Case C-454/06: Reference for a preliminary ruling from the Bundesvergabeamt (Austria) lodged on 13 November 2006 — pressetext Nachrichtenagentur GmbH v 1. Republic of Austria (Bund), 2. APA-OTS Originaltext-Service GmbH, 3. APA AUSTRIA PRESSE AGENTUR, a registered cooperative with limited liability
Date: 2006-12-30
Institutions: Court of Justice
Subjects: administrative transparency, award of contract, contract, exclusive distribution agreement, interpretation of the law, invitation to tender, provision of services, services contract

30.12.2006

EN

Official Journal of the European Union

C 326/41

3. Where the failure of the concerned Member State to recog-
nise the marketing authorisation granted by the reference
Member State as set out in question 1 above is based on a
general policy adopted by the concerned Member State that
different salts of the same active moiety cannot, as a matter
of law, be considered essentially similar, does the failure by
the concerned Member State to recognise the marketing
authorisation granted by the reference Member State in the
circumstances referred to above amount
to a sufficiently
serious breach of Community law within the meaning of the
second condition in the judgment in Joined Cases C-46/93
and C-48/93 Brasserie du Pecheur and Factortame. Alternatively
what factors ought the national court to take into considera-
tion when it comes to determine whether such failure
amounts to a sufficiently serious breach?

(1) OJ L 311, p. 67

Reference for a preliminary ruling from the Bundesverwal-
tungsgericht (Germany) lodged on 13 November 2006 —
01051 Telecom GmbH v Bundesrepublik Deutschland

(Case C-453/06)

(2006/C 326/85)

Language of the case: German

Referring court

Bundesverwaltungsgericht (Germany)

Parties to the main proceedings

Applicant: 01051 Telecom GmbH

Defendant: Bundesrepublik Deutschland

Question referred

Is it consistent with the first sentence of Article 27 of Directive
2002/21/EC of the European Parliament [and of the Council] of
7 March 2002 on a common regulatory framework for elec-
tronic communications networks and services
(Framework
Directive) (1) and Article 7 of Directive 2002/19/EC of the Euro-
pean Parliament and of the Council [of 7 March 2002] on
access to, and interconnection of, electronic communications
networks and associated facilities (Access Directive) (2) if, under

national law, a statutory requirement formerly provided for in
that law under which interconnection charges are to be calcu-
lated by reference to the cost of
the efficient provision of
services is to be maintained temporarily, even though there is
no obligation to do so under Community law?

(1) OJ L 108, P.33.
(2) OJ L 108, P.7.

Reference for a preliminary ruling from the Bundesverga-
beamt (Austria) lodged on 13 November 2006 — presse-
text Nachrichtenagentur GmbH v 1. Republic of Austria
(Bund), 2. APA-OTS Originaltext-Service GmbH, 3. APA
AUSTRIA PRESSE AGENTUR, a registered cooperative
with limited liability

(Case C-454/06)

(2006/C 326/86)

Language of the case: German

Referring court

Bundesvergabeamt

Parties to the main proceedings

Applicant: pressetext Nachrichtenagentur GmbH

Respondents: 1. Republic of Austria (Bund), 2. APA-OTS Origi-
naltext-Service GmbH, 3. APA AUSTRIA PRESSE AGENTUR, a
registered cooperative with limited liability

Questions referred

1. Are the terms

‘awarding’

in Article 3(1) of Directive
92/50/EEC (1) and ‘awarded’ in Articles 8 and 9 of that direc-
tive to be interpreted as encompassing circumstances in
which a contracting authority intends to obtain services in
the future from a service provider established as a limited
liability company where those services were previously
supplied by a different service provider who is the sole share-
holder in the future service provider and has control of the
future service provider? In such a case is it legally relevant
that
that
throughout the entire period of the original contract the

contracting authority has no guarantee

the

C 326/42

EN

Official Journal of the European Union

30.12.2006

shares in the future service provider will not be disposed of
in whole or in part to third parties and moreover has no
guarantee that
service
provider, which is in the form of a co-operative society, will
remain unchanged throughout the entire contract period?

the membership of

the original

exclusive rights,
tendering as to part?

in order

to allow at

least competitive

2. Are the terms

‘awarding’

in Article 3(1) of Directive
92/50/EEC and ‘awarded’ in Articles 8 and 9 of that directive
to be interpreted as encompassing circumstances in which,
during the period of validity of a contract concluded for an
indefinite period with certain service providers for the joint
provision of services, a contracting authority agrees with
those service providers amendments to the charges for speci-
fied services under the contract and reformulates an index-
linking clause, where these amendments result in different
charges and are made upon the changeover to the euro?

3. Are the terms

‘awarding’

in Article 3(1) of Directive
92/50/EEC and ‘awarded’ in Articles 8 and 9 of that directive
to be interpreted as encompassing circumstances in which,
during the period of validity of a contract concluded for an
indefinite period with certain service providers for the joint
provision of services, a contracting authority agrees with
those service providers to amend the contract, first, renewing
for a period of three years a waiver of the right to terminate
the contract by notice, the waiver no longer being in force at
the time of the amendment, and second, also laying down a
higher rebate than before for certain volume-related charges
within a specified area of supply?

