CELEX: C2004/085/20
Language: en
Date: 2004-04-03 00:00:00
Title: Case C-2/04: Reference for a preliminary ruling by the Magistrates' Court, Bitonto, by order of that court of 20 December 2003 in the case of Nicolò Tricarico against Assitalia Assicurazioni

3.4.2004                 EN                           Official Journal of the European Union                                           C 85/13
Reference for a preliminary ruling by the Oberlandesger-                      1.   Do the facts as found in Judgment No 2199 of the
icht Innsbruck by order of that Court of 16 December                               Consiglio di Stato (Council of State) of 23 April 2002 and
2003 in the case of 1) Christine Dodl, 2) Petra Oberhol-                           in Judgment No 6139 of the Tribunale Amministrativo
         lenzer against Tiroler Gebietskrankenkasse                                Regionale (Regional Administrative Court), Lazio (Rome)
                                                                                   of 5 July 2001, which are deemed to be set out here in
                          (Case C-543/03)                                          full, and the decision of the Italian AGCM to which both
                                                                                   those judicial decisions refer (concerning a cartel set up
                           (2004/C 85/19)                                          by various insurance companies in the area of civil
                                                                                   liability for road accidents), constitute infringements of
                                                                                   Community law, in particular of Articles 81 EC and 82
                                                                                   EC?
Reference has been made to the Court of Justice of the
European Communities by order of the Oberlandesgericht                        2.   Does an infringement of Articles 81 EC and 82 EC imply
Innsbruck (Higher Regional Court Innsbruck) of 16 December                         an obligation on the part of the person committing it to
2003, received at the Court Registry on 29 December 2003,                          compensate end users, and all those who are third
for a preliminary ruling in the case of 1) Christine Dodl, 2)                      parties not involved in the agreement or the abuse but
Petra Oberhollenzer against Tiroler Gebietskrankenkasse on                         demonstrate that they have suffered injury, for damage
the following questions:                                                           suffered?
1)    Is Article 73 of Regulation (EEC) No 1408/71 of the                     3.   In assessing the amount of damages, in addition to the
      Council of 14 June 1971 (1) on the application of social                     restitution of sums charged in breach of Community
      security schemes to employed persons, to self-employed                       rules, is the national court required (again as a matter of
      persons and to members of their families moving within                       Community law) to award the injured party a sum by way
      the Community, in conjunction with Article 13 of that                        of punitive damages against those persons responsible
      regulation, as amended, to be interpreted as extending                       for the prohibited agreement or abuse of a dominant
      even to employed persons whose employment relation-                          position?
      ships are still in existence but do not involve any duty to
      carry out work or pay remuneration (unpaid leave) or                    4.   Does Community law also require the payment of
      any social security obligations under national law?                          damages for non-material loss?
2)    If the answer to the first question should be in the
      affirmative:                                                            5.   As a matter of Community law, is the national court
                                                                                   required of its own motion to order the payment of
      Is the State of the place of employment responsible for                      punitive damages or damages for non-material loss?
      the benefit payment in such a case even if the employed
      person and those members of his or her family for whom                  6.   Is the limitation period of one year for bringing an action
      family benefit such as Austrian ‘Kinderbetreuungsgeld’                       for damages for breach of Articles 81 EC and 82 EC
      (child-care allowance) might be payable have not lived in                    under Italian law too short and therefore in conflict with
      the State of the place of employment, particularly during                    Community law?
      the period of unpaid leave?
                                                                              7.   As a matter of Community law, for the purposes of the
                                                                                   limitation period for bringing an action for damages,
(1) English special edition: Series I Chapter 1971(II) P. 0416.
                                                                                   does time begin to run from the day on which the
                                                                                   infringement of Articles 81 EC and 82 EC was committed
                                                                                   or the day on which that infringement came to an end?
