CELEX: C2004/021/10
Language: en
Date: 2004-01-24 00:00:00
Title: Judgment of the Court (Fifth Chamber) of 27 November 2003 in Case C-497/01 (Reference for a preliminary ruling from the Tribunal d'arrondissement de Luxembourg): Zita Modes Sàrl v Administration de l'enregistrement et des domaines (Sixth VAT Directive — Article 5(8) — Transfer of a totality of assets — Continuation by the transferee in the same branch of business as the transferor — Legal authorisation to pursue the activity)

24.1.2004                EN                           Official Journal of the European Union                                                    C 21/5
      Directive 90/219, and by failing to transpose the provisions of               of the assessment of the most economically advantageous tender
      that directive in respect of certain contained use by the Ministry            for a contract for the supply of electricity, an award criterion
      of Defence, the French Republic has failed to fulfil its obligations          with a weighting of 45 % which requires that the electricity
      under that directive;                                                         supplied be produced from renewable energy sources. The fact
                                                                                    that that criterion does not necessarily serve to achieve the
2.    Dismisses the remainder of the action;                                        objective pursued is irrelevant in that regard.
3.    Orders each party to bear its own costs.                                      On the other hand, that legislation does preclude such a
                                                                                    criterion where
(1) OJ C 369 of 22.12.2001.
                                                                                    —      It is not accompanied by requirements which permit the
                                                                                           accuracy of the information contained in the tenders to be
                                                                                           effectively verified,
                  JUDGMENT OF THE COURT
                                                                                    —      it requires tenderers to state how much electricity they can
                           (Sixth Chamber)                                                 supply from renewable energy sources to a non-defined
                                                                                           group of consumers, and allocates the maximum number
                        of 4 December 2003                                                 of points to whichever tenderer states the highest amount,
                                                                                           where the supply volume is taken into account only to the
in Case C-448/01 (Reference for a preliminary ruling from                                  extent that it exceeds the volume of consumption expected
the Bundesvergabeamt): EVN AG, Wienstrom GmbH v                                            in the context of the procurement.
Republik Österreich, third parties: Stadtwerke Klagenfurt
             AG and Kärntner Elektrizitäts-AG (1)                                   It is for the national court to determine whether, despite the
                                                                                    contracting authority’s failure to stipulate a specific supply
(Directive 93/36/EEC — Public supply contracts — Concept                            period, the award criterion was sufficiently clearly formulated to
of the most economically advantageous tender — Award                                satisfy the requirements of equal treatment and transparency of
criterion giving preference to electricity produced from                            procedures for awarding public contracts.
renewable energy sources — Directive 89/665/EEC — Public
procurement review proceedings — Unlawful decisions —                         2.    The Community legislation on public procurement requires the
Possibility of annulment only in the case of material influ-                        contracting authority to cancel an invitation to tender if it
ence on the outcome of the tender procedure — Illegality of                         transpires in review proceedings under Article 1 of Directive
an award criterion — Obligation to cancel the invitation to                         89/665 that a decision relating to one of the award criteria
                                 tender)                                            laid down by that authority is unlawful and it is therefore
                                                                                    annulled by the review body.
                            (2004/C 21/09)
                                                                              (1) OJ C 84 of 6.4.2002.
                    (Language of the case: German)
(Provisional translation; the definitive translation will be published
                    in the European Court Reports)                                                JUDGMENT OF THE COURT
                                                                                                           (Fifth Chamber)
In Case C-448/01: Reference to the Court under Article 234
EC by the Bundesvergabeamt (Austria) for a preliminary ruling                                          of 27 November 2003
in the proceedings pending before that body between EVN
AG, Wienstrom GmbH and Republik Österreich, third parties:                    in Case C-497/01 (Reference for a preliminary ruling from
Stadtwerke Klagenfurt AG and Kärntner Elektrizitäts-AG, on                    the Tribunal d’arrondissement de Luxembourg): Zita
the interpretation of Article 26 of Council Directive 93/36/                  Modes Sàrl v Administration de l’enregistrement et des
EEC of 14 June 1993 coordinating procedures for the award                                                     domaines (1)
of public supply contracts (OJ 1993 L 199, p. 1) and of
Articles 1 and 2(1)(b) of Council Directive 89/665/EEC of
                                                                              (Sixth VAT Directive — Article 5(8) — Transfer of a
21 December 1989 on the coordination of the laws, regu-
                                                                              totality of assets — Continuation by the transferee in
lations and administrative provisions relating to the application
                                                                              the same branch of business as the transferor — Legal
of review procedures to the award of public supply and public
                                                                                              authorisation to pursue the activity)
works contracts (OJ 1989 L 395, p. 33), as amended by
Directive 92/50/EEC of 18 June 1992 relating to the coordi-
nation of procedures for the award of public service contracts                                              (2004/C 21/10)
(OJ 1992 L 209, p. 1), the Court (Sixth Chamber), composed
of: V. Skouris (Rapporteur), acting for the President of the                                         (Language of the case: French)
Sixth Chamber, C. Gulmann, J.-P. Puissochet, R. Schintgen and
N. Colneric, Judges; J. Mischo, Advocate General; H. A. Rühl,                 (Provisional translation; the definitive translation will be published
Principal Administrator, for the Registrar, has given a judgment                                    in the European Court Reports)
on 4 December 2003, in which it has ruled:
1.    The Community legislation on public procurement does not                In Case C-497/01: Reference to the Court under Article 234
      preclude a contracting authority from applying, in the context          EC by the Tribunal d’arrondissement de Luxembourg (Luxem-
