Case C-421/01: Reference for a preliminary ruling by the Bundesvergabeamt (Austria) by order of 25 September 2001 in the case of Traunfellner GmbH v Österreichische Autobahnen- und Schnellstrassen-Finanzierungs-AG (ÖSAG)
Date: 2002-01-05
Institutions: Court of Justice
Subjects: administrative procedure, award of contract, equal treatment, interpretation of the law, public contract, works contract

C 3/16

EN

Official Journal of the European Communities

5.1.2002

2.

If the answer to Question 1(a) is in the affirmative:

3.

(a) Must the question concerning the similarity between
the trade mark and the sign in such a case be
assessed on the basis of a criterion other than that
of (direct or indirect) confusion as to origin, and if
so, according to what criterion?

(b)

If the sign alleged to be an infringement in such a
case is viewed purely as an embellishment by the
relevant section of the public, what importance must
be attached to that circumstance in connection with
the question concerning the similarity between the
trade mark and the sign?

Is the material outlay (in particular in regard to costs) in
which clients who have hitherto been supplied with the
product of the undertaking having a dominant market
position would be involved if they were in future to go
over to purchasing the product of a competing undertak-
ing which does not make use of the data bank protected
by copyright relevant to the question of abusive conduct
by an undertaking with a dominant position on the
market?

Reference for a preliminary ruling by the Bundesverga-
beamt (Austria) by order of 25 September 2001 in the
case of Traunfellner GmbH v O¨ sterreichische Autobah-
nen- und Schnellstrassen-Finanzierungs-AG (O¨ SAG)

Reference for a preliminary ruling by the Landgericht
Frankfurt am Main by order of that court of 12 July 2001
in the case of IMS Health GmbH & Co. OHG v NDC
Health GmbH & Co

(Case C-421/01)

(2002/C 3/24)

(Case C-418/01)

(2002/C 3/23)

Reference has been made to the Court of Justice of the
European Communities by order of the Landgericht Frankfurt
am Main (Regional Court) of 12 July 2001, which was received
at the Court Registry on 22 October 2001, for a preliminary
ruling in the case of IMS Health GmbH & Co. OHG v NDC
Health GmbH & Co on the following questions:

1.

2.

Is Article 82 EC to be interpreted as meaning that there is
abusive conduct by an undertaking with a dominant
position on the market where it refuses to grant a licence
agreement for the use of a data bank protected by
copyright to an undertaking which seeks access to the
same geographical and actual market if the participants
on the other side of the market, that is to say potential
clients, reject any product which does not make use of
the data bank protected by copyright because their set-up
relies on products manufactured on the basis of that data
bank?

Is the extent to which an undertaking with a dominant
position on the market has involved persons from the
other side of the market in the development of the data
bank protected by copyright relevant to the question of
abusive conduct by that undertaking?

Reference has been made to the Court of Justice of the
European Communities by order of 25 September 2001 by
the Bundesvergabeamt (Austrian Federal Procurement Office),
which was received at the Court Registry on 24 October 2001,
for a preliminary ruling in the case of Traunfellner GmbH v
O¨ sterreichische Autobahnen- und Schnellstrassen-Finan-
zierungs-AG (O¨ SAG) on the following questions:

Question 1

Is an alternative tender that consists in proposing an asphalt
surface instead of overlaying the carriageway with concrete as
specified in the tender document a ‘variant’ within the meaning
of the first paragraph of Article 19 of Directive 93/37/EEC (1)?

Question 2

Can a criterion established in national legislation to determine
the admissibility of the acceptance of a ‘variant’ within the
meaning of the first paragraph of Article 19 of Directive
93/37/EEC, whereby ‘the performance of qualitatively equiva-
lent work is ensured’ by the variant, properly be regarded as a
‘minimum specification’ required and stated by the contracting
authority in accordance with the first and second paragraphs
of Article 19 of Directive 93/37/EEC, if the tender document
refers only to the national provision and does not specify the
comparative parameters to be used to assess ‘equivalence’?

