Case C-448/01: Reference for a preliminary ruling from the Bundesvergabeamt (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
Date: 2002-04-06
Institutions: Court of Justice
Subjects: award of contract, electrical energy, interpretation of the law, public contract, supplies contract

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