CELEX: C2001/303/07
Language: en
Date: 2001-10-27 00:00:00
Title: Case C-264/01: Reference for a preliminary ruling by the Oberlandesgericht Düsseldorf by order of that court of 18 May 2001 in the case of 1. AOK Bundesverband, 2. Bundesverband der Betriebskrankenkassen, 3. Bundesverband der Innungskrankenkassen,4. Bundesverband der landwirtschaftlichen Krankenkassen, 5. Verband der Angestelltenkrankenkassen e.V., 6. Verband der Arbeiter-Ersatzkassen, 7. Bundesknappschaft and 8. See-Krankenkasse against Ichthyol-Gesellschaft Cordes, Hermani & Co

27.10.2001            EN                     Official Journal of the European Communities                                      C 303/5
Reference for a preliminary ruling from the Hof van                     5.   If the answer to question 4 is in the negative, does
Beroep Antwerpen, by orders of that Court of 28 June                         Community law then permit the persons owing the
2001, in the cases of Belgian State v, respectively,                         contributions, as the beneficiaries of the aid, to raise a
(1) E. Van Calster and (2) F. Cleeren (Case C-261/01) and                    plea of lack of competence with regard to the Com-
          NV Openbaar Slachthuis (Case C-262/01)                             mission’s act whereby authorisation was given to
                                                                             implement the aid measures from which they benefit?
                (Cases C-261/01 and C-262/01)                           6.   If it is accepted that the respondents, as persons owing
                                                                             the contributions and/or as beneficiaries of the aid, are
                                                                             directly and individually concerned by the Commission’s
                       (2001/C 303/06)                                       act and may therefore lawfully raise a plea of lack of
                                                                             competence, has the Commission exceeded the limits of
                                                                             its competence in adopting its decision of 30 July 1996
                                                                             and infringed Article 88(3) (formerly Article 93(3)) of the
Reference has been made to the Court of Justice of the                       EC Treaty?
European Communities by orders of the Hof van Beroep
Antwerpen (Court of Appeal, Antwerp) of 28 June 2001,
received at the Court Registry on 5 July 2001, for a preliminary
ruling in the cases of Belgian State v, respectively, (1) E. Van
Calster and (2) F. Cleeren (Case C-261/01) and NV Openbaar
Slachthuis (Case C-262/01), on the following questions:
1.   In the circumstances outlined above is a system of aid             Reference for a preliminary ruling by the Oberlandesge-
     measures compatible with Community law, in particular              richt Düsseldorf by order of that court of 18 May 2001 in
     with Article 88(3) (formerly Article 93(3)) of the EC              the case of 1. AOK Bundesverband, 2. Bundesverband der
     Treaty, which, after its notification, is considered by the        Betriebskrankenkassen, 3. Bundesverband der Innungs-
     Commission on 30 July 1996 to be compatible with the               krankenkassen,4. Bundesverband der landwirtschaftli-
     common market and under which the Member State                     chen Krankenkassen, 5. Verband der Angestellten-
     imposes in the general interest, with retroactive effect,          krankenkassen e.V., 6. Verband der Arbeiter-Ersatzkassen,
     contributions or charges:                                          7. Bundesknappschaft and 8. See-Krankenkasse against
                                                                               Ichthyol-Gesellschaft Cordes, Hermani & Co
     —     to finance an animal health and production fund,
                                                                                                  (Case C-264/01)
     —     on natural and legal persons whose characteristics                                    (2001/C 303/07)
           are set out in Articles 14, 15 and 16 of the
           abovementioned law of 23 March 1998, as amended
           by the Arbitragehof (Court of Arbitration) in its            Reference has been made to the Court of Justice of the
           judgment of 9 February 2000 in Cases Nos 1414,               European Communities by order of the Oberlandesgericht
           1450, 1452, 1453, and 1454,                                  Düsseldorf of 18 May 2001, received at the Court Registry on
                                                                        5 July 2001, for a preliminary ruling in the case of 1. AOK
                                                                        Bundesverband, 2. Bundesverband der Betriebskrankenkassen,
     —     because of the activities described in those articles        3. Bundesverband der Innungskrankenkassen, 4. Bundesver-
           which took place in the period from 1988 until               band der landwirtschaftlichen Krankenkassen, 5. Verband der
           21 May 1996 in which those aid measures had not              Angestelltenkrankenkassen e.V., 6. Verband der Arbeiter-
           yet been approved?                                           Ersatzkassen, 7. Bundesknappschaft and 8. See-Krankenkasse
                                                                        against Ichthyol-Gesellschaft Cordes, Hermani & Co. on the
                                                                        following questions:
2.   (Solely in Case C-262/01) Has the Commission, by
     approving the aid measures established by the law of               1.   Is Article 81(1) EC to be interpreted as meaning that the
     23 March 1998, also approved their retroactive effect?                  leading associations of statutory sickness funds of a
                                                                             Member State are to be regarded as associations of
                                                                             undertakings or, where a leading association is also
3.   Is the Commission’s Decision of 30 July 1996 merely in                  a direct provider of statutory sickness insurance, as
     the nature of an individual authorisation to a Member                   undertakings within the meaning of Article 81(1) EC
     State to implement the planned aid measures?                            when they jointly determine the applicable level of
                                                                             uniform fixed amounts for medicinal products in the
                                                                             Member State, where such amounts constitute the highest
4.   Are the persons owing the contributions directly and                    price at which the statutory sickness funds, who are
     individually concerned by the Commission’s act within                   required to provide benefits in kind to insured persons,
     the meaning of Article 230 (formerly Article 173) of the                will purchase and pay for medicinal products and thereby
     EC Treaty?                                                              limit their liability to insured persons?
