CELEX: C1997/271/14
Language: en
Date: 1997-09-06 00:00:00
Title: Reference for a preliminary ruling from the Unabhängiger Verwaltungssenat für Kärnten by order of that tribunal of 8 July 1997 in the case of HI Hospital Ingenieure Krankenhaustechnik Planungs-Gesellschaft mbH v. Landeskrankenanstalten-Betriebsgesellschaft (Case C-258/97)

6 . 9 . 97            I EN |                Official Journal of the European Communities                                      C 271 /9
2 . If the first question is answered in the affirmative, is                 In view of the failure to fulfil obligations, give an
      Article 92 of the Treaty to be interpreted as meaning                  official explanation or any reply, the company must
      that such aid is compatible with the common market ?                   take legal action before the Court in order to obtain
                                                                             compensation in damages consisting in the amount set
                                                                             out in the invoice and interest thereon as from two
                                                                             months after the date of the invoice, subject to further
                                                                             interest accruing in the meantime .
Action brought on 16 July 1997 by E-Quattro, società in                ( b ) Failure       to    continue         the  contractual
nome collettivo, having its seat in Laveno-Mombello,                         relationship
Varese, Italy, against Commission of the European
                             Communities                                     The contract concluded between the parties provides
                          ( Case C-257/97)                                   for, at most, a duration of two years, although
                                                                             performance is divided into two stages .
                            ( 97/C 271/13 )
                                                                             Although the Commission reserved the right not to
An action against the Commission of the European                             proceed to the second stage, it is nevertheless true that
Communities was brought before the Court of Justice of                       such a right may not be indiscriminate or arbitrary
the European Communities on 16 July 1997 by E-                               and in any event, account must be taken of the
Quattro, società in nome collettivo, having its seat in                      circumstances in which it is exercised .
Laveno-Mombello, Varese, Italy, represented by Giuseppe
Marchesini, advocate with the right of audience before the                   Finally, the applicant is of the view that the
Corte di Cassazione ( Court of Cassation ) of the Italian                    termination in question must be justified, notified to
Republic, with an address for service in Luxembourg at                       the parties in good time and in circumstances such as
the Chambers of Ernest Arendt, 8—10 Rue Mathias                              not to prejudice the legitimate expectations that the
Hardt .
                                                                             contract would proceed as normal .
The applicant claims that the Court should:
1 . order the Commission to make good the damage
      suffered and being suffered by the applicant as a result
      of the persistent delay in paying the balance of the             Reference for a preliminary ruling from the Unabhängiger
      services set out in the unpaid invoice;                          Verwaltungssenat fur Kärnten by order of that tribunal of
                                                                       8 July 1997 in the case of HI Hospital Ingenieure
                                                                       Krankenhaustechnik Planungs-Gesellschaft mbH v.
2 . order, further, the Commission to make good the
                                                                                 Landeskrankenanstalten-Betriebsgesellschaft
      damage caused to the company by the unjustified
      termination of the contract and by its notification on                                    Case C-258/97 )
      the last possible date;                                                                    ( 97/C 271 /14 )
3.    the whole of the above to be in the amount set out in
      the application or together with interest accruing from          Reference has been made to the Court of Justice of the
      the due date to the date of actual payment;                      European Communities by an order of the Unabhängiger
                                                                       Verwaltungssenat fur Kärnten ( Independent Administrative
                                                                       Senate for Carinthia ) of 8 July 1997, which was received
4. order the defendant to pay the costs of proceedings .               at the Court Registry on 17 July 1997, for a preliminary
                                                                       ruling in the case of HI Hospital Ingenieure
Pleas in law and main arguments adduced in support:                    Krankenhaustechnik Planungs-Gesellschaft mbH v.
                                                                       Landeskrankenanstalten-Betriebsgesellschaft         on      the
                                                                       following questions :
( a ) Payment for the services provided
                                                                        1 . Is Article 2 ( 8 ) of Council Directive 89/665/EEC of
      Article 7 ( 2 ) of the contract stipulates that the                    21 December 1989 on the coordination of the laws,
      Commission is to effect payment upon presentation of                   regulations and administrative provisions relating to
      the invoice or within two months from the date of
                                                                             the application of review procedures to the award of
      receipt thereof.                                                       public supply and public works contracts ( ! ) to be
                                                                             interpreted as meaning that the Unabhängiger
      The services in respect of the first stage were                        Verwaltungssenat für Kärnten fulfils the conditions for
      completed in March 1997 and the invoice for the                        a body responsible for review procedures with respect
      balance was sent on 6 March 1997 .                                     to services ?
