CELEX: C1997/074/31
Language: en
Date: 1997-03-08 00:00:00
Title: Reference for a preliminary ruling from the Maaseutuelinkeinojen Valituslautakunta by order of that tribunal of 9 January 1997 in the proceedings brought by Raija-Liisa Jokela (Case C-9/97)

8 . 3 . 97             EN ]                 Official Journal of the European Communities                                  No C 74/ 15
3 . If so, in which cases and on what grounds must                         with the publisher of a competing product dependent
      account be taken of the companies belonging to the                   upon the latter instructing him not only with home
      dominant legal person of a group of companies ?                      deliveries but also with other services ( e.g. marketing
                                                                           through sales points, printing ) within the context of an
(') OJ No C 132 , 14 . 5 . 1994, p . 4 .                                   overall package ?
Reference for a preliminary ruling by the                              Reference for a preliminary ruling from the
Oberlandesgericht, Vienna, by order of that Court of                   Maaseutuelinkeinojen Valituslautakunta by order of that
1 July 1996 in the competition case of Oscar Bronner                   tribunal of 9 January 1997 in the proceedings brought by
GmbH & Co. KG against 1 . Mediaprint Zeitungs- und                                               Raija-Liisa Jokela
Zeitschriftenverlag GmbH & Co. KG; 2 . Mediaprint Zei­                                            ( Case C-9/97 )
tungsvertriebsgesellschaft mbH & Co. KG; 3 . Mediaprint
                                                                                                    ( 97/C 74/31 )
             Anzeigengesellschaft mbH & Co. KG
                           ( Case C-7/97 )
                             ( 97/C 74/30 )                            Reference has been made to the Court of Justice of
                                                                       the European Communities by an order of the
                                                                       Maaseutuelinkeinojen Valituslautakunta ( Rural Industries
Reference has been made to the Court of Justice of the                 Appeals Board ) of 9 January 1997, which was received at
European Communities by order of the Oberlandesgericht                 the Court Registry on 16 January 1997, for a preliminary
(Higher Regional Court — acting as a competition court),               ruling in the proceedings brought by Raija-Liisa Jokela on
Vienna, of 1 July 1996, received at the Court Registry on              the following questions:
15 January 1997, for a preliminary ruling in the
competition case between the applicant, Oscar Brunner                  1 . Is it compatible with the aims of Articles 17 and 18 of
GmbH & Co . KG, and the defendants, 1 . Mediaprint                         Council Regulation (EEC ) No 2328/91 on improving
Zeitungs- und Zeitschriftenverlag GmbH & Co. KG;                           the efficiency of agricultural structures 0 ) and Article 1
2 . Mediaprint Zeitungsvertriebsgesellschaft mbH & Co .                    of Council Directive 75/268/EEC on mountain and hill
KG; 3 . Mediaprint Anzeigengesellschaft mbH & Co. KG,                      farming and farming in certain less-favoured areas ( 2 )
on the following questions:                                                for a compensatory allowance for natural handicaps to
                                                                           be granted to a farmer, if he does not live on a farm
1 . Is Article 86 of the EC Treaty to be interpreted in such               owned or controlled by him in Finland in a less­
      a way that there is an abuse of a dominant position, in              favoured area within the meaning of the said
      the sense of an abusive barring of access to the                     Directive, but lives for most of the year outside the
                                                                           said area ?
      market, where an undertaking which carries on the
      publication, production and marketing of daily
      newspapers, and with its products occupies a                         If the answer to the above question is affirmative, even
      predominant position on the Austrian market for daily                partly or conditionally:
      newspapers ( 46,8 % of total circulation, 42 % of
      advertising revenue and 71 % range of influence,                      ( a ) is it permissible, having regard to the said
      measured by the number of all daily newspapers ), and                       provisions and the principles of Article 5 , the
      operates the only intra-regional home-delivery                              second subparagraph of Article 40 ( 3 ), and indent
      distribution service for subscribers, refuses to make a                     ( a ) of the second paragraph of Article 42 of the
      binding offer to another undertaking engaged in the                         Treaty of Rome, and in particular to the principle
      publication, production and marketing of a daily                            of equal treatment of farmers and the associated
      newspaper in Austria to include that daily newspaper                        prohibition of discrimination set out there, to
      in its home-delivery scheme, in the light also of the                       require, in order to obtain the compensation for
      circumstance that it is not possible, on account of the                     natural handicaps referred to in paragraph 6 of the
      small circulation and the consequently small number                         decision of the national Council of State ( 861 /
      of subscribers, for the undertaking seeking inclusion in                    1995 ) in the case of a farmer living outside the
      the home-delivery scheme to build up its own home­                          farm and more than 12 kilometres distant by road
      delivery scheme for a reasonable outlay and operate it                      from the operational centre of the farm, that the
      profitably, either alone or in cooperation with the                         farmer both receives at least half his total income
      other undertakings offering daily newspapers on the                         from agriculture, horticulture and forestry and
      market ?                                                                    other activities carried on on the farm and also
                                                                                  carries on farming on the farm himself; and
2 . Does it amount to an abuse within the meaning of
      Article 86 of the EC Treaty, where, under the                         ( b ) is it consistent in particular with the principle of
      circumstances described in question 1 above, the                            legal certainty to be observed in the Community
      operator of the home-delivery scheme for daily                              legal order always also to require that a special
      newspapers makes the entry into business relations                          reason should exist ?
 ---pagebreak---  No C 74/ 16              EN 1                  Official Journal of the European Communities                                        8 . 3 . 97
 2. Is it contrary, with respect in particular to a farmer                      a uniform and binding manner by the member banks
       who lives for most of the year in another Member                         — are, taken as a whole, compatible with Article 85
       State of the EU together with his or her spouse who is                   of the Treaty, in relation to the individual clauses
       the other owner of the said farm and works as                            discussed in the grounds of this order, in that they are
       a diplomatic representative of the Finnish State, to                     liable adversely to affect trade between the Member
       the prohibition of discrimination, the principle of                      States and have as their object and effect the
       proportionality or other principles to be observed in                    prevention, restriction or distortion of competition
       Community law to exclude him or her from the                             within the common market;
       compensation in question ?
                                                                           4 . what effects any finding of incompatibility in
 (') OJ No L 218 , 6 . 8 . 1991 , p . 1 .                                       accordance with question 3 may have on the
 (2 ) OJ No L 128 , 19 . 5 . 1975 , p. 1 .                                      corresponding clauses of the 'all-embracing' guarantee
                                                                                agreements and on the agreements themselves
                                                                                concluded 'downstream' by individual banks, since, as
                                                                                a group, the banks belonging to the ABI may be
                                                                                regarded, within the meaning and for the purposes of
                                                                                Article 86 of the Treaty, as holding a joint dominant
Reference for a preliminary ruling by the Tribunale di                          position in the national credit market, whose specific
Genova — Sezione Sesta Civile by order of that court of                         application of the rules in question is regarded as an
 18 December 1996 in the case of Palmira Ieropoli and                           abuse .
        Giovanni Sgambellone against Banca Carige SpA
                             ( Case C-23/97 )
                               ( 97/C 74/32 )
Reference has been made to the Court of Justice of the                     Action brought on 17 January 1997 by the Commission of
European Communities by order of the Tribunale di Geno­                    the European Communities against the Federal Republic
va — Sezione Sesta Civile ( Genoa District Court, Sixth                                                 of Germany
Civil Chamber ) of 18 December 1996, which was received                                              ( Case C-24/97)
at the Court Registry on 17 January 1997, for a                                                        ( 97/C 74/33 )
preliminary ruling in the case of Palmira Ieropoli and
Giovanni Sgambellone against Banca Carige SpA on the
                                                                          An action against the Federal Republic of Germany was
following questions :
                                                                           brought before the Court of Justice of the European
                                                                           Communities on 17 January 1997 by the Commission of
1 . whether the Norma Bancarie Uniforme (Uniform Bank                     the European Communities, represented by Peter
      Rules ) laid down by the ABI ( Associazione Bancaria                Hillenkamp and Peter Jan Kuijper, of its Legal Service,
      Italiana ) for its members in relation to contracts for             acting as Agents, with an address for service in
      the opening of current account credit facilities — since            Luxembourg at the office of Carlos Gomez de la Cruz, of
      they are laid down and applied in a uniform and                     its Legal Service, Wagner Centre C 254, Kirchberg,
      binding manner by the banks belonging to the ABI —                  Luxembourg.
      are compatible with Article 85 of the Treaty, where
      they make the credit facility subject to conditions for             The applicant claims that the Court should:
      determination      of      an  interest rate  which    is  not
      previously determined and is not determinable by the                — declare that the Federal Republic of Germany has
      customer, and they are liable adversely to affect trade                  failed to fulfil its obligations under Articles 48 , 52 and
      between the Member States and have as their object                       59 of the EC Treaty and under Article 4 ( 1 ) of Council
      and effect the prevention, restriction or distortion of                  Directive 68/360/EEC of 15 October 1968 on the
      competition within the common market;                                    abolition of restrictions on movement and residence
                                                                               within the Community for workers of Member States
2 . what effects any finding of incompatibility in                             and their families (') and under Article 4 ( 1 ) of
      accordance with question 1 may have on the                               Council Directive 73/ 148/EEC on the abolition of
      corresponding clauses of the contracts for the opening                   restrictions on movement and residence within the
      of a current account credit facility, concluded                          Community for nationals of Member States with
      'downstream' by member banks with individual                             regard to establishment and the provision of
      customers, since, as a group, the banks belonging to                     services ( 2 ) in so far as under paragraph 12 a ( 2 ) and
      the ABI may be regarded, within the meaning and for                      ( 3 ) of the AufenthG/EWG ( Law on residence of EC
      the purposes of Article 86 of the Treaty, as holding a                   Community nationals ) non-German Community
      joint dominant position in the national credit market,                   nationals in the Federal Republic of Germany are
      whose specific application of the rules in question (in                  treated, as regards the degree of fault and scale of
      connection with determination of the interest payable                    fines, disproportionately differently from German
      on the loan ) is regarded as an abuse;                                   nationals who commit a comparable infringement of
                                                                               the obligation to prove their identity ( paragraph 5 ( 1 )
3 . whether the NBU laid down by the ABI for its                               and (2 ) of the PersonalausweisG ( Law on identity
      members in relation to the 'all-embracing' guarantee                     cards ) in conjunction with paragraph 17 ( 1 ) of the
      covering the credit facility — since they are applied in                 OWiG ( Law on administrative offences )),