Case C-420/01: Action brought on 23 October 2001 by the Commission of the European Communities against the Italian Republic
Date: 2002-02-02
Institutions: Court of Justice
Subjects: European Commission, Italy, action for failure to fulfil an obligation, beverage, market approval, public health

C 31/2

EN

Official Journal of the European Communities

2.2.2002

R. Torrent, J. Huber and G. Houttuin), supported by Kingdom
of Spain (Agent: R. Silva de Lapuerta), Italian Republic (Agents:
U. Leanza, assisted by F. Quadri), and Commission of the
European Communities (Agents: P.J. Kuijper and T. van Rijn)
— application for annulment of Council Regulation (EC)
No 1036/97 of 2 June 1997 introducing safeguard measures
in respect of
imports of rice originating in the overseas
countries and territories (OJ 1997 L 151, p. 8) — the Court,
composed of: G.C. Rodrı´guez Iglesias, President, P. Jann and
F. Macken (Rapporteur) (Presidents of Chambers), C. Gulmann,
D.A.O. Edward, A. La Pergola,
J.P. Puissochet, L. Sevo´ n,
M. Wathelet, R. Schintgen and V. Skouris, Judges; P. Léger,
Advocate General; H. von Holstein, Deputy Registrar, for the
Registrar, has given a judgment on 22 November 2001, in
which it:

1. Dismisses the action as inadmissible.

2. Orders the Netherlands Antilles to pay the costs.

3. Orders the Kingdom of Spain, the Italian Republic and the
Commission of the European Communities to bear their own
costs.

(1) OJ C 188 of 3.7.1999.

GmbH, 4. Haus der Technik DI A. Gobiet und DI F. Schweig-
hofer Ziviltechniker GmbH, 5. Hopferwieser, Dipl.-Ing. Walter,
6. GC General Contract DI Wolfgang Wisserodt Ingenieurge-
sellschaft m.b.H, a bidding consortium, against Autobahnen-
und Schnellstraßen- Finanzierungs-AG (ASFINAG) on the
following questions:

Question 1

Is Article 1(3) of Council Directive 89/665/EEC of 21 Decem-
ber 1989 (1) 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
the review
procedure must be available to any undertaking which has
submitted a bid, or applied to participate, in a public procure-
ment procedure?

In the event that the answer to Question 1 is no:

Question 2

Is the abovementioned provision to be understood as meaning
that an undertaking only has or had an interest in a particular
public contract if — in addition to its participating in the
public procurement procedure — it takes or took all steps
available to it under national law to prevent the contract from
being awarded to another bidder and so to secure the award
of the contract to itself?

(1) OJ L 395, p. 33.

Reference for a preliminary ruling by the Bundesverga-
beamt Wien by order of 8 October 2001 in review
proceedings brought by 1. FRITSCH, CHIARI & PART-
NER, Ziviltechniker GmbH, 2. Büro Axis Ingenieurleis-
tungen, 3. Vasko & Partner Ingenieure, Ziviltechniker für
Bauwesen GmbH, 4. Haus der Technik DI A. Gobiet und
DI F. Schweighofer Ziviltechniker GmbH, 5. Hopferwie-
ser, Dipl.-Ing. Walter, 6. GC General Contract DI Wolfgang
Wisserodt Ingenieurgesellschaft m.b.H, a bidding consor-
tium against Autobahnen- und Schnellstraßen- Finan-
zierungs-AG (ASFINAG)

(Case C-410/01)

(2002/C 31/03)

Reference has been made to the Court of Justice of the
European Communities by order of 8 October 2001 by
the Bundesvergabeamt Wien (Austrian Federal Procurement
Office, Vienna), which was received at the Court Registry on
16 October 2001, for a preliminary ruling in the review
proceedings brought by 1. FRITSCH, CHIARI & PARTNER,
Ziviltechniker GmbH, 2. Büro Axis
Ingenieurleistungen,
3. Vasko & Partner Ingenieure, Ziviltechniker für Bauwesen

Action brought on 23 October 2001 by the Commission
of the European Communities against the Italian Republic

(Case C-420/01)

(2002/C 31/04)

An action against the Italian Republic was brought before the
Court of Justice of the European Communities on 23 October
2001 by the Commission of the European Communities,
represented by Hendrik Van Lier and Roberto Amorosi, acting
as Agents.

