/06)

(2006/C 326/79)

Language of the case: Dutch

Language of the case: Hungarian

Referring court

Referring court

College van Beroep voor het bedrijfsleven

Fővárosi Bíróság