CELEX: C1998/094/18
Language: en
Date: 1998-03-28 00:00:00
Title: Reference for a preliminary ruling by the President of the Arrondissementsrechtbank, The Hague, by order of 19 December 1997 in the case of Emesa Sugar (Free Zone) NV and 1. the Netherlands State, 2. the Hoofdproductschap voor Akkerbouwproducten and 3. Aruba (Case C-17/98)

28.3.98               EN                Official Journal of the European Communities                                       C 94/9
     Commission examined whether it was possible to                It cannot share the view of the French authorities that,
     apply the derogations provided for in Article 92(2)           technically, there are two types of contracts relating to
     and (3). That point in the decision must suffer the           underground work (electrification) and installation above
     same consequences as the unlawful assessment carried          ground' (street lighting) respectively; the two operations
     out for the purposes of Article 92(1) denounced under         are closely linked and reference to the NACE
     the preceding submission which, should it be upheld,          nomenclature and the CPC and ISIC nomenclatures is
     would overturn all that has been decided on the               irrelevant.
     presumption that the aid is incompatible.
5. Unlawful order to recover the aid on the ground that            Moreover, the Commission considers, in particular in view
     it is in breach of the principles of protection of            of the notices published in both the Official Journal of the
     legitimate expectations, proportionality and equal            European Communities and the French Bulletin Official
     treatment.                                                    des Annonces des MarcheÂs Publics, that SYDEV must be
                                                                   considered to be the only contracting entity in question
(1) Commission Decision 98/95/EC (OJ L 20, 27.1.1998, p. 30).      rather than the individual associations of communes for
                                                                   the electrification of the VendeÂe. Since the contracting
                                                                   entity, for the purposes of the Directive, may be an entity
                                                                   with no legal personality, the question as to who is a legal
                                                                   party to the public contract is not decisive in order to
                                                                   identify it as the contracting entity. Finally, the work
Action brought on 22 January 1998 by the Commission of             concerned has only one purpose and is intended to fulfil a
  the European Communities against the French Republic             single economic and technical function, namely
                        (Case C-16/98)                             electrification over a number of years of the deÂpartement
                         (98/C 94/17)                              of the VendeÂe. Only the geographical location of the work
                                                                   is varied within the same deÂpartement. That difference is
An action against the French Republic was brought before           not such as to enable various works to be distinguished: it
the Court of Justice of the European Communities on                merely means that several lots may be distinguished within
22 January 1998 by the Commission of the European                  the same works. However, pursuant to the second
Communities, represented by Hendrik van Lier, Legal                paragraph of Article 14(10), in particular, where a work is
Adviser, and Olivier Couvert-CasteÂra, a national civil            the subject of several lots, the value of each lot is to be
servant on secondment to the Legal Service, acting as              taken into account when assessing the value of all the
Agents, with an address for service in Luxembourg at the           contracts.
office of Carlos Gómez de la Cruz, Wagner Centre,
Kirchberg.                                                         The notices of the award of contracts as published
The Commission of the European Communities claims                  confirm the Commission's view that the result of splitting
that the Court should:                                             the contracts has been to reserve the contracts to local
                                                                   undertakings, who were better informed as to the real
Ð declare that, in the course of the procurement                   scale of the programme of works. Those notices show in
     procedure issued by the Syndicat DeÂpartement                 fact that all the contracts were awarded to a restricted
     d'Electrification de la VendeÂe in December 1994 for          group of undertakings of the deÂpartement of the VendeÂe.
     the award of a contract for electrification and street
     lighting work, the French Republic failed to fulfil its       (1) OJ L 199, 9.8.1993, p. 84.
     obligations under Articles 4(2), 14(1), 10 and 13,            (2) Judgment in Case C-311/96 (OJ C 212, 12.7.1997, p. 6).
     together with Articles 21, 24 and 25 of Council
     Directive 93/38/EEC of 14 June 1993 coordinating the
     procurement procedures of entities operating in the
     water, energy, transport and telecommunications
     sectors (1),
Ð order the French Republic to pay the costs.                      Reference for a preliminary ruling by the President of the
                                                                   Arrondissementsrechtbank, The Hague, by order of
Pleas in law and main arguments adduced in support:
                                                                   19 December 1997 in the case of Emesa Sugar (Free Zone)
When the procedure for the award of public contracts in            NV and 1. the Netherlands State, 2. the Hoofdproduct-
question was held (end 1994 to early 1996), Directive 93/                 schap voor Akkerbouwproducten and 3. Aruba
38/EEC of 14 June 1993 had still not been transposed into                                  (Case C-17/98)
French law (2). None the less, the contracting entity was
required to apply the provisions of that Directive to that                                  (98/C 94/18)
