Case C-452/08: Reference for a preliminary ruling from the Tribunal Superior de Justicia de la Comunidad Autónoma del País Vasco (Spain) lodged on 16 October 2008 — Emilia Flores Fanega v Instituto Nacional de la Seguridad Social (INSS), Tesorería General de la Seguridad Social (TGSS) and Bolumburu S.A.
Date: 2008-10-16
Institutions: Court of Justice
Subjects: Germany, interpretation of the law, property market, provision of services, public contract

10.1.2009

EN

Official Journal of the European Union

C 6/13

Questions referred

1. Is it a requirement, in order for there to be a public works
contract under Art. 1(2)(b) of European Parliament and
Council Directive 2004/18/EC of 31 March 2004 (1) on the
coordination of procedures for the award of public works
contracts, public
service
contracts, that the works be physically carried out for the
public contracting authority and bring it an immediate
economic benefit?

supply contracts

and public

in Article 1(2)(b) of Directive 2004/18/EC,

2. In so far as, according to the definition of a public works
the
contract
element of procurement is indispensable: Is procurement to
be regarded as having taken place, in accordance with the
second variant of the provision, if the intended works for the
public contracting authority fulfil a particular public purpose
(for example the development of part of a town) and the
public contracting authority has the legal right under the
contract to ensure that the public purpose is achieved and
that the necessary works will be available?

3. Does the concept of a public works contract in accordance
with the first and second variants of Article 1(2)(b) of Direc-
tive 2004/18/EC require that the contractor be directly or
indirectly obliged to provide the works. If so, must there be a
legally enforceable obligation?

4. Does the concept of a public works contract in accordance
with the third variant of Article 1(2)(b) of Directive
2004/18/EC require that the contractor be obliged to carry
out works, or that works form the subject-matter of the
contract?

5. Do contracts by which, through the requirements specified
by the public contracting authority, it is intended to ensure
that the works to be carried out for a particular public
purpose be available, and by which (by contractual stipula-
tion) the contracting body is given the legal power to ensure
(in its own indirect interest) the availability of the works for
the public purpose,
third variant of
fall within the
Article 1(2)(b) of Directive 2004/18/EC?

6. Is the concept of ‘requirements specified by the contracting
authority’ in Article 1(2)(b) of Directive 2004/18/EC fulfilled,
if the works are to be carried out in accordance with plans
examined and approved by the public contracting authority?

8. Does Directive 2004/18/EC — with the legal consequence of
an obligation on the public contracting authority to invite
tenders — apply if a sale of land by a third party and the
award of a public works contract take place at different times
and on the conclusion of the land sale the public works
contract has not yet been awarded, but at the last-mentioned
time there was, on the part of the public authority, the inten-
tion to award such a contract?

9. Are separate but related transactions concerning a sale of
land and a public works contract to be regarded from the
point of view of the law on the awarding of contracts as a
unity, if at the time the land sale contract was entered into
the award of a public works contract was intended and the
participants deliberately created a close connection between
the contracts from a substantive — and possibly also
temporal — point of view (see Case C-29/04 Commission v
Austria [2005] I 9722)?

(1) OJ 2004 L 134, p. 114.

Reference for a preliminary ruling from the Tribunal
Superior de Justicia de la Comunidad Autónoma del País
Vasco (Spain) lodged on 16 October 2008 — Emilia Flores
Fanega v Instituto Nacional de la Seguridad Social (INSS),
(TGSS) and
Tesorería General de la Seguridad Social

Bolumburu S.A.

(Case C-452/08)

(2009/C 6/21)

Language of the case: Spanish

Referring court

Tribunal Superior de Justicia de la Comunidad Autónoma del
País Vasco

Parties to the main proceedings

Applicant: Emilia Flores Fanega

7. Must there be held to be no public works concession under
Article 1(3) of Directive 2004/18/EC, if the concessionaire is
or will become the owner of the land on which the works
are to be carried out, or the concession is granted for an
indeterminate period?

