Case C-214/02: 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
Date: 2002-07-27
Institutions: Court of Justice
Subjects: advertising, consumer information, consumer protection, foodstuff, interpretation of the law, labelling, marketing

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?

27.7.2002

EN

Official Journal of the European Communities

C 180/17

2. Do Directive 79/112/EEC or Articles 28 and 30 EC
preclude a national provision which, on the placing into
circulation of foodstuffs, permits health-related infor-
mation such as that described in Question (1) to be
affixed thereto only after prior authorisation by the
competent
federal minister, whereby a condition of
authorisation is that the health-related information is
consistent with protecting the consumer from being
misled?

(1) OJ L 33, p. 1.

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

Since the United Kingdom has not informed the Commission
of the provisions adopted to comply with the directive 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) OJ L 159 of 29.6.1996, p. 1.

Action brought on 12 June 2002 by the Commission of
the European Communities against the United Kingdom
of Great Britain and Northern Ireland

(Case C-218/02)

(2002/C 180/28)

An action against the United Kingdom of Great Britain and
Northern Ireland was brought before the Court of Justice of
the European Communities on 12 June 2002 by the Com-
mission of the European Communities, represented by Thomas
Cusack, acting as agent, with an address for service in
Luxembourg.

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 96/29/Euratom (1) of
13 May 1996 laying down basic safety standards for the
protection of the health of workers and the general public
against the dangers arising from ionizing radiation in its
whole territory, 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.

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 the Treaty
or resulting from action taken by the institutions of the
Community.

Action brought on 14 June 2002 by the Commission of
the European Communities against the French Republic

(Case C-221/02)

(2002/C 180/29)

An action against the French Republic was brought before the
Court of Justice of the European Communities on 14 June
2002 by the Commission of the European Communities,
represented by D. Martin and M. França, acting as Agent, with
an address for service in Luxembourg.

The applicant claims that the Court should:

— Declare that, by failing to adopt and bring into force
within the prescribed period the laws, regulations and
administrative provisions necessary to comply with
Directive 98/7/EC of the European Parliament and of the
Council of 16 February 1998 amending Directive 87/
102/EEC for the approximation of the laws, regulations
and administrative provisions of
the Member States
concerning consumer credit (1), or, in any event, by failing
to communicate such provisions to the Commission, the
French Republic has failed to fulfil its obligations under
that directive;