CELEX: C1998/258/49
Language: en
Date: 1998-08-15 00:00:00
Title: Reference for a preliminary ruling by the Sixth Tax Chamber of the Cour d'Appel de Bruxelles by judgment of that court of 12 June 1998 in the case of Georges Van der Zwalmen and Elisabeth Massart against the Belgian State (Case C-229/98)

15.8.98              EN                 Official Journal of the European Communities                                  C 258/29
Treaty as well as under Articles 12, 26 and 29 of Directive            freedom of Community architects to provide their
71/305/EEC (1) as amended by Directive 89/440/EEC (2)                  services (by requiring proof that the main architect
and Articles 8, 11, 22 and 30 of Directive 93/37/EEC (3).              was a member of the Architects' Association), the
                                                                       DeÂpartement du Nord failed to fulfil its obligations
                                                                       under Article 59 of the EC Treaty.
Pleas in law and main arguments adduced in support:
                                                                   Ð Infringement of Article 12(5) of Directive 71/305/EEC
                                                                       and of Article 11(5) of Directive 93/37/EEC: during
Ð Infringement of Article 12 of Directive 71/305/EEC                   the period 1993 to 1995, the Nord-Pas de Calais
    and of Article 11 of Directive 93/37/EEC: during the               Region did not publish any award notice.
    period 1993 to 1995, the pre-notification procedure
    was only rarely followed by the Nord-Pas de Calais
    Region. So far as concerns the DeÂpartement du Nord,           Ð Infringement of Article 8(3) of Directive 93/37/EEC:
    the Commission found no pre-notification notice                    the French authorities refused to forward to the
    published in the Official Journal of the European                  Commission the minutes of the procedures in issue.
    Communities, Supplement S, during the same period.
                                                                   (1) OJ L 185 of 16.8. 1971, p. 5.
                                                                   (2) OJ L 210 of 21.7. 1989, p. 1.
Ð Infringement of Article 30 of Directive 93/37/EEC: the           (3) OJ L 199 of 9.8. 1993, p. 54.
    Commission acknowledges that the taking into
    account of employment-related projects may be
    considered to be a valid additional criterion, but only
    as a condition of performance. By expressly presenting
    an employment-related condition as a criterion for
    awarding contracts, the French authorities have
    infringed Article 30.                                          Reference for a preliminary ruling by the Sixth Tax
                                                                   Chamber of the Cour d'Appel de Bruxelles by judgment of
                                                                   that court of 12 June 1998 in the case of Georges Van der
                                                                    Zwalmen and Elisabeth Massart against the Belgian State
Ð Infringement of Article 22 of Directive 93/37/EEC: in
    notices which appeared in the Official Journal of                                     (Case C-229/98)
    18 February 1995, the phrase limited number of                                        (98/C 258/49)
    candidates' (Heading 13), gives the impression that
    that number could be less than 5.
                                                                   Reference has been made to the Court of Justice of the
                                                                   European Communities by the Sixth Tax Chamber of the
Ð Infringement of Article 29(2) of Directive 71/305/EEC            Cour d'Appel de Bruxelles (Court of Appeal, Brussels) by
    and of Article 30(2) of Directive 93/37/EEC: in most           judgment of 12 June 1998, which was received at the
    of the notices, the contracting authorities, in order to       Court Registry on 26 June 1998, for a preliminary ruling
    indicate the award criteria, resorted to the method of         in the case of Georges Van der Zwalmen and Elisabeth
    award by reference to the Public Contracts Code'.             Massart v Belgian State, on the following questions:
    However, a general reference to a provision of
    domestic legislation cannot fulfil the obligation to
    advertise.                                                     Must Article 13 of the Protocol on the Privileges and
                                                                   Immunities of the European Communities be interpreted
                                                                   as:
Ð Infringement of Article 59 of the EC Treaty: the
    technical specifications selected by the contracting           (1) prohibiting the Member States, under fiscal
    authorities could have the effect of favouring national             legislation applicable to personal tax, from creating,
    undertakings who are familiar with the system of                    for the taxation of married couples and their
    quality certification and which are used to providing               children, a distinct category of taxpayers by reason of
    documents or services in accordance with the                        the fact that one of them is a European official,
    references laid down in the contract notice. Moreover,              receiving as such earned income which is exempted
    undertakings established in other Member States are                 under a convention, without reservation as to
    not encouraged to submit tenders inasmuch as they                   progressive rates of tax, and from making for that
    do not have the means of knowing beforehand                         category two separate assessments whereby the tax is
    whether their qualifications comply with those                      determined for each of them on the basis of his own
    technical particulars in the absence of any equivalent              income and that of his children which is available to
    qualification.                                                      him by operation of law, whilst at the same time,
                                                                        where appropriate, each remains jointly and severally
                                                                        liable for the tax debt of the household (see
Ð Infringement of Article 59 of the EC Treaty;                          Article 295 of the 1964 Income Tax Code and
    infringement of Article 26 of Directive 71/305/EEC: by              Article 394 of the 1992 Income Tax Code),
    imposing restrictions in a number of notices on the                 whereas, for married couples in which one spouse