 ---pagebreak--- C 21/6                   EN                              Official Journal of the European Union                                             24.1.2004
bourg) for a preliminary ruling in the proceedings pending                                        JUDGMENT OF THE COURT
before that court between Zita Modes Sàrl and Administration
de l’enregistrement et des domaines, on the interpretation of
Article 5(8) of Sixth Council Directive 77/388/EEC of 17 May                                                (Fifth Chamber)
1977 on the harmonisation of the laws of the Member States
relating to turnover taxes — Common system of value added                                                of 4 December 2003
tax: uniform basis of assessment (OJ 1977 L 145, p. 1), as
amended by Council Directive 95/7/EC of 10 April 1995
amending Directive 77/388/EEC and introducing new simplifi-                      in Case C-92/02 (Reference for a preliminary ruling from
cation measures with regard to value added tax — scope of                        the Arbeidsrechtbank van het Arrondissement Tonge-
certain exemptions and practical arrangements for                                ren): Nina Kristiansen v Rijksdienst voor Arbeidsvoor-
implementing them (OJ 1995 L 102, p. 18), the Court (Fifth                                                      ziening (1)
Chamber), composed of: P. Jann, acting for the President of
the Fifth Chamber, D. A. O. Edward and S. von Bahr                               (Social security — National system of unemployment ben-
(Rapporteur), Judges; F. G. Jacobs, Advocate General; R. Grass,                  efits laying down a rule against overlapping of benefits as
Registrar, has given a judgment on 27 November 2003, in                          regards certain income — Unemployment benefits for former
which it has ruled:                                                              members of the temporary staff of the European Communi-
                                                                                 ties — Freedom of movement for workers — National
                                                                                 scheme of unemployment insurance — Classification of post-
                                                                                 graduate occupation — Occupation of trainee fellowship
1.    Article 5(8) of Sixth Council Directive 77/388/EEC of 17 May               student — Different classification in other Member States
      1977 on the harmonisation of the laws of the Member States                                   of the EEA — Discrimination)
      relating to turnover taxes — Common system of value added
      tax: uniform basis of assessment, as amended by Council                                                (2004/C 21/11)
      Directive 95/7/EC of 10 April 1995 amending Directive 77/
      388/EEC and introducing new simplification measures with
      regard to value added tax — scope of certain exemptions                                         (Language of the case: Dutch)
      and practical arrangements for implementing them, must be
      interpreted as meaning that when a Member State has made
      use of the option in the first sentence of that paragraph to               (Provisional translation; the definitive translation will be published
      consider that for the purposes of value added tax no supply of                                 in the European Court Reports)
      goods has taken place in the event of a transfer of a totality of
      assets, that no-supply rule applies — without prejudice to use
      of the possibility of restricting its application in the circum-
      stances laid down in the second sentence of the same paragraph             In Case C-92/02, Reference to the Court under Article 234 EC
      — to any transfer of a business or an independent part of an               by the Arbeidsrechtbank van het Arrondissement Tongeren
      undertaking, including tangible elements and, as the case                  (Belgium) for a preliminary ruling in the proceedings pending
      may be, intangible elements which, together, constitute an                 before that court between Nina Kristiansen and Rijksdienst
      undertaking or a part of an undertaking capable of carrying on             voor Arbeisdvoorziening, on the interpretation of Regulation
      an independent economic activity. The transferee must however              (EEC) No 1408/71 of the Council of 14 June 1971 on the
      intend to operate the business or the part of the undertaking              application of social security schemes to employed persons, to
      transferred and not simply to immediately liquidate the activity           self-employed persons and to members of their families
      concerned and sell the stock, if any.                                      moving within the Community, as amended and updated by
                                                                                 Council Regulation (EC) No 118/97 of 2 December 1996 (OJ
                                                                                 1997 L 28, p. 1), and of Regulation (EEC) No 1612/68 of the
                                                                                 Council of 15 October 1968 on freedom of movement for
2.    When a Member State has made use of the option in the first                workers within the Community (OJ, English Special Edition
      sentence of Article 5(8) of Sixth Directive 77/388, as amended             1968 (II), p. 475), the Court (Fifth Chamber), composed of:
      by Directive 95/7, to consider that for the purposes of value              C. W. A. Timmermans, acting for the President of the Fifth
      added tax no supply of goods has taken place in the event of a             Chamber, D. A. O. Edward and A. La Pergola (Rapporteur),
      transfer of a totality of assets, the restriction by a Member State        Judges; S. Alber, Advocate General; R. Grass, Registrar, has
      of the application of that no-supply rule to transfers of a totality       given a judgment on 4 December 2003, in which it has ruled:
      of assets where the transferee holds the authorisation for pursuit
      of the economic activity which that totality enables to be carried
      on infringes that provision.                                               1.    The second subparagraph of Article 28a(1) of the Conditions
                                                                                       of Employment of Other Servants of the European Communities
                                                                                       means that the relationship between the Community system of
                                                                                       unemployment benefits and those of the Member States is a
                                                                                       complementary one, which cannot be disregarded by a Member
(1) OJ C 44 of 16.2.2002.                                                              State in the application of its system of unemployment benefits
                                                                                       and, specifically, of a rule against the overlapping of benefits
                                                                                       under that system, to a former member of the temporary
                                                                                       staff who resides in that Member State and is entitled to
                                                                                       unemployment benefits paid under the Conditions of Employ-
                                                                                       ment of Other Servants of the European Communities.