                                                                              8.   Is there a conflict between Community competition law
                                                                                   and/or the fundamental principles of Community law
Reference for a preliminary ruling by the Magistrates’                             (with reference in particular to Article 6(1) and Article 13
Court, Bitonto, by order of that court of 20 December                              of the European Convention on Human Rights) and a
2003 in the case of Nicolò Tricarico against Assitalia                             national provision having an effect similar to that in the
                            Assicurazioni                                          second paragraph of Article 3 of Italian Law No 287 of
                                                                                   10 October 1990 which requires a consumer or a third
                            (Case C-2/04)                                          party who has suffered damage as a result of an agreement
                                                                                   which is unlawful and void under Article 81 EC or an
                                                                                   abuse of a dominant position unlawful under Article 82
                           (2004/C 85/20)
                                                                                   EC and who seeks to obtain damages to make an
                                                                                   application to a court other than the one which has
                                                                                   jurisdiction ratione loci, ratione materiae and for the
Reference has been made to the Court of Justice of the                             value of the dispute in accordance with the ordinary
European Communities by order of the Magistrates’ Court,                           national rules on jurisdiction, Article 33 of Law No 287/
Bitonto, of 20 December 2003, received at the Court Registry                       90 involving an increase in the cost and duration of the
on 5 January 2004, for a preliminary ruling in the case of                         case which would not occur had the ordinary national
Nicolò Tricarico against Assitalia Assicurazioni on the follow-                    rules on jurisdiction ratione loci, ratione materiae and for
ing questions:                                                                     the value of the dispute applied?
 ---pagebreak--- C 85/14               EN                         Official Journal of the European Union                                            3.4.2004
9.   Is there a conflict between Community competition law                     withdraw the invitation to tender (withdrawal decision
     and/or the fundamental principles of Community law                        analogous to the award decision) amenable to review in
     (with reference in particular to Article 6(1) and Article 13              any case, since the applicant is entitled to have that
     of the European Convention on Human Rights) and a                         decision set aside if the relevant conditions are met,
     national provision which requires a consumer or a third                   notwithstanding the possibility, once withdrawal has
     party who has suffered damage as a result of an agreement                 taken place, of obtaining an award of damages?
     which is unlawful and void under Article 81 EC or an
     abuse of a dominant position unlawful under Article 82
     EC and who seeks to obtain damages to make an                       (1) OJ L 395, p. 33.
     application to a court other than the one which has
     jurisdiction ratione loci on the basis of the registered
     office (sede) of the subsidiary of the insurance company
     with which they entered into a contract or in the court
     district in which the injured party is resident, having
     regard also to the difference in legal costs which each
     approach involves?
10. Does Community law require national courts to disapply
     national rules in conflict with Community law or rather             Action brought on 26 January 2004 by the Commission of
     to interpret them so as to comply with Community law?               the European Communities against the Hellenic Republic
                                                                                                   (Case C-22/04)
                                                                                                   (2004/C 85/22)
Reference for a preliminary ruling by the Bundesverga-
beamt (Austria) by order of that Court of 12 January 2004                An action against the Hellenic Republic was brought before
in the case of Koppensteiner GmbH against Bundesimmo-                    the Court of Justice of the European Communities on 26 Janu-
                   biliengesellschaft m.b.H.                             ary 2004 by the Commission of the European Communities,
                                                                         represented by Thomas van Rijn and Maria Kondou-Durande,
                                                                         Legal Advisers in its Legal Service.
                         (Case C-15/04)
                        (2004/C 85/21)                                   The Commission claims that the Court should:
                                                                         —     declare that, by failing to ensure that fishing vessels which
                                                                               fly its flag and must be equipped with devices for position
Reference has been made to the Court of Justice of the                         monitoring by means of satellite were in fact equipped,
European Communities by order of the Bundesvergabeamt                          according to the type of vessel, on 30 June 1998 or
(Austria) (Federal Procurement Office) of 12 January 2004,                     1 January 2000, the Hellenic Republic has failed to fulfil
received at the Court Registry on 20 January 2004, for a                       its obligations under Article 3 of Council Regulation
preliminary ruling in the case of Koppensteiner GmbH against                   (EEC) No 2847/93 (1) of 12 October 1993;
Bundesimmobiliengesellschaft m.b.H. on the following ques-
tions:                                                                   —     order the Hellenic Republic to pay the costs.
1.   Are the provisions of Article 1 in conjunction with
     Article 2(1)(b) of Council Directive 89/665/EEC of
     21 December 1989 (1) so unconditional and sufficiently
     precise that, in the event of withdrawal of the invitation          Pleas in law and arguments
     to tender after the opening of tenders, an individual is
     entitled rely on those provisions directly before the
     national courts and to seek a review of the withdrawal?             The period for transposition of the regulation into national
                                                                         law expired on 1 January 2000.
2.   If Question 1 must be answered in the negative, are
     Article 1 in conjunction with Article 2(1)(b) of Council
     Directive 89/665/EEC of 21 December 1989 to be                      (1) OJ L 261, 20.10.1993, p. 1.
     interpreted as meaning that Member States are obliged
     to make a contracting authority’s decision, prior to
     withdrawal of the invitation to tender, that it will