4. If the answer to any of the first three questions is that there is an

award:

Is Article 11(3)(b) of Directive 92/50/EEC, or are any other
in particular, the
provisions of Community law, such as,
principle of transparency, to be interpreted as permitting a
contracting authority to obtain services by awarding a single
contract in a negotiated procedure without prior publication
of a contract notice, where parts of the services are covered
by exclusive rights as referred to in Article 11(3)(b) of Direc-
tive 92/50/EEC? Or do the principle of transparency or any
other provisions of Community law require in the case of an
award of mostly non-priority services that a contract notice
is none the less published prior to the contract award, to
enable undertakings in the sectors concerned to assess
whether services are in fact being awarded that are subject to
an exclusive right? Or do the provisions of Community law
relating to the award of public contracts require that in such
a case services can only be awarded in separate tender proce-
dures, according to whether they are or are not subject to

5. If

the answer

to the fourth question is to the effect

that a
contracting authority may award services which are not subject to
exclusive rights in a single procurement procedure together with
services which are subject to an exclusive right:

Can an undertaking which does not have any right to deal
with data that is subject to an exclusive right possessed by
an undertaking which has a dominant position in the market
establish that in that respect it has the capacity, for the
purposes of procurement law, to provide a comprehensive
service to a contracting authority, by relying on Article 82
EC and an obligation derived from that provision on the
market-dominant undertaking which has
the power of
disposal over the data and is established in a Member State
to provide the data on reasonable conditions?

6. If the answer to the first, second and third questions is to
the effect that the partial contract transfer in 2000 and/or
one or both of the contract amendments referred to consti-
tuted new awards; and furthermore should the fourth ques-
tion be answered to the effect that either when awarding a
contract for services not subject to exclusive rights by means
of a separate award procedure, or when awarding a
combined contract (in the present case for press releases, the
basic service and rights to use APADok), a contracting
authority should have first published a contract notice to
ensure that the intended contract award was transparent and
capable of being reviewed:

Is ‘harmed’ in Article 1(3) of Directive 89/665/EEC (2) and in
Article 2(1)(c) of that directive to be interpreted as meaning
that an undertaking in a case such as the present one is
harmed, within the meaning of those provisions of Directive
89/665/EEC, simply where he has been deprived of
the
opportunity to participate in a procurement procedure
because the contracting authority did not, prior to making
the award, publish a contract notice, on the basis of which
the undertaking could have tendered for the contract to be
awarded, could have submitted an offer or could have had
the claim that exclusive rights were involved reviewed by the
competent procurement review body?

7. Are the Community law principle of equivalence and the
Community law requirement for effective legal protection, or
the principle of effectiveness, to be interpreted, having regard
to any other relevant provisions of Community law, as
right on an
conferring an individual and unconditional

30.12.2006

EN

Official Journal of the European Union

C 326/43

undertaking against a Member State such that it has at least
six months from the time when it could have known that a
contract award infringed procurement
law to bring legal
proceedings before the competent national authority to seek
damages following the contract award on account of an
infringement of Community procurement law, while it must
be allowed additional time for periods when it could not
make such a claim owing to the absence of a statutory basis
in national law, in circumstances where under national law
claims for damages based on infringements of national law
are normally subject to a limitation period of three years
from the date of knowledge of the wrongdoer and of the
damage and, in the absence of legal protection in a particular
area of law, the limitation period does not (continue to) run?

(1) OJ 1992 L 209, p. 1.
(2) OJ 1989 L 395, p. 33.

possible for third parties to make use of items of copy-
right-protected works without the grant of user involving
a transfer of de facto power to dispose of those items?

(b) Is there a distribution under Article 4(1) of the Informa-
tion Society Directive also in the case in which items of
copyright-protected works are shown publicly without
the possibility of using those items being granted to third
parties?

2. If

the answers are in the affirmative: can the protection
accorded to the free movement of goods preclude,
in the
abovementioned cases, exercise of the distribution right if
the items presented are not under copyright protection in
the Member State in which they were manufactured and
placed on the market?

(1) OJ 2001 L 167, p. 10.

Reference for a preliminary ruling from the Bundesgericht-
shof lodged on 16 November 2006 — Peek & Cloppenburg
KG v Cassina S.p.A.

(Case C-456/06)

(2006/C 326/87)

Language of the case: German

Appeal brought on 16 November 2006 by the Republic of
Finland against the order of 5 September 2006 in Case T-
350/05 Republic of Finland v Commission of the European
Communities

(Case C-457/06 P)

(2006/C 326/88)

Language of the case: Finnish

Referring court

Bundesgerichtshof

Parties

Parties to the main proceedings

Appellant: Republic of Finland (represented by E. Bygglin)

Appellant: Peek & Cloppenburg KG

Respondent: Cassina S.p.A.

Questions referred

Other party to the proceedings: Commission of
Communities

the European

Form of order sought

1.

(a) Can it be assumed that there is a distribution to the
public in any manner other than by sale, within the
terms of Article 4(1) of Directive 2001/29/EC of the
European Parliament and of the Council of 22 May 2001
on the harmonisation of certain aspects of copyright and
related rights in the information society (1) (‘the Informa-
in the case where it is made
tion Society Directive’),

— set aside the order of the Court of First Instance of the Euro-
pean Communities of 5 September 2006 in Case T-350/05
Republic of Finland v Commission of the European Communities
and declare the action brought by Finland under Article 230
EC admissible and remit the main proceedings to the Court
of First
in which the Commission should be
ordered to reimburse Finland also the costs incurred in the
appeal proceedings

Instance,