Case C-405/08: Reference for a preliminary ruling from the Vestre Landsret (Denmark) lodged on 18 September 2008 — Ingeniørforeningen i Danmark, acting for Bertram Holst v Dansk Industri, acting for Babcock & Wilcox Vølund ApS
Date: 2008-09-18
Institutions: Court of Justice
Subjects: Denmark, interpretation of the law, socioprofessional category, trade union

C 301/22

EN

Official Journal of the European Union

22.11.2008

Q9 Whether the protection afforded to the Anthem can be
any broader than that afforded to the rest of the
broadcast

Reference for a preliminary ruling from the Vestre
Landsret (Denmark)
lodged on 18 September 2008 —
Ingeniørforeningen i Danmark, acting for Bertram Holst v
Dansk Industri, acting for Babcock & Wilcox Vølund ApS

Do Articles 28 and 30 or 49 of the EC Treaty preclude enforce-
ment of a provision of national copyright law which makes it
unlawful to perform or play in public a musical work where
that work is included in a protected service which is accessed
and played in public by use of a satellite decoder card where
that card has been issued by the service provider in another
Member State on the condition that the decoder card is only
authorised for use in that other Member State? Does it make a
difference if the musical work is an unimportant element of the
protected service as a whole and the showing or playing in
public of the other elements of the service are not prevented by
national copyright law?

(Case C-405/08)

(2008/C 301/35)

Language of the case: Danish

E. On the interpretation of the Treaty rules on competi-

tion under Article 81 EC

Referring court

Vestre Landsret

Q10 Defence under Art 81EC

Where a programme content provider enters into a series of
exclusive licences each for the territory of one or more Member
States under which the broadcaster is licensed to broadcast the
programme content only within that
territory (including by
satellite) and a contractual obligation is included in each licence
requiring the broadcaster to prevent its satellite decoder cards
which enable reception of
the licensed programme content
from being used outside the licensed territory, what legal test
should the national court apply and what circumstances should
it take into consideration in deciding whether the contractual
restriction contravenes the prohibition imposed by Article 81(1)?

In particular:

Parties to the main proceedings

Applicant:
Holst

Ingeniørforeningen i Danmark, acting for Bertram

Defendant: Dansk Industri, acting for Babcock & Wilcox Vølund
ApS

(a) must Article 81(1) be interpreted as applying to that obliga-
tion by reason only of it being deemed to have the object of
preventing, restricting or distorting competition?

Question referred

(b) if so, must it also be shown that the contractual obligation
appreciably prevents, restricts or distorts competition in
order
to come within the prohibition imposed by
Article 81(1)?

(1) OJ L 320, p. 54.
(2) Council Directive 89/552/EEC of 3 October 1989 on the coordina-
tion of certain provisions laid down by Law, Regulation or Adminis-
trative Action in Member States concerning the pursuit of television
Broadcasting activities (OJ L 298, p. 23).

(3) OJ L 167, p. 10.
(4) OJ L 248, p. 15.

1. There is disagreement amongst the parties as to whether
Directive 2002/14/EC establishing a general framework for
informing and consulting (1) employees has been correctly
implemented in the Cooperation Agreement between DA
and LO. In that connection, do Community rules preclude
implementation of a directive in such a manner that groups
of employees are covered by a collective agreement between
parties which do not represent the professional group of the
persons concerned and where the collective agreement does
not cover the professional group of the persons concerned?

2. If Directive 2002/14/EC has been correctly implemented for
BH in the Cooperation Agreement between DA and LO, has
Article 7 of the Directive been correctly implemented when
it is established that the Cooperation Agreement does not
contain a high standard of protection against dismissal for
certain professional groups?

22.11.2008

EN

Official Journal of the European Union

C 301/23

the

3. If BH is covered by the legislative implementation of the
Directive, do the requirements of Article 7 of the Directive
concerning ‘adequate protection and guarantees to enable them to
perform properly the duties which have been assigned to them’
preclude an implementation of Article 7 of the Directive in
section 8 of
[Law on informing and consulting
employees], which reads as follows: ‘The representatives who are
to be informed and consulted on behalf of the employees shall be
protected against dismissal or other adverse consequences for their
conditions of employment in the same manner as union representa-
tives in the same or a similar professional field’, if the implemen-
tation does not contain a high standard of protection against
dismissal for professional groups which are not covered by a
collective agreement?

(1) OJ 2002 L 80, p. 29.

Reference for a preliminary ruling from High Court of
Justice (England and Wales)
(Queen's Bench Division),
Leeds District Registry, made on 18 September 2008 —
Uniplex (UK) Ltd v NHS Business Services Authority

(Case C-406/08)

(2008/C 301/36)

Language of the case: English

proceedings are to be brought promptly and in any event
within 3 months from the date when grounds for the
bringing of the proceedings first arose, unless the Court
considers that there is good reason for extending the period,
to be interpreted, in light of Directive 89/665/EEC (2), Arti-
cles 1 and 2, and the Community law principle of equiva-
lence and the Community law requirement for effective legal
protection, and/or the principle of effectiveness, and having
regard to any other relevant principles of EC law, as confer-
ring an individual and unconditional right upon the tenderer
against the contracting authority such that the time for the
bringing of proceedings challenging such a tender exercise
and award starts running as from the date when the
tenderer knew or ought to have known that the procure-
ment procedure and award infringed EC public procurement
law or as from the date of breach of the applicable public
procurement provisions; and

(b) in either event how is a national court then to apply (i) any
requirement for proceedings to be brought promptly and
(ii) any discretion as to extending the national
limitation
period for the bringing of such proceedings?

(1) Directive 2004/18/EC 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 (OJ L 134, p. 114).

the European Parliament and of

(2) Council Directive 89/665/EEC of 21 December 1989 on the coordi-
nation 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 L 395, p. 33).

Referring court

High Court of Justice (Queen's Bench Division)

Appeal brought on 23 September 2008 by Sviluppo Italia
Basilicata SpA against the judgment delivered on 8 July
2008 in Case T-176/06 Sviluppo Italia Basilicata SpA v
Commission of the European Communities

Parties to the main proceedings

Applicant: Uniplex (UK) Ltd

Defendant: NHS Business Services Authority

Questions referred

Where an economic operator is challenging in national proceed-
ings the award of a framework agreement by a contracting
authority following a public procurement exercise in which he
was a tenderer and which was required to be conducted in
accordance with Directive 2004/18/EC (1) (and applicable imple-
menting national provisions), and is
in those proceedings
seeking declarations and damages for breach of applicable
public procurement provisions as regards that exercise and
award:

(Case C-414/08 P)

(2008/C 301/37)

Language of the case: Italian

Parties

Appellants: Sviluppo Italia Basilicata SpA (represented by:
F. Sciaudone, R. Sciaudone and A. Neri, avvocati)

(a) is a national provision such as Regulation 47(7)(b) of the
Public Contracts Regulations 2006 which states that those

Other party to the proceedings: Commission of
Communities

the European