Case C-212/02: Action brought on 5 June 2002 by the Commission of the European Communities against the Republic of Austria
Date: 2002-07-27
Institutions: Court of Justice
Subjects: Austria, action for failure to fulfil an obligation, award of contract, contract, public contract

27.7.2002

EN

Official Journal of the European Communities

C 180/15

The Applicant claims that the Court should:

The applicant claims that the Court should:

(1) declare that by failing to adopt for Gibraltar all the laws,
regulations or administrative provisions necessary to
comply with Council Directive 97/43/Euratom (1) of
30 June 1997 on health protection of individuals against
the dangers of ionizing radiation in relation to medical
exposure, and repealing Directive 84/466/Euratom, or in
any event by failing to communicate them to the
Commission, the United Kingdom has failed fully to fulfil
its obligations under that Directive.

(2) order the United Kingdom to pay the costs.

1. Declare that, by failing to adopt all the laws, regulations
and administrative provisions necessary to comply with
Directive 97/66/EC of the European Parliament and of
the Council of 15 December 1997 concerning the
processing of personal data and the protection of privacy
in the telecommunications sector (1), the Grand Duchy of
Luxembourg has failed to fulfil its obligations under that
directive;

2. Order the Grand Duchy of Luxembourg to pay the costs.

Pleas in law and main arguments

Pleas in law and main arguments

According to Article 192(1) of the Treaty, Member States shall
take all appropriate measures, whether general or particular,
to ensure fulfilment of the obligations arising out of this Treaty
or resulting from action taken by the institutions of the
Community.

The obligation on the part of the United Kingdom to take
measures in order to comply with the directive is not disputed.

Since the United Kingdom has not informed the Commission
of
the provisions adopted to comply with the directive
concerned with regard to Gibraltar, and since the Commission
is in possession of no other information enabling it to conclude
that the United Kingdom has adopted the necessary provisions,
it is compelled to assume that the United Kingdom has not yet
adopted such provisions and has thus failed to fulfil
its
obligations under the directive.

(1) JO L 180 of 9.7.1997, p. 22.

Action brought on 4 June 2002 by the Commission of the
European Communities against the Grand Duchy of
Luxembourg

(Case C-211/02)

(2002/C 180/25)

An action against the Grand Duchy of Luxembourg was
brought before the Court of Justice of the European Communi-
ties on 4 June 2002 by the Commission of the European
Communities, represented by C. Schmidt, acting as Agent,
with an address for service in Luxembourg.

The period prescribed for transposition expired on 24 October
1998 and 24 October 2000 (as regards Article 5 of the
directive), respectively.

(1) OJ L 24 of 30.1.1998, p. 1.

Action brought on 5 June 2002 by the Commission of the
European Communities against the Republic of Austria

(Case C-212/02)

(2002/C 180/26)

An action against the Republic of Austria was brought before
the Court of Justice of the European Communities on 5 June
2002 by the Commission of the European Communities,
represented by Michel Nolin, of
the Commission’s Legal
Service, acting as Agent, assisted by Rainer Roniger, Rechtsan-
walt, of Haarmann and Hemmelrath, Brussels, having an
address for service at the office of Luis Escobar Guerrero, of
the Commission’s Legal Service, Centre Wagner C 254.

The applicant claims that the Court should:

1.

Rule that the Republic of Austria has failed to fulfil its
obligations under the remedial Directives 89/665/EEC (1)
and 92/13/EEC (2),
in particular the obligations under
Articles 2(1)(a) and (b) thereof, since the Land procure-
ment laws of the Länder of Salzburg, Steiermark, Niederös-
terreich and Kärnten do not ensure in all cases that the
award decision is open to review in a procedure whereby
an unsuccessful tenderer can have that decision set aside;

C 180/16

EN

Official Journal of the European Communities

27.7.2002

2. Order the Republic of Austria to pay the costs.

Reference for a preliminary ruling by the Unabhängiger
Verwaltungssenat des Landes Vorarlberg by order of that
Court of 6 June 2002 in the appeal brought by Gerhard
Lintschinger

Pleas in law and main arguments

The Land legislatures in Salzburg, Steiermark, Niederösterreich
and Kärnten have decided to limit the effects of a review
procedure following the conclusion of a contract to awarding
damages within the meaning of Article 2(6) of Directives 89/
665/EEC and 92/13/EEC. With the award, to be considered as
a private law declaration of intent, by the contracting authority
to the successful tenderer, the contract is closed and, according
laws — in
to the provisions of
conformity with Article 2(6) of both directives — no longer
open to challenge by the Land bodies responsible for review
procedures.

the Land procurement

The Land procurement laws which the Commission is challeng-
ing do not, however, contain a definition of the ‘award
decision’. They therefore also do not lay down any specific
form for the decision by the contracting authority to award a
particular tenderer the contract. Nor are uniform rules laid
down as to whether, and how, tenderers can obtain knowledge
of such award decisions. The award decision is rather an
internal decision by the contracting authority, of which
tenderers cannot acquire any knowledge. The award decision
becomes public knowledge only once the contract is con-
cluded.

The Austrian system is therefore not in compliance with the
directive inasmuch as, through that nomination as well as
through the coincidence of
the award decision and the
conclusion of the contract, the tenderer is deprived of any
chance to contest the award decision and effectively to prevent
an unlawful award decision by applying at the same time for a
provisional order. That is contrary to the effective review
procedures required by the directives, under which it must be
possible to apply for a provisional order at least until the
conclusion of the contract.

As a consequence of the Court’s judgment in Case C-81/
98 Alcatel (3), the Austrian Federal Chancellery prepared a
memorandum intended to ensure an approach to contract
awards in compliance with that judgment until statutory
regulations have been issued. However, a non-binding memor-
andum does not establish an unequivocal legal framework
such as the Republic of Austria is required to create.

(1) OJ 1989 L 395, p. 33.
(2) OJ 1992 L 76, p. 14.
(3) OJ 2000 C 34, p. 6.

(Case C-214/02)

(2002/C 180/27)

Reference has been made to the Court of Justice of the
European Communities by order of the Unabhängiger Verwal-
tungssenat des Landes Vorarlberg (Independent Administrative
Chamber of the Land Vorarlberg) of 6 June 2002, received at
the Court Registry on 10 June 2002, for a preliminary ruling
in the appeal brought by Gerhard Lintschinger on the following
questions:

1. Does Article 2(1)(b) of Council Directive 79/112/EEC (1)
of 18 December 1978 on the approximation of the
laws of the Member States relating to the labelling,
presentation and advertising of foodstuffs for sale to
the ultimate consumer (now consolidated in European
Parliament
and Council Directive 2000/13/EC of
20 March 2000 — OJ 2000 L 109, p. 29), under which
— subject to Community provisions applicable to natural
mineral waters and to foodstuffs for particular nutritional
uses — the labelling and methods used may not attribute
to any foodstuff the property of preventing, treating or
curing a human disease, or suggest that it possesses such
properties, preclude national legislation which makes it
an offence when marketing foodstuffs:

(a)

to refer to physiological or pharmacological effects,
in particular those which preserve youthfulness,
inhibit signs of ageing, promote slimming or main-
tain health, or to create the impression of any such
effect;

(b)

to refer to case-histories, recommendations made by
doctors or medical experts’ reports;

(c)

to use health-related, pictorial or stylised represen-
tations of organs of the human body, pictures
of members of the health-care professions or of
sanatoria or other pictures or illustrations referring
to health-care activities?