Case C-213/07: Reference for a preliminary ruling from the Simvoulio tis Epikratias (Council of State) (Greece) lodged on 23 April 2007 — Mikhaniki A.E. v Ethniko Simvoulio Radiotileorasis, Ipourgos Epikpatias; Interveners: Pantekhniki Α.Ε., Sindesmos Epikhiriseon Periodikou Typou
Date: 2007-06-23
Institutions: Court of Justice
Subjects: administrative procedure, award of contract, interpretation of the law, provision of services, public contract, works contract

C 140/16

EN

Official Journal of the European Union

23.6.2007

Parties to the main proceedings

Applicant: The Competition Authority

Defendants: Beef
Brothers (Carrigmore) Meats Ltd

Industry Development Society Ltd, Barry

Questions referred

‘Where it is established to the satisfaction of the court that:

a) there is overcapacity in the industry for the processing of
beef, which calculated at peak throughput, would be approxi-
mately 32 %;

b) the effect of this excess capacity will have very serious conse-
quences for the profitability of the industry as a whole over
the medium term,

c) while, as reported, the effects of surplus requirements have
not been felt to any significant degree as yet, independent
consultants have advised that, in the near term, the overcapa-
city is unlikely to be eliminated by normal market measures,
but over time the overcapacity will lead to very significant
losses and ultimately to processors and plants leaving the
industry;

d) processors of beef representing approximately 93 % of the
market for the supply of beef of that industry have agreed to
take steps to eliminate the overcapacity and are willing to
pay a levy in order to fund payments to processors willing
to cease production, and

the said processors, comprising ten companies, form a corporate
implementing an
body,
arrangement with the following features:

the purpose of

(“the society”)

for

1. plants

(called “goers”

) killing and processing 420,000
animals per annum, representing approximately 25 % of
active capacity would enter into an agreement with the
remaining companies (called “stayers” ) to leave the industry
and to abide by the following terms;

6. a voluntary levy would be paid to the society by all stayers at
the rate of EUR 2 per head of the traditional percentage kill
and EUR 11 per head on cattle kill above that figure;

7. the levy would be used to repay the stayers'

loans;

levies

would cease on repayment of the loans;

8. the equipment of goers used for primary beef processing
would be sold only to stayers for use as back-up equipment
or spare parts or sold outside the island of Ireland;

9. the freedom of the stayers in matters of production, pricing,
conditions of sale, imports and exports, increase in capacity
and otherwise would not be affected,

and that it is agreed that such an agreement is liable, for the
purpose of application of Article 81(1)EC, to have an appreci-
able effect on trade between Member States, is such arrangement
to be regarded as having as its object, as distinct from effect, the
prevention, restriction or distortion of competition within the
common market and therefore, incompatible with Article 81(1)
of the Treaty establishing the European Community?’

Reference for a preliminary ruling from the Simvoulio tis
Epikratias (Council of State) (Greece) lodged on 23 April
2007 — Mikhaniki A.E. v Ethniko Simvoulio Radioti-
leorasis, Ipourgos Epikpatias; Interveners: Pantekhniki Α.Ε.,
Sindesmos Epikhiriseon Periodikou Typou

(Case C-213/07)

(2007/C 140/26)

Language of the case: Greek

Referring court

Simvoulio tis Epikratias

2. goers would sign a two year non-compete clause in relation
to the processing of cattle on the entire island of Ireland;

3. the plants of goers would be decommissioned;

Parties to the main proceedings

4.

land associated with the decommissioned plants would not
be used for the purposes of beef processing for a period of
five years;

Applicant: Mikhaniki A.E.

5. compensation would be paid to goers in staged payments by

means of loans made by the stayers to the society;

Defendants: Ethniko Simvoulio Radiotileorasis, Ipourgos Epikpa-
tias; Interveners: Pantekhniki Α.Ε., Sindesmos Epikhiriseon Peri-
odikou Typou

23.6.2007

EN

Official Journal of the European Union

C 140/17

Questions referred

Form of order sought

1. Is the list of grounds for excluding public works contractors
contained in Article 24 of Council Directive 93/37/ΕEC of
14 June 1993 concerning the coordination of procedures for
the award of public works contracts (OJ 1993 L 199)
exhaustive?

2. If that list is not exhaustive, does a provision which lays
down (in order to protect transparency in the economic
functioning of the State) that the status of owner, partner,
main shareholder or management executive of a media
incompatible with the status of owner,
undertaking is
partner, main shareholder or management executive of an
undertaking contracting to perform a works, supply or
services contract for the State, or for a legal person in the
public sector in the broad sense, serve purposes which are
compatible with the general principles of Community law
and is that total prohibition on the award of public contracts
to such undertakings compatible with the Community prin-
ciple of proportionality?

3. If, within the meaning of Article 24 of Directive 93/37/ΕEC,
the list of grounds for excluding contractors contained
therein is an exhaustive list or if the national provision at
issue cannot be construed as serving purposes which are
compatible with the general principles of Community law or
if, finally, the prohibition introduced in it is not compatible
with the Community principle of proportionality, does the
above directive, in preventing the inclusion, as grounds for
excluding contractors from public works procurement proce-
dures, of cases where the contractor, its executives (such as
the owner of
its main shareholder,
partner or management executive), or intermediaries acting
for the said executives, work in media undertakings which
are able to exercise an undue influence on the public works
procurement procedure, because of the influence which they
are able to exert in general, infringe the general principles of
the protection of competition and transparency and Article 5
(2) of
the Treaty establishing the European Community
which enacts the principle of subsidiarity?

the undertaking or

— A declaration that, by failing to adopt the laws, regulations
and administrative provisions necessary to comply with
Directive 2004/49/EC of the European Parliament and of
the Council of 29 April 2004 on safety on the Community's
railways and amending Council Directive 95/18/EC on the
licensing of railway undertakings and Directive 2001/14/EC
on the allocation of railway infrastructure capacity and the
levying of charges for the use of railway infrastructure and
safety certification (Railway Safety Directive) (1) and Directive
2004/50/EC of the European Parliament and of the Council
of 29 April 2004 amending Council Directive 96/48/EC on
the interoperability of
the trans-European high-speed rail
system and Directive 2001/16/EC of the European Parlia-
ment and of the Council on the interoperability of the trans-
European conventional rail system (2) or, in any event, by
failing to communicate them to the Commission,
the
Kingdom of Sweden has failed to fulfil its obligations under
that directive

— An order that the Kingdom of Sweden should pay the costs.

Pleas in law and main arguments

The period prescribed for transposition of the Directive expired
on 30 April 2006.

(1) OJ 2004 L 164, p. 44.
(2) OJ 2004 L 164, p. 114.

Action brought on 10 May 2007 — Commission of the
European Communities v Federal Republic of Germany

Action brought on 3 May 2007 — Commission of the
European Communities v Kingdom of Sweden

(Case C-223/07)

(2007/C 140/27)

Language of the case: Swedish

(Case C-235/07)

(2007/C 140/28)

Language of the case: German

Parties

Parties

Applicant: Commission of the European Communities (repre-
sented by: N. Yerrell and P. Dejmek, acting as Agents)

Applicant: Commission of the European Communities (repre-
sented by G. Braun and P. Dejmek, acting as Agents)

Defendant: Kingdom of Sweden

Defendant: Federal Republic of Germany