CELEX: C2000/192/23
Language: en
Date: 2000-07-08 00:00:00
Title: Case C-174/00: Reference for a preliminary ruling by the Hoge Raad der Nederlanden (Supreme Court of the Netherlands) by judgment of that court of 3 May 2000 in the case of Kennemer Golf & Country Club against Inspecteur Belastingdienst Particulieren/Ondernemingen Haarlem

8.7.2000               EN                      Official Journal of the European Communities                                        C 192/13
the Consiglio di Stato, sitting in its judicial capacity, of              Reference for a preliminary ruling by the Hoge Raad der
12 November 1999, received at the Court Registry on 10 May                Nederlanden (Supreme Court of the Netherlands) by
2000, for a preliminary ruling in the case of ANAS — Ente                 judgment of that court of 3 May 2000 in the case
Nazionale per le Strade against SCA RL CMC Cooperativa                    of Kennemer Golf & Country Club against Inspecteur
Muratori Cementisti Ravenna and SpA ICLA Costruzioni                        Belastingdienst Particulieren/Ondernemingen Haarlem
Generali and SpA Impresa Toto e Toto on the following
questions:
                                                                                                    (Case C-174/00)
(1) In calls for tenders for public works contracts, do clauses
     excluding undertakings which have not submitted with
     their tenders explanations concerning components of the                                        (2000/C 192/23)
     price indicated, amounting to at least 75 % of the figure
     specified in the tender conditions, represent an obstacle to
     the application of Article 30(4) of Directive 93/37? (1)             Reference has been made to the Court of Justice of the
                                                                          European Communities by judgment of the Hoge Raad der
                                                                          Nederlanden (Supreme Court of the Netherlands) of 3 May
(2) Does the establishment of a mechanism for determining                 2000, received at the Court Registry on 9 May 2000, for a
     the threshold indicative of irregularity, below which the            preliminary ruling in the case of Kennemer Golf & Country
     validity of tenders falls to be verified, on the basis of an ad      Club against Inspecteur Belastingdienst Particulieren/Onder-
     hoc criterion and an arithmetical mean, automatically so             nemingen Haarlem on the following questions:
     that undertakings are unable to ascertain the threshold in
     advance, represent an obstacle to the application of
     Article 30(4) of Directive 93/37?                                    1. (a) Where it is necessary to establish whether or not
                                                                                  a body aims to make a profit as referred to in
                                                                                  Article 13(A)(1)(m) of the Sixth Directive, must
                                                                                  account be taken solely of earnings from the services
(3) Does the fact that the exchange of views is to take place at                  referred to in that provision or must earnings from
     an earlier stage, without the undertaking which has                          other benefits provided by it also be taken into
     allegedly submitted an irregular tender being assured of an                  consideration?
     opportunity to state its reasons, after the opening of the
     envelopes and before the adoption of the measure exclud-
     ing it, represent an obstacle to the application of                      (b) If, in determining whether or not the aim is to make a
     Article 30(4) of Directive 93/37?                                            profit, account must be taken solely of the services
                                                                                  supplied by the body as referred to in
                                                                                  Article 13(A)(1)(m) of the Sixth Directive and not total
                                                                                  earnings, must only the costs incurred directly for
(4) Does a provision under which the contracting authority                        the services be taken into consideration or also a
     may take account of explanations relating solely to the                      proportion of the body’s other costs?
     economy of the construction method or the technical
     solutions adopted or the exceptionally favourable con-
     ditions available to the tenderer represent an obstacle to           2. (a) Is there a direct link, within the meaning of inter alia
     the application of Article 30(4) of Directive 93/37?                         the judgment of the Court of Justice of the European
                                                                                  Communities in Case 102/85 Apple and Pear Develop-
                                                                                  ment Council [1988] ECR 1443, in the case of
(5) Does the [exclusion] of explanations relating exclusively to                  subscription fees charged by an association which,
     items for which minimum values have been established by                      pursuant to the object laid down in its articles of
     administrative provisions or can be inferred from official                   association, provides its members with sports facilities
     lists represent an obstacle to the application of                            in the context of an association and, if not, is the
     Article 30(4) of Directive 93/37?                                            association to be regarded as a taxable person within
                                                                                  the meaning of Article 4(1) of the Sixth Directive only
                                                                                  in so far as it also provides benefits for which it receives
                                                                                  direct consideration?
(1) Council Directive 93/37/EEC of 14 June 1993 concerning the
    coordination of procedures for the award of public works                  (b) Must the total amount of the annual subscription fees
    contracts (OJ L 199 of 9.8.1993, p. 54).                                      from the members whom the association provides
                                                                                  with sports facilities be included in the earnings of a
                                                                                  body in the form of an association which are to be
                                                                                  taken into account in determining whether or not the
                                                                                  aim is to make a profit as described in the first question
                                                                                  even where no direct link exists between the various
                                                                                  benefits provided by the association for its members
                                                                                  and the subscription fee paid by them?