The applicant claims that the Court should:

— Declare that, by applying rules to drinks manufactured
and marketed in other Member States prohibiting the
marketing in Italy of energy drinks containing caffeine in
excess of a certain limit, without showing how such a

2.2.2002

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Official Journal of the European Communities

C 31/3

limit is proportionate and necessary for the protection of
human health, the Italian Republic has failed to fulfil its
obligations under Articles 28 and 30 of the EC Treaty;
and

recovery the trainee’s maintenance claim against his parents,
which arises under private law and has been transferred to the
plaintiff by statute, in respect of the period for which the
education grant was paid?

— Order the Italian Republic to pay the costs.

Pleas in law and main arguments

The competent Italian authorities prohibit the marketing of
energy drinks which, although lawfully manufactured and
marketed in other Member States, have a caffeine content in
excess of 125 mg/l. Such a prohibition constitutes an obstacle
to the free movement of goods prohibited by Article 28 EC.

In the present case, Article 30 EC cannot properly be relied
upon by the authorities in order to justify the abovementioned
prohibition on marketing of energy drinks inasmuch as the
Italian authorities have not indicated on what scientific data
they based the adoption of the disputed prohibitive provisions
nor demonstrated the extent to which a caffeine content in
excess of 125 mg/l is harmful to public health.

Reference for a preliminary ruling by the Bundesge-
richtshof by order of 26 September 2001 in the case of
Freistaat Bayern v Jan Blijdenstein

(Case C-433/01)

(2002/C 31/05)

Reference has been made to the Court of Justice of the
European Communities by order of 26 September 2001 by
the Bundesgerichtshof (Federal Supreme Court), which was
received at the Court Registry on 9 November 2001, for a
preliminary ruling in the case of Freistaat Bayern v Jan
Blijdenstein on the following question:

May a plaintiff rely on the special rule on jurisdiction in
Article 5(2) of the Convention of 27 September 1968 on
Jurisdiction and the Enforcement of Judgments in Civil and
Commercial Matters, as amended by the Convention on the
accession of
the Kingdom of Spain and the Portuguese
Republic of 26 May 1989, where its authorities have paid an
education grant to a trainee for a certain period of time under
public law and the plaintiff seeks to enforce in an action for

Action brought on 9 November 2001 by the Commission
the United
of

the European Communities against

Kingdom

(Case C-434/01)

(2002/C 31/06)

An action against the United Kingdom was brought before the
Court of Justice of the European Communities on 9 November
2001 by the Commission of the European Communities,
represented by Richard Wainwright, acting as agent, with an
address for service in Luxembourg.

The Applicant requests that the Court should:

— declare that, by failing to ensure that the United Kingdom
is in compliance with its obligations under Articles 12
and 16 of Directive 92/43/EEC (1), the United Kingdom
has failed to fulfil its obligations under that Directive:

— order the United Kingdom to pay the costs.

Pleas in law and main arguments

The Commission maintains that, by allowing decisions of local
planning authorities, who are not relevant authorities for the
purposes of Article 12 and 16 of the directive, to pre-empt
decisions by the national conservation bodies, the Agriculture
Minister or Secretary of State for the Environment, as to
whether a derogation under Article 16(1) can be granted and
thus failing to correctly apply the two-pronged test laid down
in the first paragraph of Article 16(1) as well as the test of
showing that imperative reasons of overriding interest exist,
the United Kingdom is in breach of its obligations under
Articles 12 and 16 of the Directive.

(1) Council Directive 92/43/EEC of 21 May 1992 on the conservation
of natural habitats and of wild fauna and flora (OJ L 206,
22.7.1992, p. 7).