Case C-393/06: Judgment of the Court (Fourth Chamber) of 10 April 2008 (reference for a preliminary ruling from the Vergabekontrollsenat des Landes Wien, Austria) — Ing. Aigner, Wasser-Wärme-Umwelt GmbH v Fernwärme Wien GmbH (Public contracts — Directives 2004/17/EC and 2004/18/EC — Contracting entity pursuing activities falling in part within the field of application of Directive 2004/17/EC and in part within that of Directive 2004/18/EC — Body governed by public law — Contracting authority)
Date: 2008-04-10
Institutions: Court of Justice
Subjects: award of contract, competition law, heating, interpretation of the law, public contract, services contract, supplies contract, works contract

24.5.2008

EN

Official Journal of the European Union

C 128/9

Operative part of the judgment

Article 48(2) of Council Regulation (EEC) No 1408/71 of 14 June
1971 on the application of social security schemes to employed
persons, to self-employed persons and to members of their families
moving within the Community, as amended and updated by Regu-
lation (EC) No 631/2004 of the European Parliament and of the
Council of 31 March 2004, requires the competent institution of the
last Member State in which a worker who is a national of a Member
State resided to take into account, in calculating the old age pension of
that worker, who, when he submits his pension claim, is resident in a
non-Member State, of the periods worked in another Member State
resided in the
under
European Community.

the same conditions as if

that worker still

(1) OJ C 281, 18.11.2006.

Judgment of the Court (Second Chamber) of 3 April 2008
(reference for a preliminary ruling from the Oberlandes-
gericht Celle (Germany)) — Dirk Rüffert, in his capacity as
liquidator of the assets of Objekt und Bauregie GmbH &
Co. KG v Land Niedersachsen

(Case C-346/06) (1)

(Article 49 EC — Freedom to provide services — Restrictions
— Directive 96/71/EC — Posting of workers in the context of
the provision of services — Procedures for the award of public
works contracts — Social protection of workers)

(2008/C 128/13)

Language of the case: German

Referring court

Oberlandesgericht Celle

Parties to the main proceedings

with, and ensure compliance by their subcontractors with, the
provisions on minimum pay prescribed by the collective agree-
ment in force at the place where the services in question are to
be provided.

Operative part of the judgment

the provision of

interpreted in the

Directive 96/71/EC of the European Parliament and of the Council of
16 December 1996 concerning the posting of workers in the frame-
work of
light of
services,
Article 49 EC, precludes an authority of a Member State, in a situa-
tion such as that at issue in the main proceedings, from adopting a
measure of a legislative nature requiring the contracting authority to
designate as contractors for public works contracts only those undertak-
ings which, when submitting their tenders, agree in writing to pay
their employees, in return for performance of the services concerned, at
least
the
the remuneration prescribed by the collective agreement
minimum wage
services are
performed.

the place where

in force at

those

(1) OJ C 294, 2.12.2006.

the Court (Fourth Chamber) of 10 April
Judgment of
a preliminary ruling from the
2008 (reference for
Vergabekontrollsenat des
Landes Wien, Austria) —
Ing. Aigner, Wasser-Wärme-Umwelt GmbH v Fernwärme
Wien GmbH

(Case C-393/06) (1)

(Public contracts — Directives 2004/17/EC and 2004/18/EC
— Contracting entity pursuing activities falling in part within
the field of application of Directive 2004/17/EC and in part
within that of Directive 2004/18/EC — Body governed by
public law — Contracting authority)

(2008/C 128/14)

Language of the case: German

Applicant: Dirk Rüffert, in his capacity as liquidator of the assets
of Objekt und Bauregie GmbH & Co. KG

Referring court

Defendant: Land Niedersachsen

Vergabekontrollsenat des Landes Wien

Re:

Parties to the main proceedings

Preliminary reference — Oberlandesgericht Celle (Germany) —
Interpretation of Article 49 EC — National legislation requiring
undertakings involved in the tendering procedure for public-
works contracts to give a commitment that they will comply

Applicant: Ing. Aigner, Wasser-Wärme-Umwelt GmbH

Defendant: Fernwärme Wien GmbH

C 128/10

EN

Official Journal of the European Union

24.5.2008

Re:

