Case C-249/01: Reference for a preliminary ruling by the Bundesvergabeamt Wien by order of that court of 25 June 2001 in the review procedure brought by the architect and qualified engineer Werner Hackermüller against 1. BIG Bundesimmobiliengesellschaft mbH and 2. WED Wiener Entwicklungsgesellschaft mbH
Date: 2001-09-01
Institutions: Court of Justice
Subjects: award of contract, interpretation of the law, public contract, supplies contract, works contract

C 245/8

EN

Official Journal of the European Communities

1.9.2001

Reference for a preliminary ruling by the Tribunale di
Ascoli Piceno, Italy, by order of that court of 30 March
2001 in criminal proceedings against Piergiorgio Gambelli
and Others

failed to fulfil its obligations under Article 3(1) of Council
Regulation (EEC) No 2408/92 of 23 July 1992 on access
for Community air carriers to intra-Community air
routes;

(Case C-243/01)

(2001/C 245/14)

Reference has been made to the Court of Justice of the
European Communities by an order of the Tribunale di Ascoli
Piceno of 30 March 2001, which was received at the Court
Registry on 22 June 2001,
for a preliminary ruling in
the criminal proceedings pending before that court against
Piergiorgio Gambelli and Others, on the following question:

A decision is sought as to the compatibility with Article 43 et
seq. and Article 49 et seq. of the EC Treaty regarding freedom
of establishment and freedom to provide cross-frontier ser-
vices, and the repercussions thereof within the national legal
order, of domestic legislation like the Italian provisions
contained in Article 4(1) et seq., Article 4 bis and Article 4 ter
of Law No 401 of 13 December 1989 (as most recently
amended by Article 37(5) of Law No 388 of 23 December
2000) which impose prohibitions — enforced by criminal
penalties — on the pursuit, by any person and at any place, of
the activities of collecting, taking, booking and forwarding
offers of bets, in particular bets on sporting events, unless
the requirements concerning concessions and authorisations
prescribed by domestic law have been complied with.

Action brought on 25 June 2001 by the Commission of
the European Communities against the Kingdom of the
Netherlands.

(Case C-246/0l)

(2001/C 245/15)

An action against the Kingdom of the Netherlands was brought
before the Court of Justice of the European Communities
on 25 June 2001 by the Commission of
the European
Communities, represented by M. Huttunen and H.M.H. Spey-
art, acting as Agents.

2. Order the Kingdom of the Netherlands to pay the costs

of the proceedings.

Pleas in law and main arguments

In adopting Regulation No 2408/92 the Council, pursuant to
Article 80(2) EC, defined the detailed rules for application of
the principle of freedom to supply services within the area of
air transport, as set out in Article 49 EC. When the provisions
of Regulation No 2408/92 fall to be interpreted, therefore,
recourse must be had to that principle, which goes further
than simply prohibiting discrimination of a service provider
established in another Member State on the ground of that
person’s nationality, providing as it does also for the removal
of any restriction whatsoever — even if applicable without
distinction to domestic service providers and to service providers
from other Member States — which prohibits, obstructs or
renders less attractive the activities ’of a service provider who
is established in another Member State and lawfully provides
similar services there. Under Article 1 of the Netherlands
Regulation of 9 May 1995, there is an exemption from
mandatory checks for ’flights with a domestic destination. This
does not apply in the case of flights on which passengers can
mingle with passengers for flights having an international
destination’. As a result of this, a cross-border flight within the
Community involves the carrier in higher costs than in
the case of a comparable domestic flight. The Netherlands
Regulation also makes it possible for security checks to be
carried out for domestic flights (on the ground that passengers
on such flights may mingle with passengers for international
flights), but without any charge being levied in that connection.

Reference for a preliminary ruling by the Bundesverga-
beamt Wien by order of that court of 25 June 2001 in the
review procedure brought by the architect and qualified
engineer Werner Hackermüller against 1. BIG Bundesim-
mobiliengesellschaft mbH and 2. WED Wiener Entwick-
lungsgesellschaft mbH

(Case C-249/01)

(2001/C 245/16)

The applicant claims that the Court should:

1.