 ---pagebreak--- C 303/6               EN                    Official Journal of the European Communities                                      27.10.2001
2.  If the answer to the first question is in the affirmative:         Reference for a preliminary ruling by the Oberste Ge-
                                                                       richtshof by order of 11 June 2001 in the case of Jaroslav
                                                                                          Nyvlt v Flughafen Wien AG
    (a)   are determinations of fixed amounts as described in
          1 above to be regarded as agreements (or decisions)                                    (Case C-267/01)
          of the leading associations of statutory sickness
          funds which restrict competition, in particular
          within the meaning of Article 81(1)(a) EC, and are                                     (2001/C 303/08)
          prohibited by Article 81(1) EC?
                                                                       Reference has been made to the Court of Justice of the
                                                                       European Communities by order of 11 June 2001 of the
    (b) is question 2(a) to be answered in the affirmative at          Oberste Gerichtshof (Supreme Court), which was received at
          least where the object of the regulation concerning          the Court Registry on 6 July 2001, for a preliminary ruling in
          fixed amounts is, inter alia, to exploit all reserves        the case of Jaroslav Nyvlt v Flughafen Wien on the following
          of medicinal product manufacturers in terms of               questions:
          economy as regards sale price, and the application
          of the regulation concerning fixed amounts in the
          Member State so far has had the effect that, of the          1.   Is Paragraph 145.35 of JAR-145, which forms an annex
          finished medicinal product packages offered on the                to Council Regulation (EEC) No 3922/91 of 16 December
          market that fall within the regulations concerning                1991 on the harmonisation of technical requirements
          fixed amounts, approximately 93 % do not now                      and administrative procedures in the field of civil aviation
          exceed the amount fixed for them?                                 (OJ 1991 L 373, p. 4), having regard, if necessary, to the
                                                                            explanation given by the Joint Aviation Authorities (JAA),
                                                                            to be interpreted as requiring the owner of a maintenance
                                                                            organisation to maintain records of his staff authorised
3.  If the answer to either or both of the questions in 2 above             to certify aircraft fit for service in such detail that it is
    is in the affirmative:                                                  possible to infer from those records not only the area of
                                                                            responsibility but also the specific jobs performed on
                                                                            certain aircraft types in a certain period of time (year)?
    Can a system of fixed amounts as described in questions 1
    and 2 be exempted from Article 81(1) EC under                      2.   Is Paragraph 145.35 of JAR-145, which forms an annex
    Article 86(2), first sentence, EC, even though when they                to Council Regulation (EEC) No 3922/91 of 16 December
    determine fixed amounts the leading associations of                     1991, having regard, if necessary, to the explanation
    statutory sickness funds represent the biggest purchasers               given by the Joint Aviation Authorities (JAA), to be
    on the medicinal product market, who when taken                         interpreted as meaning that
    together dominate the market, and it would be possible,
    as a solution to the problem of trying to reduce costs in
    the health sector, to grant power to determine such fixed               a)    it requires the owner of the maintenance organis-
    amounts to an institution other than a participant in the                     ation to hand over those records to staff authorised
    medicinal product market, in particular to the Federal                        to certify aircraft fit for service upon termination of
    Government or a Federal Minister?                                             their employment,
                                                                            b)    it is sufficient to hand over copies in order to satisfy
4.  If the answer to question 3 is also in the affirmative:                       that obligation, or
                                                                            c)    such copies must be confirmed by the employer by
    a)    what conditions must be set forth and proved by                         signature?
          the leading associations of statutory sickness funds
          so that they may be exempted under Article 86(2),            3.   On whom do the obligations which may exist within the
          first sentence, EC in relation to determinations of               meaning of Question 2 fall where the employer of the
          fixed amounts?; or                                                employee authorised to certify aircraft fit for service is
                                                                            not the owner of the maintenance organisation, but a
                                                                            third party who has hired the employee from that owner
    b)    is the grant of an exemption under Article 86(2), first           on the basis of a group relationship or a separate contract
          sentence, EC precluded in any case by Article 86(2),              to provide work services?
          second sentence, EC owing to the effects the system
          of fixed amounts has on trade?                               4.   Do the obligations which may exist in accordance with
                                                                            the answers to Questions 1 to 3 preclude more extensive
                                                                            national provisions?