Case C-464/00: Reference for a preliminary ruling by the Unabhängiger Verwaltungssenat des Landes Oberösterreich by order of 15 December 2000 in the case of Primetzhofer Stahl- und Fahrzeugbau GmbH v Land Oberösterreich
Date: 2001-03-10
Institutions: Court of Justice
Subjects: award of contract, interpretation of the law, legal action, public contract, supplies contract, works contract

10.3.2001

EN

Official Journal of the European Communities

C 79/11

(b) does not ensure that an additional ophthalmological
test is carried out whenever necessary as a result of
the regular eye and eyesight tests;

(c)

does not define the conditions for providing the
appliances
concerned with corrective
workers
appropriate for the work concerned.

— Order the Italian Republic to pay the costs.

Pleas in law and main arguments

— According to Article 9(3) of Directive 90/270/EEC,
workers are
‘special corrective
entitled to receive
appliances appropriate for the work concerned’, where
this proves necessary following testing and the wearing
of normal corrective appliances is not possible. Such a
provision is the logical and necessary corollary to rules
requiring the carrying out of eye and eyesight tests, and
examination by an oculist where necessary, with a view
to offering complete protection of the health and safety
of workers at risk.

— However, in Article 55 of Decree-Law 626/94 no pro-
vision is made which expressly guarantees such a right.
Article 55(5) merely states:
‘expenditure in respect of
providing special corrective appliances appropriate for
the work concerned is to be borne by the employer’,
which is clear, but not sufficient to identify the precise
criterion establishing the right of workers to benefit from
such provisions.

The Commission finds that the Italian Republic has failed to
fulfil its obligations under Article 9(1) to (3) insofar as:

(1) OJ 1990 L 156, p. 14.
(2) Council Directive of 12 June 1989, OJ 1989 L 183, p. 1.

— Italian legislation is to be regarded as incompatible with
Directive 90/270/EEC as regards regular eye and eyesight
tests for workers who have commenced work with display
screen equipment. Article 9(1) of the abovementioned
directive provides that all workers working on display
screen equipment are entitled to regular eye and eyesight
tests after commencing display screen work in order to
prevent visual difficulties which may be due to display
screen work, as well as other possible illness, connected
with overexposure to radiation emitted by display equip-
ment. The workers concerned,
therefore, are to be
regarded as workers at risk for the purposes of Directive
89/391. However, according to the wording of Article
55(2) of Decree Law No 626/94, regular tests to take
place at least every two years, are made available only to
two specific classes of worker: those who were initially
classified as fit, with corrective lenses, for work on display
equipment and those over 45 years of age. Workers
under 45 years of age who were initially passed fit to
work on video equipment without corrective lenses are
thus wholly excluded from the protection afforded by
Article 9(1) of the directive.

— However, the Commission would draw attention to the
fact
the Italian
that workers excluded by virtue of
legislation from the regular eye and eyesight tests pro-
vided for by Article 9(1) of Directive 90/270/EEC are
in practice excluded also from the ophthalmological
examination provided for by Article 9(2), since usually it
is the former test which shows signs of eyesight problems.
In any event, even if Article 55(4) of Decree-Law 626/94
mentions the possibility of such an examination, the
legislation does not offer any assurance that it will be
carried out in every case where the normal regular eye
and eyesight test shows that further analysis is necessary,
thus significantly reducing the level of protection pro-
vided for by the directive itself.

Reference for a preliminary ruling by the Unabhängiger
Verwaltungssenat des Landes Oberösterreich by order of
15 December 2000 in the case of Primetzhofer Stahl- und
Fahrzeugbau GmbH v Land Oberösterreich

(Case C-464/00)

(2001/C 79/21)

Reference has been made to the Court of Justice of the
European Communities by order of 15 December 2000 by the
Unabhängiger Verwaltungssenat des Landes Oberösterreich,
which was received at the Court Registry on 22 December
2000, for a preliminary ruling in the case of Primetzhofer
Stahl- und Fahrzeugbau GmbH v Land Oberösterreich on the
following questions:

(a) Do the rules of a Member State under which the court
(the independent body) in the review procedure must also
act of its own motion and determine the course of the
preliminary investigation constitute an infringement of
the first half of the final sentence of Article 2(8) of
Council Directive 89/665/EEC of 21 December 1989 on
the coordination of the laws, regulations and administrat-
ive provisions relating to the application of review
procedures to the award of public supply and public
works contracts? (1)

