CELEX: C2000/233/35
Language: en
Date: 2000-08-12 00:00:00
Title: Case C-223/00: Reference for a preliminary ruling by the Supremo Tribunal Administrativo, 1a Secção, 1a Subsecção by order of that court of 10 May 1999 in the case of Director-Geral do Departamento para os Assuntos do Fundo Social Europeu against Partex — Companhia Portuguesa de Serviços SA

C 233/18                EN                    Official Journal of the European Communities                                     12.8.2000
Action brought on 5 June 2000 by the Commission of the                   to the objective pursued. However, the obligation of forwar-
 European Communities against the Kingdom of Belgium                     ding, in respect of each admission, documents which the
                                                                         Provincial Architects Council already has in its possession (for
                                                                         example, the diploma) is an additional burden which runs
                         (Case C-222/00)                                 counter to Article 22(4) of the directive where such documents
                                                                         are less than 12 months old. Moreover, the Belgian rules
                         (2000/C 233/34)                                 cannot require payment of a registration fee of BEF 6 000 by
                                                                         architects established in a Member State other than Belgium
                                                                         who register on the ‘special register’ since the third paragraph
An action against the Kingdom of Belgium was brought before              of Article 22(1) clearly requires that such registration should
the Court of Justice of the European Communities on 5 June               take place without any additional costs. Those rules also
2000 by the Commission of the European Communities,                      infringe Article 49 EC.
represented by Bernard Mongin, of its Legal Service, acting as
Agent, with an address for service in Luxembourg at the office
of Carlos Gómez de la Cruz, of its Legal Service, Wagner                (The second plea in law alleging that the principle of provision
Centre, Kirchberg.                                                       of a ‘single service’ is being applied)
                                                                         The Belgian Government states that that principle is no longer
The applicant claims that the Court should                               applied; it is however not disputed that a mere circular
                                                                         — which has moreover never been communicated to the
1.    Declare that,                                                      Commission — is not sufficient to bring to an end the legal
                                                                         uncertainty arising from the lack of binding legislation in that
                                                                         respect.
      —     by maintaining in force a procedure which makes
            registration of architects lawfully established in
            another Member State on the ‘special register’ of            (The third plea in law alleging that admission to the register
            architects providing their services, as provided for in      was refused on the ground that the principle that the activities
            Article 22(1) of Directive 85/334/EEC(1), subject to         of architects and contractors are mutually incompatible was
            production of the documents listed in Article 22(3)          not observed)
            even where those documents have already been
            communicated less than 12 months previously and
            to the payment of registration fees;                         The directive does not preclude a Member State from making
                                                                         the profession of architect incompatible with that of building
                                                                         contractor or trader in construction materials and requiring
      —     by maintaining in force a procedure which makes it           compliance from architects established in another Member
            impossible for architects established in Member              State who provide services in the first Member State. However,
            States other than Belgium to provide several services        in order to ensure compliance, the administration has available
            simultaneously within Belgium;                               means which are less restrictive than the requirement to
                                                                         amend the statutes of the architect’s firm consultation of the
      —     by making admission to the register of service               agreement between the client and the architect should be
            providers of an architect established in a Member            sufficient in that regard.
            State who wishes to provide services in Belgium
            subject to amendment of the statutes of that archi-
                                                                         (1) OJ 1985 L 223, p. 15.
            tect’s firm without ascertaining beforehand whether
            that architect was in a position to comply in
            Belgium with Belgian rules prohibiting persons
            from simultaneously practising as architects and
            contractors;
      the Kingdom of Belgium has failed to fulfil its obligations
      under the abovementioned directive.                                Reference for a preliminary ruling by the Supremo
                                                                         Tribunal Administrativo, 1a Secção, 1a Subsecção by or-
2.    Order the Kingdom of Belgium to pay the costs.                     der of that court of 10 May 1999 in the case of Director-
                                                                         Geral do Departamento para os Assuntos do Fundo Social
                                                                         Europeu against Partex — Companhia Portuguesa de
                                                                                                     Serviços SA
Pleas in law and main arguments
                                                                                                   (Case C-223/00)
(The first plea in law alleging that admission to the register is                                  (2000/C 233/35)
not practically automatic)
                                                                         Reference has been made to the Court of Justice of the
Notification of the provision of services must not be made               European Communities by order of the Supremo Tribunal
subject to conditions which are disproportionate or unrelated            Administrativo, 1a Secção, 1a Subsecção (First Sub-Chamber
 ---pagebreak--- 12.8.2000             EN                    Official Journal of the European Communities                                       C 233/19
of the First Chamber of the Supreme Administrative Court) of           1.    In calls for tenders for public works contracts, do clauses
10 May 1999, which was received at the Court Registry on                     excluding undertakings which have not submitted with
2 June 2000, for a preliminary ruling in the case of Director-               their tenders explanations concerning components of the
Geral do Departamento para os Assuntos do Fundo Social                       price indicated, amounting to at least 75 % of the figure
Europeu against Partex — Companhia Portuguesa de Serviços                    specified in the tender conditions represent an obstacle
SA. The Supremo Tribunal Administrativo referred to the                      to the application of Article 30(4) of Directive 93/37 (1)?