Instituto Nacional de la Seguridad Social

Defendant:
(INSS),
Tesorería General de la Seguridad Social (TGSS) and Bolumburu
S.A.

C 6/14

EN

Official Journal of the European Union

10.1.2009

Questions referred

Action brought on 30 October 2008 — Commission of the
European Communities v French Republic

1. Is Clause 2(6) of Annex 1 to Council Directive 96/34/EC (1)
of 3 June 1996 to be interpreted as meaning that observance
of rights in the process of being acquired extends to a
pension for life on the ground of a person's total and perma-
nent incapacity to perform her usual work, arising during
the period of a year's parental leave taken in the form of a
reduction in the working day and pay, as a result of an occu-
pational disease contracted in carrying out the work she was
employed to perform for the undertaking that gave the
parental leave and revealing itself during that leave period,
having regard to the fact that Social Security covers that
benefit in subrogation to the obligations of the undertaking,
the relationship of compulsory insurance
by reason of
against
the risks of accidents at work and occupational
diseases?

2. If the reply to the first question is affirmative, is that provi-
sion to be interpreted as meaning that the guarantee of
protection which it provides is infringed by a provision of
domestic law that, with the object of fixing the amount of
pension for total permanent invalidity on account of occupa-
tional disease, takes into consideration the pay received by
the worker concerned and the contributions actually made
on the basis of that pay in the 12 months before the opera-
tive event, during the greater part of which the worker made
use of that leave with a reduction in her working day, pay
and contributions, but does not provide any correcting factor
making it possible to ensure that the object of that provision
of Community law is achieved?

3. At all events, and whatever the tenor of the answer to the
foregoing questions, are Clauses 2(8) and 4(2) of Annex I to
that directive to be interpreted as meaning that the obliga-
tions and measures that they prescribe are incompatible with
the application of a rule of calculation such as
that
described?

4. Irrespective of

the replies to the foregoing questions,

is
Article 4(1) of Council Directive 79/7/EEC of 19 December
1978 on the progressive implementation of the principle of
equal treatment for men and women in matters of social
security, in conjunction with Article 5 thereof, to be inter-
preted as meaning that it is contrary to the principle of equal
treatment to apply a calculation formula such as that referred
to, given that, according to the statistics, female workers
form the overwhelming majority of workers availing them-
selves of the form of parental leave described?

(Case C-468/08)

(2009/C 6/22)

Language of the case: French

Parties

Applicant: Commission of the European Communities (repre-
sented by: H. Støvlbæk and V. Peere, acting as Agents)

Defendant: French Republic

Form of order sought

— declare that, by failing to adopt, within the prescribed
period, the laws, regulations and administrative provisions
necessary to comply with Directive 2005/36/EC of the Euro-
pean Parliament and of the Council of 7 September 2005
on the recognition of professional qualifications (1) or,
in
any event, by failing to inform the Commission thereof, the
French Republic has failed to fulfil its obligations under that
Directive;

— order the French Republic to pay the costs.

Pleas in law and main arguments

the transposition of Directive 2005/36/EC
The period for
expired on 20 October 2007. At the date of bringing this
action, the defendant had not yet taken all the measures neces-
sary to transpose the Directive or,
it had not
informed the Commission of them.

in any event,

(1) OJ 2005 L 255, p. 22.

Action brought on 30 October 2008 — Commission of the
European Communities v Kingdom of Belgium

(Case C-469/08)

(2009/C 6/23)

Language of the case: French

(1) Council Directive 96/34/EC of 3 June 1996 on the framework agree-
ment on parental leave concluded by UNICE, CEEP and the ETUC,
(OJ L 145, 19.6.1996, p. 4).

Parties

Applicant: Commission of the European Communities (repre-
sented by: H. Støvlbæk and V. Peere, acting as Agents)

Defendant: Kingdom of Belgium