CELEX: C1998/234/29
Language: en
Date: 1998-07-25 00:00:00
Title: Reference for a preliminary ruling from, the Corte dei Conti - Chamber responsible for verifying acts of the Government and of State Administrations - by order of 20 March and 7 April 1998 in proceedings involving the Ministry of Public Works, the Ministry of Finance, the Budget and Economic Planning, and ANAS - Azienda Nazionale Autonoma delle Strade (now Ente Nazionale per le Strade) (Case C-192/98)

25.7.98               EN                 Official Journal of the European Communities                                    C 234/15
The applicant claims that the Court should:                         Reference for a preliminary ruling from, the Corte dei
                                                                    Conti Ð Chamber responsible for verifying acts of the
                                                                    Government and of State Administrations Ð by order of
1. Declare that, by failing to adopt and bring into force           20 March and 7 April 1998 in proceedings involving the
    or, in the alternative, to communicate, within the              Ministry of Public Works, the Ministry of Finance, the
    prescribed period the laws, regulations and                     Budget and Economic Planning, and ANAS Ð Azienda
    administrative provisions necessary to comply with              Nazionale Autonoma delle Strade (now Ente Nazionale
    Council Directive 92/101/EEC (1) of 23 November                                           per le Strade)
    1992 amending Directive 77/91/EEC (2) on the
                                                                                            (Case C-192/98)
    formation of public limited-liability companies and the
    maintenance and alteration of their capital, the Grand                                   (98/C 234/29)
    Duchy of Luxembourg has failed to fulfil its
    obligations under Articles 5 and 189 of the EC Treaty;          Reference has been made to the Court of Justice of the
    and                                                             European Communities by an order of the Corte dei Conti
                                                                    (Italian Court of Auditors) Ð Chamber responsible for
                                                                    verifying acts of the Government and of State
2. Order the defendant to pay the costs.                            Administrations Ð of 20 March and 7 April 1998, which
                                                                    was received at the Court Registry on 19 May 1998, for a
Pleas in law and main arguments adduced in support:                 preliminary ruling in proceedings involving the Ministry of
                                                                    Public Works, the Ministry of Finance, the Budget and
                                                                    Economic Planning, and ANAS (Azienda Nazionale
The mandatory nature of the provisions of the third                 Autonoma delle Strade Ð Autonomous National
paragraph of Article 189 and the first paragraph of                 Highways Agency) (now Ente Nazionale per le Strade), on
Article 5 of the EC Treaty requires Member States to                the following questions:
adopt the measures necessary to transpose directives
addressed to them into their domestic law before the                1. Whether the particular features of Council Directive
expiry of the period prescribed for doing so. That period                92/50/EEC (1) of 18 June 1992 relating to the
expired on 1 January 1994 without the Grand Duchy of                     coordination of procedures for the award of public
Luxembourg having brought into force the necessary                       service contracts Ð which, as is known, provides for a
provisions.                                                              transitional period for its full application (21st recital
                                                                         in its preamble), for the utilization of two series of
                                                                         provisions, depending on whether the services
(1) OJ L 347 of 28.11.1991, p. 64.
                                                                         concerned are those listed in Annex IA or in Annex IB
(2) OJ L 26 of 30.1.1977, p. 1.
                                                                         (Articles 8 and 9), and for a procedure for review
                                                                         (within three years) of the results achieved, with a
                                                                         view to making the Directive fully applicable to a
                                                                         wider range of service contracts' (27th recital and
                                                                         Article 43) Ð are such as to preclude or render more
                                                                         difficult its immediate applicability in domestic law (as
Reference for a preliminary ruling by the Oberlandes-                    from 1 July 1993) in the absence of a formal measure
gericht Linz by order of that court of 15 April 1998 in the              adopted by the Member State to transpose it;
case of Volker Graf against Filzmoser Maschinenbau
                             GmbH                                   2. Whether or not Ð if the first question is answered in
                                                                         the negative Ð the provisions of the abovementioned
                       (Case C-190/98)                                   directive (services covered by Article 8) are applicable
                        (98/C 234/28)                                    to the ANAS (Azienda Nazionale Autonoma delle
                                                                         Strade Ð Autonomous National Highways Agency) as
                                                                         regards the fulfilment or otherwise of the requirements
                                                                         of Community law for it to be regarded as a
Reference has been made to the Court of Justice of the
                                                                         contracting authority' within the meaning of
European Communities by order of the Oberlandesgericht
                                                                         Article 1(b) of the abovementioned directive;
Linz (Higher Regional Court, Linz) of 15 April 1998,
received at the Court Registry on 19 April 1998, for a
                                                                    3. Whether, if the foregoing question is answered in the
preliminary ruling in the case of Volker Graf against
                                                                         affirmative, the application of Directive 92/50/EEC Ð
Filzmoser Maschinenbau GmbH on the following
                                                                         which does not appear to be a matter of any doubt
question:
                                                                         regarding the loan agreement concluded with the
                                                                         group of Italian banks to raise the fourth and last
Does Article 48 of the EC Treaty preclude national                       tranche of the LIT 8 000 billion loan authorised by
provisions under which an employee who is a national of                  Law No 405/90 Ð must be recognised also with
a Member State is not entitled to compensation on                        respect to the agreement between ANAS and Nomura
termination of his employment relationship simply because                International Plc raising LIT 2 000 billion (third
he himself gave notice terminating that relationship in                  tranche) by means of a bond loan based on the issue
order to take up employment in another Member State?                     of variable-rate Eurobonds denominated in US dollars,
                                                                         having regard to the fact that the 13th recital in the
                                                                         preamble and Article 2(a)(viii) [sic] (2) of the
                                                                         abovementioned directive exclude from bank services
 ---pagebreak--- C 234/16                EN                   Official Journal of the European Communities                                         25.7.98
     (mentioned in category 6 of Annex IA) contracts for               Does the amount of the charge payable under Article 8(1)
     financial services in connection with the issue, sale,             of the Agreement depend solely on the number of axles
     purchase or transfer of securities or other financial              fitted to the motor vehicle or articulated vehicle
     instruments'.                                                      combination in question, regardless of the distance
                                                                        between them and irrespective of whether an axle is used
(1) OJ L 209 of 24.7.1992, p. 1.                                        or raised during the journey, or are tandem axles/raisable
(2) Translator's note: it would appear, from the words quoted,          axles to be left out of account in calculating the charge?
