CELEX: C1998/234/27
Language: en
Date: 1998-07-25 00:00:00
Title: Action brought on 18 May 1998 by the Commission of the European Communities against the Grand Duchy of Luxembourg (Case C-188/98)

C 234/14                EN                 Official Journal of the European Communities                                   25.7.98
     that is the case, there is no scope left for the exercise        falls within the scope of the EC Treaty because, although
     of discretion.                                                   their main purpose is not to maximise or redistribute
                                                                      profits, the associations in question may provide services
                                                                      for consideration or obtain income, thus participating in
Ð (In the alternative) Incorrect exercise of discretion in            economic life. The expression profit-making' used in the
     making an assessment under Article 92(3)(a) and (c) of           second paragraph of Article 58 of the EC Treaty refers to
     the EC Treaty.                                                   a Community law concept and does not relate to the
                                                                      domestic law of the Member States.
Ð In so far as the Commission considers that there was a
     breach of Article 52 of the EC Treaty, that too is not
     capable of founding the lawfulness of the contested
     decision. Article 52 of the EC Treaty does not
     constitute a suitable legal basis for the contested
     decision.                                                        Reference for a preliminary ruling by the Tribunale
                                                                      Amministrativo per la Sardegna by judgment of that court
                                                                      of 12 February 1998, in the case of Holst Italia SpA
                                                                      against Municipality of Cagliari and Ruhrwasser AG
                                                                                 International Water Management SpA
                                                                                             (Case C-176/98)
Action brought on 8 May 1998 by the Commission of the                                         (98/C 234/26)
  European Communities against the Kingdom of Belgium
                          (Case C-172/98)
                                                                      Reference has been made to the Court of Justice of the
                           (98/C 234/25)                              European Communities by judgment of the Tribunale
                                                                      Amministrativo per la Sardegna (Administrative Court,
                                                                      Sardinia), of 12 February 1998, received at the Court
An action against the Kingdom of Belgium was brought                  Registry on 11 May 1998, for a preliminary ruling in the
before the Court of Justice of the European Communities               case of Holst Italia SpA against Municipality of Cagliari
on 8 May 1998 by the Commission of the European                       and Ruhrwasser AG International Water Management
Communities, represented by Maria Patakia, of its Legal               SpA on the following question:
Service, acting as Agent, with an address for service in
Luxembourg at the office of Carlos Gómez de la Cruz, of
its Legal Service, Wagner Centre, Kirchberg.                          whether Council Directive 92/50/EEC (1) of 18 June 1992
                                                                      relating to the coordination of procedures for the award
                                                                      of public service contracts allows a company to prove that
The applicant claims that the Court should:                           it possesses the technical and financial qualifications laid
                                                                      down for admission to a published tendering procedure
                                                                      for the award of a public service contract by relying on
1. declare that, by requiring, as appropriate, the presence           the references of another person who is the sole
     of a Belgian associate on the board of an association            shareholder of one of the companies which own the first-
     or a minimum number of associates of Belgian                     mentioned company.'
     nationality which must, moreover, constitute a
     majority, before an association may be incorporated or           (1) OJ L 209 of 24.7.1992, p. 1.
     granted legal personality, the Kingdom of Belgium has
     failed to fulfil its obligations under Article 6 of the EC
     Treaty;
2. order the Kingdom of Belgium to pay the costs.
                                                                      Action brought on 18 May 1998 by the Commission of
                                                                      the European Communities against the Grand Duchy of
Pleas in law and main arguments adduced in support:
                                                                                               Luxembourg
                                                                                             (Case C-188/98)
The legislation referred to, namely:
                                                                                              (98/C 234/27)
Ð the Law of 25 October 1919 which confers legal
     personality on international associations whose objects          An action against the Grand Duchy of Luxembourg was
     are philanthropic, religious, scientific, artistic or            brought before the Court of Justice of the European
     pedagogical',                                                    Communities on 18 May 1998 by the Commission of the
                                                                      European Communities, represented by Maria Patakia, of
                                                                      its Legal Service, acting as Agent, with an address for
Ð the Law of 27 June 1921 which confers legal                        service in Luxembourg at the office of Carlos Gómez de la
     personality on non-profit-making associations . . .'             Cruz, of its Legal Service, Wagner Centre, Kirchberg.
 ---pagebreak--- 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