CELEX: C1999/048/21
Language: en
Date: 1999-02-20 00:00:00
Title: Reference for a preliminary ruling by the Corte dei Conti - Division for the monitoring of undertakings - by order of that court of 26 November 1998 in a case concerning the applicability to RAI - Radiotelevisione Italiana SpA - of Community and national law relating to the award of public contracts (Case C-440/98)

C 48/12                EN                   Official Journal of the European Communities                                  20.2.1999
       private storage aid have been examined and a certain            Reference for a preliminary ruling by the Corte dei Conti
       number of such boxes have been found to contain                 Ð Division for the monitoring of undertakings Ð by
       ineligible material contrary to Regulation (EEC)                order of that court of 26 November 1998 in a case
       No 2675/88 and there is evidence of a deliberate and            concerning the applicability to RAI Ð Radiotelevisione
       persistent policy of including such ineligible material         Italiana SpA Ð of Community and national law relating
       rolled up inside particular cuts in particular                                  to the award of public contracts
       production plants, is the Competent Authority                                           (Case C-440/98)
       entitled pursuant to Regulations (EEC) No 2220/85
       and (EEC) No 2675/88 to extrapolate the results of                                       (1999/C 48/21)
       such examination across the production of such cuts
       in the particular production plants and to reject as            Reference has been made to the Court of Justice of the
       eligible for private storage aid a quantity of meat             European Communities by an order of the Corte dei Conti
       based on such extrapolation and to forfeit the                  (Italian Court of Auditors) Ð Division for the monitoring
       securities given in respect of the advance payments             of undertakings, which was received at the Court Registry
       made on such quantities plus 20 %, or is the                    on 3 December 1998, for a preliminary ruling in a case
       Competent Authority confined to extrapolating the               concerning the applicability to RAI Ð Radiotelevisione
       results of the examination of boxes in one APS                  Italiana SpA Ð of Community and national law relating
       contract across the production of the relevant cuts             to the award of public contracts, on the following
       within that APS contract as the case may be?                    questions:
                                                                       1.    Whether or not the RAI Ð Radiotelevisione Italiana
                                                                             S.p.a. Ð is required to observe the procedures for the
9.     Where there is evidence of a persistent and deliberate                award of contracts laid down in Council Directive
       policy by an operator to include in boxes of                          93/38/EEC (1), as amended and supplemented, in
       particular cuts of boneless meat in particular                        relation to the so-called excluded sectors, having
       production plants, material which may not be stored                   regard also to the fact that Annex 17(h) to the
       pursuant to Article 4(4) of Regulation (EEC)                          legislative decree which transposed that directive
       No 2675/88 and the APS contract entered into by                       (No 158 of 17 March 1995) excludes from the
       the operator with the Competent Authority and                         matters to which that directive applies persons
       examination revealed significant quantities of such                   engaged in radio-broadcasting and television
       ineligible material has been stored, does Commission                  services';
       Regulation (EEC) No 1091/80 (6) and in particular
       Article 5.2(c) thereof, authorise the Competent
                                                                       2.    Whether Ð if the first question is answered in the
       Authority to forfeit the amount of the contract
                                                                             negative Ð the RAI Ð Radiotelevisione Italiana
       securities referable to the production of the relevant
                                                                             S.p.a. Ð must be regarded as definitively excluded
       cuts of meat in such production plants.
                                                                             from the list of persons who are required to observe
                                                                             Community procedures for public contracts or
                                                                             whether, on the contrary, it is subject to the general
                                                                             rules laid down by Community Directives
                                                                             93/37/EEC (2) concerning the award of public works
(1) Commission Regulation (EEC) No 1964/82 of 20 July 1982                   contracts, 92/50/EEC (3) concerning the award of
    laying down the conditions for granting special export refunds           public service contracts and 93/36/EEC (4) concerning
    on certain cuts of boned meat of bovine animals (OJ L 212,               the award of public supply contracts, as amended
    21.7.1982, p. 48).                                                       and supplemented;
(2) Commission Regulation (EEC) No 2675/88 of 29 August 1988
    providing for the grant of private storage aid fixed at a
    standard rate in advance in respect of carcases, half-carcases,    3.    Whether or not, for the abovementioned purposes,
    hindquarters and forequarters from adult male bovine animals             the RAI Ð Radiotelevisione Italiana S.p.a. Ð falls
    (OJ L 239, 30.8.1988, p. 20).                                            within the Community concept of body governed by
(3) Council Regulation (EEC) No 565/80 of 4 March 1980 on the                public law' since, whilst it is true that, in order to
    advance payment of export refunds in respect of agricultural             meet needs in the general interest relating to the
    products (OJ L 62, 7.3.1980, p. 5).                                      performance of public service tasks, it certainly
(4) Commission Regulation (EEC) No 3665/87 of 27 November                    carries on an activity of an industrial or commercial
    1987 laying down common detailed rules for the application
                                                                             nature' which is open to the market, it must
    of the system of export refunds on agricultural products (OJ
    L 351, 14.12.1987, p. 1).                                                nevertheless be observed that the abovementioned
(5) Commission Regulation (EEC) No 2220/85 of 22 July 1985                   entity, as well as being characterised by the special
    laying down common detailed rules for the application of the             operational and organisational rules referred to in the
    system of securities for agricultural products (OJ L 205,                grounds of this order, enjoys a special system of State
    3.8.1985, p. 5).                                                         financing in the form of the subscription fee.
(6) Commission Regulation (EEC) No 1091/80 of 2 May 1980
    laying down detailed rules for granting private storage aid for
                                                                       (1 ) OJ L 199, 9.8.1993, p. 84.
    beef and veal (OJ L 114, 3.5.1980, p. 18).
                                                                       (2 ) OJ L 199, 9.8.1993, p. 54.
                                                                       (3 ) OJ L 209, 24.7.1992, p. 1.
                                                                       (4 ) OJ L 199, 9.8.1993, p. 1.