C 79/12

EN

Official Journal of the European Communities

10.3.2001

(b)

If that question is answered in the negative: Does the first
half of the final sentence of Article 2(8) of Council
Directive 89/665/EEC of 21 December 1989 on the
coordination of the laws, regulations and administrative
provisions relating to the application of review pro-
cedures to the award of public supply and public
works contracts require an interpretation of the national
legislation to the effect that the court (the independent
body) clarifies of
its own motion, without specific
assertions (and certainly without relevant offers of evi-
dence) made by one of the parties, whether the invitation
to tender in question is not an individual project, but
merely a part-project and — in the event that the latter is
the case — whether the overall project has an estimated
contract value of more than EUR 5 million, or is such a
view prohibited precisely because the onus of proof and
obligation to produce evidence imposed on the party
constitutes the essential difference between a procedure in
which both sides are heard and inquisitorial proceedings?

(1) OJ 1989 L 395, p. 33.

Reference for a preliminary ruling by the Verfassungsge-
richtshof, Vienna, by order of 12 December 2000 in the
case of the Rechnungshof against 1. O¨ sterreichischer
Rundfunk, 2. Wirtschaftskammer Steiermark, 3. Marktge-
meinde Kaltenleutgeben, 4. Land Niederösterrreich,
5. Oesterreichische Nationalbank, 6. Stadt Wiener
Neustadt, 7. Austrian Airlines, O¨ sterreichische Luft-
verkehrs-AG

(Case C-465/00)

(2001/C 79/22)

Reference has been made to the Court of Justice of the
European Communities by order of the Verfassungsgerichts-
hof, Vienna, by order of 12 December 2000, received at the
Court Registry on 28 December 2000 for a preliminary ruling
in the case of the Rechnungshof against 1. O¨ sterreichischer
Rundfunk, 2. Wirtschaftskammer Steiermark, 3. Marktgemein-
de Kaltenleutgeben, 4. Land Niederösterrreich, 5. Oesterreichi-
sche Nationalbank, 6. Stadt Wiener Neustadt, 7. Austrian
Airlines, O¨ sterreichische Luftverkehrs-AG on the following
questions:

1. Are the provisions of Community law, in particular those
on data protection,
to be interpreted as precluding
national rules which require a State body to collect and
pass on data on income for the purpose of publishing the
names and income of employees of:

(a)

a regional or local authority,

(b)

a broadcasting organisation governed by public law,

(c)

a national central bank,

(d)

a statutory body representing its members’ interests,

(e)

a partially State-controlled undertaking which is
operated for profit?

2.

If the answer to at least part of the above question is in
the affirmative:

Are the provisions precluding the abovementioned
national rules directly applicable, in the sense that persons
obliged to disclose data may rely on them to prevent the
application of conflicting national rules?

Appeal brought on 22 December 2000 by the European
Parliament against the judgment delivered on 26 October
2000 by the Fourth Chamber of the Court of First Instance
of the European Communities in Joined Cases T-83/99,
T-84/99 and T-85/99 between Ripa di Meana and Others
and the European Parliament

(Case C-470/00 P)

(2001/C 79/23)

An appeal against the judgment delivered on 26 October 2000
by the Fourth Chamber of the Court of First Instance of the
European Communities in Joined Cases T-83/99, T-84/99 and
T-85/99 between Ripa di Meana and Others and the European
Parliament was brought before the Court of Justice of the
European Communities on 22 December 2000 by the Euro-
pean Parliament, represented by A. Caiola and G. Ricci, acting
as Agents, with an address for service in Luxembourg.

The appellant claims that the Court should:

1.

2.

3.

set aside the judgment of the Court of First Instance of
26 October 2000 in Cases T-83/99 and T-84/99 Carlo
Ripa di Meana and Leoluca Orlando and the European
Parliament;

in consequence, declare the applications of the said
applicants at first instance inadmissible and unfounded,
and

order the applicants at first instance to pay the whole of
the costs of the proceedings before the Court of First
Instance and the Court of Justice.

Pleas in law and main arguments

The European Parliament puts forward three pleas in law in
support of its appeal, two of which relate to admissibility and
the third to the substance, the last being subdivided into
various parts and supported by a number of legal arguments.
Its grounds of appeal are as follows: