Case C-230/02: Reference for a preliminary ruling by the Bundesvergabeamt (Austria) by order of that Court of 14 May 2002 in the review procedure between Grossmann Air Service GmbH & Co KG and the Bund (Republic of Austria)
Date: 2002-09-14
Institutions: Court of Justice
Subjects: award of contract, interpretation of the law, supplies contract, tendering, works contract

C 219/2

EN

Official Journal of the European Communities

14.9.2002

Is a CD-ROM drive which is equipped with a jack for
headphones, a volume control button and a button to insert
and remove CDs, but which cannot by itself reproduce
graphics, audio, data and text, to be classified for the period
1 January 1995 to 21 November 1995 under heading
8521 90 00 in accordance with classification practice laid
down in Commission Regulation (EC) No 2564/95 (1), or
under heading 8471 93 51 in accordance with the classifi-
cation practice laid down in Commission Regulation (EC)
No 2491/96 (2) and the decision adopted by the Harmonized
System Committee of
the World Customs Organization
(Doc. 40.260 E and Doc. 40.600 E)?

( 1) Commission Regulation (EC) No 2564/95 of 27 October 1995
concerning the classification of certain goods in the combined
nomenclature (OJ L 262 of 1.11.1995, p. 25).

( 2) Commission Regulation (EC) No 2491/96 of 23 December 1996
amending Regulation (EEC) No 2658/87 on the tariff and
statistical nomenclature and on the Common Customs Tariff (OJ
L 338 of 28.12.1996, p. 14).

Question 2:

In the event that the answer given to Question 1 is no:

Is the abovementioned provision to be understood as meaning
that, if a tenderer’s bid is not eliminated by the contracting
authority, but the review body finds in the course of the review
procedure that the contracting authority would have been
bound to eliminate it, the tenderer has been or risks being
harmed by the infringement alleged by him — in this case the
finding by the contracting authority that a rival tenderer
submitted the best bid — and that he must therefore have the
right to bring a review procedure?

(1) OJ L 395 [1989], p. 33.

Reference for a preliminary ruling by the Bundesverga-
beamt by order of that Court of 14 May 2002 in the case
of 1. Tenderer: debis/AC, 2. ARGE Telekom & Partner, 3.
Tenderer: SIEMENS AUSTRIA CARD against Hauptver-
band der österreichischen Sozialversicherungsträger

Reference for a preliminary ruling by the Bundesverga-
beamt (Austria) by order of that Court of 14 May 2002 in
the review procedure between Grossmann Air Service
GmbH & Co KG and the Bund (Republic of Austria)

(Case C-229/02)

(2002/C 219/03)

(Case C-230/02)

(2002/C 219/04)

Reference has been made to the Court of Justice of the
European Communities by order of the Bundesvergabeamt
(Federal Public Procurement Office) of 14 May 2002, received
at the Court Registry on 20 June 2002, for a preliminary ruling
in the case of 1. Tenderer: debis/AC, 2. ARGE Telekom
& Partner, 3. Tenderer: SIEMENS AUSTRIA CARD against
Hauptverband der österreichischen Sozialversicherungsträger
on the following questions:

Question 1:

Reference has been made to the Court of
Justice of the
European Communities by order of the Bundesvergabeamt
(Federal Public Procurement Office) of , received at the Court
Registry on 20 June 2002, for a preliminary ruling in the
review procedure between Grossmann Air Service GmbH &
Co KG and the Bund (Republic of Austria) on the following
questions:

Question 1:

Is Article 1(3) of Council Directive 89/665/EEC of 21 Decem-
ber 1989 (1) on the coordination of the laws, regulations and
administrative provisions relating to the application of review
procedures to the award of public supply and public works
contracts to be interpreted as meaning that any person seeking
the award of a specific pending public contract is entitled to
institute a review procedure?

Is Article 1(3) of Council Directive 89/665/EEC (1) of
21 December 1989 on the coordination of the laws, regu-
lations and administrative provisions relating to the application
of review procedures to the award of public supply and public
works contracts to be interpreted as meaning that the review
procedure must be available to any undertaking which has
submitted a bid, or applied to participate, in a public procure-
ment procedure?

