Case C-314/01: Reference for a preliminary ruling by the Bundesvergabeamt (Austria) by order of 11 July 2001 in the case of (1) Siemens AG Österreich; (2) ARGE Telekom & Partner v Hauptverband der österreichischen Sozialversicherungsträger; intervening party: EDS/ORGA consortium
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

C 317/10

EN

Official Journal of the European Communities

10.11.2001

4.

The Confédération belge du commerce et de la réparation
automobile et des secteurs connexes ASBL (Federauto) is ordered
to bear its own costs.

(1) OJ C 316 of 4.11.2000.

Reference for a preliminary ruling by the VAT and Duties
Tribunals, London Tribunal Centre, by direction of that
court of 6 June 2001,
in the case of 1) Dr Peter L.
d’Ambrumenil, 2) Dispute Resolution Services Ltd against
Commissioners of Customs and Excise

(Case C-307/01)

(2001/C 317/17)

Reference has been made to the Court of Justice of the
European Communities by a direction of the VAT and Duties
Tribunals, London Tribunal Centre, of 6 June 2001, which was
received at the Court Registry on 6 August 2001, for a
preliminary ruling in the case of 1) Dr Peter L. d’Ambrumenil,
2) Dispute Resolution Services Ltd against Commissioners of
Customs and Excise, on the following questions:

1.

Is article 13A(1)(c) of Directive 77/388/EEC (1) of 17 May
1977 on the harmonisation of the laws of the Member
States relating to turnover taxes to be interpreted as
covering the following activities when performed in the
exercise of the medical profession as defined by the
Member State:

(a)

(b)

(c)

(d)

conducting medical examinations of individuals for
employers or insurance companies.

the taking of blood or other bodily samples to test
for the presence of viruses,
infections or other
diseases on behalf of employers or insurers,

1.

certification of medical fitness, for example, as to
fitness to travel,

giving certificates as to a person’s medical condition
for purposes such as entitlement to a War Pension,

(e) medical examinations conducted with a view to the
preparation of expert Medical Reports regarding
issues of liability and the quantification of damages
for individuals contemplating personal injury liti-
gation,

(f)

the preparation of Medical Reports

(i)

following the examinations referred to in (e)
and

(ii) based on medical notes but without conducting

a medical examination,

(g) medical examinations conducted with a view to the
preparation of expert Medical Reports regarding
professional medical negligence for individuals con-
templating litigation, and

(h)

the preparation of Medical Reports

(i)

following the examinations referred to in (g)
and

(ii) based on medical notes but without conducting

a medical examination?

(1) OJ L 145 of 13.6.1977, p. 1.

Reference for a preliminary ruling by the Bundesverga-
beamt (Austria) by order of 11 July 2001 in the case of
(1) Siemens AG O¨ sterreich; (2) ARGE Telekom & Partner
v Hauptverband der österreichischen Sozialversiche-
rungsträger; intervening party: EDS/ORGA consortium

(Case C-314/01)

(2001/C 317/18)

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 9 August 2001,
for a preliminary ruling in the case of
(1) Siemens AG
O¨ sterreich; (2) ARGE Telekom & Partner v Hauptverband der
österreichischen Sozialversicherungsträger; intervening party:
EDS/ORGA consortium, on the following questions:

Is 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, and in particular Article 2(1)(b)
if necessary in conjunction with Article 2(7)
thereof,
thereof, to be interpreted as meaning that the legal effect
of a decision taken 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 that if national
law does not provide any basis for the effective and
compulsory enforcement of the review body’s decision
against the contracting authority, the contract award
procedure is automatically terminated by the national
review body’s decision, without the need for any further
act by the contracting authority?

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