Case C-449/01: Reference for a preliminary ruling by the Court of Appeal (England and Wales) (Civil Division) by order of that court dated 11 May 2001, in the case of Abbey Life Assurance Company Ltd against Kok Theam Yeap
Date: 2002-04-06
Institutions: Court of Justice
Subjects: consumer goods, insurance contract, interpretation of the law

C 84/38

EN

Official Journal of the European Communities

6.4.2002

3.

If Question 2 is answered affirmatively:

Does the Court of Justice have available to it on the
basis of the reference for a preliminary ruling all the
information needed in order to be able itself to assess
whether the government body as mentioned in the facts
as set out caused specific injury to the defendant or will
it leave the reply to that question to the referring Austrian
court?

an unlawful decision in review proceedings under
Article 1 of Directive 89/665/EEC dependent on proof
that the unlawful decision was material to the outcome
of the procurement procedure, where that proof has to
be achieved by the review body examining whether the
ranking of the tenders actually submitted would have
been different had they been re-evaluated disregarding
the unlawful award criterion?

4. Do the provisions of Community law relating to the
award of public contracts, in particular Article 26 of
Directive 93/36/EEC, require the contracting authority to
cancel the invitation to tender if it transpires in review
proceedings under Article 1 of Directive 89/665/EEC that
one of the award criteria it laid down is unlawful?

Reference for a preliminary ruling from the Bundesverga-
beamt (Austria) by order of that tribunal of 13 November
2001 in the case of (1) EVN AG and (2) Wienstrom GmbH
v Republic of Austria

(1) OJ 1993 L 199, p. 1.
(2) OJ 1989 L 395, p. 33.

(Case C-448/01)

(2002/C 84/65)

Reference has been made to the Court of Justice of the
European Communities by an order of the Bundesvergabeamt
(Federal Procurement Office) of 13 November 2001, which
was received at the Court Registry on 20 November 2001, for a
preliminary ruling in the case of (1) EVN AG and (2) Wienstrom
GmbH v Republic of Austria on the following questions:

1. Do the provisions of Community law relating to the
award of public contracts, in particular Article 26 of
Directive 93/36/EEC (1), prohibit a contracting authority
from laying down an award criterion in relation to the
supply of electricity which is given a 45 % weighting and
which requires a tenderer to state, without being bound
to a defined supply period, how much electricity he can
supply from renewable sources to a group of consumers
not more closely defined, where the maximum number
of points is given to whichever tenderer states the highest
amount and a supply volume is taken into account only
to the extent that it exceeds the volume of consumption
to be expected in the context of the contract to which the
invitation to tender relates?

2. Do the provisions of Community law relating to the
award of public contracts, in particular Article 2(1)(b) of
Directive 89/665/EEC (2), prohibit making the setting
aside of an unlawful decision in review proceedings under
Article 1 of Directive 89/665/EEC dependent on proof
that the unlawful decision was material to the outcome
of the procurement procedure?

3. Do the provisions of Community law relating to the
award of public contracts, in particular Article 26 of
Directive 93/36/EEC, prohibit making the setting aside of

Reference for a preliminary ruling by the Court of Appeal
(England and Wales) (Civil Division) by order of that
court dated 11 May 2001, in the case of Abbey Life
Assurance Company Ltd against Kok Theam Yeap

(Case C-449/01)

(2002/C 84/66)

Reference has been made to the Court of Justice of the
European Communities by an order of the Court of Appeal
(England and Wales) (Civil Division) dated 11 May 2001,
which was received at the Court Registry on 21 November
2001, for a preliminary ruling in the case of Abbey Life
Assurance Company Ltd and Kok Theam Yeap on the follow-
ing questions:

1)

Can ‘policies for life assurance, annuities, health and
pension business, unit trusts, offshore funds business,
personal equity plans and other contracts offered by
Abbey’ or any of them be described as ‘goods’ that fall
within the provisions of 1993 Regulations and/or in the
Directive?