5.1.2002

EN

Official Journal of the European Communities

C 3/17

Question 3

Does Article 30(1) and (2) of Directive 93/37/EEC in conjunc-
tion with the principles of transparency and equal treatment
prohibit a contracting authority from making the acceptance
of an alternative tender, which differs from a tender con-
forming to the tender document in that it proposes a different
technical quality, conditional on a positive assessment based
on a criterion in national
‘the
performance of qualitatively equivalent work is ensured’ if the
tender document refers only to the national provision and
does not specify the comparative parameters to be used to
assess ‘equivalence’?

legislation requiring that

Question 4a

If the answer to Question 3 is in the affirmative, may a
contracting authority conclude a tendering procedure like that
described in Question 3 by awarding the contract?

Question 4b

If the answers to Questions 3 and 4a are in the affirmative,
must a contracting authority conducting a tendering procedure
as described in Question 3 reject variants proposed by
tenderers without examining their contents, at any rate if it
has not defined contract award criteria for assessing the
technical differences between the variant and the tender
document?

Question 5

If the answers to Questions 3 and 4a are in the affirmative and
the answer to Question 4b is in the negative, must a contracting
authority conducting a tendering procedure as described in
Question 3 accept a variant whose technical differences from
the tender document it is unable to assess on the basis of
contract award criteria owing to the absence of appropriate
statements in the tender document if
this variant is the
cheapest tender and contract award criteria have not otherwise
been defined?

(1) OJ L 199, p. 54.

I(2)

1. On a proper construction of the second subparagraph of
Chapter
in Annex A to Council Directive
85/73/EEC (1) as amended and consolidated by Council
Directive 96/43/EC (2),
is an establishment which is
situated in the same building as a cutting plant but whose
operator is a natural or legal person other than the
operator of the cutting plant also to be regarded as the
‘establishment where the meat is obtained’?

2. Which criteria are relevant to the fee-levying authority’s
decision regarding the extent
to which it grants a
reduction of the fees of up to 55 % as provided for in the
second subparagraph of Chapter I(2) in Annex A to the
abovementioned directive?

In that regard, may in particular the fact that staff need
less time to carry out the controls or inspections also be
taken into consideration where the fees in respect of such
controls and inspections are determined by the addition
of a standard amount pursuant to the first subparagraph
under (a) of Chapter I(2) in Annex A to the abovemen-
tioned directive?

Moreover, if Question 1 is answered in the affirmative,
when reducing the fee, may account nevertheless be taken
of the fact that the establishments situated in one building
are attributable to operators regarded in law as distinct,
and may this in principle lead to a situation where in
such cases less of a reduction is granted than in cases
where the slaughterhouse and cutting plant are not only
situated in the same building but are also operated by the
same natural or legal person?

(1) OJ L 32 of 5.2.1985, p. 14.
(2) OJ L 162 of 1.7.1996, p. 1.

Reference for a preliminary ruling by the Verwaltungsge-
richt Neustadt an der Weinstrasse by order of that court
of 30 July 2001 in the case of Emil Färber GmbH & Co. v
Stadt Neustadt/Weinstrasse

(Case C-423/01)

(2002/C 3/25)

Reference for a preliminary ruling by the Bundesverga-
beamt (Austria) by order of 25 October 2001 in the case
of CS Communications & Systems Austria GmbH v
Allgemeine Unfallversicherungsanstalt

(Case C-424/01)

(2002/C 3/26)

Reference has been made to the Court of Justice of the
European Communities by order of the Verwaltungsgericht
(Administrative Court) Neustadt an der Weinstrasse of 30 July
2001, which was received at the Court Registry on 26 October
2001, for a preliminary ruling in the case of Emil Färber
GmbH & Co. v Stadt Neustadt/Weinstrasse on the following
questions:

Reference has been made to the Court of Justice of the
European Communities by order of 25 October 2001 by
the Bundesvergabeamt (Austrian Federal Procurement Office),
which was received at the Court Registry on 26 October 2001,
for a preliminary ruling in the case of CS Communications &
Systems Austria GmbH v Allgemeine Unfallversicherungsan-
stalt on the following questions: