CELEX: C2003/112/15
Language: en
Date: 2003-05-10 00:00:00
Title: Case C-54/03: Reference for a preliminary ruling by the Landesgericht für Zivilrechtssachen Wien by order of that Court of 29 January 2003 in the case of Austroplant-Arzneimittel GesmbH against Austrian Republic

C 112/8                EN                      Official Journal of the European Union                                        10.5.2003
Does an agreement to amend an existing public supply                   Reference for a preliminary ruling by the Landesgericht
contract, to the effect that different goods are to be supplied        für Zivilrechtssachen Wien by order of that Court of
from those originally agreed, constitute a public supply               29 January 2003 in the case of Austroplant-Arzneimittel
contract for the purposes of Article 1(a) of Council Directive                       GesmbH against Austrian Republic
93/36/EEC ( 1) of 14 June 1993 coordinating procedures for
the award of public supply contracts (‘Directive 93/36’) in
respect of which an invitation to tender must be issued where:
                                                                                                 (Case C-54/03)
1.    the value of the goods to which the amendment relates
      exceeds the de minimis amount referred to in
      Article 5(1)(a) of Directive 93/36 and                                                    (2003/C 112/15)
2.    as regards the goods affected by the amendment, the
      amendment changes both the supplier and, in a material
      way, the specification of those goods?
                                                                       Reference has been made to the Court of Justice of the
( 1) OJ L 199 of 9.8.1993, p. 1.                                       European Communities by order of the Landesgericht für
                                                                       Zivilrechtssachen Wien (Vienna Regional Civil Court) of
                                                                       29 January 2003, received at the Court Registry on 11 February
                                                                       2003, for a preliminary ruling in the case of Austroplant-
                                                                       Arzneimittel GesmbH against Austrian Republic on the follow-
                                                                       ing questions:
                                                                       1.    Is Council Directive 89/105/EEC of 21 December 1998
                                                                             relating to the transparency of measures regulating the
Reference for a preliminary ruling by the Amtsgericht                        prices of medicinal products for human use and their
Löbau by order of that Court of 21 October 2002 in the                       inclusion in the scope of national health insurance
   criminal proceedings against Nicoleta Maria Georgescu                     systems (OJ 1989 L 40, 8), apart from the remedy already
                                                                             criticised in the Court’s judgment of 27 November 2001
                                                                             in Case C-424/99 ( 1), to be interpreted as meaning that
                          (Case C-51/03)                                     the national provisions set out below are incompatible
                                                                             therewith?
                         (2003/C 112/14)                                     The national implementing provisions concerned are
                                                                             Paragraph 31(3)(12) ASVG in the version published in
                                                                             BGBl I 99/2001 and the Procedure for the compilation
                                                                             of the register of medicinal products under Para-
                                                                             graph 31(3)(12) ASVG (VOHMV), Soziale Sicherheit 11/
Reference has been made to the Court of Justice of the                       1998, Amtliche Verlautbarung No 104/1998.
European Communities by order of the Amtsgericht Löbau
(Local Court, Löbau) of 21 October 2002, received at the
Court Registry on 10 February 2003, for a preliminary ruling           2.    If Question 1 is answered in the affirmative:
in the criminal proceedings against Nicoleta Maria Georgescu
on the following question on the following point of interpret-
                                                                             Is Council Directive 89/105/EEC of 21 December 1998
ation of Council Regulation (EC) No 539/2001 of 15 March
                                                                             relating to the transparency of measures regulating the
2001 (1):
                                                                             prices of medicinal products for human use and their
                                                                             inclusion in the scope of national health insurance
                                                                             systems so precise, clear and definite that the national
Must Article 1(2) in conjunction with Article 8(2) and Annex II              legislator has no scope for discretion when transposing it
of the above regulation be interpreted as meaning that as from               into national law?
the entry into force of that regulation Romanian nationals
now only for a specified time require a visa for entry and stay
in Member States of the European Community for a period                3.    If Question 2 is answered in the affirmative:
not exceeding three months?