Rule that, by adopting and maintaining in force
Articles 37g and 37j of the Luchtvaartwet (Law on Air
Traffic) and Article 1 of the Regulation of the Netherlands
Minister of Justice of 9 May 1995 on the exemption of
flights on which passengers are subject to checks for
dangerous objects, the Kingdom of the Netherlands has

Reference has been made to the Court of Justice of the
European Communities by order of the Bundesvergabeamt
Wien (Federal Contracting Authority, Vienna) of 25 June 2001,
received at
for a
preliminary ruling in the review procedure brought by the
architect and qualified engineer Werner Hackermüller against
1. BIG Bundesimmobiliengesellschaft mbH and 2. WED Wien-
er Entwicklungsgesellschaft mbH on the following questions:

the Court Registry on 28 June 2001,

1.9.2001

EN

Official Journal of the European Communities

C 245/9

Question 1:

The appellant claims that the Court should:

Is Article 1(3) of Council Directive 89/665/EEC of 21 Decem-
ber 1989 (1) on the coordination of the laws, regulations and
administrative provisions relating to the application of review
procedures to the award of public supply and public works
contracts to be interpreted as meaning that any person seeking
the award of a specific pending public contract is entitled to
institute a review procedure?

Question 2:

In the event that the answer given to Question 1 is no:

Is the abovementioned provision to be understood as meaning
that, if a tenderer’s bid is not eliminated by the contracting
authority, but the review body finds in the course of the review
procedure that the contracting authority would have been
bound to eliminate it, the tenderer has been or risks being
harmed by the infringement alleged by him — in this case the
finding by the contracting authority that a rival tenderer
submitted the best bid — and that he must therefore have the
right to bring a review procedure?

(1) OJ L 395, p. 33.

Appeal brought on 2 July 2001 by Mario Costacurta
against the order delivered on 7 June 2001 by the Second
Chamber of the Court of First Instance of the European
Communities in Case T-202/00 between Mr Costacurta
and the Commission of the European Communities

(Case C-250/01 P)

(2001/C 245/17)

An appeal against the order delivered on 7 June 2001 by the
Second Chamber of the Court of First Instance of the European
Communities in Case T-202/00 between Mr Costacurta and
the Commission of the European Communities was brought
before the Court of Justice of the European Communities on
2 July 2001 by Mario Costacurta, represented by Mr Petit,
of
the Luxembourg Bar, with an address for service in
Luxembourg.

— find the present appeal admissible;

— find the appeal well founded as to the substance;

— order, if the Rules of Procedure of the Court of Justice
allow it, the present appeal to be joined to the appeal
against the order of the Court of First Instance (Second
Chamber) of 7 June 2001 in Case T-328/00 concerning
the same dispute and lodged this day;

— set aside the order delivered by the Court of First Instance
(Second Chamber) of 7 June 2001 in Case T-202/00
Costacurta v Commission;

— make a decision as to how Case T-202/00 Costacurta v
Commission is to proceed in accordance with Article 54
of the Rules of Procedure of the Court of Justice;

— order the Commission of the European Communities
already to pay the costs of the interlocutory proceedings
and of the present appeal;

— reserve the costs as to the substance; find, none the less,
that Article 88, rather than Article 87(2), of the Rules of
Procedure of the Court of First Instance are applicable;

— reserve to the appellant all other rights, dues, pleas and

actions.

Pleas and main arguments

— Lack of jurisdiction of the Court of First Instance and

breach of Community law.

— Prejudice to the appellant’s interests, misuse of powers.

— Error in law inasmuch as the Court of First Instance ruled
that retirement meant that the appellant no longer had
any right to seek annulment of the contested act: the
appellant claims the right to have his administrative
status regularised a posteriori.