Reference for a Preliminary Ruling from the Oberlandesgericht

23.2.2008 EN Official Journal of the European Union C 51/19

Judgment of the Court (Fourth Chamber) of 13 Decem- Operative part of the judgment ber 2007 (reference for a preliminary ruling from the Oberlandesgericht Düsseldorf — Germany) — Bayerischer Rundfunk, Deutschlandradio, Hessischer Rundfunk, 1) The first condition of the third indent of the second subparagraph Mitteldeutscher Rundfunk, Norddeutscher Rundfunk, of Article 1(b) of Council Directive 92/50/EEC of 18 June 1992 Radio Bremen, Rundfunk Berlin-Brandenburg, relating to the coordination of procedures for the award of public Saarländischer Rundfunk, Südwestrundfunk, Westdeutscher service contracts must be interpreted as meaning that there is finan- Rundfunk, Zweites Deutsches Fernsehen v GEWA cing, for the most part, by the State when the activities of public Gesellschaft für Gebäudereinigung und Wartung mbH broadcasting bodies such as those in the main proceedings are financed for the most part by a fee payable by persons who possess a receiver, which is imposed, calculated and levied according to rules 1 (Case C-337/06) ( ) such as those in the main proceedings;

(Directives 92/50/EEC and 2004/18/EC — Public service 2) The first condition of the third indent of the second subparagraph contracts — Public broadcasting bodies — Contracting autho- of Article 1(b) of Directive 92/50 must be interpreted as meaning rities — Bodies governed by public law — Condition that the that, that, if the activities of public broadcasting bodies such as activity of the institution be ‘financed, for the most part, by the State’) those in the main proceedings are financed according to the procedures set out when examining the first question, the condition of ‘financing … by the State’ does not require that there be direct (2008/C 51/30) interference by the State or by other public authorities in the awarding, by such bodies, of a contract such as that at issue in the main proceedings; Language of the case: German

3) Article 1(a)(iv) of Directive 92/50 must be interpreted as meaning that only the public contracts specified in that provision are excluded from the scope of that directive. Referring court (1) OJ C 281, 18.11.2006. Oberlandesgericht Düsseldorf

Parties to the main proceedings

Applicants: Bayerischer Rundfunk, Deutschlandradio, Hessischer Judgment of the Court (Fourth Chamber) of 18 December Rundfunk, Mitteldeutscher Rundfunk, Norddeutscher Rundfunk, 2007 (reference for a preliminary ruling from the Tribunale Radio Bremen, Rundfunk Berlin-Brandenburg, Saarländischer amministrativo regionale per la Lombardia, Italy) — Rundfunk, Südwestrundfunk, Westdeutscher Rundfunk, Zweites Frigerio Luigi & C. Snc v Comune di Triuggio Deutsches Fernsehen

(Case C-357/06) (1) Defendant: GEWA Gesellschaft für Gebäudereinigung und Wartung mbH (Directive 92/50/EEC — Public service contracts — National Intervener in support of the defendant: Heinz W. Warnecke legislation restricting the award of local public services of economic interest to companies with share capital — Compatibility)

Re: (2008/C 51/31)

— Reference for a preliminary ruling Oberlandesgericht Language of the case: Italian Düsseldorf — Interpretation of indent (c) of the second subparagraph of Article 1(9) and Article 16(b) of Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (OJ L 134 of 30.4.2004, p. 114) — Award of cleaning services by an association of broadcasting Referring court bodies indirectly financed by the State without compliance with formal European procurement procedure — Concept of ‘contracting authority’. Tribunale amministrativo regionale per la Lombardia (Italy) C 51/20EN Official Journal of the European Union 23.2.2008

Parties to the main proceedings Judgment of the Court (First Chamber) of 18 December 2007 (reference for a preliminary ruling from the Tribunal administratif de Lyon — France) — Cedilac SA v Ministère Applicant: Frigerio Luigi & C. Snc de l'Économie, des Finances et de l'Industrie

(Case C-368/06) (1) Defendant: Comune di Triuggio (Sixth VAT Directive — Right to deduct — Principles of immediate deduction and fiscal neutrality — Carry forward of Intervening party: Azienda Servizi Multisettoriali Lombarda — A. the excess VAT to the following period or refund — S.M.L. SpA One-month delay rule — Transitional provisions — Retention of the exemption)

(2008/C 51/32)

Re: Language of the case: French

Preliminary ruling — Tribunale amministrativo regionale per la Lombardia — Interpretation of Arts 39, 43, 48 and 81 EC, Referring court Article 26(2) of Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of Tribunal administratif de Lyon public service contracts (OJ 1992 L 209, p. 1), Article 4(1) of Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts Parties to the main proceedings and public service contracts (OJ 2004 L 134, p. 114), Article 9(1) of Council Directive 75/442/EEC of 15 July 1975 Applicant: Cedilac SA on waste (OJ 1975 L 194, p. 39) and Article 7(1) of Directive 2006/12/EC of the European Parliament and of the Council of Defendant: Ministère de l'Économie, des Finances et de l'Industrie 5 April 2006 on waste (OJ 2006 L 114, p. 9) — Procedure for the award of public service contracts — Environmental hygiene service — Domestic legislation authorising joint stock companies alone to hold contracts for waste management and disposal Re: services Reference for a preliminary ruling — Tribunal administratif de Lyon — Interpretation of Articles 17 and 18(4) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assess- Operative part of the judgment ment (OJ 1977 L 145, p. 1) — Conditions for the exercise of the right to deduct VAT charged on the price of a taxable trans- action when the amount of authorised transactions exceeds the Article 26(1) and (2) of Council Directive 92/50/EEC of 18 June amount of tax due for a given tax period — Excess carried 1992 relating to the coordination of procedures for the award of public forward to the next period or refunded service contracts, as amended by Commission Directive 2001/78/EC of 13 September 2001, precludes national provisions, such as those at issue in the main proceedings, which exclude candidates or tenderers entitled under the law of the Member State concerned to provide the Operative part of the judgment service in question, including those composed of groups of service provi- ders, from submitting a tender, in a procedure for the award of a public Articles 17 and 18(4) of Sixth Council Directive 77/388/EEC of service contract with a value greater than the threshold for application 17 May 1977 on the harmonisation of the laws of the Member of Directive 92/50, solely on the ground that those candidates or States relating to turnover taxes — Common system of value added tenderers do not have a legal form corresponding to a specific category tax: uniform basis of assessment, are to be interpreted as not of legal persons, namely that of a company with share capital. It is for precluding national measures such as the transitional measures the national court, to the full extent of its discretion under national provided for by Law No 93-859 of 22 June 1993, the amending law, to interpret and apply national law in accordance with the require- Finance Law for 1993, which are designed to accompany the abolition ments of Community law and, in so far as such an interpretation is of a national derogating provision authorised by Article 28(3)(d) of not possible, to disapply any provision of national law which is the same directive, in so far as the national court verifies that, in its contrary to those requirements. application to the specific case before it, those measures reduce the effects of the national derogating provision.

(1) OJ C 281, 18.11.2006. (1) OJ C 281, 18.11.2006.