Case C-220/06: Judgment of the Court (First Chamber) of 18 December 2007 (Reference for a preliminary ruling from the Audiencia Nacional, Sala de lo Contencioso-Administrativo — Spain) — Asociación Profesional de Empresas de Reparto y Manipulado de Correspondencia v Administración General del Estado (Public procurement — Liberalisation of postal services — Directives 92/50/EEC and 97/67/EC — Articles 43 EC, 49 EC and 86 EC — National legislation allowing public authorities to conclude agreements for the provision of both reserved and non-reserved postal services with a publicly owned company, namely the provider of universal postal service in the Member State concerned, without regard to the rules governing the award of public service contracts)
Date: 2007-12-18
Institutions: Court of Justice
Subjects: competition law, interpretation of the law, liberalisation of the market, postal service, public sector

23.2.2008

EN

Official Journal of the European Union

C 51/15

Order of the Court of 18 December 2007 — Cementbouw
Handel & Industrie BV v Commission of the European
Communities

(Case C-202/06 P) (1)

(Appeals — Competition — Regulation (EEC) No 4064/89 —
Competence of the Commission — Notification of a concentra-
tion having a Community dimension — Commitments
proposed by the parties — Effect on the Commission's compe-
tence — Authorisation subject to certain commitments —
Principle of proportionality)

(2008/C 51/24)

Language of the case: English

Judgment of the Court (First Chamber) of 18 December
2007 (Reference for
a preliminary ruling from the
Audiencia Nacional, Sala de lo Contencioso-Administrativo
— Spain) — Asociación Profesional de Empresas de
v
Reparto

Correspondencia

y Manipulado
Administración General del Estado

de

(Case C-220/06) (1)

(Public procurement — Liberalisation of postal services —
Directives 92/50/EEC and 97/67/EC — Articles 43 EC, 49 EC
and 86 EC — National legislation allowing public authorities
to conclude agreements for the provision of both reserved and
non-reserved postal services with a publicly owned company,
namely the provider of universal postal service in the Member
State concerned, without regard to the rules governing the
award of public service contracts)

Parties

Appellant: Cementbouw Handel & Industrie BV (represented by:
W. Knibbeler, O. Brouwer and P. Kreijger, lawyers)

(2008/C 51/25)

Language of the case: Spanish

Other party to the proceedings: Commission of
the European
Communities (represented by: E. Gippini Fournier, A. Nijenhuis
and A. Whelan, Agents)

Referring court

Action

Audiencia Nacional, Sala de lo Contencioso-Administrativo

(Fourth

Chamber,

the Court of First
Appeal brought against the judgment of
Instance
of
Composition)
Extended
23 February 2006 in Case T-282/02 Cementbouw Handel &
Industrie v Commission, whereby the Court of First Instance
dismissed an application for the annulment of Commission
Decision (2002)2315 final of 26 June 2002 relating to a
procedure pursuant to Regulation (EEC) No 4064/89 — Haniel/
Cementbouw/JV (CVK), declaring a concentration entailing the
acquisition of joint control of the cooperative CVK by Franz
Haniel & Cie GmbH and Cememtbouw Handel & Industrie BV
to be compatible with the common market and the EEA Agree-
ment, on condition that certain commitments be complied with
the dominant position created on the
in order
Netherlands market in construction materials for load-bearing
walls — Incorrect interpretation of Articles l, 2, and 3(1) of
Council Regulation (EEC) No 4064/89 of 21 December 1989
on the control of concentrations between undertakings (OJ 1989
L 395, p. 1) and of Article 8(2) of Council Regulation (EC)
No 1310/97 of 30 June 1997 amending Regulation (EEC)
No 4064/89 (OJ 1997 L 180, p. 1) — Breach of the principle
of proportionality

to correct

Operative part of the judgment

1. Dismisses the appeal;

Parties to the main proceedings

Applicant: Asociación Profesional de Empresas de Reparto y
Manipulado de Correspondencia

Defendant: Administración General del Estado

Re:

Reference for a preliminary ruling — Audiencia Nacional, Sala
de lo Contencioso-Administrativo — Interpretation of Directive
97/67/EC of the European Parliament and of the Council of
15 December 1997 on common rules for the development of
the internal market of Community postal services and the
improvement of quality of service (OJ 1998 L 15, p. 14), as
amended by Directive 2002/39/EC (OJ 2002 L 176, p. 21) —
Agreement concluded without regard to the rules governing the
award of public service contracts between a department of the
State administration and a publicly owned company covering, in
particular, the provision of postal services, including those not
reserved to the universal service providers

2. Orders Cementbouw Handel & Industrie BV to pay the costs.

Operative part of the judgment

(1) OJ C 178, 29.7.2006.

