CELEX: C2000/192/22
Language: en
Date: 2000-07-08 00:00:00
Title: Case C-173/00: Reference for a preliminary ruling by the Fourth Chamber of the Consiglio di Stato, sitting in its judicial capacity, by order of that court of 12 November 1999 in the case of ANAS — Ente Nazionale per le Strade against SCA RL CMC Cooperativa Muratori Cementisti Ravenna and SpA ICLA Costruzioni Generali and SpA Impresa Toto e Toto

C 192/12              EN                   Official Journal of the European Communities                                         8.7.2000
Reference for a preliminary ruling from the Landesgericht             Pleas in law and main arguments
Linz, Austria, by order of that court of 6 April 2000 in
the case of Simone Leitner, a minor, v TUI Deutschland                — Infringement of Article 14(2)(2)(a) of the Rules of Pro-
                        GmbH & Co KG                                      cedure of the Court of First Instance, as amended by the
                                                                          decision adopted by the Court of First Instance of the
                                                                          European Communities on 17 May 1999 with a view to
                        (Case C-168/00)
                                                                          enabling it to give decisions in cases when constituted by
                                                                          a single judge (2): the case was delegated by the First
                        (2000/C 192/20)                                   Chamber to the Judge-Rapporteur sitting as a single judge
                                                                          and determined by that judge in that capacity, despite the
Reference has been made to the Court of Justice of the                    fact that it raised the question of the legality of points 2.3
European Communities by an order of the Landesgericht                     and 3.2 of the document entitled ‘Requests and Complaints
(Regional Court), Linz, of 6 April 2000, which was received at            pursuant to Article 90 of the Staff Regulations’, published
the Court Registry on 8 May 2000, for a preliminary ruling in             by the Commission in Administrative Notices No 635 of
the case of Simone Leitner, a minor, v TUI Deutschland GmbH               16.7.1990. In addition, the case raised the question of the
& Co KG, on the following question:                                       legality of the second paragraph of Article 3 of the
                                                                          Commission’s decision of 1 September 1983 on the
                                                                          criteria applicable to appointment in grade and classifi-
Is Article 5 of Council Directive 90/314/EEC of 13 June 1990              cation in step on recruitment.
on package travel, package holidays and package tours (1) to
be interpreted as meaning that compensation is in principle           — Infringement of the second paragraph of Article 2 of the
payable in respect of claims for damages for non-material                 Commission’s decision of 1 September 1983 on the
damage?                                                                   criteria applicable to appointment in grade and classifi-
                                                                          cation in step on recruitment, and of Articles 31 and 32 of
                                                                          the Staff Regulations, which apply to members of the
(1) OJ 1990 L 158, p. 59.
                                                                          temporary staff by virtue of Article 5 of that decision: both
                                                                          Article 31 and Article 32 of the Staff Regulations are
                                                                          designed, in particular, to permit the appointing authority
                                                                          to take into account qualifications and professional experi-
                                                                          ence gained prior to recruitment by the Communities.
                                                                          Consequently, a provision having the object or effect of
                                                                          restricting that possibility, by prohibiting the taking into
                                                                          account of the experience acquired by the person con-
Appeal brought on 10 May 2000 by Alain Libéros against                    cerned between the date of his being offered employment
the judgment delivered on 9 March 2000 by the Court of                    and the date of his entry into the service of the Communi-
First Instance of the European Communities (single judge)                 ties, would be contrary to those articles.
in Case T-29/97 between Alain Libéros and the Com-
           mission of the European Communities                        — Breach of the obligation to provide reasons for judgments,
                                                                          according to which, in particular, the grounds stated must
                       (Case C-171/00 P)                                  be legally permissible, that is to say, adequate, relevant, not
                                                                          vitiated by errors of law or of fact and not inconsistent.
                        (2000/C 192/21)
                                                                      (1) OJ C 122 of 29.4.2000, p. 30.
                                                                      (2) OJ L 135 of 29.5.1999, p. 92.
