CELEX: C1998/340/14
Language: en
Date: 1998-11-07 00:00:00
Title: Reference for a preliminary ruling by the Tribunale Amministrativo Regionale per la Lombardia, by order of that court of 28 January 1998, in the case of Agenzia R di Recapito Srl v. Poste Italiane Ente Pubblico Economico and Rinaldi Agenzia di Recapito Srl (Case C-336/98)

C 340/8               EN                 Official Journal of the European Communities                                     7.11.98
    Directive 76/464/EEC of 4 May 1976 on pollution                     merely clarified how product in Regulation (EEC)
    caused by certain dangerous substances discharged                   No 1768/92 was to be understood ab initio?
    into the aquatic environment of the Community, the
    Italian Republic has failed to fulfil its obligations           3. If the answer to Question 2 is that Regulation (EC)
    under that Directive;                                               No 1610/96 amended Regulation (EEC) No 1768/92:
2. declares that, by failing to provide the Commission                  When determining whether the conditions for granting
    with the information requested by it on the level of                a protection certificate under Article 19 of Regulation
    water pollution in Italy in order to enable it to                   (EEC) No 1768/92 are satisfied, is the relevant date
    establish the extent of the obligations flowing from                that on which the application for the protection
    Article 7 of Directive 76/464/EEC, the Italian                      certificate was made or that on which the national
    Republic has failed to fulfil its obligations under                 authority (here, the Austrian Patent Office) issued its
    Article 5 of the EC Treaty;                                         decision?
                                                                    4. If the term product in Article 19 of Regulation (EEC)
3. orders the Italian Republic to pay the costs.                        No 1768/92 is to be given a broad construction,
                                                                        whether ab initio or only since Regulation (EC)
(1) OJ C 294 of 5.10.1996.                                              No 1610/96, but the relevant legal position is that
                                                                        prevailing at the time of the decision on the
                                                                        application for the protection certificate:
                                                                        Does a breach of Article 19 of Regulation (EEC)
                                                                        No 1768/92 constitute a ground for invalidity that is
                                                                        not set out in Article 15 of that Regulation, or is the
Reference for a preliminary ruling by the Oberster                      protection certificate otherwise ineffective?
Gerichtshof by Decision of 12 August 1998 in the case of
The Wellcome Foundation Ltd v. Nycomed Austria GmbH                 (1) OJ L 182 of 2.7.1992, p. 1.
                       (Case C-330/98)                              (2) OJ L 198 of 8.8.1996, p. 30.
                        (98/C 340/13)
Reference has been made to the Court of Justice of the
European Communities by Decision of 12 August 1998
                                                                    Reference for a preliminary ruling by the Tribunale
from the Oberster Gerichtshof (Austrian Supreme Court),
                                                                    Amministrativo Regionale per la Lombardia, by order of
which was received at the Court Registry on 7 September
                                                                    that court of 28 January 1998, in the case of Agenzia R di
1998, for a preliminary ruling in the case of The
                                                                    Recapito Srl v. Poste Italiane Ente Pubblico Economico
Wellcome Foundation Ltd v. Nycomed Austria GmbH on
                                                                                 and Rinaldi Agenzia di Recapito Srl
the following questions:
                                                                                           (Case C-336/98)
1   Is the term product, as used in Ð inter alia Ð                                          (98/C 340/14)
    Article 19 of Council Regulation (EEC) No 1768/92
    of 18 June 1992 concerning the creation of a                    Reference has been made to the Court of Justice of the
    supplementary protection certificate for medicinal              European Communities by an order of the Tribunale
    products (1), to be construed in that article as covering       Amministrativo Regionale per la Lombardia (Lombardy
    only an active ingredient or substance in a specific            Regional Administrative Court) of 28 January 1998,
    chemical compound or Ð in so far as the                         which was received at the Court Registry on 14 September
    pharmacological characteristics are equivalent Ð also           1998, for a preliminary ruling in the case of Agenzia R di
    its derivatives (such as salts)?                                Recapito Srl v. Poste Italiane Ente Pubblico Economico
                                                                    and Rinaldi Agenzia di Recapito Srl, on the following
                                                                    questions:
2. if the answer to Question 1 is that the term product is
    to be broadly construed:
                                                                    1. Whether or not the reservation to the State of the
                                                                        express postal service, by virtue of Presidential Decree
    If such a construction of the term product as used in               No 156/76 (and the consequent restrictive power
    Article 19 of Council Regulation (EEC) No 1768/92                   under public law to grant concessions to third parties
    derives only from the recitals in the preamble to                   for the running of those services) conflicts with
    Regulation (EC) No 1610/96 of the European                          Articles 86 and 90 of the Treaty as regards the services
    Parliament and of the Council of 23 July 1996                       which are regarded as supplementary to the exclusive
    concerning the creation of a supplementary protection               right of the State to collect, carry and deliver mail and
    certificate for plant protection products (2), which may,           which in any event can be dissociated from that right
    mutatis mutandis, be used also for the purpose of                   on the basis of calculation of the added value arising
    construing Regulation (EEC) No 1768/92, was                         from the extra price which the customer is prepared to
    Regulation (EEC) No 1768/92 amended by Regulation                   pay, without, however, there being any impact on
    (EC) No 1610/96, or has Regulation (EC) No 1610/96                  price limits in the reserved sector?
 ---pagebreak--- 7.11.98                EN                  Official Journal of the European Communities                                   C 340/9
2. Whether in any event the award of reserved postal                      its action on the (more profitable) non-reserved
    monopoly services to a public undertaking, which                      services intended for the competition, and does so
    thereby occupies a dominant position in a substantial                 notwithstanding the express statutory commitments to
    part of the market, may be effected (without                          give absolute priority to the provision of services in
    Articles 86 and 90 of the Treaty being infringed)                     the public interest?
    without limitation as to time, directly by means of a
    law and implementing measures (in this case Article 2             5. Whether an infringement of Articles 85, 86 and 90 of
    of Law No 71/94); the foregoing in the absence of a                   the Treaty may derive (through confusion within the
    constitutive' State measure which Ð through                          same organisation between regulatory and operational
    impartial selection procedures Ð selects the most                     roles, inter alia through concession agreements that
    deserving undertaking which can most usefully                         self-selected the competition) form the fact that the
    respond to the public interest in having a more                       monopolistic operator of the general postal services (in
    efficient public service, the concession of the service               this case Ente Poste Italiane) notwithstanding the
    being for a limited period so that the results of the                 express statutory commitments to give absolute
    operation, upon which renewal might be made                           priority to the provision of those services rather than
    conditional, can be assessed?                                         to competing services, not only detaches itself from
                                                                          direct operation but also itself proceeds to appoint the
3. Whether the irregularity in paragraph 2 is aggravated                  outside concessionaires called on in turn to carry out
    by the fact that:                                                     the services covered by the monopoly, in breach of the
                                                                          very national law which reserves that power to the
    a) that public undertaking, appointed by legislative                  Member State (Article 111 of Law No 71/94)?
         measure to run all the reserved postal services, has
         not yet met the European standards by means of
         appropriate directions from the governing
         authority and the legislature intended to rationalise
         it (without any provision for cancellation in the
         event of failure to meet the objectives)?                    Action brought on 14 September 1998 by Commission of
                                                                          the European Communities against French Republic
    b) the State Ð pending the desired rationalisation Ð                                    (Case C-337/98)
         continues to allocate public money to deal with
         the undertaking's operating deficits?                                                (98/C 340/15)
    c) the State also proceeds to cover Ð again using                 An action against French Republic was brought before the
         public money Ð any non-profitable operations of              Court of Justice of the European Communities on
         the reserved service, without any comprehensive'            14 September 1998 by Commission of the European
         consideration of the profitability of that service,          Communities, represented by Michel Nolin, of its Legal
         which should, on the other hand, be assessed in              Service, acting as Agent, with an address for service in
         the context of the numerous territorial operations           Luxembourg at the office of Carlos Gómez de la Cruz,
         as a whole, without necessarily intervening in               Wagner Centre, Kirchberg.
         every area of difficulty, even though not reducing
         every entrepreneurial risk to zero?
                                                                      The applicant claims that the Court should:
    d) the EPI Ð by virtue of the combined effect of the
         provisions of the law establishing it, its statutes          Ð declare that, by adopting the Decision of 22 November
         and the programme contract Ð is at the same time                 1996 awarding Matra Transport the contract for the
         involved in the non reserved sector in (unequal?)                internal decoration of the light underground train
         competition       with    the    other     Community             project of the Greater Rennes District, the French
         undertakings, capitalising' to the maximum on its               Republic has failed to fulfil its obligations under
         role (its institutional role, deriving directly from a           Council Directive 93/38/EEC of 14 June 1993
         law) as a body in a dominant position covering the               coordinating the procurement procedures of entities
         entire postal monopoly?                                          operating in the water, energy, transport and
                                                                          telecommunications sectors (1), and in particular
                                                                          Articles 4(2) and 20(2)(c) thereof;
4. Whether Ð even if the foregoing points are
    disregarded Ð an infringement of Articles 85, 86 and              Ð order the French Republic to pay the costs.
    90 of the Treaty may derive from the fact that a public
    undertaking to which is entrusted by law without
    limitation as to time (and regardless of checks on                Pleas in law and main arguments adduced in support:
    productivity and efficiency) with the running of the
    general monopoly on postal services whilst at the same            The Commission considers that the contract in question
    time enjoying free access to the competing sectors (in            was concluded following a procedure without first being
    this case Ente Poste Italiane) may also, at its                   put up for tender even though the conditions set out in
    discretion, give up the direct operation of one or more           Article 20(2)(c) were not satisfied in the circumstances. It
    general services (subcontracting to third parties under           considers that the contract was awarded by resolution of
    concession agreements'), thus ultimately concentrating           the Greater Rennes District Council of 22 November 1996