1) Community law must be interpreted as not precluding legislation of
a Member State that allows public authorities to entrust, without
regard to the rules governing the award of public service contracts,
in a manner consistent
the provision of postal services reserved,

C 51/16

EN

Official Journal of the European Union

23.2.2008

with Directive 97/67/EC of the European Parliament and of the
Council of 15 December 1997 on common rules for the develop-
ment of the internal market of Community postal services and the
improvement of quality of service, to a public limited company
whose capital is wholly state-owned and which, in that State, is the
provider of the universal postal service.

Judgment of the Court (Third Chamber) of 13 December
2007 (reference for a preliminary ruling from the Conseil
d'État (Belgium)) — United Pan-Europe Communications
Belgium SA, Coditel Brabant SA, Société Intercommunale
pour la Diffusion de la Télévision (Brutele), Wolu TV ASBL
v État Belge

by

amended

2001/78/EC

2) Council Directive 92/50/EEC of 18 June 1992 relating to the
coordination of procedures for the award of public service contracts,
as
of
Commission Directive
13 September 2001, must be interpreted as precluding legislation
of a Member State that allows public authorities to entrust,
without regard to the rules governing the award of public service
contracts, the provision of non-reserved postal services within the
meaning of Directive 97/67 to a public limited company whose
capital
is the
provider of the universal postal service, in so far as the contracts to
which that legislation applies

is wholly state-owned and which,

in that State,

— reach the relevant threshold as provided for in Article 7(1) of
Directive 92/50, as amended by Directive 2001/78, and

— constitute contracts within the meaning of Article 1(a) of
Directive 92/50, as amended by Directive 2001/78, concluded
in writing for pecuniary interest,

which are matters for the national court to establish.

3) Articles 43 EC, 49 EC and 86 EC, as well as the principles of
equal treatment, non-discrimination by reason of nationality and
transparency, must be interpreted as precluding legislation of a
Member State that allows public authorities to entrust, without
regard to the rules governing the award of public service contracts,
the provision of non-reserved postal services within the meaning of
is
Directive 97/67 to a public limited company whose capital
wholly state-owned and which,
is the provider of
universal postal services, in so far as the contracts to which that
legislation applies

in that State,

— do not

reach the

in
Article 7(1) of Directive 92/50, as amended by Directive
2001/78, and

threshold as provided for

relevant

— do not

in actual

fact constitute a unilateral administrative
measure creating obligations solely for
the
universal postal service and departing significantly from the
that
normal
company,

conditions of a commercial offer made by

the provider of

which are matters for the national court to establish.

(1) OJ C 178, 29.7.2006.

(Case C-250/06) (1)

(Article 49 EC — Freedom to provide services — National
legislation requiring cable operators to broadcast programmes
transmitted by certain private broadcasters (‘must carry’) —
Restriction — Overriding reason relating to the general
interest — Maintenance of pluralism in a bilingual region)

(2008/C 51/26)

Language of the case: French

Referring court

Conseil d'État

Parties to the main proceedings

Applicants: United Pan-Europe Communications Belgium SA,
Coditel Brabant SPRL, Société Intercommunale pour la Diffusion
de la Télévision (Brutele), Wolu TV ASBL

Defendant: État Belge

Intervening parties: BeTV SA, Tvi SA, Télé Bruxelles ASBL, Belgian
Business Television SA, Media ad Infinitum SA, TV5-Monde,

Re:

Reference for a preliminary ruling — Conseil d'État (Belgium)
— Interpretation of Articles 49 EC and 86 EC — Definition of
‘special right’ — Obligation imposed on cabled distribution
companies to distribute television programmes broadcast by
certain broadcasting organisations established mainly in national
territory

Operative part of the judgment

Article 49 EC is to be interpreted as meaning that it does not preclude
legislation of a Member State, such as the legislation at issue in the
main proceedings, which requires, by virtue of a must-carry obligation,
cable operators providing services on the relevant territory of that State
to broadcast television programmes transmitted by private broadcasters
falling under the public powers of that State and designated by the
latter, where such legislation:

— pursues an aim in the general

interest, such as the retention,
pursuant to the cultural policy of that Member State, of the plur-
alist character of the television programmes available in that terri-
tory, and