CELEX: C1997/009/23
Language: en
Date: 1997-01-11 00:00:00
Title: Reference for a preliminary ruling by the Kammergericht, Berlin, by order of that court of 30 October 1996 in the case of Ruhrgas AG and Thyssengas GmbH against the Bundeskartellamt (Case C-365/96)

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,
 ---pagebreak--- 11 . 1 . 97             I tN |               Official Journal of the European Communities                                    No C 9 / 13
       unlawful on the ground that Article 85 ( 1 )                          If ( b ) is answered in the affirmative and (c ) in the
       ( prohibition) and Article 85 ( 3 ) (exemption ) form an              negative:
       indivisible whole for applying the law but the
       national authorities are not granted, in addition to                  ( d ) does the cooperation required under ( b ) justify
       the competence to prohibit, the power to exempt,                            the transmission by the national authorities to the
       which is instead reserved exclusively to the                                Directorate-General for Competition without the
       Commission ( Article 9 ( 1 ) of Regulation No 17)?                          consent of those concerned of information in the
                                                                                   authorities' possession relating to the decision ?
 5 . If Question 4 is answered in the negative :                             (e ) Is the Directorate-General for Competition
                                                                                   required to hear the undertakings concerned
       are the competent authorities of a Member State                             before giving its opinion or to involve them in the
       pursuant to Article 9 ( 3 ) of Regulation No 17                             procedure in some other way in accordance with
       precluded from applying Article 85 ( 1 ) of the EC                          the procedural rules under Regulation No 17 ?
       Treaty to an agreement between undertakings which,
       within the meaning of Article 4 ( 2 ) of Regulatioin              8 . If ( d ) in Question 7 is answered in the affirmative
       No 17, does not require notification, on the ground                   and ( e ) in the negative:
       that within the meaning of Article 6 ( 2 ) of Regulation
       No 17 any exemption that the Commission may                           is a market-sharing agreement, by which two long­
       grant pursuant to Article 85 ( 3 ) of the EC Treaty can               distance gas undertakings in one Member State
       have unlimited retroactive effect ?
                                                                             demarcate their sales areas, an agreement which
                                                                             automatically has as its object, without its actual
 6 . If Question 5 is answered in the affirmative :                          effects having to be taken into account, the
                                                                             prevention, restriction or distortion of competition
       is a market-sharing agreement between two long­                       within the meaning of Article 85 ( 1 ) (c ) of the EC
       distance gas undertakings from one Member State,                      Treaty ( sharing of markets )?
       both of which obtain natural gas from other Member
       States and one of which covers the major part of its              9 . If Question 8 is answered in the affirmative :
       requirements from there, an agreement not requiring
       notification which may be exempted with unlimited                     ( a ) may a market-sharing agreement between two
       retroactive legal effect, on the ground that it does not                    long-distance gas undertakings operating in one
       relate either to imports or to exports between                              Member State, both of which obtain natural gas
                                                                                   from other Member States and one of which
       Member States within the meaning of Article 4 ( 2 ) ( 1 )
       of Regulation No 17 ?                                                       covers the major part of its requirements from
                                                                                   there, perceptibly affect trade between Member
                                                                                   States within the meaning of Article 85 ( 1 ) of the
 7. If Question 6 does not arise or is answered in the                             EC Treaty because the gas is so obtained ?
       negative :
                                                                             ( b ) May trade be so affected for the — possibly
                                                                                   additional   —    reason   that  the   exclusion   of
       may the competent national authorities pursuant to
       Article 9 ( 3 ) of Regulation No 17 apply Article 85 ( 1 )                  competition between the long-distance gas
       of the EC Treaty — in the absence of a request for                          undertakings may cause an increase in the price
       exemption — only where they have considered the                             of natural gas in the demarcated area, and
       possibility of exemption pursuant to Article 85 ( 3 )                       thereby place the producer industry within it,
       and excluded the prospects of its being granted ?                           using that source of energy, at a disadvantage in
                                                                                   terms of location which makes it more difficult
                                                                                   for those producers to sell goods in other
       If this question is answered in the affirmative :                           Member States compared with producers located
                                                                                   in another Member State without such sharing of
       how sure must the national authorities be that                              markets between long-distance gas undertakings ?
       exemption is unlikely to be granted ?
                                                                        10 . If Question 9 is answered in the affirmative in whole
       ( a ) Is it sufficient if they themselves examine, in the             or in part:
             light of the Commission's practice when adopting
             decisions and of the case-law of the Court of                   ( a ) are long-distance gas undertakings which supply
             Justice, whether the conditions for exemption are                     natural gas in Germany to regional and local
             met, and are persuaded that that is not the case ?                    distribution undertakings and to bulk industrial
                                                                                   consumers, undertakings entrusted with the
       ( b ) Is it necessary and sufficient to obtain from the                     operation of services of general economic interest
             European Commission an opinion of its                                 within the meaning of Article 90 ( 2 ) of the EC
             Directorate-General for Competition stating that                      Treaty, on the grounds that, under the German
             in its view the conditions for exemption are not                      Energiewirtschaftsgesetz ( Law on the Energy
             met ?                                                                 Industry, 'EnWG') of 13 December 1935 as
                                                                                   amended on 19 December 1977 ( BGBl . I,
       ( c ) Is it necessary to procure an analogous statement                     p. 2750 ), the supply of gas is supervised by the
             from the Commission acting as a collegiate body ?                     State ( paragraph 1 of the EnWG ), authorization
 ---pagebreak--- No C 9/ 14            [ EN                  Official Journal of the European Communities                                   11 . 1 . 97
           is required from the competent energy                                 entire duration of the market-sharing agreement
           supervisory authority in order to commence                            or only for a shorter transitional period ? If so,
           supply operations ( paragraph 5 of the EnWG ),                        what are the criteria for assessment ?
           and from a certain threshold the construction,
           renewal, extension or closure of energy                     (!) OJ No C 123 , 4 . 5 . 1994 , p . 26 .
           installations belonging to the supply undertakings          (2) OJ No 13 , 21 . 2 . 1962, p. 204.
           must be notified to the supervisory authority and
           may be prohibited by the latter in the public
           interest (paragraph 4 of the EnWG ). Do special
           arrangements apply to long-distance gas
           undertakings which commenced their supply
           operations before the enactment of the German               Reference for a preliminary ruling made by the Tribunal
           Energiewirtschaftsgesetz and were allowed to                de Premiere Instance de Huy on the judgment of the
           continue them without being subject to the                  Tribunal Correctionnel de Huy of 29 October 1996 in the
           authorization requirement ?                                 criminal proceedings pending before that court in the case
                                                                       of Ministere public against J. C. Arblade and Arblade et
           If the provisions of German law on the energy                                              Fils SARL
           industry cannot provide support for such
                                                                                                 ( Case C-369/96 )
           arrangements, are there other considerations
           which justify regarding the long-distance gas                                            ( 97/C 9/24 )
           undertakings as entrusted undertakings within the
           meaning of Article 90 ( 2 ) of the EC Treaty and, if        Reference has been made to the Court of Justice of the
           so, what are they ?
                                                                       European Communities by judgment of the Tribunal
     ( b) If the long-distance gas undertakings referred to            Correctionnel ( Criminal Court ), Huy, of 29 October 1996,
           are entrusted undertakings within the meaning of            which was received at the Court Registry on 25 November
           Article 90 ( 2 ) of the EC Treaty:                          1996, for a preliminary ruling in the criminal proceedings
                                                                       before that court in the case of Ministere public against
           what are the criteria for interpretation of the             J. C. Arblade and Arblade et Fils SARL on the following
           further requirements pursuant to Article 90 ( 2 ),          questions :
           that is to say does the application of Article 85 ( 1 )
           of the EC Treaty to a market-sharing agreement              A. Must Articles 59 and 60 of the Treaty be interpreted
           under which the undertakings divide their sales                 as meaning that they preclude a Member State from
           areas, obstruct the performance, in law or in fact,             requiring an undertaking established in another
           of the particular tasks assigned to them and, if so,            Member State and temporarily carrying out work in
           does the exemption from the rules on competition                the first State :
           contained in the EC Treaty affect the
           development of trade to such an extent as is                    1 . to keep social documents ( staff register and
           contrary to the interests of the Community ?                        individual account ), in the absence of a company
                                                                               seat in Belgium, at the Belgian residence of a legal
11 . ( a ) May undertakings, of the kind referred to, claim                    person who is to keep those documents in his
           protection of their legitimate expectations to                      capacity as agent or servant of the employer;
           ensure    continuance     of  their   market-sharing
           agreement if both the EC Commission and the                     2 . to pay to its workers the minimum remuneration
           national authorities have for decades acquiesced                    laid down in a collective labour agreement;
           in the use of such agreements ?
                                                                           3 . to keep a special staff register;
     ( b ) If no legitimate expectations have been aroused
           under ( a ) is it relevant that the national                    4 . to issue an individual record for each worker;
           authorities stated in an official report ( in this
                                                                           5 . to appoint an agent or servant responsible for
           case Bundeskartellamt Tatigkeitsbericht 1987/88 ,
           Drucksachen des Deutschen Bundestags 11 /4611
                                                                               keeping the individual accounts of employees;
           p. 108 ) that it was not 'currently' expedient for              6 . to pay contributions in respect of loyalty and bad­
           them to take up of their own accord possible                        weather stamps for each worker,
           infringements of Article 85 ( 1 ) of the EC Treaty
           in the supply industry ?                                        where that undertaking is already subject to
     (c ) If legitimate expectations have been aroused :                   requirements which, while not identical, are at least
                                                                           comparable as regards their objective, in respect of the
           in weighing the interests of the individual and of              same workers and for the same period of activity in
           the Community, a matter on which the protection                 the State where it is established ?
           of legitimate expectations ultimately depends,
           what is to be put on the Community side of the              B. Can Articles 59 and 60 render inoperative the first
           scales ?                                                        paragraph of Article 3 of the Civil Code on Belgian
                                                                           public order legislation ?
           If legitimate expectations are acknowledged, do
           they afford protection from a prohibition for the