Reference for a preliminary ruling — Vergabekontrollsenat des
Landes Wien — Interpretation of Article 2(1) and of Article 3
of Directive 2004/17/EC of the European Parliament and of the
Council of 31 March 2004 coordinating the procurement
procedures of entities operating in the water, energy, transport
and postal services sectors (OJ 2004 L 134, p. 1) and interpreta-
tion of Article 1(9) of Directive 2004/18/EC of the European
Parliament and of the Council of 31 March 2004 on the coordi-
nation of procedures for the award of public works contracts,
public supply contracts and public service contracts (OJ 2004
L 134, p. 114) — Award of contract for heating equipment —
The contracting authority is an undertaking controlled by the
City of Vienna providing public services (district heating) —
Body governed by public law — Assessment of the condition of
competition — Application of European market award proce-
dures also to activities carried out under competitive conditions
(in the present case, air conditioning systems) — Contamination
theory — No cross-subsidies

Operative part of the judgment

1. A contracting entity, within the meaning of Directive 2004/17/EC
of the European Parliament and of the Council of 31 March 2004
coordinating the procurement procedures of entities operating in the
water, energy, transport and postal services sectors is required to
apply the procedure laid down in that directive only for the award
of contracts which relate to activities carried out by that entity in
one or more of the sectors listed in Articles 3 to 7 of that directive.

2. An entity such as Fernwärme Wien GmbH is to be regarded as a
body governed by public law within the meaning of the second sub-
paragraph of Article 2(1)(a) of Directive 2004/17 and the second
the
subparagraph of Article 1(9) of Directive 2004/18/EC of
European Parliament and of the Council of 31 March 2004 on
the coordination of procedures for
the award of public works
contracts, public supply contracts and public service contracts.

3. All contracts awarded by an entity which is a body governed by
public law, within the meaning of Directive 2004/17 or Directive
2004/18, which relate to activities carried out by that entity in
one or more of the sectors listed in Articles 3 to 7 of Directive
2004/17 must be subject to the procedures laid down in that
directive. However, all other contracts awarded by such an entity in
connection with the exercise of other activities are covered by the
procedures laid down in Directive 2004/18. Each of these two
directives applies without distinction between the activities carried
out by that entity to accomplish its task of meeting needs in the
general interest and activities which it carries out under competitive
conditions, and even where there is an accounting system intended
to make a clear internal separation between those activities in order
to avoid cross financing between those sectors.

Judgment of the Court (Seventh Chamber) of 10 April
the European Communities v
2008 — Commission of

Kingdom of the Netherlands

(Case C-398/06) (1)

(Failure of a Member State to fulfil obligations — Right of
residence of nationals of Members States of the European
Union and of the European Economic Area who are non-active
and pensioned persons — National legislation and administra-
tive practice requiring personal resources sufficient for a stay
of at least a year in the host Member State)

(2008/C 128/15)

Language of the case: Dutch

Parties

Applicant: Commission of the European Communities (repre-
sented by: M. Condou-Durande and R. Troosters, acting as
Agents)

Defendant: Kingdom of the Netherlands (represented by: H.G.
Sevenster and D.J.M. de Grave, Agents)

Intervener in support of the form of order sought by the defendant:
United Kingdom of Great Britain and Northern Ireland (repre-
sented by: E. O'Neill, Agent, and J. Stratford, Barrister)

Re:

Failure of a Member State to fulfil obligations — Infringement
of the Community rules on the residence of citizens of the
Union — National legislation and administrative practice which
require that, in order to obtain a residence permit, non-active
and pensioned persons must have adequate personal resources

Operative part of the judgment

The Court:

in order to obtain a residence permit, nationals of

1. Declares that, by maintaining in force national provisions under
the
which,
the European Economic Area who are
European Union and of
non-active and retired must prove that
they have sustainable
resources, the Kingdom of the Netherlands has failed to fulfil its
obligations under Council Directive 68/360/EEC of 15 October
1968 on the abolition of restrictions on movement and residence
within the Community for workers of Member States and their
families, Council Directive 90/364/EEC of 28 June 1990 on the
right of residence and Council Directive 90/365/EEC of 28 June
1990 on the right of residence for employees and self-employed
persons who have ceased their occupational activity;

2. Orders the Kingdom of the Netherlands to pay the costs;

3. Orders the Kingdom of Great Britain and Northern Ireland to bear

its own costs.

(1) OJ C 310, 16.12.2006.

(1) OJ C 294, 2.12.2006.