Case C-447/01: Reference for a preliminary ruling from the Landesgericht für Zivilrechtssachen, Vienna, by order of that court of 5 November 2001 in the case of DLD Trading Company Import-Export, spol.s.r.o. v Republic of Austria
Date: 2002-04-06
Institutions: Court of Justice
Subjects: VAT, customs duties, excise duty, interpretation of the law, quantitative restriction, tobacco

6.4.2002

EN

Official Journal of the European Communities

C 84/37

the Bundesverwaltungsgericht (Federal Administrative Court),
which was received at the Court Registry on 19 November
2001, for a preliminary ruling in the case of Stadt Villingen-
Schwenningen v Ophilia Akosua Owusu on the following
questions:

Giudice Unico del Tribunale di Beilla (Single-Judge Court of
Beilla), which was received at the Court Registry on 19 Novem-
ber 2001, for a preliminary ruling in the case of Roberto
Simoncello and Piera Boerio v Direzione Provinciale del lavoro
(Vercelli) on the following question:

1. With regard to the legal position on 16 May 1997, was
prostitution engaged in on a self-employed basis by a
national of Member State A in Member State B covered
by freedom of establishment (Article 52 of the EC Treaty)
and/or freedom to provide services (Article 59 of the
EC Treaty)? Is it in this regard relevant whether prosti-
tution was at that time considered in Member State B to
be immoral and anti-social?

2.

If the first question is answered in the negative:

With regard to the legal position on 16 May 1997, did
the national of Member State A derive a right to reside in
Member State B directly from Article 8a of the EC Treaty?

3.

If the second question is answered in the negative:

As the law stood on 16 May 1997, did that person have
a right of residence under the conditions set out in
Article 1 of Council Directive 90/364/EEC (1) of 28 June
1990 on the right of residence, even though Member
State B had not yet at that date implemented that directive
in its domestic law?

4.

If the third question is answered in the affirmative:

Was that person required at the time of her entry to have
sufficient resources and to demonstrate this to the
competent authority, or does it suffice if, during her
period of residence in Member State B, she did not claim
any social assistance?

(1) OJ L 180, p. 26.

Reference for a preliminary ruling by the Giudice Unico
del Tribunale di Beilla by order of 18 October 2001 in
case of Roberto Simoncello and Piera Boerio v Direzione
Provinciale del Lavoro, Vercelli (Principal Labour Admin-
istration, Vercelli)

(Case C-445/01)

(2002/C 84/63)

Are Article 9 bis (2) of Law No 608 of 28 November 1996, in
so far as it provides that an employer is required to notify the
Sezione Circoscrizionale per l’Impiego of the hiring of every
worker, and Article 10 of Legislative Decree No 469 of
23 December 1997, in so far as it refers to Article 9 bis of Law
608/1996 in cases where non-authorised parties have acted as
intermediaries, consistent with the principles of Community
law laid down by Articles 48, 52 and 90 of the EC Treaty
(now, after amendment, Articles 39, 43, and 86 EC).

Reference for a preliminary ruling from the Landesgericht
für Zivilrechtssachen, Vienna, by order of that court of
5 November 2001 in the case of DLD Trading Company
Import-Export, spol.s.r.o. v Republic of Austria

(Case C-447/01)

(2002/C 84/64)

Reference has been made to the Court of Justice of the
European Communities by an order of the Landesgericht für
Zivilrechtssachen (Regional Court for Civil Matters), Vienna,
of 5 November 2001, which was received at the Court Registry
on 20 November 2001, for a preliminary ruling in the case of
OLD Trading Company Import-Export, spol.s.r.o. v Republic
of Austria on the following questions:

1. Was a provision of directly applicable Community law or
a directive infringed and, if so, which one, as a result of
the government action described in the facts, in particular
the alteration as from 1 January 1998 of the travellers’
duty-free amount to EUR 75 or EUR 100, according to
customs
the
implementing law [ZollR-DG] in conjunction with Para-
graph 19a of the corresponding implementing regulation
[ZollR-DV] and the quantitative restriction in regard to
the relief from turnover tax and excise duty on tobacco
products.

case under Paragraph 97a of

the

Reference has been made to the Court of Justice of the
European Communities by order of 18 October 2001 of the

Is the infringed provision of directly applicable Com-
munity law or of that directive one which confers an
individual right on the plaintiff in the main proceedings?

2.

If Question 1 is answered affirmatively:

C 84/38

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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