CELEX: C1997/228/23
Language: en
Date: 1997-07-26 00:00:00
Title: Reference for a preliminary ruling from the Hoge Raad der Nederlanden by judgment of that court of 6 June 1997 in the case of B. V. Maatschappij Drijvende Bokken, formerly Bonn & Mees, against Stichting Pensioenfonds voor de Vervoer- en Havenbedrijven (Case C-219/97)

26 . 7. 97              EN                  Official Journal of the European Communities                                  No C 228/ 11
Luxembourg at the office of Alessandro Morbilli,                       der Nederlanden ( Supreme Court of the Netherlands ) of
European Investment Bank, 100 Boulevard Konrad                         6 June 1997, received at the Court Registry on 12 June
Adenauer, Kirchberg.                                                   1997, for a preliminary ruling in the case of B. V.
                                                                       Maatschappij Drijvende Bokken, formerly Bonn & Mees,
The appellant claims that the Court should:                            against Stichting Pensioenfonds voor de Vervoer- en
                                                                       Flavenbedrijven on the following questions:
— set aside the judgment of the Court of First Instance of
      16 April 1997 in Case T-80/96 Ana Maria Fernandes                ( a ) Is an occupational pension fund such as the Stichting
      Leite Mateus v. Council of the European Union,                         Pensioenfonds voor de Vervoer- en Havenbedrijven, to
                                                                             which all or one or more specified groups of
                                                                             employees in the relevant sector are obliged to be
— uphold the contentions put forward by the Council at                       affiliated by virtue of and in accordance with the
      first instance, namely:                                                WBPF (Wet betreffende Verplichte Deelneming in een
      — that the action should be dismissed, and
                                                                             Bedrijfspensioenfonds ( Law on compulsory affiliation
                                                                             to an occupational pension fund )), to be regarded as
      — that the applicants should be ordered to pay the                     an undertaking within the meaning of Articles 85 , 86
           costs ,
                                                                             or 90 of the EC Treaty ?
— make an appropriate order as to the costs of                         ( b ) Where a number of organizations which the
      proceedings before the Court of Justice.                               Minister subsequently regards as being sufficiently
                                                                             representative of the employers' associations and trade
                                                                             unions in a particular sector, within the meaning of
Pleas in law and main arguments adduced in support:                          the first paragraph of Article 3 of the WBPF, apply to
                                                                             the Minister pursuant to that provision for affiliation
The contested judgment infringes the legal framework laid                    to a particular pension fund within the meaning of
down by the notice of competition :                                          that Law to be made compulsory, is that joint action
                                                                             on the part of those organizations to be regarded as an
Infringement of the special conditions for admission to the                  agreement between undertakings, a decision by
competition: as may be seen from a reading of the                            associations of undertakings or a concerted practice
contested judgment, the applicant in Case T-80/96                            within the meaning of Article 85 ( 1 ) of the EC Treaty
submitted only a certificate as evidence of her professional                 which, within the meaning of that Treaty provision, ( i )
experience; she did not produce either a contract or a                       may affect trade between Member States, and ( ii ) has
letter of engagement as required by the notice of                            as its object or effect the prevention, restriction or
competition ( reproduced in paragraph 3 of the judgment).                    distortion of competition within the common market ?
That argument was put forward in the written stage and
pointed out on several occasions during the oral part, but             (c ) Is compulsory affiliation as described above to be
no mention was made of it in the judgment,                                   regarded as a measure which may render ineffective
                                                                             the competition rules applicable to undertakings, or, at
( in the alternative ) error in law with regard to the scope of              least, as a measure by which a Member State requires
the concept of 'first Escrituraria',                                         or favours the adoption of agreements contrary to
                                                                             Article 85 or reinforces their effects, or is that the case
                                                                             only in certain circumstances and, if so, in what
( in the alternative ) error in law with regard to the                       circumstances ?
interpretation of the candidature,
                                                                       ( d ) If question ( C ) is to be answered in the negative, are
( in the alternative ) the contested judgment was wrong to                   there other circumstances which may render such
find that the selection board had committed a manifest                       compulsory affiliation incompatible with the
error of assessment regarding professional experience .                      provisions of Article 90 of the EC Treaty and, if so,
                                                                             what circumstances ?
                                                                       ( e ) Can such compulsory affiliation be regarded as the
                                                                             grant to an occupational pension fund of an exclusive
                                                                             right within the meaning of Article 90 ( 1 ) of the EC
Reference for a preliminary ruling from the Hoge Raad                        Treaty, and is such a pension fund placed as a result in
der Nederlanden by judgment of that court of 6 June                          a dominant position which it abuses merely by
1997 in the case of B. V. Maatschappij Drijvende Bokken,                     exercising that exclusive right, in particular on the
formerly Bonn & Mees, against Stichting Pensioenfonds                        ground that such compulsory affiliation may affect
               voor de Vervoer- en Havenbedrijven                            trade between Member States and the provision of
                         ( Case C-2 19/97 )                                  services is limited, contrary to subparagraph ( b )
                           ( 97/C 228/23                                     of the second paragraph of Article 86, to the
                                                                             detriment of compulsorily affiliated undertakings and/
                                                                             or employees ? Alternatively, can such compulsory
Reference has been made to the Court of Justice of the                       affiliation create a situation in which a pension fund is
European Communities by judgment of the Hoge Raad                            induced to commit such an abuse or is at least placed
 ---pagebreak--- 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