Case C-315/01: Reference for a preliminary ruling by the Bundesvergabeamt (Austria) by order of 11 July 2001 in the case of GAT Gesellschaft für Abfallentsorgungs-Technik GmbH v Österreichische Autobahnen und Schnellstraßen AG (ÖSAG)
Date: 2001-11-10
Institutions: Court of Justice
Subjects: administrative transparency, appeal to an administrative authority, award of contract, interpretation of the law, supplies contract, works contract

10.11.2001

EN

Official Journal of the European Communities

C 317/11

2.

3.

4.

Is Directive 89/665, in particular Article 2(7) thereof, if
necessary
in conjunction with Council Directive
92/50/EEC (2) of 18 June 1992 relating to the coordi-
nation of procedures for the award of public service
contracts, in particular Articles 25 and 32(2)(c) thereof,
or any other provisions of Community law, in particular
having regard to the effet utile doctrine relating to the
interpretation of Community law, to be construed as
meaning that a provision in an invitation to tender which
prohibits subcontracting material parts of the service
concerned and, contrary to the case-law of the Court of
Justice, in particular Case C-176/98 Holst Italia [1999]
ECR I-8607, prevents the tenderer from using his contract
with his subcontractor to prove that the services of a
third party are actually available to him and which thus
deprives him of his right to prove his own capability by
relying on the services of a third party or to prove that he
actually has available a third party’s services, is so clearly
contrary to Community law that a contract concluded on
the basis of such an invitation to tender is to be regarded
as invalid, in particular where national law in any case
provides that illegal contracts are invalid?

Is Directive 89/665, in particular Article 2(7) thereof, or
any other provision of Community law, in particular
having regard to the effet utile doctrine relating to the
interpretation of Community law, to be construed as
meaning that a contract concluded contrary to a decision
by a national review body within the meaning of
Article 2(8) of Directive 89/665 relating to the setting
aside of a contracting authority’s decision not to cancel a
contract award procedure is invalid, in particular where
national law in any case provides that immoral or illegal
contracts are void but does not provide any basis for the
effective and compulsory enforcement of the review
body’s decision against the contracting authority?

the direct application of Article 2(1)(b)

Is Directive 89/665, in particular Article 2(1)(b) thereof,
if necessary in conjunction with Article 2(7),
to be
interpreted as meaning that where national
law does
not otherwise provide any basis for the effective and
compulsory enforcement of the review body’s decision
against the contracting authority, the review body has, by
virtue of
in
conjunction with Article 2(7), the power to issue a
compulsory, enforceable order to the contracting auth-
ority to ensure that the unlawful decision is set aside,
even though national law authorises the review body to
issue only non-compulsory, non-enforceable orders to
set aside contracting authorities ‘decisions in tenderers’
applications for review within the meaning of Article 1(1)
of Directive 89/665?

5.

If Question 4 is answered in the affirmative: does
Article 2(7) of Directive 89/665, if necessary in conjunc-
tion with other provisions of Community law, give the
review body the power in such a case to threaten
contracting authorities and the members of their execu-
tive organs with, and to impose on them, such fines or
fines and imprisonment by way of coercive penalties as
are necessary to enforce their orders and are calculated in
accordance with judicial discretion, where the contracting
authorities and the members of their executive organs do
not comply with the orders issued by the review body?

(1) OJ 1989 L 395, p. 33.
(2) OJ 1992 L 209, p. 1.

Reference for a preliminary ruling by the Bundesverga-
beamt (Austria) by order of 11 July 2001 in the case of
GAT Gesellschaft für Abfallentsorgungs-Technik GmbH
v O¨ sterreichische Autobahnen und Schnellstraßen AG
(O¨ SAG)

(Case C-315/01)

(2001/C 317/19)

Reference has been made to the Court of Justice of the
European Communities by order of 11 July 2001 by the
Bundesvergabeamt
(Austrian Federal Procurement Office),
which was received at the Court Registry on 13 August 2001,
for a preliminary ruling in the case of GAT Gesellschaft für
Abfallentsorgungs-Technik GmbH v O¨ sterreichische Auto-
bahnen und Schnellstraßen AG (O¨ SAG) on the following
questions:

1.

Is Article 2(8) of Council Directive 89/665/EEC (1) of
21 December 1989 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, or any other provision
of that directive or any other provision of Community
law to be interpreted as meaning that an authority
responsible for carrying out review procedures within the
meaning of Article 1(1) of that directive, including the
exercise of the powers referred to in Article 2(1)(c)
thereof, is precluded from taking into account, of its own
motion and independently of the submissions of the
parties to the review procedure, those circumstances
relevant under the law governing contract award pro-
cedures which the authority responsible for carrying out
review procedures considers material to its decision in a
review procedure?

