CELEX: C1998/234/28
Language: en
Date: 1998-07-25 00:00:00
Title: Reference for a preliminary ruling by the Oberlandesgericht Linz by order of that court of 15 April 1998 in the case of Volker Graf against Filzmoser Maschinenbau GmbH (Case C-190/98)

25.7.98               EN                 Official Journal of the European Communities                                    C 234/15
The applicant claims that the Court should:                         Reference for a preliminary ruling from, the Corte dei
                                                                    Conti Ð Chamber responsible for verifying acts of the
                                                                    Government and of State Administrations Ð by order of
1. Declare that, by failing to adopt and bring into force           20 March and 7 April 1998 in proceedings involving the
    or, in the alternative, to communicate, within the              Ministry of Public Works, the Ministry of Finance, the
    prescribed period the laws, regulations and                     Budget and Economic Planning, and ANAS Ð Azienda
    administrative provisions necessary to comply with              Nazionale Autonoma delle Strade (now Ente Nazionale
    Council Directive 92/101/EEC (1) of 23 November                                           per le Strade)
    1992 amending Directive 77/91/EEC (2) on the
                                                                                            (Case C-192/98)
    formation of public limited-liability companies and the
    maintenance and alteration of their capital, the Grand                                   (98/C 234/29)
    Duchy of Luxembourg has failed to fulfil its
    obligations under Articles 5 and 189 of the EC Treaty;          Reference has been made to the Court of Justice of the
    and                                                             European Communities by an order of the Corte dei Conti
                                                                    (Italian Court of Auditors) Ð Chamber responsible for
                                                                    verifying acts of the Government and of State
2. Order the defendant to pay the costs.                            Administrations Ð of 20 March and 7 April 1998, which
                                                                    was received at the Court Registry on 19 May 1998, for a
Pleas in law and main arguments adduced in support:                 preliminary ruling in proceedings involving the Ministry of
                                                                    Public Works, the Ministry of Finance, the Budget and
                                                                    Economic Planning, and ANAS (Azienda Nazionale
The mandatory nature of the provisions of the third                 Autonoma delle Strade Ð Autonomous National
paragraph of Article 189 and the first paragraph of                 Highways Agency) (now Ente Nazionale per le Strade), on
Article 5 of the EC Treaty requires Member States to                the following questions:
adopt the measures necessary to transpose directives
addressed to them into their domestic law before the                1. Whether the particular features of Council Directive
expiry of the period prescribed for doing so. That period                92/50/EEC (1) of 18 June 1992 relating to the
expired on 1 January 1994 without the Grand Duchy of                     coordination of procedures for the award of public
Luxembourg having brought into force the necessary                       service contracts Ð which, as is known, provides for a
provisions.                                                              transitional period for its full application (21st recital
                                                                         in its preamble), for the utilization of two series of
                                                                         provisions, depending on whether the services
(1) OJ L 347 of 28.11.1991, p. 64.
                                                                         concerned are those listed in Annex IA or in Annex IB
(2) OJ L 26 of 30.1.1977, p. 1.
                                                                         (Articles 8 and 9), and for a procedure for review
                                                                         (within three years) of the results achieved, with a
                                                                         view to making the Directive fully applicable to a
                                                                         wider range of service contracts' (27th recital and
                                                                         Article 43) Ð are such as to preclude or render more
                                                                         difficult its immediate applicability in domestic law (as
Reference for a preliminary ruling by the Oberlandes-                    from 1 July 1993) in the absence of a formal measure
gericht Linz by order of that court of 15 April 1998 in the              adopted by the Member State to transpose it;
case of Volker Graf against Filzmoser Maschinenbau
                             GmbH                                   2. Whether or not Ð if the first question is answered in
                                                                         the negative Ð the provisions of the abovementioned
                       (Case C-190/98)                                   directive (services covered by Article 8) are applicable
                        (98/C 234/28)                                    to the ANAS (Azienda Nazionale Autonoma delle
                                                                         Strade Ð Autonomous National Highways Agency) as
                                                                         regards the fulfilment or otherwise of the requirements
                                                                         of Community law for it to be regarded as a
Reference has been made to the Court of Justice of the
                                                                         contracting authority' within the meaning of
European Communities by order of the Oberlandesgericht
                                                                         Article 1(b) of the abovementioned directive;
Linz (Higher Regional Court, Linz) of 15 April 1998,
received at the Court Registry on 19 April 1998, for a
                                                                    3. Whether, if the foregoing question is answered in the
preliminary ruling in the case of Volker Graf against
                                                                         affirmative, the application of Directive 92/50/EEC Ð
Filzmoser Maschinenbau GmbH on the following
                                                                         which does not appear to be a matter of any doubt
question:
                                                                         regarding the loan agreement concluded with the
                                                                         group of Italian banks to raise the fourth and last
Does Article 48 of the EC Treaty preclude national                       tranche of the LIT 8 000 billion loan authorised by
provisions under which an employee who is a national of                  Law No 405/90 Ð must be recognised also with
a Member State is not entitled to compensation on                        respect to the agreement between ANAS and Nomura
termination of his employment relationship simply because                International Plc raising LIT 2 000 billion (third
he himself gave notice terminating that relationship in                  tranche) by means of a bond loan based on the issue
order to take up employment in another Member State?                     of variable-rate Eurobonds denominated in US dollars,
                                                                         having regard to the fact that the 13th recital in the
                                                                         preamble and Article 2(a)(viii) [sic] (2) of the
                                                                         abovementioned directive exclude from bank services