 ---pagebreak--- C 192/14                EN                    Official Journal of the European Communities                                           8.7.2000
3. Does the fact that a body uses surpluses which it systemati-          3. Must        Article      1(e)     of     Commission      Decision
     cally aims to make for the purpose of its benefits in the                No 94/698/EC (2) be interpreted as meaning that, by mak-
     form of a facility to play a type of sport as provided for               ing approval of the aid which it provides for subject to the
     in Article 13(A)(1)(m) of the Sixth Directive justify the                condition that Portugal honour the undertaking to apply
     conclusion that it does not aim to make a profit within the              Article 4 of Regulation (EEC) No 2408/92 to the Auton-
     meaning of that provision, or is such a conclusion                       omous Regions, with effect from 1 January 1996, by
     possible only where the intention is incidentally and not                publishing the public service obligations for the routes in
     systematically to make operating surpluses which are used                question (‘pursuant to Chapter IV, point III’), Portugal is
     as described? In answering these questions must account                  precluded from exercising the power granted to Member
     also be taken of the first indent of Article 13(A)(2) of the             States by Article 3(2)?
     Sixth Directive and, if so, how is that provision to be
     interpreted? In particular, in the second part of the
     provision must ‘systematically’ be read between ‘arising’
                                                                         (1) Council Regulation (EEC) No 2408/92 of 23 July 1992 on access
     and ‘shall’, or ‘merely incidentally’?
                                                                             for Community air carriers to intra-Community air routes (OJ
                                                                             1992 L 240, p. 8).
                                                                         (2) Commission Decision 94/698/EC of 6 July 1994 concerning
                                                                             increase in capital, credit guarantees and tax exemption in favour
                                                                             of TAP (Transportes Aéreos Portugueses) (OJ 1994 L 279, p. 29).
Reference for a preliminary ruling by the Plenary of the
First Chamber of the Supremo Tribunal Administrativo,
by judgment of that court of 13 April 2000 in the case of
Flightline Ltd against Secretário de Estado dos Transpor-               Reference for a preliminary ruling by the Juzgado de
tes e Comunicações and TAP — Transportes Aéreos                         Primera Instancia e Instrucción No 5 de Oviedo (Court
                          Porguueses, SA                                 of First Instance and Preliminary Investigations, No 5,
                                                                         Oviedo) by order of that court of 13 April 2000 in the
                                                                         case of Victoria González Sánchez v Medicina Asturiana
                          (Case C-181/00)                                                                   SA
                         (2000/C 192/24)                                                            (Case C-183/00)
Reference has been made to the Court of Justice of the                                              (2000/C 192/25)
European Communities by judgment of the Plenary of the First
Chamber of the Supremo Tribunal Administrativo (Supreme
                                                                         Reference has been made to the Court of Justice of the
Administrative Court) of 13 April 2000, which was received
                                                                         European Communities by order of the Juzgado de Primera
at the Court Registry on 15 May 2000, for a preliminary ruling
                                                                         Instancia e Instrucción No 5 de Oviedo of 13 April 2000,
in the case of Flightline Ltd against Secretário de Estado dos
                                                                         received at the Court Registry on 16 May 2000, for a
Transportes e Comunicações and TAP — Transportes Aéreos
                                                                         preliminary ruling in the case of Victoria González Sánchez v
Porguueses, SA on the following question:
                                                                         Medicina Asturiana SA on the following question:
1. Does the exercise by a Member State of the rights and
     powers provided for by Article 4 of Council Regulation              Must Article 13 of Council Directive 85/374/EEC (1) of 25 July
     (EEC) No 2408/92 (1) of 23 July 1992 necessarily presup-            1985 on the approximation of the laws, regulations and
     pose or mean that the power provided for in Article 3(2)            administrative provisions of the Member States concerning
     of that regulation of that Member State to be able to               liability for defective products be interpreted as meaning that
     restrict, until 1 April 1997, competition in cabotage               it precludes the restriction or limitation, as a result of
     services within its territory is waived?                            transposition of the Directive, of rights which had been granted
                                                                         to consumers by the legislation of the Member State?
2. May a Member State in a public tender procedure organised
     in 1995 for the provision of scheduled air services on a
     route subject to public service obligations imposed on              (1) OJ L 210, p. 29.
     such a route under Article 4 of the Regulation require air
     carriers licensed by another Member State which submit
     bids to meet the conditions laid down in Article 3(2) of
     that same regulation?