Cases C-395/01 and C-417/01: Reference for a preliminary ruling by the Unabhängiger Verwaltungssenat of the Land Vorarlberg by orders of 8 October 2001 and 17 October 2001 in the appeals brought by Herbert Bregenzer
Date: 2002-01-05
Institutions: Court of Justice
Subjects: advertising, consumer information, foodstuff, interpretation of the law, labelling, packaging

C 3/14

EN

Official Journal of the European Communities

5.1.2002

Reference for a preliminary ruling by the Bundesverga-
beamt (Austria) by order of 12 September 2001 in
the case of Ortner Gesellschaft m.b.H. v Allgemeine
Unfallversicherungsanstalt

(Case C-379/01)

(2002/C 3/19)

Reference has been made to the Court of Justice of the
European Communities by order of 12 September 2001 by
the Bundesvergabeamt (Austrian Federal Procurement Office),
which was received at the Court Registry on 3 October 2001,
for a preliminary ruling in the case of Ortner Gesellschaft
m.b.H. v Allgemeine Unfallversicherungsanstalt on the follow-
ing questions:

1.

Is Article 1(3) 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 to be interpreted as
meaning that any person seeking the award of a specific
pending public contract is entitled to institute a review
procedure?

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 infringe-
ment 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.

Reference for a preliminary ruling by the Unabhängiger
Verwaltungssenat of the Land Vorarlberg by orders of
8 October 2001 and 17 October 2001 in the appeals
brought by Herbert Bregenzer

(Cases C-395/01 and C-417/01)

(C-395/01) and 17 October 2001 (C417/01) by the Unabhän-
giger Verwaltungssenat of the Land Vorarlberg (Independent
Administrative Chamber of the Land Vorarlberg), which were
received at the Court Registry on 10 October 2001 and
22 October 2001 for a preliminary ruling in the appeals
brought by Herbert Bregenzer on the following questions:

1. Does Article 2(1)(b) of Council Directive 79/112/EEC (1)
of 18 December 1978 on the approximation of the
laws of the Member States relating to the labelling,
presentation and advertising of foodstuffs for sale to
the ultimate consumer (now consolidated in European
Parliament
and Council Directive 2000/13/EC of
20 March 2000, OJ 2000 L 109, p. 29; hereinafter
‘the labelling Directive’), under which — subject
to
Community provisions applicable to natural mineral
waters and to foodstuffs for particular nutritional uses,
the labelling and methods used may not attribute to any
foodstuff the property of preventing, treating or curing a
human disease, or suggest that it possesses such proper-
ties, preclude national
legislation which makes it an
offence when marketing foodstuffs:

(a)

to refer to physiological or pharmacological effects,
in particular those which preserve youthfulness,
inhibit signs of ageing, promote slimming or main-
tain health, or to create the impression of any such
effect;

(b)

to refer to case histories, recommendations made by
doctors or medical experts’ reports;

(c)

to use health-related, pictorial or stylised represen-
tations of organs of the human body, pictures
of members of the health-care professions or of
sanatoria or other pictures or illustrations referring
to health-care activities?

2. Do the labelling Directive or Articles 28 and 30 EC
preclude a national provision which, on the placing into
circulation of foodstuffs, permits health-related infor-
mation such as that described in question (1) to be affixed
thereto only after prior authorisation by the competent
federal minister, whereby a condition of authorisation is
that the health-related information is consistent with
protecting the consumer from being misled?

(2002/C 3/20)

(1) OJ L 33, p. 1.

Reference has been made to the Court of Justice of the
European Communities by orders of 8 October 2001