CELEX: C1998/055/25
Language: en
Date: 1998-02-20 00:00:00
Title: JUDGMENT OF THE COURT of 15 January 1998 in Case C-44/96 (reference for a preliminary ruling from the Bundesvergabeamt): Mannesmann Anlagenbau Austria AG and Others v. Strohal Rotationsdruck GesmbH (Public procurement - Procedure for the award of public works contracts - State printing office - Subsidiary pursuing commercial activities)

20.2.98              EN                   Official Journal of the European Communities                                      C 55/13
interpretation of Article 17 of the Sixth Council Directive          freedom of movement for workers within the Community
77/388/EEC of 17 May 1977 on the harmonisation of the                (OJ, English Special Edition 1968 (II), p. 475) Ð the
laws of the Member States relating to turnover taxes Ð               Court, composed of: C. Gulmann, President of the Third
Common system of value added tax: uniform basis of                   and Fifth Chambers, acting for the President, H.
assessment (OJ L 145, 13.6. 1977, p. 1) Ð the Court                  Ragnemalm, M. Wathelet and R. Schintgen (Presidents of
(Second Chamber), composed of: H. Ragnemalm,                         Chambers), G. F. Mancini, J. C. Moitinho de Almeida,
President of the Sixth Chamber, acting as president of the           P. J. G. Kapteyn, J. L. Murray, D. A. O. Edward
Second Chamber, G. F. Mancini (Rapporteur) and G.                    (Rapporteur), J.-P. Puissochet, G. Hirsch, P. Jann and L.
Hirsch, Judges; D. Ruiz-Jarabo Colomer, Advocate-                    Sevón, Judges; F. G. Jacobs, Advocate-General; L.
General; H. A. Rühl, Principal Administrator, for the                Hewlett, Administrator, for the Registrar, has given a
Registrar, has given a judgment on 15 January 1998, in               judgment on 15 January 1998, in which it has ruled:
which it has ruled:
                                                                     1. Article 48 of the EC Treaty and Article 7(1) and (4) of
Article 17 of the Sixth Council Directive 77/388/EEC of                   Regulation (EEC) No 1612/68 of the Council of
17 May 1977 on the harmonisation of the laws of the                       15 October 1968 on freedom of movement for
Member States relating to turnover taxes Ð Common                         workers within the Community preclude a clause in a
system of value added tax: uniform basis of assessment                    collective agreement applicable to the public service of
must be construed as allowing a taxable person acting as                  a Member State which provides for promotion on
such to deduct the VAT payable by him on goods or                         grounds of seniority for employees of that service after
services supplied to him for the purpose of investment                    eight years' employment in a salary group determined
work intended to be used in connection with taxable                       by that agreement without taking any account of
transactions. The right to deduct remains acquired where,                 previous periods of comparable employment
by reason of circumstances beyond his control, the taxable                completed in the public service of another Member
person has never made use of those goods or services for                  State.
the purpose of carrying out taxable transactions. A supply
of investment goods during the adjustment period, where
such occurs, may give rise to an adjustment of the                   2. A clause in a collective agreement entailing
deduction under the conditions set out in Article 20(3) of                discrimination contrary to Article 48 of the Treaty and
Directive 77/388/EEC.                                                     to Article 7(1) of Regulation (EEC) No 1612/68 is
                                                                          null and void by virtue of Article 7(4) of that
                                                                          Regulation. Without requiring or waiting for that
(1) OJ C 101, 22.4.1995.
                                                                          clause to be abolished by collective negotiation or by
                                                                          some other procedure, the national court must
                                                                          therefore apply the same rules to the members of the
                                                                          group disadvantaged by that discrimination as those
                                                                          applicable to the other workers.
              JUDGMENT OF THE COURT                                  (1) OJ C 64, 2.3.1996.
                     of 15 January 1998
in Case C-15/96 (reference for a preliminary ruling from
the Arbeitsgericht Hamburg): Kalliope Schöning-
   Kougebetopoulou v. Freie und Hansestadt Hamburg (1)
(Freedom of movement for persons Ð Collective                                       JUDGMENT OF THE COURT
agreement applicable to public sector employees Ð
Promotion on grounds of seniority Ð Professional                                          of 15 January 1998
       experience acquired in another Member State)                  in Case C-44/96 (reference for a preliminary ruling from
                         (98/C 55/24)                                the Bundesvergabeamt): Mannesmann Anlagenbau Austria
                                                                        AG and Others v. Strohal Rotationsdruck GesmbH (1)
               (Language of the case: German)                        (Public procurement Ð Procedure for the award of public
                                                                     works contracts Ð State printing office Ð Subsidiary
                                                                                     pursuing commercial activities)
  (Provisional translation; the definitive translation will be                                (98/C 55/25)
         published in the European Court Reports)
                                                                                    (Language of the case: German)
In Case C-15/96: reference to the Court under Article 177
of the EC Treaty from the Arbeitsgericht (Labour Court)
Hamburg, Germany, for a preliminary ruling in the                      (Provisional translation; the definitive translation will be
proceedings pending before that court between Kalliope                         published in the European Court Reports)
Schöning-Kougebetopoulou and Freie und Hansestadt
Hamburg Ð on the interpretation of Article 48 of the EC
Treaty and Article 7(1) and (4) of Regulation (EEC)                  In Case C-44/96: reference to the Court under Article 177
No 1612/68 of the Council of 15 October 1968 on                      of the EC Treaty from the Bundesvergabeamt (Federal
 ---pagebreak--- C 55/14              EN                 Official Journal of the European Communities                                       20.2.98
Procurement Office), Austria, for a preliminary ruling in               European Investment Bank and the other existing
the proceedings pending before that court between                       financial instruments is to be interpreted as meaning
Mannesmann Anlagenbau Austria AG and Others and                         that Community funding of a works project is not
Strohal Rotationsdruck GesmbH Ð on the interpretation                   conditional upon the recipients complying with the
of Article 1(b) of Council Directive 93/37/EEC of 14 June               review procedures within the meaning of Council
1993 concerning the coordination of procedures for the                  Directive 89/665/EEC of 21 December 1989 on the
award of public works contracts (OJ L 199, 9.8. 1993,                   coordination       of    the   laws,    regulations    and
p. 54) and Article 7(1) of Council Regulation (EEC)                     administrative provisions relating to the application of
No 2081/93 of 20 July 1993 amending Regulation (EEC)                    review procedures to the award of public supply and
No 2052/88 on the tasks of the Structural Funds and their               public works contracts if they are not themselves
effectiveness and on coordination of their activities                   contracting authorities within the meaning of
between themselves and with the operations of the                       Article 1(b) of Directive 93/37/EEC.
