Case C-148/08: Reference for a preliminary ruling from the Juzgado de lo Mercantil No 1 (Commercial Court No 1), Spain lodged on 9 April 2008 — Finn Mejnertsen v Betina Mandal Barsoe
Date: 2008-04-09
Institutions: Court of Justice
Subjects: Denmark, EU Member State, EU law - national law, financial solvency, interpretation of the law, judicial cooperation, judicial proceedings

7.6.2008

EN

Official Journal of the European Union

C 142/19

Reference for a preliminary ruling from the Simvoulio tis
Epikratias (Greece) lodged on 9 April 2008 — Club Hotel
Loutraki AE, Athinaïki Tekhniki AE and Evangelos
and
Marinakis v Ethniko Simvoulio Radiotileorasis

Ipourgos Epikratias

(Case C-145/08)

(2008/C 142/30)

Language of the case: Greek

Referring court

Simvoulio tis Epikratias

Parties to the main proceedings

Claimants: Club Hotel Loutraki AE, Athinaïki Tekhniki AE and
Evangelos Marinakis

Defendants: Ethniko Simvoulio Radiotileorasis and Ipourgos
Epikratias

Questions referred

1. Does a contract by which the contracting authority entrusts
to the contracting undertaking the management of a casino
business and the execution of a development plan consisting
in the upgrading of the casino premises and the commercial
exploitation of
the possibilities offered by the casino's
licence, and which contains a term under which the
contracting authority is obliged to pay the contracting under-
taking compensation should another casino lawfully operate
in the wider area in which the casino in question operates,
constitute
by Directive
92/50/EEC?

concession, not

governed

a

2. If

the first question referred for a preliminary ruling is
answered in the negative: does a legal action which is
brought by persons who have participated in the procedure
for the award of a public contract of mixed form providing
inter alia for the supply of services subject to Annex I B to
Council Directive 92/50/EEC of 18 June 1992 relating to the
coordination of procedures for the award of public service
contracts (OJ 1992 L 209), and in which they plead breach
of the principle of equal treatment of participants in tender
procedures (a principle affirmed by Article 3(2) of that direc-
tive), fall within the field of application of Council Directive
89/665/EEC of 21 December 1989 on the coordination of
the laws, regulations and administrative provisions relating
to the application of review procedures to the award of
public supply and public works contracts (OJ 1989 L 395),
in accordance
or is its application precluded inasmuch as,
with Article 9 of Directive 92/50/EEC, only Articles 14
and 16 of the latter apply to the procedure for the award of
the abovementioned contract for the supply of services?

3. If the second question referred for a preliminary ruling is
answered in the affirmative: accepting that a national provi-
sion in accordance with which only all the members of a
consortium without legal personality which has participated

is not

unsuccessfully in a public procurement procedure can bring
a legal action against the act awarding the contract, and not
consortium members
in principle
individually,
contrary to Community law and specifically to Directive
89/665, and that that still applies where the legal action has
initially been brought by all the members of the consortium
jointly but ultimately proves, as regards some of them, to be
inadmissible, is it in addition necessary, from the viewpoint
of application of that directive, to examine, in order to make
a declaration of
inadmissibility, whether those individual
members thereafter retain the right to claim before another
national court any damages which may be envisaged by a
provision of national law?

4. When it has been held by settled case-law of a national court
that an individual member of a consortium may also bring
an admissible legal action against an act falling within a
public procurement procedure, is it compatible with Direc-
tive 89/665/EEC, interpreted in the light of Article 6 of the
European Convention on Human Rights as a general prin-
ciple of Community law, to dismiss a legal action as inadmis-
sible, because of a change to that settled case-law, without
the person who has brought that legal action first being
given either the opportunity to cure the inadmissibility or, in
any event, the opportunity to set out, pursuant to the adver-
sarial principle, his views relating to that issue?

Reference for a preliminary ruling from the Juzgado de lo
Mercantil No 1 (Commercial Court No 1), Spain lodged on
9 April 2008 — Finn Mejnertsen v Betina Mandal Barsoe

(Case C-148/08)

(2008/C 142/31)

Language of the case: Spanish

Referring court

Juzgado de lo Mercantil No 1 (Commercial Court No 1), Spain

Parties to the main proceedings

Applicant: Finn Mejnertsen

Defendant: Betina Mandal Barsoe

Questions referred

1. For the purposes of Articles 1 and 2 of the Protocol on
the position of Denmark, annexed to the Treaty of European
Union and the Treaty establishing the European Community,
should Denmark be considered to be a Member State
within the meaning of Article 16 of Regulation (EC)
No 1346/2000 (1) on insolvency proceedings?