 ---pagebreak--- C 258/30             EN                  Official Journal of the European Communities                                  15.8.98
     does not receive taxable earned income or receives             Reference for a preliminary ruling from the Tribunal
     insignificant earned income, under national law the            Administratif de Chalons en Champagne (Administrative
     assessment is made in the name of both spouses, and,           Court, Chalons en Champagne) (First Chamber) by
     with the exception of earned income, the income of             judgment of that court of 23 June 1998 in the case of
     the spouses is aggregated with the income of the               Hugo Fernando Hocsman v Minister for Employment and
     spouse who receives more, and, where the income of                                       Solidarity
     a spouse is less than 30 % of the aggregate earned                                    (Case C-238/98)
     income of both spouses, there is attributed to him a
                                                                                            (98/C 258/50)
     portion of the earned income of the other spouse
     which, together with his own earned income, enables
     him to attain 30 % of that income, subject to a                Reference has been made to the Court of Justice of the
     maximum of BFR 270 000 (indexed), which may                    European Communities by a judgment of the Tribunal
     result, by virtue of the progressive nature of tax rates,      Administratif de Chalons en Champagne (First Chamber)
     in a reduction of the tax payable by the spouses?              of 23 June 1998, which was received at the Court Registry
                                                                    on 7 July 1998, for a preliminary ruling in the case of
                                                                    Hugo Fernando Hocsman v Minister for Employment and
(2) as prohibiting a Member State from refusing, by
                                                                    Solidarity on the following question:
     recourse to the separate taxation described under
     No 1, the benefit of the marital allowance for the             The Tribunal Administratif de Chalons en Champagne
     spouse of a European official, with the exception of           (First Chamber) seeks a preliminary ruling on the question
     those who declare that they receive earned income              whether an equivalence accorded by one Member State
     which is exempted under a convention, without                  means that another Member State is required to verify, on
     reservation as to progressive rates of taxation, of less       the basis of Article 52 of the Treaty of Rome, whether
     than BFR 270 000 (indexed), who does not receive               the experience and qualifications evidenced thereby
     non-exempted income of a sufficient amount for the             correspond to those required for the award of national
     benefit of the marital allowance to be totally offset          diplomas and other formal qualifications, in particular
     by the tax due by virtue of the aggregation of the             in the case where the person benefiting from such
     spouses' income and the progressive nature of the tax          equivalence holds a diploma providing evidence of
     rates'?                                                        specialist training acquired in a Member State and
                                                                    included in the scope of a directive concerning the mutual
                                                                    recognition of diplomas.
                                                   COURT OF FIRST INSTANCE
  JUDGMENT OF THE COURT OF FIRST INSTANCE                           (United Kingdom), represented by Kevin F. Bodley,
                       of 25 June 1998                              Solicitor, and Konstantinos Adamantopoulos, of the
                                                                    Athens Bar, with an address for service in Luxembourg at
in Joined Cases T-371/94 and T-394/94: British Airways              the Chambers of ArseÁne Kronshagen, 12 Boulevard de la
plc and Others and British Midland Airways Ltd v                    Foire, supported in Case T-371/94 by Kingdom of
       Commission of the European Communities (1)                   Sweden, (Agent: Staffan Sandström), Kingdom of Norway,
(State aid Ð Air transport Ð Airline company in a critical          (Agent: Margit Tveiten), Maersk Air I/S, established in
financial situation Ð Authorisation for an increase in              Dragùer (Denmark), and Maersk Air Ltd, established in
                            capital)                                Birmingham (United Kingdom), represented by Roderic
                                                                    O'Sullivan and Philip Wareham, Solicitors, having an
                        (98/C 258/51)                               address for service in Luxembourg at the Chambers of
                                                                    Arendt & Medernach, 8-10 Rue Mathias Hardt, and in
               (Language of the cases: English)                     both cases, Kingdom of Denmark (Agent: Peter Biering)
                                                                    and United Kingdom of Great Britain and Northern
In Joined Cases T-371/94 and T-394/94: British Airways              Ireland (Agents: John E. Collins and Richard Plender) v
plc, established in Hounslow (United Kingdom),                      Commission of the European Communities (Agents:
Scandinavian Airlines System Denmark-Norway-Sweden,                 Nicholas Khan, Ben Smulders and Ami Barav), supported
established in Stockholm, Koninklijke Luchtvaart                    by French Republic (Agents: Marc Perrin de Brichambaut,
Maatschappij NV, established in Amstelveen (the                     Edwige Belliard, Catherine de Salins and Jean-Marc
Netherlands), Air UK Ltd, established in Stansted (United           Belorgey) and Compagnie Nationale Air France,
Kingdom), Euralair International, established in Bonneuil           established in Paris, represented by Olivier d'Ormesson, of
(France), TAT European Airlines, established in Tours               the Paris Bar, with an address for service in Luxembourg
(France), represented by Romano Subiotto, Solicitor, with           at the Chambers of Jacques Loesch, 11 Rue Goethe Ð
an address for service in Luxembourg at the Chambers of             application for the annulment of Commission Decision 94/
Elvinger, Hoss & Prussen, 15 Côte d'Eich, and British               653/EC of 27 July 1994 concerning the notified capital
Midland Airways Ltd, established in Castle Donington                increase of Air France (OJ L 254 of 30.9. 1994, p. 73) Ð