European Investment Bank and the other existing financial
instruments (OJ L 193, 31.7.1993, p. 5) Ð the Court,               (1) OJ C 95, 30.3.1996.
composed of: G. C. Rodríguez Iglesias, President, C.
Gulmann, M. Wathelet and R. Schintgen (Presidents of
Chambers), G. F. Mancini, J. C. Moitinho de Almeida,
P. J. G. Kapteyn (Rapporteur), J. L. Murray, D. A. O.
Edward, J.-P. Puissochet, G. Hirsch, P. Jann and L. Sevón,
Judges; P. LeÂger, Advocate-General; H. A. Rühl, Principal
Administrator, for the Registrar, has given a judgment on                         JUDGMENT OF THE COURT
15 January 1998, in which it has ruled:
                                                                                            (First Chamber)
                                                                                          of 15 January 1998
1. An entity such as the Österreichische Staatsdruckerei
    must be regarded as a body governed by public law              in Case C-80/96 (reference for a preliminary ruling from
    within the meaning of the second subparagraph of               the Hessisches Finanzgericht, Kassel): Quelle Schickedanz
    Article 1(b) of Council Directive 93/37/EEC of 14 June         AG und Co. v. Oberfinanzdirektion Frankfurt am Main (1)
    1993 concerning the coordination of procedures for             (Common Customs Tariff Ð Classification of a set of
    the award of public works contracts, and thus as a             goods Ð Validity of point 6 of the Annex to Commission
    contracting authority within the meaning of the first                           Regulation (EC) No 1966/94)
    subparagraph of that provision so that works
    contracts, of whatever nature, entered into by that                                       (98/C 55/26)
    entity are to be considered to be public works
    contracts within the meaning of Article 1(a) of that                           (Language of the case: German)
    Directive.
                                                                     (Provisional translation; the definitive translation will be
2. An undertaking which carries on commercial activities
                                                                             published in the European Court Reports)
    and in which a contracting authority has a majority
    shareholding is not to be regarded as a body governed
    by public law within the meaning of Article 1(b) of            In Case C-80/96: reference to the Court under Article 177
    Directive 93/37/EEC, and thus as a contracting                 of the EC Treaty from the Hessisches Finanzgericht
    authority within the meaning of that provision, on the         (Hessen Finance Court), Kassel, Germany, for a
    sole ground that that undertaking was established by           preliminary ruling in the proceedings pending before that
    the contracting authority or that the contracting              court between Quelle Schickedanz AG und Co. and
    authority transferred to it funds which it has earned          Oberfinanzdirektion Frankfurt am Main Ð on the
    from activities pursued in order to meet needs in the          interpretation and validity of point 6 of the Annex to
    general interest, not having an industrial or                  Commission Regulation (EC) No 1966/94 of 28 July 1994
    commercial character.                                          concerning the classification of certain goods in the
                                                                   Combined Nomenclature (OJ L 198, 30.7.1994, p. 103)
                                                                   Ð the Court (First Chamber), composed of: M. Wathelet,
3. A public works contract is not subject to the                   President of the Chamber, P. Jann (Rapporteur) and L.
    provisions of Directive 93/37/EEC when it relates to a         Sevón, Judges; N. Fennelly, Advocate-General; D.
    project which, from the outset, falls entirely within the      Louterman-Hubeau, Principal Administrator, for the
    objects of an undertaking which is not a contracting           Registrar, has given a judgment on 15 January 1998, in
    authority and when the works contracts relating to             which it has ruled:
    that project were entered into by a contracting
    authority on behalf of that undertaking.
                                                                   1. Commission Regulation (EC) No 1966/94 of 28 July
                                                                        1994 concerning the classification of certain goods in
4. Article 7(1) of Council Regulation (EEC) No 2081/93                  the Combined Nomenclature is invalid insofar as in
    of 20 July 1993 amending Regulation (EEC) No 2052/                  point 6 of the Annex thereto it classifies goods put up
    88 on the tasks of the Structural Funds and their                   in sets for retail sale, comprising a brassieÁre and briefs,
    effectiveness and on coordination of their activities               separately under tariff subheadings 6108 21 00 and
    between themselves and with the operations of the                   6212 10 00.