award procedure by reason of their direct effect as from
1 July 1994.
                                                                   Reference has been made to the Court of Justice of the
The Commission considers that the entire electrification           European Communities by order of the President of the
and street lighting work in question comes within the              Arrondissementsrechtbank, The Hague, of 19 December
scope of one contracting entity and constitutes a single           1997, received at the Court Registry on 23 January 1998,
contract which was artificially split in order to avoid the        for a preliminary ruling in the case of Emesa Sugar (Free
obligations of the Directive.                                      Zone) NV and 1. the Netherlands State, 2. the Hoofdpro-
 ---pagebreak--- C 94/10              EN                  Official Journal of the European Communities                                   28.3.98
ductschap voor Akkerbouwproducten and 3. Aruba on the                9. Is Council Decision 97/803/EC valid, having regard
following questions:                                                     to the expectations aroused by the information
                                                                         brochure (DE 76) distributed by the Commission in
                                                                         October 1993, given that, at page 16, the brochure
 1. Is the mid-term amendment of the OCT Decision on                     states that the period of validity of the Sixth OCT
     1 December 1997 by Council Decision 97/803/EC of                    Decision is now 10 (previously five) years?
     24 November 1997 (OJ L 329, 29.11.1997, p. 50)
     proportionate, more specifically the insertion of
     Article 108b(1) and deletion of milling' as a relevant        10. Is Article 108b, which was inserted on 1 December
     method of processing for the purposes of origin?                    1997, so unworkable that it must be deemed to be
                                                                         invalid?
 2. Is it acceptable for the restrictive consequences of
     that Council decision Ð more specifically the                  11. Does the national court have jurisdiction, in
     insertion of Article 108b(1) and deletion of milling'              circumstances such as those described in Joined Cases
     as a relevant method of processing for the purposes                 C-143/88 and C-92/89 Zuckerfabrik Süderdithmar-
     of origin Ð to be (far) more serious than would have                schen and Others and subsequent cases, to adopt an
     been the case had recourse had been to safeguard                    interim measure in advance, in the event of an
     measures pursuant to Article 109 of the OCT                         imminent breach of Community law by a non-
     Decision?                                                           Community enforcement body designated by
                                                                         Community law, in order to prevent that breach?
 3. Is it compatible with the EC Treaty, in particular
     Part IV thereof, for a Council decision of the kind            12. On the assumption that the answer to Question 11 is
     referred to in the second paragraph of Article 136 of               in the affirmative and that assessment of the
     the Treaty (in the present case, Decision 97/803/EC)                circumstances referred to in Question 11 is a matter
     to include quantitative restrictions on imports or                  for the Court of Justice, rather than the national
     measures having equivalent effect?                                  court, are the circumstances described in this
                                                                         judgment at points 3.9 to 3.11 inclusive such as to
                                                                         justify a measure of the kind referred to in
 4. Is the answer to that question different:                            Question 11?
     (a) if those restrictions or measures are in the form
         of tariff quotas or limitations to the provisions
         relating to origin or a combination of the two,
         or
                                                                    Action brought on 23 January 1998 by the Commission of
     (b) if the provisions in question comprise safeguard
                                                                    the European Communities against the Kingdom of Spain
         measures or not?
                                                                                          (Case C-18/98)
 5. Does it follow from the EC Treaty, in particular                                       (98/C 94/19)
     Part IV thereof, that for the purposes of the second
     paragraph of Article 136, the experience acquired Ð
     in the form of measures favourable to the OCT Ð                An action against the Kingdom of Spain was brought
     may not subsequently be reviewed or annulled to the            before the Court of Justice of the European Communities
     detriment of the OCT?                                          on 23 January 1998 by the Commission of the European
                                                                    Communities, represented by Christian Tufvesson and Eric
                                                                    Gippini Fournier, of its Legal Service, acting as Agents,
 6. If that is indeed the case, are the Council decisions at        with an address for service in Luxembourg at the office of
     issue therefore void and can individuals then rely on          Carlos Gómez de la Cruz, 254, Wagner Centre.
     that in proceedings before the national court?
                                                                    The applicant claims that the Court should:
 7. To what extent must the OCT Decision (Council
     Decision 91/482/EEC (OJ L 263, 19.9.1991, p. 1);
     corrigendum (OJ L 15, 23.1.1993, p. 33)) be deemed             Ð declare that, by failing to adopt and bring into force,
     to apply without amendment during the 10-year                      or     communicate,    the   laws,     regulations   or
     period referred to in Article 240(1) thereof, given that           administrative provisions necessary to comply with
     the Council did not amend that Decision before the                 Council Directive 93/22/EEC of 10 May 1993 on
     expiry of the first (period of) five years referred to in          investment services in the securities field (1), the
     Article 240(3) thereof?                                            Kingdom of Spain has failed to fulfil its obligations
                                                                        under the EC Treaty, and
 8. Is the Council's amending Decision (97/803/EC)
     contrary to Article 133(1) of the EC Treaty?                   Ð order the defendant to pay the costs.