CELEX: C2001/303/08
Language: en
Date: 2001-10-27 00:00:00
Title: Case C-267/01: Reference for a preliminary ruling by the Oberste Gerichtshof by order of 11 June 2001 in the case of Jaroslav Nyvlt v Flughafen Wien AG

C 303/6               EN                    Official Journal of the European Communities                                      27.10.2001
2.  If the answer to the first question is in the affirmative:         Reference for a preliminary ruling by the Oberste Ge-
                                                                       richtshof by order of 11 June 2001 in the case of Jaroslav
                                                                                          Nyvlt v Flughafen Wien AG
    (a)   are determinations of fixed amounts as described in
          1 above to be regarded as agreements (or decisions)                                    (Case C-267/01)
          of the leading associations of statutory sickness
          funds which restrict competition, in particular
          within the meaning of Article 81(1)(a) EC, and are                                     (2001/C 303/08)
          prohibited by Article 81(1) EC?
                                                                       Reference has been made to the Court of Justice of the
                                                                       European Communities by order of 11 June 2001 of the
    (b) is question 2(a) to be answered in the affirmative at          Oberste Gerichtshof (Supreme Court), which was received at
          least where the object of the regulation concerning          the Court Registry on 6 July 2001, for a preliminary ruling in
          fixed amounts is, inter alia, to exploit all reserves        the case of Jaroslav Nyvlt v Flughafen Wien on the following
          of medicinal product manufacturers in terms of               questions:
          economy as regards sale price, and the application
          of the regulation concerning fixed amounts in the
          Member State so far has had the effect that, of the          1.   Is Paragraph 145.35 of JAR-145, which forms an annex
          finished medicinal product packages offered on the                to Council Regulation (EEC) No 3922/91 of 16 December
          market that fall within the regulations concerning                1991 on the harmonisation of technical requirements
          fixed amounts, approximately 93 % do not now                      and administrative procedures in the field of civil aviation
          exceed the amount fixed for them?                                 (OJ 1991 L 373, p. 4), having regard, if necessary, to the
                                                                            explanation given by the Joint Aviation Authorities (JAA),
                                                                            to be interpreted as requiring the owner of a maintenance
                                                                            organisation to maintain records of his staff authorised
3.  If the answer to either or both of the questions in 2 above             to certify aircraft fit for service in such detail that it is
    is in the affirmative:                                                  possible to infer from those records not only the area of
                                                                            responsibility but also the specific jobs performed on
                                                                            certain aircraft types in a certain period of time (year)?
    Can a system of fixed amounts as described in questions 1
    and 2 be exempted from Article 81(1) EC under                      2.   Is Paragraph 145.35 of JAR-145, which forms an annex
    Article 86(2), first sentence, EC, even though when they                to Council Regulation (EEC) No 3922/91 of 16 December
    determine fixed amounts the leading associations of                     1991, having regard, if necessary, to the explanation
    statutory sickness funds represent the biggest purchasers               given by the Joint Aviation Authorities (JAA), to be
    on the medicinal product market, who when taken                         interpreted as meaning that
    together dominate the market, and it would be possible,
    as a solution to the problem of trying to reduce costs in
    the health sector, to grant power to determine such fixed               a)    it requires the owner of the maintenance organis-
    amounts to an institution other than a participant in the                     ation to hand over those records to staff authorised
    medicinal product market, in particular to the Federal                        to certify aircraft fit for service upon termination of
    Government or a Federal Minister?                                             their employment,
                                                                            b)    it is sufficient to hand over copies in order to satisfy
4.  If the answer to question 3 is also in the affirmative:                       that obligation, or
                                                                            c)    such copies must be confirmed by the employer by
    a)    what conditions must be set forth and proved by                         signature?
          the leading associations of statutory sickness funds
          so that they may be exempted under Article 86(2),            3.   On whom do the obligations which may exist within the
          first sentence, EC in relation to determinations of               meaning of Question 2 fall where the employer of the
          fixed amounts?; or                                                employee authorised to certify aircraft fit for service is
                                                                            not the owner of the maintenance organisation, but a
                                                                            third party who has hired the employee from that owner
    b)    is the grant of an exemption under Article 86(2), first           on the basis of a group relationship or a separate contract
          sentence, EC precluded in any case by Article 86(2),              to provide work services?
          second sentence, EC owing to the effects the system
          of fixed amounts has on trade?                               4.   Do the obligations which may exist in accordance with
                                                                            the answers to Questions 1 to 3 preclude more extensive
                                                                            national provisions?