CELEX: C2000/006/17
Language: en
Date: 2000-01-08 00:00:00
Title: Case C-361/99: Reference for a preliminary ruling by the Landesgericht für Zivilrechtssachen Wien by order of that court of 6 September 1999 in the case of Dr Silveria Gäng against Republic of Austria

8.1.2000              EN                   Official Journal of the European Communities                                            C 6/9
Reference for a preliminary ruling by the Landesgericht               The applicant claims that the Court of Justice should:
für Zivilrechtssachen Wien by order of that court of
6 September 1999 in the case of Dr Silveria Gäng against
                      Republic of Austria                             1. annul the Commission’s decision of 8 July 1999 concern-
                                                                          ing the application by the Spanish Government for a
                                                                          transitional regime in accordance with Article 24 of
                        (Case C-361/99)                                   Directive 96/92/EC (1) of the European Parliament and of
                                                                          the Council of 19 December 1996 concerning common
                          (2000/C 6/17)                                   rules for the internal market in electricity, and
Reference has been made to the Court of Justice of the                2. order the defendant institution to pay the costs.
European Communities by order of the Landesgericht für
Zivilrechtssachen Wien (Regional Civil Court, Vienna) of
6 September 1999, received at the Court Registry on 27 Sep-
tember 1999, for a preliminary ruling in the case of Dr Silveria      Pleas in law and main arguments
Gäng against Republic of Austria on the following questions:
                                                                      — Infringement of Article 24(1) of Directive 96/92/EC: while
1. Has Council Directive 76/207/EEC of 9 February 1976 (1)
                                                                          the decision refusing to allow the application is based on
    (the Equal Treatment Directive) been properly transposed              the fact ‘that the nature of the measure notified is
    into Austrian national law by the current version of the
                                                                          more important than its objective’, in its decision the
    Austrian Bundes-Gleichbehandlungsgesetz (Federal Law on
                                                                          Commission does not adduce any evidence to support the
    Equal Treatment), BGBl 100/1993, as regards the upper                 conclusion that it has considered the substance of the
    limit for damages claimed (Paragraph 15(2) of the Federal
                                                                          matter. The Commission therefore acknowledges in its
    Law on Equal Treatment) and as regards the requirement
                                                                          statement contained in the Council’s minutes (12851/96
    that public sector employees of the Republic of Austria               ADD 1) that recovery of investments constitutes an
    bring such claims within six months by application to
                                                                          appropriate basis for the application of Article 24. It
    the administrative authority with jurisdiction over them
                                                                          should be noted that the so-called ‘Costs of Transition to
    (Paragraph 19(2) of the Federal Law on Equal Treatment)?              Competition’ (‘CTC’) constitute a method the nature of
                                                                          which is similar to that wider concept of the recovery of
2. If the answer to Question 1 is in the negative, is that                investments, dealing with indemnification in part with
    Directive intended to confer an individual right on the               regard to the additional effort, in terms of investments,
    claimant in the main proceedings in this case?                        made by undertakings in order to comply with a policy of
                                                                          public intervention, the purpose of which was to guarantee
3. If the answer to Question 2 is in the affirmative, does                diversification in the electricity sector and security of
    this reference for a preliminary ruling contain all the               supply of electricity. It must, therefore, be concluded that
    information the Court of Justice needs to determine itself            the CTC system does indeed constitute a derogation, which
    whether the Austrian Federal Law on Equal Treatment is                the Commission may accept in accordance with Article 24
    manifestly incompatible with the wording and purpose of               of the Directive, from Article 8(2) thereof, a derogation
    Council Directive 76/207/EEC of 9 February 1976 or is                 which has not been assessed or examined in the Com-
    the determination of that question in this case to be left to         mission’s decision.
    the Austrian court which has made the reference?
                                                                      — Infringement of Article 24(3) of Directive 96/92/EC: the
(1) OJ L 39 of 14.2.1976, p. 40.                                          derogation from Article 8(2) of the Directive, requested by
                                                                          the Spanish authorities, for isolated networks, necessarily
                                                                          entails either a higher supply price for consumers using
                                                                          those isolated systems or, if the criterion of equal treatment
                                                                          for all national customers is used, the introduction of
                                                                          compensation for those extra costs. The latter is the
                                                                          solution chosen by the Spanish legislation, which neither
                                                                          affects intra-Community trade nor is capable of distorting
Action brought on 4 October 1999 by the Kingdom of
                                                                          competition, which does not exist in isolated systems.
Spain against the Commission of the European Communi-
                                                                          Accordingly, in the contested decision the Commission
                                 ties
                                                                          was wrong to apply Article 24(3) of Directive 96/92/EC,
                                                                          given that the ‘sistemas insulares y extrapeninsulares’
                        (Case C-369/99)                                   (systems in the islands and outside Iberia) must give rise to
                                                                          the derogations provided for by that provision, and has
                          (2000/C 6/18)                                   failed to comply with Article 8(2) of the Directive.
An action against the Commission of the European Communi-             — Breach of the principle of protection of legitimate expec-
ties was brought before the Court of Justice on 4 October                 tations: the Commission had publicly, constantly and
1999 by the Kingdom of Spain, represented by R. Silva de                  firmly maintained that compensation schemes for non-
Lapuerta, acting as Agent, with an address for service in                 commercial prices in the electricity sector must be notified
Luxembourg at the Spanish Embassy, 4-6 Boulevard E. Servais.              and, where appropriate, authorised pursuant to Article 24