CELEX: C1997/228/24
Language: en
Date: 1997-07-26 00:00:00
Title: Reference for a preliminary ruling by the Oberste Gerichtshof by order of that court of 27 May 1997 in the land register case brought by Manfred Trummer and Dr Peter Mayer (Case C-222/97)

No C 228/ 12          EN                     Official Journal of the European Communities                                      26 . 7. 97
     in a position which it itself could not take up without                    pursuant to a legal obligation to pay an amount
     infringing Article 86, whilst, as a result, a system of                    determined by a civil-law contract for valuable
     undistorted competition is not invariably guaranteed ?                     consideration ?
( f) If such compulsory affiliation is contrary to                      2.      Is that structuring of service relationships permissible
     Community law, does that mean that it is not legally                       in the light of Article 3 ( f), Article 5 or other
     valid ?                                                                    provisions of the EC Treaty, if competition on a .
                                                                                relevant market is thereby precluded for a long
                                                                                period, and where for the provisions of the service
                                                                                no service monopolies expressly provided for by law
                                                                                exist ?
Reference for a preliminary ruling by the Oberste                       3.      May an individual derive, from the abovementioned
Gerichtshof by order of that court of 27 May 1997 in the                        or other provisions of Council Directive 89/665/EEC
land register case brought by Manfred Trummer and Dr                            on the coordination of the laws, regulations and
                           Peter Mayer                                          administrative provisions relating to the application
                       ( Case C-222/97 )                                        of review procedures to the award of public supply
                         ( 97/C 228/24 )                                        and public works contracts, a specific right to have
                                                                                review proceedings conducted before authorities or
                                                                                courts which comply with the provisions of
Reference has been made to the Court of Justice of the                          Article 2 ( 8 ) of Directive 89/665/EEC (2 ) which right
European Communities by order of the Oberste Gerichts­                          is so sufficiently precise and specific that, in the
hof ( Austrian Supreme Court) of 27 May 1997, which                             event of non-transposition of the Directive in
was received at the Court Registry on 13 June 1997, for a                       question by the Member State, an individual may
preliminary ruling in the land register case brought by                         successfully assert that legal right against that
Manfred Trummer and Dr Peter Mayer on the following                             Member State in legal proceedings ?
question:
                                                                        4.      In conducting a review procedure on the basis of an
Does the refusal to allow a mortgage to be created to                           individual's right, founded on Article 41 of Directive
cover an existing foreign-currency debt ( in this case in                       92/50/EEC in conjunction with Directive 89/665/
German marks ( DM )) constitute a restriction on the                            EEC, to the conduct of a review procedure, must a
movement of capital and payments compatible with                                national court, analogous to the Federal Procurement
Article 73b of the EC Treaty ?                                                  Office, refuse to take cognizance of provisions of
                                                                                national law such as Section 91 (2 ) ( 3 ) BVergG,
                                                                                which confer on the Federal Procurement Office
                                                                                powers of review only in the case of infringements of
                                                                                the Federal Procurement law and regulations
                                                                                adopted thereunder, on the ground that those
Reference for a preliminary ruling from the Bundesverga­                        provisions preclude a review procedure from being
beamt by order of that body of 15 May 1997 in the                               conducted under the Federal Procurement Law for
review proceedings brought by the applicant, HDM Flug­                          awards of contracts for services, and must such a
service GmbH v. Hauptverband der osterreichischen                               national court conduct a review procedure in
      Sozialversicherungstrager, contract-awarding body                         accordance with the fourth part of the Federal
                       ( Case C-223 /97 )                                       Procurement Law ?
                         ( 97/C 228/25 )
                                                                        5 ( a ) Are the services mentioned in the facts of this case to
                                                                                be classified (with reference to Article 10 of Directive
Reference has been made to the Court of Justice of the                          92/50/EEC ) as services coming under Annex I (A) to
European Communities by an order of the Bundesvergabe­                          the aformentioned Directive ( Category 3 — Air
amt ( Federal Procurement Office ) of 15 May 1997, which                        transport services of freight and passengers ) and
was received at the Court Registry on 13 June 1997, for a                       contracts    for such    services are  therefore   to  be
preliminary ruling in the review proceedings brought by                         awarded in accordance with the provisions of Titles
the applicant, HDM Flugservice GmbH v. Hauptverband                             III and IV of the Directive, or are they to be
der osterreichischen Sozialversicherungstrager, contract­                       classified as services under Annex I ( B ) to the
awarding body, on the following questions :                                     Directive ( Health ) with the result that contracts for
                                                                                such services are to be awarded in accordance with
1.     Can a legal relationship, such as that in the main                       the provisions of Articles 13 and 14, or do those
       proceedings, be deemed to be a contract satisfying                       services fall outside the sphere of application of
       the criteria in Article 1 ( 1 ) ( a ) of Directive 92/50/                Directive 92/50/EEC ?
       CEE (') where, under that relationship, a public
       authority is obliged, on the basis of a State                    5 ( b ) Do the provisions of Articles 1 to 7 of Directive 92/
       agreement at private law providing for no                                50/EEC satisfy the preconditions laid down in the
       remuneration to provide services for remuneration ,                      Van Duyn judgment ( 3 ) on the direct applicability of
       whereby that remuneration is payable by a third                          a Community Directive, with the result that services
       party, also a public contract-awarding body,                             coming under Annex I ( B ) to the Directive are to be