2.

Is Article 2(1)(c) of Directive 89/665/EEC, if necessary
considered in conjunction with other principles of Com-
munity law, to be interpreted as meaning that an authority
responsible for carrying out review procedures within the

C 317/12

EN

Official Journal of the European Communities

10.11.2001

meaning of Article 1(1) of that directive, including the
exercise of the powers referred to in Article 2(1)(c)
thereof, is precluded from dismissing an application by a
tenderer that is indirectly aimed at obtaining damages,
where the contract award procedure is already tainted by
a material legal infringement attributable to a decision
taken by the contracting authority, other than the decision
being contested by that tenderer, on the ground that if
the contested decision had not been taken the tenderer
would none the less have been harmed for other reasons?

If Question 1 is answered in the negative: Is Council
Directive 93/36/EEC (2) of 14 June 1993 coordinating
procedures for the award of public supply contracts, in
particular Articles 15 to 26 thereof, to be interpreted as
prohibiting a public contracting authority conducting
contract award procedures from taking account of refer-
ences relating to the products offered by tenderers not as
proof of the tenderers’ suitability but to satisfy an award
criterion, such that the fact that those references are given
a negative evaluation would not exclude the tenderer
from the contract award procedure but would merely
result in the tender receiving a lower evaluation, for
example under a points system in which a poor evaluation
of references might be offset by a lower price?

If Questions 1 and 3 are answered in the negative: Is it
compatible with the relevant provisions of Community
law, including Article 26 of Directive 93/36/EEC, the
principle of equal treatment and the obligations of the
Communities under international
law for an award
criterion to provide that product references are to be
evaluated on the basis of the number of references alone,
there being no substantive examination as to whether
contracting authorities’ experiences of the product have
been good or bad, and, moreover, that only references
from the geographical area comprising the part of the
Alps within the European Union are to be taken into
account?

Is it compatible — with Community law, in particular
the principle of equal treatment, for an award criterion to
permit opportunities to inspect examples of the subject
of the invitation to tender to receive a positive evaluation
only if available within a 300 kilometre radius of the
authority issuing the invitation to tender?

If Question 3 is answered in the affirmative, or Question 4
or 5 answered in the negative:
Is Article 2(1)(c) of
Directive 89/665/EEC, if necessary considered in conjunc-
tion with other principles of Community law, to be
interpreted as meaning that if the contracting authority’s
infringement consists in imposing an unlawful award
criterion, the tenderer will be entitled to damages only if
he can actually prove that, but for the unlawful award
criterion, he would have submitted the best tender?

3.

4.

5.

6.

(1) OJ 1989 L 395, p. 33.
(2) OJ 1993 L 199, p. 1.

Action brought on 24 August 2001 by Commission of the
European Communities against Italian Republic

(Case C-323/01)

(2001/C 317/20)

An action against the Italian Republic was brought before the
Court of Justice of the European Communities on 24 August
2001 by the Commission of the European Communities,
represented by Richard Wainwright and Roberto Amorosi,
acting as Agents.

The applicant claims that the Court should:

1. Declare that, by failing to adopt and bring into force
within the prescribed period the laws, regulations or
administrative provisions necessary to comply with Com-
mission Directive 98/101/EC (1) of 22 December 1998
to technical progress Council Directive
adapting
91/157/EEC (2) on batteries and accumulators containing
certain dangerous substances, the Italian Republic has
failed to fulfil its obligations under that directive;

2. Order the Italian Republic to pay the costs.

Pleas in law and main arguments

The mandatory nature of the provisions of the third paragraph
of Article 249 and the first paragraph of Article 10 of the EC
Treaty requires Member States to adopt the measures necessary
to transpose directives addressed to them into their domestic
law before the expiry of the period prescribed for doing so.
That period expired on 1 January 2000 without Italy having
brought into force the necessary provisions.

(1) OJ 1999 L 1, p. 1.
(2) OJ 1991 L 78, p. 38.

Appeal brought on 29 August 2001 (by fax on 27 August
2001) by Telefon & Buch Verlagsgesellschaft mbH, against
the judgment delivered on 14 June 2001 by the Fourth
Chamber of the Court of First Instance of the European
Communities in Joined Cases T-357/99 and T-358/99
between Telefon & Buch VerlagsgmbH and the Office for
Harmonisation in the Internat Market (Trade Marks and
Designs) (OHIM)

(Case C-326/01 P)

(2001/C 317/21)

An appeal against the judgment delivered on 14 June 2001 by
the Fourth Chamber of the Court of First Instance of the