CELEX: C1999/136/15
Language: en
Date: 1999-05-15 00:00:00
Title: Case C-72/99: Reference for a preliminary ruling from the Landesvergabeamt Tirol by order of that tribunal of 17 February 1999 in the case of Ortner GmbH v Innsbrucker Kommunalbetriebe AG

15.5.1999              EN                    Official Journal of the European Communities                                           C 136/9
— order the United Kingdom to pay the costs.                            Pleas in law and main arguments
Pleas in law and main arguments                                         The differences in the amounts payable by way of the passenger
                                                                        services tax and insurance tax at issue must be considered in
                                                                        the light of Community law, in particular of the provisions of
According to Article 3(1), waters affected by pollution and
                                                                        Regulation (EEC) No 2408/92 and of the principle of freedom
waters which could be affected by pollution if action pursuant
                                                                        to provide services enshrined in the Treaty and in particular in
to Article 5 of the Directive is not taken, shall be identified by
                                                                        Article 59 thereof. From the point of view of the single market,
the Member States in accordance with the criteria set out in
                                                                        that freedom under Article 59 precludes the application of any
Annexe I.
                                                                        legislation which has as its effect to make it more difficult to
                                                                        provide services between Member States than to provide
It appears that only surface waters intended for the abstraction        services exclusively within one Member State (see Case
of drinking water were identified in accordance with Article            C-288/89 Stichting Collectieve Antennevoorziening Gouda v Com-
3(1), whilst the Directive requires that surface freshwaters not        missariaat voor de Media 1991 ECR I-4007). The applicant
intended or used for the abstraction of drinking water, which           claims that it is clear, not only in terms of Regulation (EEC)
contain or could contain excessive concentrations of nitrates,          No 2408/92 but also of Article 7a of the EC Treaty and its
must be identified.                                                     express reference to Article 84, which is the legal basis for the
                                                                        Regulation, that freedom to provide air transport services
It also appears that only groundwaters’ sources were identified         within the Community is an integral part of such a single
in accordance with Article 3(1), whilst the Directive requires          market. Article 59 has primacy over the application of national
that all groundwaters which contain more than 50 mg/l                   legislation, unless the latter is justified on grounds of overriding
nitrates or could contain more than 50 mg/l nitrates if action          reasons relating to the public interest and does not go beyond
pursuant to Article 5 is not taken, must be identified.                 that which is necessary in order to achieve the objective
                                                                        pursued. In the Commission’s view, the justifications claimed
                                                                        by the Portuguese authorities for the measures under consider-
(1) OJ L 375, 31.12.1991, p. 1.                                         ation do not fulfil any of the above conditions.
                                                                        (1) OJ L 240, 24.8.1992, p. 1.
Action brought on 26 February 1999 by the Commission
of the European Communities against the Portuguese
                             Republic
                                                                        Reference for a preliminary ruling from the Landesverga-
                          (Case C-70/99)                                beamt Tirol by order of that tribunal of 17 February 1999
                                                                        in the case of Ortner GmbH v Innsbrucker Kommunal-
                         (1999/C 136/14)                                                            betriebe AG
An action against the Portuguese Republic was brought                                             (Case C-72/99)
before the Court of Justice of the European Communities on
26 February 1999 by the Commission of the European
Communities, represented by Frank Benyon, Legal Adviser,                                         (1999/C 136/15)
and Francisco de Sousa Fialho, of its Legal Service, acting as
Agents, with an address for service in Luxembourg at the office         Reference has been made to the Court of Justice of the
of Carlos Gómez de la Cruz, of its Legal Service, Wagner               European Communities by an order of the Landesvergabeamt
Centre, Kirchberg.                                                      Tirol (Procurement Office of the Land of Tyrol), Austria, of
                                                                        17 February 1999, which was received at the Court Registry
The applicant claims that the Court should:                             on 2 March 1999, for a preliminary ruling in the case of
                                                                        Ortner GmbH v Innsbrucker Kommunalbetriebe AG on the
— Declare that, by maintaining in force under Article 10 of             following questions:
     Implementing Decree No 38/91 of 29 July 1991 a system
     whereby flights from Portugal to other Member States are           A. Are the Member States, in transposing Directive
     liable to taxes in excess of those applicable to domestic              89/665/EEC (1), obliged by Article 2(6) thereof to ensure
     flights and by maintaining in force a provision by way of              that the contracting authority’s decision prior to con-
     Decree-Law No 102/91 of 8 March 1991, as implemented                   clusion of the contract as to which tenderer in an award
     by subsequent relevant Implementing Orders, that flights               procedure it will, on the basis of the results of that
     from Portugal to other Member States are liable to payment             procedure, conclude the contract with (in other words, the
     of taxes in excess of those payable in respect of certain              award decision) is, despite the possibility of restricting
     domestic flights, the Portuguese Republic has failed to fulfil         the legal effect of the review procedure following the
     its obligations under Article 3(1) of Council Regulation               conclusion of the contract to the award of damages, in all
     (EEC) No 2408/92 (1);                                                  cases amenable to proceedings whereby an applicant may
                                                                            have that decision annulled if the relevant conditions are
— Order the Portuguese Republic to pay the costs.                           met?
 ---pagebreak--- C 136/10              EN                     Official Journal of the European Communities                                       15.5.1999
B. The following further question is referred to the Court of           Reference for a preliminary ruling by the High Court of
    Justice only in case Question A is answered in the                  Justice, Queen’s Bench Division (Crown Office) (England
    affirmative:                                                        and Wales) by order of that court of 2 February 1999, in
                                                                        the case of the Queen against 1. Secretary of State for
    Is the obligation described at (A) sufficiently specific and        Health, 2. Secretary of State for Trade and Industry, 3.
    precise for individuals thereby to be given the right to a          HM Attorney General, ex parte: 1. Imperial Tobacco Ltd,
    review procedure in accordance with the requirements of             2. Gallaher Ltd, 3. Rothmans (UK) Ltd, 4. British American
    Article 1 of Directive 89/665/EEC, in which the national                               Tobacco Investments Ltd
    court must at least be able to adopt interim measures
    within the meaning of Article 2(1)(a) and (b) of Directive
    89/665/EEC and to annul the contracting authority’s                                           (Case C-74/99)
    award decision, and for individuals to be able to rely in
    proceedings on that obligation as against a Member State?
                                                                                                 (1999/C 136/17)
C. The following further question, finally, is referred to the
    Court of Justice only in case Question B is answered in the
    affirmative:                                                        Reference has been made to the Court of Justice of the
                                                                        European Communities by an order of the High Court of
    Is the obligation described at (A) itself sufficiently specific     Justice, Queen’s Bench Division (Crown Office) (England and
    and precise that the national court must in such proceed-           Wales) of 2 February 1999, which has received at the Court
    ings disregard contrary provisions of national law, observ-         Registry on 2 March 1999, for a preliminary ruling in the case
    ance of which would prevent the court from fulfilling that          of The Queen against 1. Secretary of State for Health, 2.
    obligation, and must fulfil that obligation directly as part        Secretary of State for Trade and Industry, 3. HM Attorney
    of the Community legal order even if national law lacks             General, ex parte: 1. Imperial Tobacco Ltd, 2. Gallaher Ltd, 3.
    any basis on which to act?                                          Rothmans (UK) Ltd, 4. British American Tobacco Investments
                                                                        Ltd, on the following question:
(1) OJ L 395, 30.12.1989, p. 33.
                                                                        Is Council Directive 98/43 (1) invalid, in whole or in part, by
                                                                        reason of:
                                                                        (a) the inadequacy of Articles 57(2), 66 and 100A as a legal
                                                                             basis;
                                                                        (b) infringement of the fundamental right to freedom of
                                                                             expression;
Reference for a preliminary ruling from the Sozialgericht
Münster, by order of that court of 26 January 1999, in
the case of Viktor Movrin v Landesversicherungsanstalt                  (c) infringement of the principle of proportionality;
                           Westfalen
                                                                        (d) infringement of the principle of subsidiarity;
                        (Case C-73/99)
                       (1999/C 136/16)                                  (e) infringement of the duty to give reasons;
Reference has been made to the Court of Justice of the                  (f) infringement of Article 222 EC and/or the fundamental
European Communities by order of the Sozialgericht Münster                   right to property?
(Social Court, Münster) of 26 January 1999, which was
received at the Court Registry on 2 March 1999, for a
preliminary ruling in the case of Viktor Movrin v Landesver-
sicherungsanstalt Westfalen on the following question:
                                                                        (1) Directive 98/43/EC of the European Parliament and of the Council
                                                                            of 6 July 1998 on the approximation of the laws, regulations and
Is European Community law infringed where the defendant                     administrative provisions of the Member States relating to the
refuses to grant a subsidy in respect of the cost of Netherlands            advertising and sponsorship of tobacco products (OJ L 213,
sickness insurance to the plaintiff, who receives a normal                  30.7.1998, p. 9).
old-age pension from the defendant?