Case C-568/08: Reference for a preliminary ruling from the Rechtbank Assen (Netherlands) lodged on 22 December 2008 — 1. Combinatie Spijker Infrabouw/De Jonge Konstruktie; 2. Van Spijker Infrabouw B.V.; 3. De Jonge Konstruktie B.V. v Provincie Drenthe
Date: 2008-12-22
Institutions: Court of Justice
Subjects: EU law, award of contract, exchange of information, interpretation of the law, judge, lawyer, public contract

21.3.2009

EN

Official Journal of the European Union

C 69/21

Reference for a preliminary ruling from the Juzgado
Contencioso-Administrativo de Granada (Spain) lodged on
18 December 2008 — Carlos Sáez Sánchez and Patricia
Jalón
Rueda Vargas v Junta de Andalucía and Manuel

Morente and Others, co-defendants

— in the alternative, refer the case back to the Court of First

Instance for a fresh decision;

— order the respondent to pay the costs.

(Case C-563/08)

(2009/C 69/37)

Language of the case: Spanish

Referring court

Juzgado Contencioso-Administrativo de Granada

Parties to the main proceedings

Applicants: Carlos Sáez Sánchez and Patricia Rueda Vargas

Defendants: Junta de Andalucía and Manuel Jalón Morente and
Others

Question referred

Are Articles 2.3 and 2.4 of State Law 16/1997 of 25 April on
pharmaceutical services, in so far as they define territorial and
demographic limits on the opening of pharmacies, contrary to
Article 43 of the Treaty establishing the European Economic
Community,
in that they constitute a disproportionate, even
counterproductive, system for limiting the number of pharma-
cies, in terms of the objective of the proper provision of medi-
cines in the relevant territory?

Appeal brought on 18 December 2008 by SGL Carbon AG
against the judgment of the Court of First Instance (Fifth
Chamber) delivered on 8 October 2008 in Case T-68/04
the European
SGL Carbon AG v Commission of

Communities

(Case C-564/08 P)

(2009/C 69/38)

Language of the case: German

Parties

Appellant: SGL Carbon AG (represented by: M. Klusmann and K.
Beckmann, Rechtsanwälte)

Other party to the proceedings: Commission of
Communities

the European

Form of order sought

— set aside the judgment of the Court of First Instance of the
European Communities (Fifth Chamber) of 8 October 2008
in Case T-68/04 SGL Carbon AG v Commission;

Grounds of appeal and main arguments

The subject-matter of this appeal is the judgment of the Court
of First Instance, which dismissed the appellant's action against
Commission Decision 2004/420/EC of 3 December 2003
relating to a cartel on the market for electrical and mechanical
carbon and graphite products.

The appellant relies on two grounds in support of its appeal,
alleging that the Court of First Instance infringed Community
law and made a procedural error.

By its first ground of appeal the appellant submits that the
Court of First Instance erred in law by failing to have regard to
its submission at first instance that turnover which was internal
to the group of affiliated companies had wrongly been included
in the market volumes used to establish the amounts on which
the fine was based. It also submits that the substantively exces-
sive nature of the amount on which the fine established in
respect of the appellant was based is an infringement of the
principle of non-discrimination and the principle of proportion-
ality as well as an infringement of Article 253 EC.

By its second ground of appeal, the appellant submits that the
Court of First
Instance made an error of assessment, and
exceeded the scope of its discretion, in establishing the amount
on which the appellant's fine was based. The Court of First
Instance thus also infringed the principle of non-discrimination
and the principle of proportionality. It is submitted that the
Court of First Instance departed, without any legal basis, from
its own case-law, to the detriment of the appellant, as regards
the issue of the permissibility of a flat-rate for fines according to
market share categories. Whereas the Court of First Instance had
regarded market share categories or ‘portions’ with a margin of
fluctuation of 5 % as appropriate in similar earlier judgments, it
based its decision in the present case on market share categories
of 10 %, to the significant detriment of the appellant as an
undertaking which is grouped at the bottom end of its category.

