CELEX: C1998/327/17
Language: en
Date: 1998-10-24 00:00:00
Title: Reference for a preliminary ruling from the Bundesvergabeamt by order of that tribunal of 23 April 1998 in the case of Telaustria Verlags Gesellschaft m.b.H. and Telefonadress GmbH v Post & Telekom Austria AG, third party: Herold Business Data AG (Case C-324/98)

24.10.98              EN                  Official Journal of the European Communities                                    C 327/11
Ð For the purposes of Article 1(4), second indent, of                Reference for a preliminary ruling from the Bundes-
     Directive 91/689/EEC, what procedure must an                    vergabeamt by order of that tribunal of 23 April 1998
     individual Member State follow in classifying as                in the case of Telaustria Verlags Gesellschaft m.b.H. and
     hazardous waste other than that on the list adopted by          Telefonadress GmbH v Post & Telekom Austria AG, third
     Council Decision 904/94/EC which exhibits one of the                           party: Herold Business Data AG
     characteristics set out in Annex III to the directive?
     What body is competent to make the assessment and                                      (Case C-324/98)
     subsequently notify the Commission?                                                     (98/C 327/17)
Ð Can the judicial authorities of an individual Member
     State also be required to notify the Commission?                Reference has been made to the Court of Justice of the
                                                                     European Communities by an order of the Eighth Senate
                                                                     of the Bundesvergabeamt (Federal Procurement Office) of
                                                                     23 April 1998, which was received at the Court Registry
Ð Under Community legislation, is diphenylmethane                    on 26 August 1998, for a preliminary ruling in the case of
     diisocyanate (MDI) to be classified as hazardous waste          Telaustria Verlags Gesellschaft m.b.H. and Telefonadress
     or not?                                                         GmbH v Post & Telekom Austria AG, third party: Herold
                                                                     Business Data AG, on the following questions:
(1) OJ L 377, 31.12.1991, p. 20.
(2) OJ L 356, 31.12.1994, p. 14.
                                                                     Principal question:
                                                                     1. Can it be inferred from the legislative history of
                                                                          Directive 92/50/EEC (1), in particular the proposal of
                                                                          the Commission (COM (90) 372 final, OJ C 23,
                                                                          31.1.1991, p. 1), or from the definition of the term
Reference for a preliminary ruling by the Tribunale Civile                public service contract' in Article 1(a) of Directive 92/
e Penale di Verona by order of 19 August 1998 in the case                 50/EEC, that certain categories of contracts concluded
of Idropi SpA against MTMD-Lydis Megatherm Magneta                        by contracting authorities subject to that directive with
                              SA                                          undertakings which provide services are to be
                       (Case C-323/98)                                    excluded a priori from the scope of the directive,
                                                                          solely on the basis of certain common characteristics
                         (98/C 327/16)                                    as specified in that proposal of the Commission,
                                                                          without the need to rely on Article 1(a)(i) to (viii) or
                                                                          Articles 4 to 6 of Directive 92/50/EEC?
Reference has been made to the Court of Justice of the
European Communities by order of the Tribunale Civile e              If the principal question is answered in the affirmative:
Penale di Verona (Civil and Criminal District Court,
Verona) of 19 August 1998, received at the Court Registry
on 25 August 1998, for a preliminary ruling in the case of
Idropi SpA against MTMD-Lydis Megatherm Magneta SA                   2. Do such categories of contracts also exist, having
on the following question:                                                regard in particular to the 24th recital in the preamble
                                                                          to Council Directive 93/38/EEC (2), within the scope of
                                                                          Directive 93/38/EEC?
Is the rule of national law contained in the last paragraph
of Article 633 of the Code of Civil Procedure, by virtue of
which an Italian creditor seeking to enforce a claim                 If the second question is answered in the affirmative:
against a foreign debtor is denied protection under the
summary order procedure provided for by Article 633 et
seq. of the Code of Civil Procedure, where the order has
to be served abroad, incompatible with and precluded by              3. May those categories of contracts excluded from the
application of the principles of freedom of movement of                   scope of Directive 93/38/EEC be adequately described,
goods and capital and freedom to provide services                         by analogy with Commission proposal COM (90) 372,
enshrined in Articles 34, 59 and 73b of the Treaty of                     as having as their essential feature that a contracting
Rome?'                                                                    entity which falls within the scope ratione personae of
                                                                          Directive 93/38/EEC cedes a service for which it is
                                                                          responsible to an undertaking of its choice in return
                                                                          for the right to operate the service concerned for
                                                                          financial gain?
 ---pagebreak--- C 327/12              EN                  Official Journal of the European Communities                                    24.10.98
Supplementary to the first three questions:                          Action brought on 4 September 1998 by the Commission
                                                                     of the European Communities against the French Republic
4. Is a contracting entity which falls within the scope                                       (Case C-327/98)
     ratione personae of Directive 93/38/EEC obliged,                                          (98/C 327/18)
     where a contract concluded by it contains elements of
     a service contract within the meaning of Article 1(4)(a)
     of Directive 93/38/EEC together with elements of a
     different contractual nature which are not within the           An action against the French Republic was brought before
     scope of that directive, to sever the part of the overall       the Court of Justice of the European Communities on
     contract which is subject to Directive 93/38/EEC, in so         4 September 1998 by the Commission of the European
     far as that is technically possible and economically            Communities, represented by Richard Wainwright,
     reasonable, and make that part the subject of a                 Principal Legal Adviser, and Olivier Couvert-CasteÂra, a
     procurement procedure under Article 1(7) of that                national civil servant on secondment to its legal Service,
     directive, as the Court of Justice held in Case C-3/            acting as Agents, with an address for service in
     88 (3) before the entry into force of Directive 92/50/          Luxembourg at the office of Carlos Gómez de la Cruz,
     EEC with respect to a contract which was not subject            Wagner Centre, Kirchberg.
     as a whole to Council Directive 77/62/EEC (4)?
                                                                     The applicant claims that the Court should:
If that question is answered in the affirmative,
                                                                     Ð declare that, by failing within the prescribed time-limit
5. Is the contractual concession of the exclusive right                  to adopt the laws, regulations and administrative
     to operate a service for financial gain, which will                 measures necessary in order to comply with Articles 9,
     give the service provider an income which cannot                    10, 11, 12 and 14 of Council Directive 93/15/EEC of
     be determined but which in the light of general                     5 April 1993 on the harmonization of the provisions
     experience will not be inconsiderable and may be                    relating to the placing on the market and supervision
     expected to exceed the costs of providing the service,              of explosives for civil uses (1), the French Republic has
     to be regarded as payment for the provision of the                  failed to fulfil its obligations under the EC Treaty;
     service, as the Court of Justice held in Case C-272/
     91 (5) in connection with a supply contract and a right
     ceded by the public authorities in lieu of payment?             Ð order the French Republic to pay the costs.
Supplementary to the above questions:
                                                                     Pleas in law and main arguments adduced in support:
6. Are the provisions of Article 1(4)(a) and (c) of
     Directive 93/38/EEC to be interpreted as meaning that           Under Article 19(1) of Directive 93/15/EEC, Member
     a contract which provides for the provision of services         States are required to bring into force the provisions
     within the meaning of Annex XVI A, category 15,                 necessary to comply with Articles 9, 10, 11, 12, 13 and 14
     loses the nature of a service contract and becomes a            of that directive before 30 September 1993.
     supply contract if the result of the service is the
     production of a large number of identical tangible
     objects which have an economic value and thus                   The Commission has received no communication from
     constitute goods within the meaning of Articles 9 and           the French authorities regarding the adoption of the
     30 of the EC Treaty?                                            provisions referred to above.
                                                                     (1) OJ L 121, 15.5.1993, p. 20.
If that question is answered in the affirmative,
7. Is the judgment of the Court of Justice in Case C-3/88
     to be interpreted as meaning that such a supply
     contract is to be severed from the other components
     of the service contract and made the subject of a
     procurement procedure under Article 1(7) of Directive           Action brought on 4 September 1998 by the Commission
     93/38/EEC, in so far as this is technically possible and        of the European Communities against the Kingdom of
     economically reasonable?                                                                     Belgium
                                                                                              (Case C-328/98)
(1) OJ L 209, 24.7.1992, p. 1.
(2) OJ L 199, 9.8.1993, p. 84.                                                                 (98/C 327/19)
(3) [1989] ECR 4035.
(4) OJ L 13, 15.1.1977, p. 1.
(5) [1992] ECR I-3929.                                               An action against the Kingdom of Belgium was brought
                                                                     before the Court of Justice of the European Communities
                                                                     on 4 September 1998 by the Commission of the European