CELEX: C1999/314/02
Language: en
Date: 1999-10-30 00:00:00
Title: Cases C-285/99 and C-286/99: Reference for a preliminary ruling by the Fourth Chamber of the Consiglio di Stato, sitting as a judicial body, by orders of that court of 27 April and 26 May 1999, in the cases of (1) Impresa Lombardini SpA - Impresa Generale di Costruzioni v ANAS - Ente Nazionale per le Strade and Società Italiana per Condotte d'Acqua and (2) Impresa Ing. Mantovani SpA v ANAS - Ente Nazionale per le Strade

30.10.1999            EN                     Official Journal of the European Communities                                        C 314/1
                                                                     I
                                                               (Information)
                                                  COURT OF JUSTICE
                                                           COURT OF JUSTICE
Reference for a preliminary ruling by the Trimeles Diikiti-              c) Is it permissible for the administrative measures as a whole
ko Protodikio Irakliou (First Chamber) by judgment of                        — including those arising from the charge of smuggling
that court of 30 June 1999 in the case of P. Louloudakis                     — which are decided on as appropriate in the field of
                    against the Greek State                                  customs contraventions by Member State B which is
                                                                             competent in that regard (in view of the absence of
                         (Case C-262/99)                                     harmonisation of national laws) to lead to penalties which
                                                                             amount to many (ten) times the original purchase price of
                         (1999/C 314/01)                                     the article in Member State A, without impeding the free
                                                                             movement of goods and persons?
Reference has been made to the Court of Justice of the
European Communities by judgment of the First Chamber of                     If the answer is in the negative, do criteria exist as to the
the Trimeles Diikitiko Protodikio Irakliou (Administrative                   limits of what is strictly necessary in order to achieve the
Court of First Instance, Heraklion (Three Judges)) of 30 June                objectives pursued?
1999, received at the Court Registry on 19 July 1999, for a              d) Does Directive 83/182/EEC or another provision give rise
preliminary ruling in the case of P. Louloudakis against the                 to an obligation on the Member States to take into account,
Greek State on the following questions:                                      when imposing administrative penalties in cases with
                                                                             which that directive is concerned, the good faith of the
a) Is the second subparagraph of Article 7(1) of Council                     persons concerned and the absence of fraudulent intent
    Directive 83/182/EEC (1) of 28 March 1983 on tax exemp-                  (for example ignorance)?
    tions within the Community for certain means of transport
    temporarily imported into one Member State from another
    to be interpreted as meaning that the normal residence of            (1) OJ No L 105, 23.4.1983, p. 59.
    a national of State A is in State A, where he successfully
    carries on business for many years both as an architect and
    in commerce through a limited partnership, retains a
    residence and spends most of his working time, or is in
    State B, of which he is also a national and where,
    simultaneously, he starts up an independent business with            Reference for a preliminary ruling by the Fourth Chamber
    a similar or at least related object, leases a house and             of the Consiglio di Stato, sitting as a judicial body, by
    begins to spend part of his time, while also complying               orders of that court of 27 April and 26 May 1999, in the
    with his fiscal obligations, assisted by his wife who                cases of (1) Impresa Lombardini SpA — Impresa Generale
    participates in all the above activities in both State A and         di Costruzioni v ANAS — Ente Nazionale per le Strade
    State B and takes shares in those businesses?                        and Società Italiana per Condotte d’Acqua and (2) Impresa
                                                                         Ing. Mantovani SpA v ANAS — Ente Nazionale per le
    Apart from the abovementioned provision, do other                                                  Strade
    criteria exist on the basis of which, in cases where it is
    difficult to determine normal residence, it is possible for                          (Cases C-285/99 and C-286/99)
    that determination to be made?
                                                                                                 (1999/C 314/02)
b) In the case of possession or use of private vehicles by a
    person not entitled to a temporary exemption, which under            Reference has been made to the Court of Justice of the
    national law constitutes a simple customs contravention, is          European Communities by orders of Fourth Chamber of the
    it consistent with the Community principle of pro-                   Consiglio di Stato, sitting as a judicial body, of 27 April and
    portionality to impose, on the basis of the sole criterion of        26 May 1999, which were received at the Court Registry on
    the cubic capacity of the vehicle, a special administrative          2 August 1999, for a preliminary ruling in the cases of (1)
    penalty, in particular a fine (such as the fine under                Impresa Lombardini SpA — Impresa Generale di Costruzioni
    Article 88(2)(f) of Law No 2127/1993) of an amount from              v ANAS — Ente Nazionale per le Strade (National Highways
    GRD 1 000 000 to GRD 5 000 000 per vehicle, where                    Authority) and Società Italiana per Condotte d’Acqua and (2)
    that fine exceeds the current market value of the vehicle            Impresa Ing. Mantovani SpA v ANAS — Ente Nazionale per le
    having regard also to its age?                                       Strade, on the following questions:
 ---pagebreak--- C 314/2                 EN                    Official Journal of the European Communities                                       30.10.1999
1. Does recourse to a clause in calls for tenders for public             The Council claims that the Court should:
     works contracts which prevents the participation of under-
     takings which have not submitted with their tenders                 — disallow Dr Bangemann’s rights as a former member of
     explanations in respect of the price indicated, being equal              the Commission to a pension or other payments in lieu, in
     to at least 75 % of the figure specified in the tender                   particular any transitional allowance to which he may be
     conditions, represent an obstacle to the application of                  entitled under Article 7 of regulation No 422/67/EEC,
     Article 30(4) of Directive 93/37 (1)?                                    5/67/Euratom of the Council of 25 July 1967 (1); the
                                                                              Council leaves to the discretion of the Court for how long
2. Does the establishment of a mechanism for automatically                    and to what extent those rights should be disallowed;
     identifying tenders which overstep a threshold indicative
     of irregularities and whose validity should therefore be
     checked, based on a case-by-case criterion and an arith-            — declare that disallowance of those rights does not apply to
     metical mean, which is such that undertakings are unable                 those entitled under Regulation No 422/67/EEC,
     to ascertain that threshold in advance, represent an obstacle            5/67/Euratom of the Council of 25 July 1967 in the event
     to the application of Article 30(4) of Directive 93/37?                  of Dr Bangemann’s death;
3. Does the fact that provision is made for a prior exchange             — order Dr Bangemann to pay the costs of the proceedings.
     of views, without the undertaking which has allegedly
     submitted an irregular tender having an opportunity to
     state its reasons, after the opening of the envelopes and
     before the adoption of the measure excluding it, represent          Pleas in law and main arguments
     an obstacle to the application of Article 30(4) of Direc-
     tive 93/37?
                                                                         The Council’s action is founded on subparagraph 3 of
                                                                         Article 213(2) of the EC Treaty, subparagraph 3 of Article 9(2)
4. Does a provision under which the contracting authority                of the ECSC Treaty and subparagraph 3 of Article 126(2) of
     may take account of explanations relating solely to the             the EAEC Treaty, and, specifically, solely on the duty to behave
     economy of the construction method or the technical                 with discretion. It is the view of the Council that to satisfy this
     solutions adopted or the exceptionally favourable con-              duty, it is necessary not only to comply with applicable
     ditions available to the tenderer represent an obstacle to          legislation and rules but also to assess and evaluate with
     the application of Article 30(4) of Directive 93/37?                circumspection what is the appropriate course of conduct in a
                                                                         given situation so as, in particular, not to jeopardise the
5. Does the exclusion of explanations relating to items for              Commission’s reputation as an independent and impartial
     which minimum figures can be inferred from official lists           body. The Council considers that, in taking up a post with
     represent an obstacle to the application of Article 30(4) of        Teléfonica, Herr Bangemann breached the duty to behave with
     Directive 93/37?                                                    discretion incumbent upon him because
(1) Council Directive of 14 June 1993, OJ 1993 L 199 of 9.8.1993,        — he is a politician in the public eye;
    p. 54.
                                                                         — he has been responsible for the field of information
                                                                              technology and telecommunications within the Com-
                                                                              mission since 1992 and has now taken up a post with one
                                                                              of the largest companies in that very sphere;
                                                                         — he made public the fact that he was taking up the post
                                                                              when he was still a member of the Commission and
Action brought on 3 August 1999 by the Council of the                         indeed stated that he intended to take up his new post
       European Union against Dr Martin Bangemann                             immediately;
                                                                         — the Commission was at that time in an extremely delicate
                          (Case C-290/99)                                     position and it suffered damage to its reputation;
                         (1999/C 314/03)                                 — the reactions of citizens, the media, political circles and
                                                                              public opinion were, in view of those circumstances,
An action against Dr Martin Bangemann was brought before                      clearly foreseeable.
the Court of Justice of the European Communities on 3 August
1999 by the Council of the European Union represented by
Jean-Claude Piris, Director-General of the Legal Service of the          (1) Regulation No 422/67/EEC, 5/67/Euratom of the Council of
Council, and Martin Bauer, a member of the Legal Service,                    25 July 1967 determining the emoluments of the President and
assisted by Professor Doctor Hans-Jürgen Rabe, of the Ham-                   Members of the Commission and of the President, Judges,
burg Bar and the Brussels firm Gaedertz, with an address for                 Advocates General and Registrar of the Court of Justice.
service in Luxembourg at the office of Alessandro Morbilli,
General Counsel, Legal Affairs Directorate of the European
Investment Bank, 100 Boulevard Konrad Adenauer, L-2920
Luxembourg-Kirchberg.