CELEX: C1997/271/12
Language: en
Date: 1997-09-06 00:00:00
Title: Reference for a preliminary ruling by the Tribunal de Commerce, Brussels, by judgment of that court of 7 July 1997 in the case of Procureur du Roi v. Déménagements-Manutention Transport SA, abbreviated as D.M. Transport (Case C-256/97)

C 271 /8             1 EN 1               Official Journal of the European Communities                                    6 . 9 . 97
    — breach of the principle of proportionality: if, in             2.  Is it relevant that in Austria most nurseries are State­
         observance of the Commission's interim measure,                 run or State-aided ?
         Portugal were to take the step of suspending
         immediately the State's guarantee, the creditor
         banks could demand immediate payment by the
         State of EPAC 's credit — which would thus be
         rendered insolvent and consequently have to be
         wound up — or directly from the Portuguese State            Reference for a preliminary ruling from the
         on the basis of its contractual responsibility.             Handelsgericht Wien by order of that court of 24 March
                                                                     1997 in the case of Pfeiffer Großhandel GmbH v. Löwa
                                                                                          Warenhandel GmbH
         The measure which the Commission seeks to
         impose is, therefore, manifestly fundamental and                                   ( Case C-255/97)
         inappropriate and absolutely disproportionate to                                     ( 97/C 271/11 )
         any damage — which the Commission did not
         even attempt to identify — which might arise from
         the State's maintaining the guarantee until the final       Reference has been made to the Court of Justice of the
         decision,                                                   European Communities by an order of the Handelsgericht
                                                                     Wien ( Commercial Court, Vienna ) of 24 March 1997,
                                                                     which was received at the Court Registry on 14 July 1997,
    — failure of the Commission to provide figures for its           for a preliminary ruling in the case of Pfeiffer Großhandel
         accounting: the mere granting of the State                  GmbH v. Löwa Warenhandel GmbH on the following
         guarantee does not constitute aid since the                 question:
         guarantee cannot be described as aid inasmuch as
          EPAC is not due payment of amounts owed by                 Is Article 30 or Article 52 et seq. of the EC Treaty to be
         way of capital or interest from the State acting as         interpreted as precluding the application of national
         guarantor on behalf of a debtor undertaking, nor            provisions which require that in the case of trade marks or
         would it be sufficient that EPAC's claim against            designations of undertakings which are liable to be
          Silopor, for which the State is liable, were satisfied     confused the one with earlier priority is to be protected,
          for EPAC to be able to dispense entirely with the          and hence prohibit an undertaking from using, in three
          State's guarantee and completely recover its               provinces of Austria, a trade mark or designation under
          financial equilibrium .                                    which companies in the same group lawfully operate in
                                                                     other Member States ?
Reference for a preliminary ruling from the Landesgericht            Reference for a preliminary ruling by the Tribunal de
Linz by order of that court of 24 October 1996 in the case           Commerce, Brussels, by judgment of that court of 7 July
of Gabriele Gruber v. Silhouette International Schmied               1997 in the case of Procureur du Roi v. Déménagements-
                       GmbH & Co KG .                                Manutention       Transport SA, abbreviated       as     D.M.
                        ( Case C-249/97)                                                         Transport
                                                                                            ( Case C-256/97)
                           97/C 271 / 10
                                                                                              ( 97/C 271 /12 )
Reference has been made to the Court of Justice of the               Reference has been made to the Court of Justice of the
European Communities by an order of the Landesgericht                European Communities by judgment of the Tribunal de
Linz ( Labour and Social Court) of 24 October 1996,                  Commerce ( Commercial Court), Brussels of 7 July 1997,
which was received at the Court Registry on 8 July 1997,             received at the Court Registry on 15 July 1997, for a
for a preliminary ruling in the case of Gabriele Gruber v.           preliminary ruling in the case of Procureur du Roi against
Silhouette International Schmied GmbH & Co KG on the                 Déménagements-Manutention Transport SA, abbreviated
following questions :                                                as D.M. Transport, on the following questions:
                                                                     1 . Is Article 92 of the Treaty to be interpreted as
1 . Is it compatible with Article 119 of the EC Treaty                   meaning that measures in the form of payment
    that, owing to lack of child-care facilities,                        facilities granted by a public body such as the ONSS
    predominantly women have to terminate their                          enabling a commercial company to retain over a
    employment in order to look after their children and                 period of at least eight years a proportion of the sums
    these women, despite fulfilment of additional                        collected from staff and to use those sums in support
    conditions ( longer service ), receive no more than half             of its commercial activities, when that undertaking is
    of the compensation payable upon termination of                      unable to obtain funding under normal market
    employment for the actual length of their service                    conditions or to increase its capital, are to be
     ( Paragraph 23a ( 3 ) of the Angestelltengesetz ) whilst            considered State aid within the meaning of that
    men keep the full compensation period ?                               article ?