14.9.2002

EN

Official Journal of the European Communities

C 219/3

In the event that the answer to Question 1 is no:

Question 2:

Question 2:

Is the abovementioned provision to be understood as meaning
that an undertaking only has or had an interest in a particular
public contract if — in addition to its participating in the
public procurement procedure — it takes all steps available to
it under national
law to prevent the contract from being
awarded to another bidder?

Question 3:

in conjunction with Article 2(1)

Is Article 1(3) of Council Directive 89/665/EEC of 21 Decem-
ber 1989 on the coordination of the laws, regulations and
administrative provisions relating to the application of review
procedures to the award of public supply and public works
contracts,
thereof, to be
interpreted as meaning that an undertaking must be afforded
the opportunity in law to seek review of an award procedure
regarded by it as unlawful or discriminatory even where it is
not capable of performing the totality of the services for which
bids were invited and, for that reason, did not submit a bid in
that award procedure.

( 1) OJ L 395 [1989], p. 33.

In the event that the answer to Question 1 is no:

Is the abovementioned provision of
the Directive to be
construed in such a way that — where a bid was eliminated
otherwise than in accordance with the law but the review body
in the course of its review procedure assumes and establishes
as a preliminary matter that the bid had properly to be
eliminated — the tenderer of that bid is entitled to bring an
application in respect of an alleged infringement of the law —
in the present case the contracting authority’s decision to make
the award to another bidder — because owing to the
contracting authority’s defective award procedure the applicant
may in any event be presumed to have suffered loss and
errors in the award procedure can no longer be remedied
subsequently in the review procedure by substitution of
decisions of the contracting authority, and the review pro-
cedure must therefore be available to the applicant?

(1) OJ L 395 [1989], p. 33.

Reference for a preliminary ruling by the Bundesverga-
beamt (Republic of Austria) by order of that Court of
14 May 2002 in the case of Neumayer Bau Ges.m.b.H
against Abwasserverband Grossraum Bruck an der Leitha
— Neusiedl/See

Reference for a preliminary ruling by the korkein hallinto-
oikeus by order of that Court of 1st July 2002 in the
appeal brought by Kauppatalo Hansel Oy

(Case C-231/02)

(2002/C 219/05)

(Case C-244/02)

(2002/C 219/06)

Reference has been made to the Court of Justice of the
European Communities by order of the Bundesvergabeamt
(Republic of Austria) of 14 May 2002, received at the Court
Registry on 20 June 2002, for a preliminary ruling in the
case of Neumayer Bau Ges.m.b.H against Abwasserverband
Grossraum Bruck an der Leitha — Neusiedl/See on the
following questions:

Question 1:

Is Article 1(3) of Council Directive 89/665/EEC of 21 Decem-
ber 1989 on the coordination of the laws, regulations and
administrative provisions relating to the application of review
procedures to the award of public supply and public works
contracts (1) to be broadly interpreted as meaning that under it
entitlement to apply for a review procedure must be available
to any person seeking to receive a specific public contract
whose award is pending, irrespective of whether such person
has suffered or may suffer loss as a result of the alleged
infringement of the law?

Reference has been made to the Court of
Justice of the
European Communities by order of the korkein hallinto-
oikeus (Supreme Administrative Court) of 1st
July 2002,
received at the Court Registry on 4 July 2002, for a preliminary
ruling in the appeal brought by Kauppatalo Hansel Oy on the
following questions:

1.

Is Council Directive 93/36/EEC (1) of 14 June 1993
coordinating procedures for the award of public supply
contracts to be interpreted as meaning that a contracting
authority which has commenced a tender procedure on
the lowest price may discontinue the
the basis of
procedure without awarding a contract when it discovers
after examining and comparing the tenders that because
of the content of the invitation to tender it is not possible
for it to award a contract on the basis of the invitation to
tender in question in the most advantageous way from
the point of view of total costs?