CELEX: C1997/142/23
Language: en
Date: 1997-05-10 00:00:00
Title: Appeal brought on 10 March 1997 by Atlanta AG against the judgment delivered on 11 December 1996 by the Fourth Chamber (Extended Composition) of the Court of First Instance of the European Communities in Case T-521/93 between, of the one part, Atlanta AG and Others and, of the other part, the Council of the European Union and the Commission of the European Communities (Case C-104/97 P)

10 . 5 . 97            EN                   Official Journal of the European Communities                                No C 142/ 11
Procurement Office ) of 7 November 1996 , which was                         Community incurs liability even for lawful legislative
received at the Court Registry on 10 March 1997, for a                      acts. That plea was put forward in the initial
preliminary ruling in the review proceedings brought by                     application under the heading 'Sonderopfer'
Josef Kollensperger GmbH & Co KG and Atzwanger AG                           (exceptional burdens ). In any event, the submissions in
against Gemeindeverband Bezirkskrankenhaus Schwaz                           the reply do not constitute a new plea in law, but at
( association of municipalities for the Schwaz district                     most a new argument. Liability for lawful legislative
hospital ) on the following questions :                                     acts rests on the same legal basis as liability for
                                                                            unlawful ones, namely the second paragraph of
( a ) Is Article 2 of Council Directive 89/665/EEC (') of                   Article 215 of the Treaty. The objective pursued by the
      21 December 1989 to be interpreted as meaning that                    applicants, namely damages for legislative acts of the
      the (Tyrol ) Regional Public Procurement Office,                      Community, is the same . The task of the Court is also
      established by the (Tyrol ) regional law of 6 June 1994               the same, since the rationale for liability for lawful
      on the award of public contracts ( LGB1 No 87/1994 ),                 legislative acts is essentially the same as that for
      is a review body within the meaning of Article 2 ( 8 ) of             unlawful ones, namely that individual parties are not
      the Directive ?                                                       to be singled out to bear exceptional burdens.
( b ) Did the abovementioned law on the award of public                — The Court of First Instance infringed Community law
      contracts adequately secure the transposition into                    by dismissing the pleas in law based on breach of the
      national law of Council Directive         89/665/EEC of               rights of the defence, the principle of non­
      21 December 1989 on the coordination of the laws,                     discrimination, the principle of the protection of
      regulations and administrative provisions relating to                 legitimate expectations, the fundamental freedom to
      the application of review procedures to the award of                  pursue an economic activity, and the prohibition on
      public supply and public works contracts, in regard to                delegation of legislative competence . In particular, the
      the review procedures mentioned in Article 1 thereof?                 Court of First Instance declined, when applying the
                                                                            principle of non-discrimination and in the context of
(') OJ No L 395 , 30 . 12 . 1989 , p . 33 .                                 the freedom to pursue an economic activity, to take
                                                                            account of the facts of the case adduced before it, i.e.
                                                                            to recognize the individual effects of the Regulation in
                                                                            the particular case of the applicant. If that approach
                                                                            were correct, examination of basic rights ( including
                                                                            the principle of non-discrimination) in an individual
Appeal brought on 10 March 1997 by Atlanta AG against                       case, as continually requested by the applicant, could
the judgment delivered on 11 December 1996 by the                           never take place in principle . Examination would
Fourth Chamber (Extended Composition ) of the Court of                      always be curtailed at the outset as to whether
First Instance of the European Communities in Case                          application of the contested rule ( in this case Title IV
T-521/93 between, of the one part, Atlanta AG and                           of the Regulation ) to the particular circumstances in
Others and, of the other part, the Council of the European                 which an individual party is placed infringes
 Union and the Commission of the European Communities                       fundamental rights . It would be conceivable in those
                                                                           circumstances that, despite having its fundamental
                        ( Case C-104/97 P                                   rights individually affected by the application of a
                           ( 97/C 142/23 )                                  Community measure, the applicant would have no
                                                                           procedure available for complaint.
An appeal against the judgment delivered on 11 December
                                                                       (') OJ No C 40 , 8 . 2 . 1997, p . 15 .
1996 by the Fourth Chamber ( Extended Composition ) of
the Court of First Instance of the European Communities
in Case T-521 /93 between, of the one part, Atlanta AG
and Others and, of the other part, the Council of the
European Union and the Commission of the European
Communities, supported by the French Republic and the
United Kingdom, was brought before the Court of Justice                Reference to the Court for preliminary rulings by the
of the European Communities on 10 March 1997 by                        Pretura Circondariale di Trento by an order of 7 March
Atlanta AG, represented by Erik Undritz and Gerrit                     1997 in the proceedings pending before that court
Schohe, Rechtsanwalte, with an address for service in                         between Leonardo Gulli and Ente Poste Italiane
Luxembourg at the Chambers of Marc Baden , 34b Rue                                               ( Case C-105/97)
Philippe II, L-2340 Luxembourg.
                                                                                                   ( 97/C 142/24 )
The appellant claims that the Court should set aside the
judgment of the Court of First Instance (').                           Reference has been made to the Court of Justice of the
                                                                       European Communities by an order of the Pretura
Pleas in law and main arguments adduced in support:                    Circondariale di Trento (Magistrate's Court for the
                                                                       District of Trento ) of 7 March 1997, which was received
— The Court of First Instance was procedurally incorrect               at the Court Registry on 13 March 1997, for a
      in ruling inadmissible ( pursuant to Article 48 ( 2 ) of its     preliminary ruling in the case Leonardo Gulli and Ente Po­
      Rules of Procedure ) the applicants ' plea that the              ste Italiane, on the following question: