CELEX: C1997/212/30
Language: en
Date: 1997-07-12 00:00:00
Title: Reference for a preliminary ruling by the Bundesgerichtshof by order of that court of 11 March 1997 in the case of Wingas GmbH (formerly Wintershall Gas GmbH) against Stadt Detmold (Case C-187/97)

12 . 7. 97             EN                   Official Journal of the European Communities                                No C 212/17
The applicant claims that the Court should :                               users in its area, if the purpose is to protect the supply
                                                                           undertaking which it owns itself from competition in
— declare that, by failing to adopt within the prescribed                  its area arising from use of the transit main ?
      period the measures necessary to comply with
      Commission Directive 93/71 /EEC ( ] ), the Federal               3 . If Questions 1 and 2 are answered in the affirmative:
      Republic of Germany has failed to fulfil its obligations
      under the EC Treaty and under that Directive, and                    Is a local authority or a legally independent supply
                                                                           undertaking owned by it ( with which the local
— order the defendant to pay the costs .                                   authority has concluded an exclusive agreement for
                                                                           the use of its roads ) to be regarded, in relation to the
Pleas in law and main arguments adduced in support:                        local distribution of natural gas to end-users , as
                                                                           entrusted with the operation of a service of general
                                                                           economic interest within the meaning of Article 90 ( 2 )
The binding nature of the third paragraph of Article 189                    of the EC Treaty, where such distribution is not a task
and the first paragraph of Article 5 of the EC Treaty                       assigned by the State — and is equally open to purely
requires the Member States to transpose the provisions of                   private undertakings — where the local authority may
a Directive into internal law so that they produce their full
                                                                            nevertheless carry out the task as a local community
effect by the expiry of the period prescribed for that                      matter and where, in providing such supplies, that
purpose . That period came to an end on 3 August 1994                       local authority ( or its supply undertaking ) is — like
without Germany having enacted the necessary provisions .                   private undertakings — subject to State supervision
                                                                            and under a general obligation to provide connections
(') OJ No L 221 , 31 . 8 . 1993 , p. 27 .                                   and to supply gas ?
                                                                       4 . If Questions 1 , 2 and 3 are answered in the
                                                                            affirmative :
Reference for a preliminary ruling by the                                   When examining whether, pursuant to Article 90 ( 2 )
Bundesgerichtshof by order of that court of 11 March                        of the EC Treaty, agreements of the kind described are
1997 in the case of Wingas GmbH ( formerly Wintershall                      not subject to Article 85 thereof, is account to be
               Gas GmbH) against Stadt Detmold                              taken only of factors relating to ensuring a reliable
                                                                            and reasonably-priced local supply of natural gas, or
                           Case C-187/97 )                                  are factors relating to other matters in the public
                            ( 97/C 212/30 )                                 interest ( in particular environmental protection ) also
                                                                            to be taken into account ?
Reference has been made to the Court of Justice of the                 5 . If Questions 1 , 2 and 3 are answered in the affirmative
European Communities by order of the Kartellsenat                           and if, pursuant to the first sentence of Article 90 ( 2 )
 ( Cartel Chamber ) of the Bundesgerichtshof (Federal Court                 of the EC Treaty, the Treaty rules on competition are
 of Justice ) of 11 March 1997, received at the Court                       not to be applied:
 Registry on 15 May 1997, for a preliminary ruling in the
 case of Wingas GmbH ( formerly Wintershall Gas GmbH )
 against Stadt Detmold on the following questions:                           Are agreements of the kind described in Questions 1
                                                                             and 2 between local authorities and natural gas supply
                                                                             undertakings, eliminating competition in the local
 1 . Does Article 85 of the EC Treaty render invalid an                      supply of natural gas, to be deemed to affect the
       agreement under which a local authority grants a                      development of trade to an extent contrary to the
       supply undertaking, which is legally independent but                  interest of the Community ?
       owned by it, the exclusive right to use its public roads
       to lay and maintain mains for the direct supply of
       natural gas to end-users and thereby de facto
       eliminates competition in supply within its area, where
       that agreement is one of a number of similar
       (concession ) agreements which — also in conjunction
       with demarcation agreements between supply                       Appeal brought on 15 May 1997 by L. B. Rasmussen
       undertakings — partition off entire national supply              against the judgment delivered on 18 March 1997 by the
       markets from competition within the gas sector by                Fifth Chamber of the Court of First Instance of the
       domestic or Community competitors ?                              European Communities in Case T-35/96 between L. B.
                                                                        Rasmussen and the Commission of the European
                                                                                                   Communities
  2 . In the circumstances set out in Question 1 , does
       Article 85 of the EC Treaty render invalid an                                           ( Case C-188/97 P)
       agreement concluded by a local authority with a                                            ( 97/C 212/31 )
       supply undertaking concerning the laying of a natural
       gas transit main through its municipal area, under
       which it obliges that supply undertaking not to use              An appeal against the judgment delivered on 18 March
        that main for the direct supply of natural gas to end­           1997 by the Fifth Chamber of the Court of First Instance