CELEX: C1999/246/36
Language: en
Date: 1999-08-28 00:00:00
Title: Case C-240/99: Reference for a preliminary ruling by the Regeringsrätten by judgment of that court of 10 June 1999 concerning an application for a rehearing made by Försäkringsaktiebolaget Skandia (publ)

28.8.1999                 EN                   Official Journal of the European Communities                                     C 246/17
Action brought on 24 June 1999 by the Commission of                       Reference for a preliminary ruling by the Finanzgericht
 the European Communities against the French Republic                     Düsseldorf by order of that court of 21 June 1999 in the
                                                                          case of NACHI Europe GmbH against Hauptzollamt
                                                                                                        Krefeld
                            (Case C-237/99)
                                                                                                    (Case C-239/99)
                           (1999/C 246/34)
                                                                                                    (1999/C 246/35)
An action against the French Republic was brought before the
Court of Justice of the European Communities on 24 June
1999 by the Commission of the European Communities,                       Reference has been made to the Court of Justice of the
represented by Michel Nolin, of its Legal Service, acting as              European Communities by order of the Finanzgericht Düssel-
Agent, with an address for service in Luxembourg at the office            dorf (Financial Court, Düsseldorf) of 21 June 1999, received at
of Carlos Gómez de la Cruz, Wagner Centre, Kirchberg.                    the Court Registry on 24 June 1999, for a preliminary ruling
                                                                          in the case of NACHI Europe GmbH v Hauptzollamt Krefeld
                                                                          on the following questions:
The Commission of the European Communities claims that
the Court should:                                                         1. Is Article 1(2) of Regulation (EEC) No 2849/92 (1) invalid?
— declare that, in the context of various tendering procedures            2. If the first question is to be answered in the affirmative,
     concerning public contracts for the construction of hous-                 from what point in time is Article 1(2) of Regulation (EEC)
     ing which were carried out by offices publics d’aménagement               No 2849/92 to be considered void in regard to the
     et de construction (public development and construction                   plaintiff?
     entities) and by sociétés anonymes d’habitations à loyer modéré
     (low-cost housing companies), the French Republic has
     failed to fulfil its obligations under Directive 93/37/EEC (1),      (1) OJ L 286 of 1.10.1992, p. 2.
     in particular Article 11(2) thereof;
— order the French Republic to pay the costs.
Pleas in law and main arguments
                                                                          Reference for a preliminary ruling by the Regeringsrätten
                                                                          by judgment of that court of 10 June 1999 concerning an
Failure to comply with the obligation, laid down in Article               application for a rehearing made by Försäkringsaktiebola-
11(2) of Directive 93/37/EEC, requiring publication in the                                         get Skandia (publ)
Official Journal of the European Communities: the French auth-
orities take refuge behind the categorisation applied under
national law to offices publics d’aménagement et de construction                                    (Case C-240/99)
(OPACs) and to sociétés anonymes d’habitations à loyer modéré
(SAHLMs), in order to avoid attributing to them the statue of
contracting authorities within the meaning of Article 1(b) of                                       (1999/C 246/36)
the directive. However, the term ‘body governed by public law’
is a term of Community law. Both OPACs and SAHLMs meet                    Reference has been made to the Court of Justice of the
all the criteria laid down in Article 1(b) of the directive.              European Communities by judgment of the Regeringsrätten
Although OPACs are entities of an industrial and commercial               on 10 June 1999, received at the Court Registry on 25 June
nature, and although SAHLMs possess the form of commercial                1999, for a preliminary ruling in a case concerning an
companies, they have been established for the specific purpose            application for a rehearing made by Försäkringsaktiebolaget
of meeting needs in the general interest, not having an                   Skandia (publ):
industrial or commercial character (they produce and manage
housing to be let to persons on low incomes), they have legal
personality and they are closely controlled by the State, by              Does an insurance company’s commitment, of the kind
regional or local authorities or by other bodies governed by              which Skandia plans to assume, to run the business of a
public law (in the case of OPACs, as regards the composition              wholly-owned subsidiary constitute an insurance transaction
of their administrative board and the power of control                    or insurance transactions within the meaning of Article 13B(a)
exercised by the State, and in the case of SAHLMs, as regards             of the Sixth Directive? (1)
the power of control).
                                                                          (1) Sixth Council Directive (77/388/EEC) of 17 May 1977 on the
                                                                              harmonisation of the laws of the Member States relating to
(1) OJ L 199 of 9.8.1993, p. 54.                                              turnover taxes — Common system of value added tax: uniform
                                                                              basis of assessment (OJ 1977 L 145, p. 1).