CELEX: C1997/009/22
Language: en
Date: 1997-01-11 00:00:00
Title: Reference for a preliminary ruling from the Bezirksgericht für Handelssachen Wien, by judgment of that court of 21 October 1996, in the case of Verein für Konsumenteninformation against Österreichische Kreditversicherung AG (Case C-364/96)

No C 9/ 12            1 EN |                    Official Journal of the European Communities                                   11 . 1 . 97
17 July 1969 concerning indirect taxes on the raising of                        gas sector by legislation and has to that end
capital (*), with reference to the period during which the                      submitted, pursuant to Article 189b (2 ) of the EC
Italian State had not correctly transposed the provisions of                    Treaty, a proposal to the Council of the European
the Directive into its domestic legal system (a period                          Union, which is working on the adoption of a
which did not end until the entry into force of Decree Law                      common position, for a European Council and
No 331 of 30 August 1993 , converted into Law No 427                            Parliament Directive concerning common rules for
of 29 October 1993 )?                                                           the internal market in natural gas ( ! ) mean that the
                                                                                competent authorities of a Member State pursuant to
H OJ No L 249 , 3 . 10 . 1969 , p . 25 .                                        Article 9 ( 3 ) of Council Regulation No 17 of
                                                                                6 February 1962 (2 ) are precluded on the basis of the
                                                                                second paragraph of Article 5 of the Treaty, under
                                                                                which the Member States are to abstain from any
                                                                                measure which could prejudice the attainment of the
                                                                                objectives of the Treaty, from applying Article 85 ( 1 )
Reference for a preliminary ruling from the Bezirksgericht                      of the Treaty by administrative order to an agreement
fur Handelssachen Wien, by judgment of that court                               under which two domestic long-distance gas
of      21   October         1996,     in   the  case     of    Verein          undertakings mutually undertake to refrain from
fur      Konsumenteninformation against              Osterreichische            publicly supplying mains gas, whether directly or
                      Kreditversicherung AG                                     indirectly, in the supply area of the other contracting
                            ( Case C-364/96 )                                   party (a market-sharing agreement)?
                               ( 97/C 9/22
                                                                            2 . If Question 1 is answered in the negative :
Reference has been made to the Court of Justice of the                          do the competent authorities of a Member State
European Communities by order of the Bezirksgericht fur                         within the meaning of Article 9 ( 3 ) of Regulation
Handelssachen Wien ( District Commercial Court, Vienna )                        No 17, by applying Article 85 ( 1 ) of the EC Treaty to
of 21 October 1996 , received at the Court Registry on                          a market-sharing agreement between two domestic
14 November 1996, for a preliminary ruling in the                               long-distance gas undertakings, when, in other
case of Verein fur Konsumenteninformation v. Oster­                             Member States, such undertakings have sales areas
reichische Kreditversicherung AG on the                     following           protected by contract or de facto from competition or
question:                                                                       there are statutory monopolies over long-distance gas
                                                                                supply, infringe the obligation on the Member States
Is Article 7 of Council Directive 90/314/EEC of 13 June                         which follows from the second paragraph of Article 5
1990 on package travel, package holidays and package                            in conjunction with Article 3 (g) of the EC Treaty to
tours 0 ) to be interpreted as meaning that the payment of                      abstain from any measure which may jeopardize the
sums by a consumer to the provider of services ( e.g. a                         Community objective of establishing a system
hotel-keeper ) at the resort because the latter person                          ensuring that competition in the internal market is
prevented him from returning home unless payment was                            not distorted ?
made is included within the protective scope of that
provision as ' security for the repatriation of the                         3 . If Question 2 is answered in the negative :
consumer '?
                                                                                is there a measure (a selling arrangement) compatible
f 1 ) OJ No L 158 , 23 . 6 . 1990, p . 59 .                                     with the free movement of goods between Member
                                                                                States for the purposes of Article 30 of the EC Treaty,
                                                                                as interpreted by the Court of Justice in Joined Cases
                                                                                C-267/91 and 268/91 Keck and Mithouard [ 1993]
                                                                                ECR 1-6097, where the national legal order ( in
                                                                                Germany paragraph 103 of the Gesetz gegen Wettbe­
Reference for a preliminary ruling by the Kammergericht,
                                                                                werbsbeschrankungen ( Law Against Restrictions on
Berlin, by order of that court of 30 October 1996 in the
                                                                                Competition )) exempts, on notification, market­
case of Ruhrgas AG and Thyssengas GmbH against the
                          Bundeskartellamt                                      sharing agreements between long-distance gas
                                                                                undertakings — which avail themselves of this
                            ( Case C-365/96 )                                   possibility — from the prohibition on restrictive
                                ( 97/C 9/23 )                                   practices under national law and, if so, does it follow
                                                                                therefrom that the competent authorities of a
Reference has been made to the Court of Justice of the                          Member State pursuant to Article 9 ( 3 ) of Regulation
European Communities by order of the Kammergericht,                             No 17 may not apply the prohibition within the
 Berlin — Kartellsenat ( Cartel Chamber of the Berlin Court                     meaning of Article 85 ( 1 ) of the EC Treaty to such
 of Appeal ) of 30 October 1996, received at the Court                          exempted market-sharing agreements ?
 Registry on 19 November 1996, for a preliminary ruling
in the case of 1 . Ruhrgas AG and 2 . Thyssengas GmbH                       4 . If Question 3 is answered in the negative:
 against the Bundeskartellamt ( Federal Cartel Office ) on
                                                                                is Article 9 ( 3 ) of Regulation No 17, under which the
the following questions :
                                                                                authorities of the Member States remain competent
    1 . Does the fact that the European Commission is                           to apply Article 85 ( 1 ) of the EC Treaty as long as
        seeking to complete the internal market in the natural                  the Commission has not initiated any procedure,