      Already four months have elapsed without the amount              2 . Are these or other provisions of Council Directive 89/
      set out in the invoice having been paid and without                    665/EEC on the coordination of the laws, regulations
      the slightest official explanation or reply.                           and administrative provisions relating to the
 ---pagebreak--- C 271 / 10                 EN                    Official Journal of the European Communities                                      6 . 9 . 97
       application of review procedures to the award of                     Reference for a preliminary ruling by the Social Chamber
       public supply and public works contracts, from which                 of the Cour d'Appel (Court of Appeal ), Douai, by
       there derives an individual right to have review                     judgment of that court of 27 June 1997 in the case of Karl
        proceedings conducted before authorities or courts                                  Heinz Baumann v. URSSAF Lille
        which comply with the provisions of Article 2 ( 8 ) of                                        ( Case C-261 /97 )
        Directive 89/665/EEC, to be interpreted as being
        sufficiently precise and specific that, in the event of                                         ( 97/C 271/15 )
        non-transposition of the directive in question by the
        Member State, an individual may successfully assert                 Reference has been made to the Court of Justice of the
        that legal right against the Member State in legal                  European Communities by judgment of the Cour d'Appel
        proceedings ?                                                       ( Social Chamber), Douai, of 27 June 1997, received at the
                                                                            Court Registry on 21 July 1997, for a preliminary ruling
                                                                            in the case of Karl Heinz Baumann v. URSSAF Lille on the
3 . Are the provisions of Article 41 of Directive 92/50/
        EEC (2 ), in conjunction with Directive 89/665/EEC,                 following question:
        which are the basis of an individual 's right to have
        review proceedings conducted, to be interpreted as                  Is Article 14a (2 ) of Regulation ( EEC ) No 1408/71 of
        meaning that a national court with the characteristics              14 June 1971 ( J ) to be interpreted as meaning that, in
        of the Unabhangiger Verwaltungssenat fur Karnten                    order to be exempt from paying contributions in France,
        may, when conducting review proceedings on the basis                an independent worker employed in two Member States
        of national provisions such as Paragraph 59 et seq. of              and living in another Member State must be registered
        the Carinthian Auftragsvergabegesetz and the                        with a compulsory scheme for self-employed workers in
        regulations relating thereto, disregard those provisions            that other Member State ?
        if they prevent the carrying out of review proceedings
        under the Carinthian Auftragsvergabegesetz for the                  (') On the application of social security schemes to employed
        award of service contracts, and therefore nevertheless                   persons and their families moving within the Community ( OJ,
        conduct review proceedings in accordance with                            English Special Edition 1971 ( II ), p. 416 ).
        Section 8 of the Carinthian Auftragsvergabegesetz ?
4 . Are the services mentioned in the facts of the case ( 3 ),
        with reference to Article 10 of Directive 92/50/EEC, to
        be classified as services coming under Annex IA,
        Category No 12, of Directive 92/50/EEC ( architectural              Reference for a preliminary ruling by the Tribunale
        services; engineering services and integrated                       Amministrativo per la Sardegna by judgment of that court
        engineering services; urban planning and landscape                  of 15—17 April 1997 in the case of Societa Appia Sri v.
        architectural services; related scientific and technical            ( 1 ) Comune di Cagliari and ( 2 ) Società Cagliari Calcio
       consulting services; technical testing and analysis                                                    SpA
        services )?                                                                                   ( Case C-264/97 )
                                                                                                        ( 97/C 271 / 16 )
5 . Are the provisions of Directive 92/50/EEC to be
       interpreted as satisfying the conditions laid down in                Reference has been made to the Court of Justice of the
       the judgment in Case 41 /74 Van Duyn ( paragraph 12 )                European Communities by judgment of the Tribunale
       for the direct applicability of a Community directive,               Amministrativo per la Sardegna (Administrative Court,
       with the result that services coming under Annex IA of               Sardinia ) of 15—17 April 1997, received at the Court
       the directive are to be awarded under the procedure                  Registry on 21 July 1997, for a preliminary ruling in the
       therein mentioned, or are the relevant provisions of                 case of Societa Appia Sri v. ( 1 ) Comune di Cagliari
       the directive in connection with the services mentioned
                                                                            (Municipality of Cagliari ) and (2 ) Societa Cagliari Calcio
       in Annex IA capable of fulfilling the conditions laid                SpA on the following questions :
       down in the said case ?
                                                                            whether Article 8 of Council Directive 92/50 (*) and the
(') OJ L 395 , 30 . 12 . 1989, p . 33 .                                     provisions therein referred to require a public
( 2 ) OJ L 209 , 24 . 7. 1992 , p. 1 .                                      administration ( in this case a Municipality ), which intends
(3 ) Consulting engineers' services for technical advice and
      planning and the planning and processing works for the                granting a concession in respect of facilities ( in this case a
      construction of a children's hospital ( parent and child centre )     municipal stadium ) to third parties that are considered to
      at the Landeskrankenhaus Klagenfurt with the corresponding            be particularly well qualified, with a view to bringing
      out-patient facilities, operating theatre, x-ray laboratory and       them under single management, to entrust the services
      five children 's wards and a children's surgical ward with a          covered by that directive ( in this case advertising services )
      total of 132 beds and a usable area of c . 8 100 m2; planning         to be carried out within the facilities to which the
      services for the sanitary, heating and air installations with air     concession relates by means of the procedures laid down
      conditioning and the electrical and high and low-voltage              by the abovementioned Article 8 , without giving
      current installations, structural and constructional engineering
      servicds, and planning services for the medical installations.
                                                                            preference to the concessionaire; if the Court should
                                                                            consider that in such circumstances the Administration is
                                                                            required to comply with Article 8 of Directive 92/50, it is
                                                                            necessary to ascertain whether compliance with that