    that the provision referred to is actually Article 1(b)(vii), not
    Article 2(a)(viii).                                                 (1) Concerning the interpretation of Article 8(1) of the Agreement
                                                                            of 9 February 1994 on the levying of charges for the use of
                                                                            certain roads by heavy commercial vehicles (Bundesgesetzblatt
                                                                            [Federal Gazette], Part II, p. 1768).
Reference for a preliminary ruling from the Oberlandes-
gericht Köln, by order of that court of 8 May 1998 in
proceedings concerning an administrative fine imposed on
                        Alois Pfennigmann                               Reference for a preliminary ruling from the Oberster
                         (Case C-193/98)                                Gerichtshof by order of that court of 30 April 1998 in the
                                                                        case of Österreichischer Gewerkschaftsbund, Gewerkschaft
                          (98/C 234/30)
                                                                                   öffentlicher Dienst v Republic of Austria
Reference has been made to the Court of Justice of the                                           (Case C-195/98)
European Communities by order of the Oberlandesgericht                                            (98/C 234/32)
Köln (Higher Regional Court, Cologne) of 8 May 1998,
received at the Court Registry on 20 May 1998, for a                    Reference has been made to the Court of Justice of the
preliminary ruling in the proceedings concerning an                     European Communities by an order of the Oberster
administrative fine imposed on Alois Pfennigmann, on the                Gerichtshof (Austrian Supreme Court) of 30 April 1998,
following question (1):                                                 which was received at the Court Registry on 20 May
                                                                        1998, for a preliminary ruling in the case of
Is the answer to the question whether a motor vehicle or
                                                                        Österreichischer        Gewerkschaftsbund,          Gewerkschaft
articulated vehicle combination within the meaning of                   öffentlicher Dienst v Republic of Austria on the following
Article 2(1) of the Agreement in conjunction with the
                                                                        questions:
fourth indent of Article 2 of Council Directive 93/89/
EEC (2) is intended exclusively for the carriage of goods by            1. May a preliminary ruling of the Court of Justice of the
road conditional on the time at which, and the manner in                     European Communities under Article 177 of the EC
which, it is used, or does the answer to that question                       Treaty be sought in proceedings in which the Oberster
depend Ð irrespective of the purpose for which such a                        Gerichtshof has to decide, as a court of first and final
vehicle or combination is used in an individual case Ð on                    instance, on the basis of a factual situation
whether the general purpose for which the use of that                        independent of particular named persons, alleged by
vehicle or combination is intended is the carriage of goods                  one party and presumed to be true, on an application
by road?                                                                     by that party for a declaration that rights or legal
                                                                             relationships in the field of employment law, which
(1) Concerning the interpretation of Article 2(1) of the Agreement           according to the submissions of that party, which are
    of 9 February 1994 on the levying of charges for the use of
                                                                             presumed to be true, are of importance for at least
    certain roads by heavy commercial vehicles (Bundesgesetzblatt
    [Federal Gazette], Part II, p. 1768).                                    three employers or employees, do or do not exist?
(2) OJ L 279 of 12.11.1993, p. 32.
                                                                             If Question 1 is answered in the affirmative,
                                                                        2. Does Article 48 of the EC Treaty or any other
                                                                             provision of Community law, in particular Article 7 of
                                                                             Council Regulation No 1612/68 (1), preclude the
Reference for a preliminary ruling from the Oberlandes-                      material date of advancement for classification in the
gericht Köln, by order of that court of 8 May 1998 in                        relevant pay scheme of contractual teachers and
proceedings concerning an administrative fine imposed on                     contractual teaching assistants employed by the
                         Eckard Pörschke                                     respondent from being determined differently, in that
                                                                             the periods completed by such persons in employment,
                         (Case C-194/98)
                                                                             to at least one half of the extent prescribed for full-
                          (98/C 234/31)                                      time employees, in the service of an Austrian local
                                                                             authority or in a teaching post at an Austrian public
Reference has been made to the Court of Justice of the                       school, university, college or academy of the visual
European Communities by order of the Oberlandesgericht                       arts or at an Austrian publicly recognised private
Köln (Higher Regional Court, Cologne) of 8 May 1998,                         school are treated as preceding in full the date on
received at the Court Registry on 20 May 1998, for a                         which those persons were engaged, whereas periods
preliminary ruling in the proceedings concerning an                          completed at comparable institutions of Member
administrative fine imposed on Eckard Pörschke, on the                       States are taken into account only with the consent of
following question (1):                                                      the Federal Minister for Financial Affairs, in full if