CELEX: C1997/142/26
Language: en
Date: 1997-05-10 00:00:00
Title: Reference for a preliminary ruling from the Tribunal de Grande Instance, Grasse, by judgment of that court of 19 July 1996 in the case of the Public Prosecutor, and the federal consumers' union 'Que Choisir?' and the general consumer organization 'OR.GE.CO', civil plaintiffs, v. Max Rombi and Arkopharma SA (Case C-107/97)

No C 142/ 12              EN                  Official Journal of the European Communities                                          10 . 5 . 97
( a ) whether a legal provision which relieves a particular                         particular to Article 132 ( 1 ) of the EC Treaty and
      public economic entity from the obligation of                                 Articles 102 and 103 of Council Decision 91 /482/
      complying with the generally applicable legislation                           EC of 25 July 1991 on the association of the
      concerning fixed-term employment contracts falls                              overseas      countries      and   territories with     the
      within the scope of 'aid granted by a Member State or                         European Economic Community ( 2 ) valid in so far
      through State resources in any form whatsoever';                              they relate to the imports referred to in
                                                                                    Question 1 ( a )?
( b ) whether, if question ( a ) is answered in the affirmative,
      an aid of that kind should be subject to the                                  If Questions 1(a ) and ( b ) are answered in the
      preliminary examination procedure under Article 93 ( 3 )                      affirmative :
      of the Treaty;
                                                                         2.    Must Article 23 of the aforementioned Directive be
(c ) whether, where that procedure has not been followed,                       interpreted as meaning that the national provisions
      the prohibition of an aid of that kind can be regarded                    adopted to implement that article may only be applied
      as directly applicable within the domestic law of the                    to the imports referred to in Question 1 ( a ):
      Italian State;
                                                                               — after the rules relating to intra-Community trade
( d ) whether, in the event of question (c ) being answered in                      in the goods concerned, to which, under Article 22
      the affirmative, such a prohibition may be relied on in                       of that Directive, the third-country rules must be
      a dispute between the public economic entity and an                           at least equivalent, have fully entered into force,
      individual who complains of failure to apply to him                           and
      the general legislation concerning fixed-term
      employment in order to secure conversion of his                          — after a legally valid decision has been taken with
      employment relationship into one of indeterminate                             regard to the inclusion of the country concerned
      duration and/or compensation for damage .                                     on the first list mentioned in Article 23 ( 3 ) and
                                                                                    with regard to the list of approved establishments
                                                                                    in that country ?
                                                                         3 . Is Commission Decision 94/70/EC ( 3 ) valid ?
Reference for a preliminary ruling from the College van
Beroep voor het Bedrijfsleven by judgment of that court                  (') OJ No L 268 , 14 . 9 . 1992, p . 1 .
of 15 January 1997 in the case of 1 . Dutch Antillian                    ( 2 ) OJ No L 263 , 19 . 9 . 1991 , p . 1 .
                                                                         ( 3 ) OJ No L 36 , 8 . 2 . 1994, p. 5 .
Dairy Industry Inc., 2. Verenigde Douane-Agenten BV;
Netherlands Antilles intervening, v. Rijksdienst voor de
                      Keuring van Vee en Vlees
                           ( Case C-106/97 )
                             ( 97/C 142/25 )
                                                                         Reference for a preliminary ruling from the Tribunal de
Reference has been made of the Court of Justice of the                   Grande Instance, Grasse, by judgment of that court of
European Communities College van Beroep voor het Be­                     19 July 1996 in the case of the Public Prosecutor, and the
drijfsleven ( administrative court of last instance in matters           federal consumers' union 'Que Choisir ?' and the general
of trade and industry) by judgment of that court of                      consumer organization 'OR.GE.CO', civil plaintiffs, v.
 15 January 1997 in the case of 1 . Dutch Antillian Dairy                                 Max Rombi and Arkopharma SA
Industry Inc., 2 . Verenigde Douane-Agenten BV; Nether­                                              ( Case C-107/97 )
lands Antilles intervening, v. Rijksdienst voor de Keuring
van Vee en Vlees on the following questions:                                                           ( 97/C 142/26 )
 1 . ( a ) Must the provisions of Chapter III of Directive 92/           Reference has been made to the Court of Justice of the
            46/EEC ( 5 ), seen in particular in the light of             European Communities by a judgment of the Tribunal de
            Article 227, together with Articles 131 to 136, of           Grande Instance ( Regional Court), Grasse, of 19 July
            the EC Treaty be interpreted as setting the result           1997, which was received at the Court Registry on
            to be achieved — within the meaning of the third             14 March 1997, for a preliminary ruling in the case of the
            paragraph of Article 189 of the EC Treaty — by               Public Prosecutor, and the federal consumers ' union ' Que
            national implementing provisions which are                   Choisir ?' and the general consumer organization
            applicable to imports into the EC of butter                  ' OR.GE.CO', civil plaintiffs, v. Max Rombi and
            originating in the overseas countries and territories        Arkopharma SA on the following questions:
            listed in Annex IV to the EC Treaty, including the
            Netherlands Antilles ?
                                                                         1 . Can a Member State correctly transpose a Community
            If Question 1 ( a ) is answered in the affirmative:                 directive where in the national transposing measure it
                                                                                maintains in force previous provisions adopted on the
      ( b ) Are the provisions of Chapter III of the                            basis of repealed national legislation transposing a
            aforementioned Directive, having regard in                          previous, repealed directive, indicating in the new
 ---pagebreak--- 10 . 5 . 97           EN                    Official Journal of the European Communities                                     No C 142/ 13
     transposing measure merely that those provisions                  ( Federal Procurement Office ) of 25 November 1996,
     remain in force to the extent that they do not conflict           which was received at the Court Registry on 17 March
     with the new national legislation ?                               1997, for a preliminary ruling in the review proceedings
                                                                       brought by the applicant, EvoBus Austria GmbH, against
                                                                       the contracting entity, Niederosterreichische Verkehrsorga­
2 . Do Articles 10 ( 2 ) and 15 ( 2 ) of Council Directive 89/
                                                                       nisations Gesellschaft mbH (NOVOG ), on the following
     398/EEC of 3 May 1989 on the approximation of the                 questions:
     laws of the Member States relating to foodstuffs
     intended for particular nutritional uses ( OJ No L 186,
     30 . 6 . 1989, p. 27) authorize a State to continue to
     apply rules which predate the Directive and the                   1 . May an individual derive, from the abovemen­
     measure transposing it ?                                                 tioned (') or other provisions of Directive 92/13/EEC,
                                                                              a specific right to have review proceedings conducted
                                                                              before authorities or courts or tribunals complying
3 . Does the classification, by Council Directive 89/398/                     with Article 2 ( 9 ) of Directive 92/13/EEC which is so
     EEC of 3 May 1989 on the approximation of the laws                       sufficiently precise and specific that, in the event of
     of the Member States, of foodstuffs intended for                         non-transposition by a Member State of the provisions
     particular nutritional uses into nine groups ( referred to               of the Directive in question, an individual may rely on
     in Annex I thereto ), which are to be the subject of                     that provision ?
     specific directives, and into foodstuffs not falling
     within those groups, for which there is no provision
     for such directives, allow a Member State to apply                2 . In conducting a review procedure, must a national
     rules founded on a classification based on a distinction                 court constituted on the lines of the Bundesvergabeamt
     between dietary products and dietetic products or on a                   disregard provisions of national law such as
     distinction between foodstuffs for infants and young                     paragraph 7 (2 ) in conjunction with paragraph 67 ( 1 )
     children and foodstuffs other than those intended for                    of the Bundesvergabegesetz (Federal Procurement
     infants and young children ?                                             Law ) which preclude it from conducting a review
                                                                              procedure even where such review procedure is
4 . Do Articles 10 ( 2 ) and 15 ( 2 ) of Council Directive 89/                intended by the national legislature solely to serve the
     398/EEC of 3 May 1989 on the approximation of the                        purpose of transposing Directive 89/665/EEC (2 )?
     laws of the Member States relating to foodstuffs
     intended for particular nutritional uses, which do not
     affect the application of national measures in the event          3 . Must the adjudicating court disregard those or any
     that specific directives as provided for in Article 4 of                 comparable procedural provisions of national law in
     the Directive are not adopted, preclude individuals                      such circumstances, if they impede or prevent a review
     from relying on the provisions of the Directive in                       procedure from being effectively conducted ?
     order to challenge the detailed measures of
     transposition adopted by the Member States and to                 (') Article 1 ( 1 ) to ( 3 ) and Article 2 ( 1 ) and 2 ( 7) to ( 9 ) of
     have them declared inapplicable by the national courts                  Council Directive 92/13/EEC of 25 February 1992
     to the extent that they conflict with the provisions of                 coordinating the laws, regulations and administrative
     the Directive ?                                                         provisions relating to the application of Community rules on
                                                                             the procurement procedures of entities operating in the water,
                                                                             energy, transport and telecommunications sectors ( OT No L 76 ,
5.   Does not the fact that foodstuffs are controlled within                 23 . 3 . 1992 , p. 14 ).
     the framework of Community Directives imply that                  ( 2 ) Council Directive 89/665/EEC of 21 December 1989 on the
     States must, when carrying out such control, observe                    coordination of the laws, regulations and administrative
     the general Community principles, in particular the                     provisions relating to the application of review procedures to
     protection of legitimate expectations ?                                 the award of public supply and public works contracts ( OJ No
                                                                             L 395 , 30 . 12 . 1989 , p. 33 ).
Reference for a preliminary ruling from the
Bundesvergabeamt, by order of that court of 25 November                Reference for a preliminary ruling from the Tribunal du
1996 in the review proceedings brought by the applicant,               Travail, Charleroi, by judgment of that court of 18 March
EvoBus Austria GmbH, against the contracting entity,                         1997 in the case of Henia Babahenini v. Belgian State
Niederosterreichische Verkehrsorganisations Gesellschaft
                                                                                                      Case C-l 13/97
                        mbH (NOVOG )
                        ( Case C-l 11 /97 )                                                           ( 97/C 142/28 )
                          ( 97/C 142/27
                                                                       Reference has been made to the Court of Justice of the
Reference has been made to the Court of Justice of the                 European Communities by a judgment of the Tribunal du
European Communities by order of the Bundesvergabeamt                  Travail ( Labour Court), Charleroi, of 18 March 1997,