                                                                             Is Council Directive 89/105/EEC of 21 December 1998
                                                                             relating to the transparency of measures regulating the
( 1) OJ L 81 of 21.3.2001, p. 1.                                             prices of medicinal products for human use and their
                                                                             inclusion in the scope of national health insurance
                                                                             systems intended to confer a direct right on the applicant
                                                                             in the proceedings in the main case in this instance?
 ---pagebreak--- 10.5.2003              EN                        Official Journal of the European Union                                           C 112/9
4.     If Question 2 is answered in the negative:                        Action brought on 26 February 2003 by the Commission
                                                                         of the European Communities against the Italian Republic
       Does the content of the reference for a preliminary ruling,
       together with the supporting documents, afford the
       Court, in the light of its judgment in Case C-392/93
                                                                                                    (Case C-83/03)
       British Telecommunications [1996] ( 2), sufficient infor-
       mation to answer the question of whether the
       implementing provisions described fall within the scope
       for discretion afforded to the national legislator under                                    (2003/C 112/17)
       Council Directive 89/105/EEC of 21 December 1998
       relating to the transparency of measures regulating the
       prices of medicinal products for human use and their
       inclusion in the scope of national health insurance
       systems or does the Court leave it to the referring court
       to answer this question?                                          An action against the Italian Republic was brought before the
                                                                         Court of Justice of the European Communities on 26 February
                                                                         2003 by the Commission of the European Communities,
( 1) European Court Reports 2001 p. I-09285.                             represented by Antonio Aresu and Roberto Amorosi, acting as
( 2) European Court Reports 1996 p. I-01631.                             Agents.
                                                                         The applicant claims that the Court should:
                                                                         a)     find that the Italian Republic has failed to fulfil its
                                                                                obligations under Article 4(2) of Council Directive 85/
Reference for a preliminary ruling by the Bundesarbeits-                        337/EEC (1) of 27 June 1985 on the assessment of the
gericht by order of that Court of 6 November 2002 in the                        effects of certain public and private projects on the
case of Wolff & Müller GmbH & Co.KG against José Filipe                         environment in as much as it failed properly to determine
                           Pereira Félix                                        whether a project for the construction of a tourist port at
                                                                                Fassacesia (Chieti) — a project covered by Annex II to the
                                                                                directive — warranted the commencement of a procedure
                          (Case C-60/03)                                        to assess its impact on the environment, and
                         (2003/C 112/16)                                 b)     order the Italian Republic to pay the costs.
Reference has been made to the Court of Justice of the
European Communities by order of the Bundesarbeitsgericht
(Federal Labour Court) of 6 November 2002, received at the               Pleas in law and main arguments
Court Registry on 14 February 2003, for a preliminary ruling
in the case of Wolff & Müller GmbH & Co.KG against José
Filipe Pereira Félix on the following question:
                                                                         The Italian authorities have given the Commission no expla-
                                                                         nation of the reasons for which they took the view that there
Does Article 49 EC (formerly Article 59 of the EC Treaty)                was no need for an environmental impact assessment, in
preclude a national system whereby, when subcontracting the              accordance with Article 4(2) of Directive 85/337/EEC, to be
conduct of building work to another undertaking, a building              carried out in relation to a project for the construction of a
contractor becomes liable, in the same way as a guarantor who            tourist port in Fassacesia (Chieti).
has waived benefit of execution, for the obligation on that
undertaking or that undertaking’s subcontractors to pay the
minimum wage to a worker or to pay contributions to a
communal scheme for parties to a collective agreement where              It is therefore unclear whether the characteristics of the project
the minimum wage means the sum payable to the worker                     were considered with reference to its possible impact on fauna
after tax, social security contributions, payments towards the           and flora and on the landscape. The fact that the area in
promotion of employment or other such social insurance                   question has not been proposed as a Site of Community
payments have been deducted (net pay), if the safeguarding of            Importance is all the more reason why the project’s impact on
workers’ pay is not the primary objective of the legislation or          fauna and flora and on the landscape should have been taken
is merely a subsidiary objective?                                        into consideration. Moreover, the fact that this point was
                                                                         considered only after building permission had already been
                                                                         granted is further indication that the procedure followed was
                                                                         incoherent, to say the least.