2) Do ‘policies for life assurance, annuities, health and
pension business, unit trusts, offshore funds business,
personal equity plans and other contracts offered by
Abbey’ or any of them have to be:

(i) marketable, and/or

6.4.2002

EN

Official Journal of the European Communities

C 84/39

(ii)

assignable

before they can be described a ‘goods’ that fall within the
provisions of 1993 Regulations and/or in the Directive?

Action brought on 27 November 2001 by the Com-
mission of the European Communities against the Italian
Republic

Reference for a preliminary ruling by the Verwaltungs-
gerichtshof (Austria) by order of 19 October 2001 in the
case of 1. Margarete Ospelt, 2. Schlössle Weissenberg
Familienstiftung v Unabhängiger Verwaltungssenat des
Landes Vorarlberg

(Case C-452/01)

(2002/C 84/67)

Reference has been made to the Court of Justice of the
European Communities by order of 19 October 2001 by the
Verwaltungsgerichtshof (Higher Administrative Court, Aus-
tria), which was received at the Court Registry on 22 November
2001, for a preliminary ruling in the case of 1. Margarete
Ospelt, 2. Schlössle Weissenberg Familienstiftung v Unabhän-
giger Verwaltungssenat des Landes Vorarlberg on the following
questions:

1. Are Article 12 EC (ex Article 6 of the EC Treaty) and
Article 56 EC et seq. (ex Article 73b et seq. of the EC
Treaty) to be interpreted as meaning that rules whereby
transactions in agricultural and forestry plots are subject
to restrictions imposed by the administrative authorities
in the public interest of preserving, strengthening or
creating a viable farming community are also permitted
in relation to Member States of the EEA as ‘third countries’
under Article 56(1) EC (ex Article 73b of the EC Treaty)
having regard to the fundamental freedoms guaranteed
by an applicable law of the European Union, in particular
the free movement of capital?

2.

In the event that the first question is answered in the
affirmative:

Are Article 12 EC (ex Article 6 of the EC Treaty) and
Article 56 EC et seq. (ex Article 73b et seq. of the EC
Treaty) to be interpreted as meaning that the fact that the
appellant must, in the case of transfers of agricultural and
forestry plots, undergo an ‘authorisation procedure’ even
before the property right is entered in the land register,
pursuant to the (Voralberg) Gesetz über den Verkehr mit
Grundstücken (Land Transfer Law — VGVG 1993)
published in Voralberg LGBl. No 61/1993, entails an
infringement of Community law and of one of the
appellant’s fundamental freedoms guaranteed by the law
of the European Union, which is also applicable to
Member States of the EEA as ‘third countries’ under
Article 56(1) EC (ex Article 73b of the EC Treaty)?

(Case C-455/01)

(2002/C 84/68)

An action against the Italian Republic was brought before
Court of Justice on 27 November 2001 by the Commission of
the European Communities, represented by Richard B. Wain-
wright and Roberto Amorosi, acting as Agents.

The applicant claims that the Court of Justice should:

— Declare that, by keeping in force legislation under which
products in respect of which there has not yet been full
harmonisation,
intended for use on merchant vessels
flying the Italian flag, may be marketed only if a certificate
of conformity has been issued by a national body — so
that in some cases the right to market the products is
enjoyed only by the grantee of the certificate — and by
not recognising the validity of
in
tests carried out
standards by bodies
accordance with international
officially recognised in the other Member States or States
signatory to the EEA Agreement, even where the relevant
information is made available to the competent authority
and it is clear from the certificates that the equipment
guarantees an equivalent degree of safety, the Italian
Republic has
its obligations under
failed to fulfil
Articles 28 and 30 of the Treaty;

— Order the Italian Republic to pay the costs.

Pleas and principal arguments

The slavish application — when not justified by overriding
requirements — to goods lawfully produced and marketed in
other Member States of rules laid down for domestically
produced goods, and in particular the refusal to take account,
for the purposes of issuing ‘type approval declarations’, of
certificates accompanying such goods, even where they contain
the information needed to assess how safe they are, undoubt-
edly constitutes a measure having an effect equivalent to a
quantitative restriction on imports which is liable to hinder
intra-Community trade.

The foregoing is common ground. At issue is the measure
adopted by the Italian State in order to adjust its domestic
legislation to the principles laid down in Community law once