C 142/20

EN

Official Journal of the European Union

7.6.2008

2. Does the fact that that Regulation is subject to that Protocol
mean that that Regulation does not form part of the body of
Community law in that country?

3. Does the fact that Regulation No 1346/2000 is not binding
on and is not applicable in Denmark mean that other
Member States are not to apply that Regulation in respect of
the recognition and enforcement of judicial declarations of
insolvency handed down in that country, or, on the other
hand, that other Member States are obliged, unless they have
made derogations, to apply that Regulation when the judicial
declaration of insolvency is handed down in Denmark and is
presented for recognition and enforcement in other Member
States, in particular, in Spain?

(1) Regulation (EC) No 1346/2000 of the Council, of 29 May 2000

(OJ L 160, p. 1).

Reference for a preliminary ruling from the Simvoulio tis
lodged on 11 April 2008 — Aktor
Epikratias (Greece)
(Αktor A.T.E.) v Ethniko
Anonimi Tekhniki Etairia

Simvoulio Radiotileorasis

(Case C-149/08)

(2008/C 142/32)

Language of the case: Greek

Referring court

Simvoulio tis Epikratias

Parties to the main proceedings

Claimant: Aktor Anonimi Tekhniki Etairia (Αktor A.T.E.)

Defendant: Ethniko Simvoulio Radiotileorasis

Intervener: Mikhaniki A.E.

Questions referred

1. Accepting that a national provision in accordance with
which only all the members of a consortium without legal
personality which has participated unsuccessfully in a public
procurement procedure can bring a legal action against the
act awarding the contract, and not consortium members
individually, is not in principle contrary to Community law
that still
and specifically to Directive 89/665, and that
applies where the legal action has initially been brought by
all the members of the consortium but ultimately proves, as
regards some of them, to be inadmissible, is it in addition
necessary, from the viewpoint of application of that directive,
to examine, in order to make a declaration of inadmissibility,
whether those individual members thereafter retain the right
to claim before another national court any damages which
may be envisaged by a provision of national law?

2. When it has been held by settled case-law of a national court
that an individual member of a consortium may also bring
an admissible legal action against an act falling within a
public procurement procedure, is it compatible with Direc-
tive 89/665/EEC, interpreted in the light of Article 6 of the
European Convention on Human Rights as a general prin-
ciple of Community law, to dismiss a legal action as inadmis-
sible, because of a change to that settled case-law, without
the person who has brought that legal action first being
given either the opportunity to cure the inadmissibility or, in
any event, the opportunity to set out, pursuant to the adver-
sarial principle, his views relating to that issue?

Action brought on 15 April 2008 — Commission of the
European Communities v Kingdom of Spain

(Case C-153/08)

(2008/C 142/33)

Language of the case: Spanish

Parties

Applicant: Commission of the European Communities (repre-
sented by: R. Lyal and L. Lozano Palacios, acting as Agents)

Defendant: Kingdom of Spain

Form of order sought

The applicant claims that the Court should:

— declare that, by maintaining in force fiscal legislation taxing
winnings from all types of lotteries, games and betting orga-
nised outside the Kingdom of Spain, whereas winnings
obtained from certain lotteries, games and betting organised
within the Kingdom of Spain are exempted from income
tax, the Kingdom of Spain has failed to fulfil its obligations
under Community law and, in particular, under Article 49 EC
and Article 36 of the Agreement on the European Economic
Area;

— order the Kingdom of Spain to pay the costs.

Pleas in law and main arguments

Under Spanish legislation, winnings from lotteries and betting
organised by Loterías y Apuestas del Estado (the Spanish public-
law body in charge of lotteries and betting) or by bodies or enti-
ties of the Comunidades Autónomas (Autonomous Commu-
nities), and winnings from lotteries organised by the Spanish
Red Cross or the Organización Nacional de Ciegos Españoles
(Spanish national association for the blind) are exempt from
income tax. However, income from lotteries, games or betting
organised by other national bodies or by foreign bodies,
including those established in Member States of the European
Union or the European Economic Area, is added to the taxable
amount and subject to progressive rates of taxation.