CELEX: C1997/228/25
Language: en
Date: 1997-07-26 00:00:00
Title: Reference for a preliminary ruling from the Bundesvergabeamt by order of that body of 15 May 1997 in the review proceedings brought by the applicant, HDM Flugservice GmbH v. Hauptverband der österreichischen Sozialversicherungsträger, contract-awarding body (Case C-223/97)

No C 228/ 12          EN                     Official Journal of the European Communities                                      26 . 7. 97
     in a position which it itself could not take up without                    pursuant to a legal obligation to pay an amount
     infringing Article 86, whilst, as a result, a system of                    determined by a civil-law contract for valuable
     undistorted competition is not invariably guaranteed ?                     consideration ?
( f) If such compulsory affiliation is contrary to                      2.      Is that structuring of service relationships permissible
     Community law, does that mean that it is not legally                       in the light of Article 3 ( f), Article 5 or other
     valid ?                                                                    provisions of the EC Treaty, if competition on a .
                                                                                relevant market is thereby precluded for a long
                                                                                period, and where for the provisions of the service
                                                                                no service monopolies expressly provided for by law
                                                                                exist ?
Reference for a preliminary ruling by the Oberste                       3.      May an individual derive, from the abovementioned
Gerichtshof by order of that court of 27 May 1997 in the                        or other provisions of Council Directive 89/665/EEC
land register case brought by Manfred Trummer and Dr                            on the coordination of the laws, regulations and
                           Peter Mayer                                          administrative provisions relating to the application
                       ( Case C-222/97 )                                        of review procedures to the award of public supply
                         ( 97/C 228/24 )                                        and public works contracts, a specific right to have
                                                                                review proceedings conducted before authorities or
                                                                                courts which comply with the provisions of
Reference has been made to the Court of Justice of the                          Article 2 ( 8 ) of Directive 89/665/EEC (2 ) which right
European Communities by order of the Oberste Gerichts­                          is so sufficiently precise and specific that, in the
hof ( Austrian Supreme Court) of 27 May 1997, which                             event of non-transposition of the Directive in
was received at the Court Registry on 13 June 1997, for a                       question by the Member State, an individual may
preliminary ruling in the land register case brought by                         successfully assert that legal right against that
Manfred Trummer and Dr Peter Mayer on the following                             Member State in legal proceedings ?
question:
                                                                        4.      In conducting a review procedure on the basis of an
Does the refusal to allow a mortgage to be created to                           individual's right, founded on Article 41 of Directive
cover an existing foreign-currency debt ( in this case in                       92/50/EEC in conjunction with Directive 89/665/
German marks ( DM )) constitute a restriction on the                            EEC, to the conduct of a review procedure, must a
movement of capital and payments compatible with                                national court, analogous to the Federal Procurement
Article 73b of the EC Treaty ?                                                  Office, refuse to take cognizance of provisions of
                                                                                national law such as Section 91 (2 ) ( 3 ) BVergG,
                                                                                which confer on the Federal Procurement Office
                                                                                powers of review only in the case of infringements of
                                                                                the Federal Procurement law and regulations
                                                                                adopted thereunder, on the ground that those
Reference for a preliminary ruling from the Bundesverga­                        provisions preclude a review procedure from being
beamt by order of that body of 15 May 1997 in the                               conducted under the Federal Procurement Law for
review proceedings brought by the applicant, HDM Flug­                          awards of contracts for services, and must such a
service GmbH v. Hauptverband der osterreichischen                               national court conduct a review procedure in
      Sozialversicherungstrager, contract-awarding body                         accordance with the fourth part of the Federal
                       ( Case C-223 /97 )                                       Procurement Law ?
                         ( 97/C 228/25 )
                                                                        5 ( a ) Are the services mentioned in the facts of this case to
                                                                                be classified (with reference to Article 10 of Directive
Reference has been made to the Court of Justice of the                          92/50/EEC ) as services coming under Annex I (A) to
European Communities by an order of the Bundesvergabe­                          the aformentioned Directive ( Category 3 — Air
amt ( Federal Procurement Office ) of 15 May 1997, which                        transport services of freight and passengers ) and
was received at the Court Registry on 13 June 1997, for a                       contracts    for such    services are  therefore   to  be
preliminary ruling in the review proceedings brought by                         awarded in accordance with the provisions of Titles
the applicant, HDM Flugservice GmbH v. Hauptverband                             III and IV of the Directive, or are they to be
der osterreichischen Sozialversicherungstrager, contract­                       classified as services under Annex I ( B ) to the
awarding body, on the following questions :                                     Directive ( Health ) with the result that contracts for
                                                                                such services are to be awarded in accordance with
1.     Can a legal relationship, such as that in the main                       the provisions of Articles 13 and 14, or do those
       proceedings, be deemed to be a contract satisfying                       services fall outside the sphere of application of
       the criteria in Article 1 ( 1 ) ( a ) of Directive 92/50/                Directive 92/50/EEC ?
       CEE (') where, under that relationship, a public
       authority is obliged, on the basis of a State                    5 ( b ) Do the provisions of Articles 1 to 7 of Directive 92/
       agreement at private law providing for no                                50/EEC satisfy the preconditions laid down in the
       remuneration to provide services for remuneration ,                      Van Duyn judgment ( 3 ) on the direct applicability of
       whereby that remuneration is payable by a third                          a Community Directive, with the result that services
       party, also a public contract-awarding body,                             coming under Annex I ( B ) to the Directive are to be
 ---pagebreak--- 26 . 7 . 97               EN                     Official Journal of the European Communities                                     No C 228/ 13
        awarded under the procedure therein mentioned or                    Reference for a preliminary ruling by the Arrondissements­
        are the provisions of the Directive relevant to the                 rechtbank, Maastricht, by judgment of that court of
        services mentioned in Annex I ( A ) capable of                      13 June 1997 in the criminal proceedings against Johannes
        fulfilling the preconditions laid down in the                                               Martinus Lemmens
        abovementioned case ?                                                                         ( Case C-226/97)
                                                                                                          ( 97/C 228/27)
6.      Is there under Article 5 or other provisions of the
        EEC Treaty, or under Directive 92/50/EEC, an                        Reference has been made to the Court of Justice of the
        obligation on the State to interfere in existing legal              European Communities by judgment of the Arrondisse­
        situations concluded for an indefinite period or for                mentsrechtbank ( District Court), Maastricht, of 13 June
        several years but which were not entered into in                    1997, which was received at the Court Registry on 18 June
        accordance with the abovementioned Directive .                      1997, for a preliminary ruling in the criminal proceedings
                                                                            against Johannes Martinus Lemmens on the following
(') OJ No L 209 , 24 . 7. 1992, p . 1 .                                     questions :
( 2 ) OJ No L 395 , 30 . 12 . 1989 , p . 33 .
(■') Case 41 /74 [ 1974 ] ECR 1337.                                         1 . Can a defendant in criminal proceedings instituted for
                                                                                 an offence contrary to Article 8 (2 ) ( a ) of the Wegen­
                                                                                 verkeerswet ( Road Traffic Law) 1994 successfully rely
                                                                                 on the application of the Regeling Ademanalyse
                                                                                 ( Regulation on breath analysis ) ( Ned.Stcrt 1987, 187),
                                                                                 as amended, laying down further rules concerning the
                                                                                 requirements for breath-analysis apparatus and the
Reference for a preliminary ruling from the Verwaltungs­                         tests which such apparatus must undergo, being set
gerichtshof, by order of that court of 26 May 1997, in the                       aside
               case of Erich Ciola v. Land Vorarlberg
                           ( Case C-224/97 )                                     — where, for the purposes of the investigation
                                                                                      referred to in Article 8 ( 2 ) ( a ) of the Wegenverkeer­
                             ( 97/C 228/26 )                                          swet 1994, that Regulation is based, pursuant to
                                                                                      Article 65 of the Invoeringswet Wegenverkeerswet
                                                                                      ( Law implementing the Road Traffic Law) 1994,
Reference has been made to the Court of Justice of the                                on Article 163 of the Wegenverkeerswet viewed in
European Communities by order of the Verwaltungsge­                                   conjunction with Article 5 of the Besluit Alcoho­
richtshof (Administrative Court of Appeal ) of 26 May                                 londerzoeken ( Decree on the conduct of tests to
 1997, received at the Court Registry on 16 June 1997, for                            determine alcohol level ) ( Stb . 1987, 432 ), as
a preliminary ruling in the case of Erich Ciola v. Land Vor­                          amended,
arlberg on the following questions :                                             — in view of the failure to notify the Regulation to
                                                                                      the European Commission, as required by Article 8
                                                                                      of Directive 83/189/EEC O ?
 1 . Are the provisions concerning the freedom to provide
       services to be interpreted as precluding a Member
                                                                             2 . Should a court in criminal proceedings of the kind
       State from prohibiting the operator of a yachting
       harbour, on pain of criminal prosecution, from hiring
                                                                                 referred to above disapply that Regulation of its own
                                                                                 motion on account of the failure to notify it as
       out more than a specific quota of moorings to boat
       owners who are resident in another Member State ?                         required ?
                                                                             (') OJ No L 109 , 26 . 4 . 1983 , p . 8 .
 2 . Does Community law, in particular the provisions
       concerning the freedom to provide services in
       conjunction with Article 5 of the EC Treaty and
       Article 2 of the Act concerning the conditions of
       accession of the Republic of Austria, the Republic of                 Action brought on 18 June 1997 by the Commission
       Finland and the Kingdom of Sweden and the                             of the European Communities against the Portuguese
       adjustments to the Treaties on which the European                                                       Republic
       Union is founded ( OJ No C 241 , 29 . 8 . 1994, p. 21 ;
       OJ No L 1 , 1 . 1 . 1995, p. 1 ), give the provider of the                                       ( Case C-227/97)
       services referred to in question 1 above, who is                                                    ( 97/C 228/28 )
       resident in Austria, the right to assert that the
       prohibition issued in the terms set out in question 1 in
       an administrative decision ( Bescheid) adopted in 1990                An action against the Portuguese Republic was brought
       in regard to a specific person should not be applied in               before the Court of Justice of the European Communities
       decisions    of the      Austrian      courts and    authorities      on 18 June 1997 by the Commission of the European
       adopted after 1 January 1995 ?                                        Communities, represented by Francisco de Sousa Fialho,
                                                                             of its Legal Service, acting as Agent, with an address for
                                                                             service in Luxembourg at the office of Carlos Gomez de la
                                                                             Cruz, Wagner Centre, Kirchberg.