Reference for a preliminary ruling from the Rechtbank
Assen (Netherlands)
lodged on 22 December 2008 —
1. Combinatie Spijker Infrabouw/De Jonge Konstruktie;
2. Van Spijker Infrabouw B.V.; 3. De Jonge Konstruktie B.V.
v Provincie Drenthe

(Case C-568/08)

(2009/C 69/39)

Language of the case: Dutch

— reduce, as appropriate, the amount of the fine imposed on
the appellant in Article 2 of the contested Commission deci-
sion of 3 December 2003;

Referring court

Rechtbank Assen

C 69/22

EN

Official Journal of the European Union

21.3.2009

Parties to the main proceedings

Applicants:

1. Combinatie Spijker Infrabouw/De Jonge Konstruktie

2. Van Spijker Infrabouw B.V.

3. De Jonge Konstruktie B.V.

Defendant: Provincie Drenthe

Questions referred

1 (a) Must Article 1(1) and (3) and Article 2(1) and (6) of
Directive 89/665/EEC (1) be interpreted as meaning that
they have not been complied with if the legal protection
to be afforded by national courts in disputes relating to
tendering procedures governed by European law is
impeded by the fact that conflicting decisions may arise
under a system in which both administrative courts and
civil courts may have jurisdiction with respect to the
same decision and its consequences?

(b) Is it permissible in this context for the administrative
courts to be confined to forming an opinion and ruling
on the tendering decision, and if so, why and/or under
what conditions?

(c) Is it permissible in this context for the Algemene wet
bestuursrecht (Netherlands General Law on Administra-
tive Law), which, as a rule, governs applications for
access to the administrative courts, to exclude such appli-
cations in the case of decisions concerning the conclu-
sion of a contract by the contracting authority with one
of
the tenderers, and if so, why and/or under what
conditions?

(d) Is the answer to Question 2 of relevance in this context?

2 (a) Must Article 1(1) and (3) and Article 2(1) and (6) of
Directive 89/665/EEC be interpreted as meaning that
they have not been complied with if the only procedure
for obtaining a rapid decision is characterised by the fact
that
is in principle geared to a rapid mandatory
measure, that lawyers have no right to exchange views,
that [no] evidence is, as a rule, presented in other than
written form and that statutory rules on evidence are not
applicable?

it

(b) If not, does this also apply if the decision does not lead
to the final determination of the legal situation and does
not form part of a decision-making process leading to
such a final decision?

(c) Does it make a difference in this context if the decision
is binding only on the parties to the proceedings, even
though other parties may have an interest?

3. Is it compatible with Directive 89/665/EEC for a court, in
interim relief proceedings, to order the contracting public
authority to take a tendering decision which is subsequently
deemed, in proceedings on the substance, to be contrary to
tendering rules under European law?

4.

(a) If the answer to the previous question is in the negative,
must the contracting public authority be deemed liable
in that regard, and if so, in what sense?

(b) Does the same apply if the answer to that question is in

the affirmative?

(c) If that authority is required to pay damages, does Com-
munity law set criteria for determining and estimating
those damages, and if so, what are they?

(d) If the contracting public authority cannot be deemed
liable,
is it possible, under Community law, for some
other person to be shown to be liable, and on what
basis?

5. If it in fact appears to be impossible, or extremely difficult,
under national law and/or with the aid of the answers to the
above questions to attribute liability, what must the national
court do?

(1) 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 1989 L 395, p. 33).

Reference for a preliminary ruling from the Oberster
lodged on 22 December 2008 —
Gerichtshof (Austria)

Internetportal und Marketing GmbH v Richard Schlicht

(Case C-569/08)

(2009/C 69/40)

Language of the case: German

Referring court

Oberster Gerichtshof

Parties to the main proceedings

Applicant: Internetportal und Marketing GmbH

Defendant: Richard Schlicht