Case C-424/01: Reference for a preliminary ruling by the Bundesvergabeamt (Austria) by order of 25 October 2001 in the case of CS Communications & Systems Austria GmbH v Allgemeine Unfallversicherungsanstalt
Date: 2002-01-05
Institutions: Court of Justice
Subjects: administrative transparency, award of contract, interpretation of the law, provision of services, public contract, works contract

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:

C 3/18

EN

Official Journal of the European Communities

5.1.2002

Question 1

When balancing interests prior to deciding an application for
interim measures, as required by Article 2(4) of Council
Directive 89/665/EEC of 21 December 1989 (1) on the coordi-
nation of the laws, regulations and administrative provisions
relating to the application of review procedures to the award
of public supply and public works contracts, as amended by
Directive 92/50/EEC of 18 June 1992(2), is the ‘body respon-
sible for review procedures’ within the meaning of Article 2(8)
of Directive 89/665/EEC required to take into account the
prospects of success of an application for an unlawful decision
of a contracting authority to be set aside pursuant
to
Article 2(1)(b) of that Directive?

Must Directive 87/102/EEC (1) and Directive 90180/EEC (2) be
interpreted as having as their sole purpose consumer protec-
tion or, as aiming, beyond that, at the organization and
regulation of the single market in credit?

Must the obligation to interpret those directives in conformity
with their purpose, and at least in way protective of consumers,
prompt the national court to prefer an interpretation of its law
that would allow it to raise, of its own motion, issues of
irregularity affecting consumer credit agreements, such as a
failure to indicate in writing the percentage rate of charge, in
actions for payment of a debt brought before it by credit
institutions?

Question 2

When balancing interests prior to deciding an application for
interim measures, as required by Article 2(4) of Council
Directive 89/665/EEC of 21 December 1989 on the coordi-
nation of the laws, regulations and administrative provisions
relating to the application of review procedures to the award
of public supply and public works contracts, as amended by
Directive 92/50/EEC of 18 June 1992, is the ‘body responsible
for review procedures’ within the meaning of Article 2(8) of
Directive 89/665/EEC entitled to take into account the pros-
pects of success of an application for an unlawful decision of
a
to
Article 2(1)(b) of that Directive?

contracting authority to be

set aside pursuant

(1) Council Directive 87/102/EEC of 22 December 1986 for the
approximation of the laws, regulations and administrative pro-
visions of the Member States concerning consumer credit (OJ
L 42 of 12.2.1987, p. 48).

(2) Council Directive 90/88/EEC of 22 February 1990 amending
Directive 87/102/EEC for the approximation of the laws, regu-
lations and administrative provisions of
the Member States
concerning consumer credit (OJ L 61, 10.3.1990, p. 14).

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

Reference for a preliminary ruling by the Bundessozial-
gericht by order of that court of 2 August 2001 in the
case of Dülger Trans Uluslararasi Tazimacilik Ltd. Sti v
Bundesanstalt für Arbeit

(Case C-427/01)

(2002/C 3/28)

Reference for a preliminary ruling by the Tribunal d’In-
stance, Vienne, by judgment of that court of 19 October
2001 in the case of SA Société ACCEA Finances v
Christian Giner

(Case C-426/01)

(2002/C 3/27)

Reference has been made to the Court of Justice of the
European Communities by judgment of the Tribunal d’Instance
(District Court), Vienne, of 19 October 2001, received at the
Court Registry on 29 October 2001 for a preliminary ruling
in the case of SA Société ACCEA Finances v Christian Giner
on the following questions:

Reference has been made to the Court of Justice of the
European Communities by order of the Bundessozialgericht
(Federal Social Court) of 2 August 2001, received at the Court
Registry on 30 October 2001, for a preliminary ruling in the
case of Dülger Trans Uluslararasi Tazimacilik Ltd. Sti. v
Bundesanstalt für Arbeit (Federal Labour Office) on the follow-
ing questions:

1.

Is Article 41(1) of the Additional Protocol of 23 Novem-
ber 1970 to the Agreement establishing an Association
between the European Economic Community and Turkey
to be interpreted as meaning that there is also a restriction
on the freedom to provide services where a Member State
of the Community abolishes an existing work permit
exemption for Turkish drivers engaged in international
haulage who are employed by a (Turkish) employer with
its seat in Turkey?