CELEX: C1997/142/24
Language: en
Date: 1997-05-10 00:00:00
Title: Reference to the Court for preliminary rulings by the Pretura Circondariale di Trento by an order of 7 March 1997 in the proceedings pending before that court between Leonardo Gulli and Ente Poste Italiane (Case C-105/97)

10 . 5 . 97            EN                   Official Journal of the European Communities                                No C 142/ 11
Procurement Office ) of 7 November 1996 , which was                         Community incurs liability even for lawful legislative
received at the Court Registry on 10 March 1997, for a                      acts. That plea was put forward in the initial
preliminary ruling in the review proceedings brought by                     application under the heading 'Sonderopfer'
Josef Kollensperger GmbH & Co KG and Atzwanger AG                           (exceptional burdens ). In any event, the submissions in
against Gemeindeverband Bezirkskrankenhaus Schwaz                           the reply do not constitute a new plea in law, but at
( association of municipalities for the Schwaz district                     most a new argument. Liability for lawful legislative
hospital ) on the following questions :                                     acts rests on the same legal basis as liability for
                                                                            unlawful ones, namely the second paragraph of
( a ) Is Article 2 of Council Directive 89/665/EEC (') of                   Article 215 of the Treaty. The objective pursued by the
      21 December 1989 to be interpreted as meaning that                    applicants, namely damages for legislative acts of the
      the (Tyrol ) Regional Public Procurement Office,                      Community, is the same . The task of the Court is also
      established by the (Tyrol ) regional law of 6 June 1994               the same, since the rationale for liability for lawful
      on the award of public contracts ( LGB1 No 87/1994 ),                 legislative acts is essentially the same as that for
      is a review body within the meaning of Article 2 ( 8 ) of             unlawful ones, namely that individual parties are not
      the Directive ?                                                       to be singled out to bear exceptional burdens.
( b ) Did the abovementioned law on the award of public                — The Court of First Instance infringed Community law
      contracts adequately secure the transposition into                    by dismissing the pleas in law based on breach of the
      national law of Council Directive         89/665/EEC of               rights of the defence, the principle of non­
      21 December 1989 on the coordination of the laws,                     discrimination, the principle of the protection of
      regulations and administrative provisions relating to                 legitimate expectations, the fundamental freedom to
      the application of review procedures to the award of                  pursue an economic activity, and the prohibition on
      public supply and public works contracts, in regard to                delegation of legislative competence . In particular, the
      the review procedures mentioned in Article 1 thereof?                 Court of First Instance declined, when applying the
                                                                            principle of non-discrimination and in the context of
(') OJ No L 395 , 30 . 12 . 1989 , p . 33 .                                 the freedom to pursue an economic activity, to take
                                                                            account of the facts of the case adduced before it, i.e.
                                                                            to recognize the individual effects of the Regulation in
                                                                            the particular case of the applicant. If that approach
                                                                            were correct, examination of basic rights ( including
                                                                            the principle of non-discrimination) in an individual
Appeal brought on 10 March 1997 by Atlanta AG against                       case, as continually requested by the applicant, could
the judgment delivered on 11 December 1996 by the                           never take place in principle . Examination would
Fourth Chamber (Extended Composition ) of the Court of                      always be curtailed at the outset as to whether
First Instance of the European Communities in Case                          application of the contested rule ( in this case Title IV
T-521/93 between, of the one part, Atlanta AG and                           of the Regulation ) to the particular circumstances in
Others and, of the other part, the Council of the European                 which an individual party is placed infringes
 Union and the Commission of the European Communities                       fundamental rights . It would be conceivable in those
                                                                           circumstances that, despite having its fundamental
                        ( Case C-104/97 P                                   rights individually affected by the application of a
                           ( 97/C 142/23 )                                  Community measure, the applicant would have no
                                                                           procedure available for complaint.
An appeal against the judgment delivered on 11 December
                                                                       (') OJ No C 40 , 8 . 2 . 1997, p . 15 .
1996 by the Fourth Chamber ( Extended Composition ) of
the Court of First Instance of the European Communities
in Case T-521 /93 between, of the one part, Atlanta AG
and Others and, of the other part, the Council of the
European Union and the Commission of the European
Communities, supported by the French Republic and the
United Kingdom, was brought before the Court of Justice                Reference to the Court for preliminary rulings by the
of the European Communities on 10 March 1997 by                        Pretura Circondariale di Trento by an order of 7 March
Atlanta AG, represented by Erik Undritz and Gerrit                     1997 in the proceedings pending before that court
Schohe, Rechtsanwalte, with an address for service in                         between Leonardo Gulli and Ente Poste Italiane
Luxembourg at the Chambers of Marc Baden , 34b Rue                                               ( Case C-105/97)
Philippe II, L-2340 Luxembourg.
                                                                                                   ( 97/C 142/24 )
The appellant claims that the Court should set aside the
judgment of the Court of First Instance (').                           Reference has been made to the Court of Justice of the
                                                                       European Communities by an order of the Pretura
Pleas in law and main arguments adduced in support:                    Circondariale di Trento (Magistrate's Court for the
                                                                       District of Trento ) of 7 March 1997, which was received
— The Court of First Instance was procedurally incorrect               at the Court Registry on 13 March 1997, for a
      in ruling inadmissible ( pursuant to Article 48 ( 2 ) of its     preliminary ruling in the case Leonardo Gulli and Ente Po­
      Rules of Procedure ) the applicants ' plea that the              ste Italiane, on the following question:
 ---pagebreak--- No C 142/ 12              EN                  Official Journal of the European Communities                                          10 . 5 . 97
( a ) whether a legal provision which relieves a particular                         particular to Article 132 ( 1 ) of the EC Treaty and
      public economic entity from the obligation of                                 Articles 102 and 103 of Council Decision 91 /482/
      complying with the generally applicable legislation                           EC of 25 July 1991 on the association of the
      concerning fixed-term employment contracts falls                              overseas      countries      and   territories with     the
      within the scope of 'aid granted by a Member State or                         European Economic Community ( 2 ) valid in so far
      through State resources in any form whatsoever';                              they relate to the imports referred to in
                                                                                    Question 1 ( a )?
( b ) whether, if question ( a ) is answered in the affirmative,
      an aid of that kind should be subject to the                                  If Questions 1(a ) and ( b ) are answered in the
      preliminary examination procedure under Article 93 ( 3 )                      affirmative :
      of the Treaty;
                                                                         2.    Must Article 23 of the aforementioned Directive be
(c ) whether, where that procedure has not been followed,                       interpreted as meaning that the national provisions
      the prohibition of an aid of that kind can be regarded                    adopted to implement that article may only be applied
      as directly applicable within the domestic law of the                    to the imports referred to in Question 1 ( a ):
      Italian State;
                                                                               — after the rules relating to intra-Community trade
( d ) whether, in the event of question (c ) being answered in                      in the goods concerned, to which, under Article 22
      the affirmative, such a prohibition may be relied on in                       of that Directive, the third-country rules must be
      a dispute between the public economic entity and an                           at least equivalent, have fully entered into force,
      individual who complains of failure to apply to him                           and
      the general legislation concerning fixed-term
      employment in order to secure conversion of his                          — after a legally valid decision has been taken with
      employment relationship into one of indeterminate                             regard to the inclusion of the country concerned
      duration and/or compensation for damage .                                     on the first list mentioned in Article 23 ( 3 ) and
                                                                                    with regard to the list of approved establishments
                                                                                    in that country ?
                                                                         3 . Is Commission Decision 94/70/EC ( 3 ) valid ?
Reference for a preliminary ruling from the College van
Beroep voor het Bedrijfsleven by judgment of that court                  (') OJ No L 268 , 14 . 9 . 1992, p . 1 .
of 15 January 1997 in the case of 1 . Dutch Antillian                    ( 2 ) OJ No L 263 , 19 . 9 . 1991 , p . 1 .
                                                                         ( 3 ) OJ No L 36 , 8 . 2 . 1994, p. 5 .
Dairy Industry Inc., 2. Verenigde Douane-Agenten BV;
Netherlands Antilles intervening, v. Rijksdienst voor de
                      Keuring van Vee en Vlees
                           ( Case C-106/97 )
                             ( 97/C 142/25 )
                                                                         Reference for a preliminary ruling from the Tribunal de
Reference has been made of the Court of Justice of the                   Grande Instance, Grasse, by judgment of that court of
European Communities College van Beroep voor het Be­                     19 July 1996 in the case of the Public Prosecutor, and the
drijfsleven ( administrative court of last instance in matters           federal consumers' union 'Que Choisir ?' and the general
of trade and industry) by judgment of that court of                      consumer organization 'OR.GE.CO', civil plaintiffs, v.
 15 January 1997 in the case of 1 . Dutch Antillian Dairy                                 Max Rombi and Arkopharma SA
Industry Inc., 2 . Verenigde Douane-Agenten BV; Nether­                                              ( Case C-107/97 )
lands Antilles intervening, v. Rijksdienst voor de Keuring
van Vee en Vlees on the following questions:                                                           ( 97/C 142/26 )
 1 . ( a ) Must the provisions of Chapter III of Directive 92/           Reference has been made to the Court of Justice of the
            46/EEC ( 5 ), seen in particular in the light of             European Communities by a judgment of the Tribunal de
            Article 227, together with Articles 131 to 136, of           Grande Instance ( Regional Court), Grasse, of 19 July
            the EC Treaty be interpreted as setting the result           1997, which was received at the Court Registry on
            to be achieved — within the meaning of the third             14 March 1997, for a preliminary ruling in the case of the
            paragraph of Article 189 of the EC Treaty — by               Public Prosecutor, and the federal consumers ' union ' Que
            national implementing provisions which are                   Choisir ?' and the general consumer organization
            applicable to imports into the EC of butter                  ' OR.GE.CO', civil plaintiffs, v. Max Rombi and
            originating in the overseas countries and territories        Arkopharma SA on the following questions:
            listed in Annex IV to the EC Treaty, including the
            Netherlands Antilles ?
                                                                         1 . Can a Member State correctly transpose a Community
            If Question 1 ( a ) is answered in the affirmative:                 directive where in the national transposing measure it
                                                                                maintains in force previous provisions adopted on the
      ( b ) Are the provisions of Chapter III of the                            basis of repealed national legislation transposing a
            aforementioned Directive, having regard in                          previous, repealed directive, indicating in the new