Court for a preliminary ruling on the correct interpretation of
Community law, namely:                                                 2.    Does the establishment of a mechanism for determining
                                                                             the threshold indicative of irregularity, below which the
                                                                             validity of tenders falls to be verified, on the basis of an
—    Articles 5(4) and 7(2) of Council Regulation (EEC)
                                                                             ad hoc criterion and an arithmetical mean, automatically
     No 2950/83 (1) of 17 October 1983 on the implementa-                    so that undertakings are unable to ascertain the threshold
     tion of Decision 83/516/EEC (2) on the tasks of the
                                                                             in advance, represent an obstacle to the application of
     European Social Fund (ESF); and
                                                                             Article 30(4) of Directive 93/37?
—    Article 5 of Council Decision 83/516/EEC of 17 October            3.    Does the fact that the exchange of views is to take place
     1983 on the tasks of the European Social Fund                           at an earlier stage, without the undertaking which has
                                                                             allegedly submitted an irregular tender being assured of
                                                                             an opportunity to state its reasons, after the opening of
in order to ascertain whether where the certification decision,              the envelopes and before the adoption of the measure
for which the DAFSE is competent, deems certain expenditure                  excluding it, represent an obstacle to the application of
to be unreasonable and only certifies it in part (in other words,            Article 30(4) of Directive 93/37?
the negative part of the certification decision) makes it
impossible for the Commission to approve payments relating             4.    Does a provision under which the contracting authority
to the expenditure which was not certified by the competent                  may take account of explanations relating solely to the
body in the Member State.                                                    economy of the construction method or the technical
                                                                             solutions adopted or the exceptionally favourable condi-
                                                                             tions available to the tenderer represent an obstacle to
(1) OJ 1983 L 289, p. 1.                                                     the application of Article 30(4) of Directive 93/37?
(2) OJ 1983 L 289, p. 38.
                                                                       5.    Does the exclusion of explanations relating exclusively to
                                                                             items for which minimum values have been established
                                                                             by administrative provisions or can be inferred from
                                                                             official lists represent an obstacle to the application of
                                                                             Article 30(4) of Directive 93/37?
                                                                       (1) Council Directive 93/37/EEC of 14 June 1993 concerning the
Reference for a preliminary ruling by the Fourth Chamber                   coordination of procedures for the award of public works
of the Consiglio di Stato (Council of State) by order of                   contracts (OJ L 199 of 9.8.1993, p. 54).
that court of 7 March 2000 in the case of Cavalleri Ottavio
SpA, acting on its own account and also as mandated
under its ad hoc association with Anselmi Cave Ghiaia Srl,
against ANAS — Ente Nazionale per le Strade and Lauro
Cantieri Valsesia SpA, acting on its own account and also
  as mandated under its ad hoc association with IOS SpA
                                                                       Action brought on 9 June 2000 by the Commission of the
                         (Case C-225/00)
                                                                        European Communities against the Kingdom of Belgium
                         (2000/C 233/36)                                                         (Case C-230/00)
                                                                                                (2000/C 233/37)
Reference has been made to the Court of Justice of the
European Communities by order of the Fourth Chamber of
the Consiglio di Stato (Council of State) of 7 March 2000,             An action against the Kingdom of Belgium was brought before
received at the Court Registry on 5 June 2000, for a prelimina-        the Court of Justice of the European Communities on 9 June
ry ruling in the case of Cavalleri Ottavio SpA, acting on its          2000 by the Commission of the European Communities,
own account and also as mandated under its ad hoc association          represented by H. van Lier, Legal Adviser in the Commission’s
with Anselmi Cave Ghiaia Srl, against ANAS — Ente Nazionale            Legal Service, acting as Agent, assisted by H. van der Woude
per le Strade and Lauro Cantieri Valsesia SpA, acting on its           and T.E.M. Chellingsworth, of the Brussels Bar, with an address
own account and also as mandated under its ad hoc association          for service in Luxembourg at the office of C. Gómez de la
with IOS SpA, on the following questions:                              Cruz, also of the Legal Service, Wagner Centre, Kirchberg.