Case C-451/08: Reference for a preliminary ruling from the Oberlandesgericht Düsseldorf (Germany) lodged on 16 October 2008 — Helmut Müller GmbH v Bundesanstalt für Immobilienaufgaben
Date: 2008-10-28
Institutions: Court of Justice
Subjects: EU law, Netherlands, aid to agriculture, farm rent, interpretation of the law

C 6/12

EN

Official Journal of the European Union

10.1.2009

— order French Republic to pay the costs.

Questions referred

Pleas in law and main arguments

The applicant submits that the concepts of ‘small installation’
and ‘substantial change’, as defined in Articles 2(3) and 2(4) of
Directive 1999/13/EC, are necessary in order
to ensure a
harmonised and efficient application of that directive in so far
as they specify the obligations applying to certain categories of
industrial
installations referred to by that directive. There are
many omissions in that regard in the transposition of the direc-
tive into French law because the defendant did not include any
definition of the concept ‘small installation’, while its definition
of the concept ‘substantial change’ does not take into account
the thresholds for the increase of emissions of volatile organic
compounds, above which the change in an installation must be
considered to be substantial.

The applicant also criticises the lack of precision and clarity in
the transposition of Article 4(4) of the Directive concerning the
obligations applying to substantial changes in existing installa-
tions. The rules relating to new installations being stricter than
those applicable to old installations, clearer rules should in fact
be drawn up also in the cases where an existing installation
undergoes significant changes in order to ensure the directive,
the purpose of which is to guarantee a high level of protection
of the environment, remains effective.

(1) OJ 1999 L 85, p. 1.

1. Should Article

of

42(4)

Council

Regulation

(EC)
No 1782/2003 of 29 September 2003 (1) be interpreted as
permitting a Member State to establish a reference amount
of EUR 0 and not to allocate entitlements to payments from
the national reserve to a farmer who finds himself
in a
special situation as described in Article 21 of Commission
Regulation (EC) No 795/2004 of 21 April 2004 (2)?

2. If the answer to that question is in the affirmative, does
Community law preclude the application of a provision such
as Article 17(1)(b) of the Regeling GLB-inkomenssteun 2006
(2006 Netherlands Regulations on CAP income support),
under which any increase in the amount of additional
payments arising as a result of an investment in production
capacity or a purchase of land is subject to a deduction of
EUR 500 before a reference amount is established as the
basis for the allocation of entitlements to payments from the
national reserve?

schemes

(1) Regulation establishing common rules for direct support schemes
the common agricultural policy and establishing certain
under
(EEC)
support
(EC)
No 2019/93,
No 1454/2001,
(EC)
No 1254/1999, (EC) No 1673/2000, (EEC) No 2358/71 and (EC)
No 2529/2001 (OJ 2003 L 270, p. 1).

farmers and amending Regulations
(EC) No 1453/2001,
(EC) No 1251/1999,

(EC) No 1452/2001,
(EC) 1868/94,

for

(2) Regulation laying down detailed rules for the implementation of the
single payment scheme provided for in Council Regulation (EC)
No 1782/2003 establishing common rules
support
schemes under the common agricultural policy and establishing
certain support schemes for farmers (OJ 2004 L 141, p. 1).

for direct

Reference for a preliminary ruling from the College van
lodged on
Beroep voor het bedrijfsleven (Netherlands),
13 October 2008 — G. Elbertsen v Minister van Landbouw,
Natuur en Voedselkwaliteit

Reference for a preliminary ruling from the Oberlandes-
lodged on 16 October
(Germany)
gericht Düsseldorf
für
2008 — Helmut Müller GmbH v Bundesanstalt

Immobilienaufgaben

(Case C-449/08)

(2009/C 6/19)

Language of the case: Dutch

(Case C-451/08)

(2009/C 6/20)

Language of the case: German

Referring court

Referring court

College van Beroep voor het bedrijfsleven

Oberlandesgericht Düsseldorf

Parties to the main proceedings

Parties to the main proceedings

Claimant: G. Elbertsen

Applicant: Helmut Müller GmbH

Defendant: Minister van Landbouw, Natuur en Voedselkwaliteit

Defendant: Bundesanstalt für Immobilienaufgaben

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.