An appeal against the judgment delivered on 9 March 2000
by the Court of First Instance of the European Communities
(single judge) in Case T-29/97 between Alain Libéros and the
Commission of the European Communities was brought
before the Court of Justice of the European Communities on
10 May 2000 by Alain Libéros, represented by Marc-Albert
Lucas, of the Liège Bar, with an address for service in
Luxembourg at the Chambers of Luc Tecqmenne, 3 Rue des                Reference for a preliminary ruling by the Fourth Chamber
Capucins.                                                             of the Consiglio di Stato, sitting in its judicial capacity, by
                                                                      order of that court of 12 November 1999 in the case of
                                                                      ANAS — Ente Nazionale per le Strade against SCA RL
The appellant claims that the Court should:                           CMC Cooperativa Muratori Cementisti Ravenna and SpA
                                                                      ICLA Costruzioni Generali and SpA Impresa Toto e Toto
— annul the judgment delivered on 9 March 2000 by the
    Court of First Instance in Case T-29/97 Libéros v Com-
    mission of the European Communities (1);                                                   (Case C-173/00)
— allow the claims put forward in the proceedings at first                                     (2000/C 192/22)
    instance;
                                                                      Reference has been made to the Court of Justice of the
— order the Commission to pay the costs.                              European Communities by order of the Fourth Chamber of
 ---pagebreak--- 8.7.2000               EN                      Official Journal of the European Communities                                        C 192/13
the Consiglio di Stato, sitting in its judicial capacity, of              Reference for a preliminary ruling by the Hoge Raad der
12 November 1999, received at the Court Registry on 10 May                Nederlanden (Supreme Court of the Netherlands) by
2000, for a preliminary ruling in the case of ANAS — Ente                 judgment of that court of 3 May 2000 in the case
Nazionale per le Strade against SCA RL CMC Cooperativa                    of Kennemer Golf & Country Club against Inspecteur
Muratori Cementisti Ravenna and SpA ICLA Costruzioni                        Belastingdienst Particulieren/Ondernemingen Haarlem
Generali and SpA Impresa Toto e Toto on the following
questions:
                                                                                                    (Case C-174/00)
(1) In calls for tenders for public works contracts, do clauses
     excluding undertakings which have not submitted with
     their tenders explanations concerning components of the                                        (2000/C 192/23)
     price indicated, amounting to at least 75 % of the figure
     specified in the tender conditions, represent an obstacle to
     the application of Article 30(4) of Directive 93/37? (1)             Reference has been made to the Court of Justice of the
                                                                          European Communities by judgment of the Hoge Raad der
                                                                          Nederlanden (Supreme Court of the Netherlands) of 3 May
(2) Does the establishment of a mechanism for determining                 2000, received at the Court Registry on 9 May 2000, for a
     the threshold indicative of irregularity, below which the            preliminary ruling in the case of Kennemer Golf & Country
     validity of tenders falls to be verified, on the basis of an ad      Club against Inspecteur Belastingdienst Particulieren/Onder-
     hoc criterion and an arithmetical mean, automatically so             nemingen Haarlem on the following questions:
     that undertakings are unable to ascertain the threshold in
     advance, represent an obstacle to the application of
     Article 30(4) of Directive 93/37?                                    1. (a) Where it is necessary to establish whether or not
                                                                                  a body aims to make a profit as referred to in
                                                                                  Article 13(A)(1)(m) of the Sixth Directive, must
                                                                                  account be taken solely of earnings from the services
(3) Does the fact that the exchange of views is to take place at                  referred to in that provision or must earnings from
     an earlier stage, without the undertaking which has                          other benefits provided by it also be taken into
     allegedly submitted an irregular tender being assured of an                  consideration?
     opportunity to state its reasons, after the opening of the
     envelopes and before the adoption of the measure exclud-
     ing it, represent an obstacle to the application of                      (b) If, in determining whether or not the aim is to make a
     Article 30(4) of Directive 93/37?                                            profit, account must be taken solely of the services
                                                                                  supplied by the body as referred to in
                                                                                  Article 13(A)(1)(m) of the Sixth Directive and not total
                                                                                  earnings, must only the costs incurred directly for
(4) Does a provision under which the contracting authority                        the services be taken into consideration or also a
     may take account of explanations relating solely to the                      proportion of the body’s other costs?
     economy of the construction method or the technical
     solutions adopted or the exceptionally favourable con-
     ditions available to the tenderer represent an obstacle to           2. (a) Is there a direct link, within the meaning of inter alia
     the application of Article 30(4) of Directive 93/37?                         the judgment of the Court of Justice of the European
                                                                                  Communities in Case 102/85 Apple and Pear Develop-
                                                                                  ment Council [1988] ECR 1443, in the case of
(5) Does the [exclusion] of explanations relating exclusively to                  subscription fees charged by an association which,
     items for which minimum values have been established by                      pursuant to the object laid down in its articles of
     administrative provisions or can be inferred from official                   association, provides its members with sports facilities
     lists represent an obstacle to the application of                            in the context of an association and, if not, is the
     Article 30(4) of Directive 93/37?                                            association to be regarded as a taxable person within
                                                                                  the meaning of Article 4(1) of the Sixth Directive only
                                                                                  in so far as it also provides benefits for which it receives
                                                                                  direct consideration?
(1) Council Directive 93/37/EEC of 14 June 1993 concerning the
    coordination of procedures for the award of public works                  (b) Must the total amount of the annual subscription fees
    contracts (OJ L 199 of 9.8.1993, p. 54).                                      from the members whom the association provides
                                                                                  with sports facilities be included in the earnings of a
                                                                                  body in the form of an association which are to be
                                                                                  taken into account in determining whether or not the
                                                                                  aim is to make a profit as described in the first question
                                                                                  even where no direct link exists between the various
                                                                                  benefits provided by the association for its members
                                                                                  and the subscription fee paid by them?