 ---pagebreak--- 6 . 9 . 97            I EN |                Official Journal of the European Communities                                      C 271 /9
2 . If the first question is answered in the affirmative, is                 In view of the failure to fulfil obligations, give an
      Article 92 of the Treaty to be interpreted as meaning                  official explanation or any reply, the company must
      that such aid is compatible with the common market ?                   take legal action before the Court in order to obtain
                                                                             compensation in damages consisting in the amount set
                                                                             out in the invoice and interest thereon as from two
                                                                             months after the date of the invoice, subject to further
                                                                             interest accruing in the meantime .
Action brought on 16 July 1997 by E-Quattro, società in                ( b ) Failure       to    continue         the  contractual
nome collettivo, having its seat in Laveno-Mombello,                         relationship
Varese, Italy, against Commission of the European
                             Communities                                     The contract concluded between the parties provides
                          ( Case C-257/97)                                   for, at most, a duration of two years, although
                                                                             performance is divided into two stages .
                            ( 97/C 271/13 )
                                                                             Although the Commission reserved the right not to
An action against the Commission of the European                             proceed to the second stage, it is nevertheless true that
Communities was brought before the Court of Justice of                       such a right may not be indiscriminate or arbitrary
the European Communities on 16 July 1997 by E-                               and in any event, account must be taken of the
Quattro, società in nome collettivo, having its seat in                      circumstances in which it is exercised .
Laveno-Mombello, Varese, Italy, represented by Giuseppe
Marchesini, advocate with the right of audience before the                   Finally, the applicant is of the view that the
Corte di Cassazione ( Court of Cassation ) of the Italian                    termination in question must be justified, notified to
Republic, with an address for service in Luxembourg at                       the parties in good time and in circumstances such as
the Chambers of Ernest Arendt, 8—10 Rue Mathias                              not to prejudice the legitimate expectations that the
Hardt .
                                                                             contract would proceed as normal .
The applicant claims that the Court should:
1 . order the Commission to make good the damage
      suffered and being suffered by the applicant as a result
      of the persistent delay in paying the balance of the             Reference for a preliminary ruling from the Unabhängiger
      services set out in the unpaid invoice;                          Verwaltungssenat fur Kärnten by order of that tribunal of
                                                                       8 July 1997 in the case of HI Hospital Ingenieure
                                                                       Krankenhaustechnik Planungs-Gesellschaft mbH v.
2 . order, further, the Commission to make good the
                                                                                 Landeskrankenanstalten-Betriebsgesellschaft
      damage caused to the company by the unjustified
      termination of the contract and by its notification on                                    Case C-258/97 )
      the last possible date;                                                                    ( 97/C 271 /14 )
3.    the whole of the above to be in the amount set out in
      the application or together with interest accruing from          Reference has been made to the Court of Justice of the
      the due date to the date of actual payment;                      European Communities by an order of the Unabhängiger
                                                                       Verwaltungssenat fur Kärnten ( Independent Administrative
                                                                       Senate for Carinthia ) of 8 July 1997, which was received
4. order the defendant to pay the costs of proceedings .               at the Court Registry on 17 July 1997, for a preliminary
                                                                       ruling in the case of HI Hospital Ingenieure
Pleas in law and main arguments adduced in support:                    Krankenhaustechnik Planungs-Gesellschaft mbH v.
                                                                       Landeskrankenanstalten-Betriebsgesellschaft         on      the
                                                                       following questions :
( a ) Payment for the services provided
                                                                        1 . Is Article 2 ( 8 ) of Council Directive 89/665/EEC of
      Article 7 ( 2 ) of the contract stipulates that the                    21 December 1989 on the coordination of the laws,
      Commission is to effect payment upon presentation of                   regulations and administrative provisions relating to
      the invoice or within two months from the date of
                                                                             the application of review procedures to the award of
      receipt thereof.                                                       public supply and public works contracts ( ! ) to be
                                                                             interpreted as meaning that the Unabhängiger
      The services in respect of the first stage were                        Verwaltungssenat für Kärnten fulfils the conditions for
      completed in March 1997 and the invoice for the                        a body responsible for review procedures with respect
      balance was sent on 6 March 1997 .                                     to services ?
      Already four months have elapsed without the amount              2 . Are these or other provisions of Council Directive 89/
      set out in the invoice having been paid and without                    665/EEC on the coordination of the laws, regulations
      the slightest official explanation or reply.                           and administrative provisions relating to the