Case C-209/03: Reference for a preliminary ruling by the High Court of Justice (England and Wales), Queen's Bench Division (Administrative Court) by order of that court dated 12 February 2003, in the case of The Queen on the application of Dany Bidar against 1) London Borough of Ealing 2) Secretary of State for Education
Date: 2003-07-19
Institutions: Court of Justice
Subjects: discrimination on the basis of nationality, education grant, higher education, interpretation of the law, school fees, student

19.7.2003

EN

Official Journal of the European Union

C 171/13

same time infringed all three principles upheld by the Court in
regard to the recovery of charges levied by the Member States
in breach of Community law, that is to say not only the
principle of equivalence and the maintenance of the effects of
judgments of the Court declaring a charge incompatible with
Community law but also the principle of effectiveness.

which requires all the Member States to introduce into their
respective national systems review procedures full available to
those who intend to seek reparation of damage suffered or
who in any event fear that they may suffer harm as a result of
a decision taken by the tenders committee for the award of a
public procurement contract?

( 1) OJ English Special Edition 1969 II, p. 412.

Reference for a preliminary ruling by the Tribunale
Amministrativo Regionale per la Lombardia — Sezione
Staccata di Brescia by order of that Court of 24 April
2003 in the case of Società DAC S.p.A. against Azienda
Ospedaliera ‘Spedali Civili’, Brescia; the third party being
Pellegrini S.p.A

(Case C-202/03)

(2003/C 171/18)

Reference has been made to the Court of Justice of the
European Communities by order of the Tribunale Amministra-
tivo Regionale per la Lombardia - Sezione Staccata di Brescia
(Regional Administrative Court for Lombardy, Brescia Div-
ision) of 24 April 2003, received at the Court Registry on
13 May 2003,
for a preliminary ruling in the case of
Società DAC S.p.A. against Azienda Ospedaliera ‘Spedali Civili’,
Brescia; the third party being Pellegrini S.p.A. on the following
questions:

Is the judicial protection provided in respect of claims based
on Community law, which may be granted by the national
administrative courts in procurement contract proceedings,
and which differs from that provided in the national legal
order in respect of rights recognised in disputes between
private persons or in disputes between the latter and the public
authorities over which the ordinary courts have jurisdiction,
contrary to the principle of cooperation enshrined in
Article 10 EC, which,
in the absence of any harmonised
procedural system, requires that claims based on Community
law must be afforded the same form of protection as claims
based on national
law, rather than relief which is purely
interlocutory and therefore less effective compared to the
protection afforded generally in respect of rights under national
law?

Furthermore,
in so far as it does not provide, among the
interim measures available, for the possibility of introducing
an application for interim relief ante causam, seeking an order
restraining the authorities forthwith from concluding the
contract at the end of a. tendering procedure, quite irrespective
of whether or not an action challenging an act
in that
procedure has already been brought, does Article 21 of Law
No 1034 of 6 December 1971, as amended by Law No 205
of 21 July 2000, constitute sufficient implementation of
Article 1(3) of Directive 98/665/EEC (1) of 21 December 1989,

Does that interim relief which may be granted by the national
administrative courts constitute infringement of Article 2(1)(a)
of the Directive, which requires the Member States to take at
the earliest opportunity and by way of interlocutory pro-
cedures,
interim measures with the aim of correcting the
alleged infringement or preventing further damage to the
interests concerned,
including measures to suspend or to
ensure the suspension of the procedure for the award of a
public contract or the implementation of any decision taken
by the contracting authority?

Finally, does that form of interim relief also constitute breach
of Article 6(2) TEU which, in providing that the Union must
respect fundamental rights, as guaranteed by the European
Convention for the Protection of Human Rights and Funda-
mental Freedoms, has adopted the principle laid down in
Articles 6 and 13 of that Convention that judicial protection
must be effective, requiring the Member States to guarantee
that full effectiveness in their respective national legal systems?

(1) OJ L 395, 30.12.1989, p. 33.

Reference for a preliminary ruling by the High Court of
Justice (England and Wales), Queen’s Bench Division
(Administrative Court) by order of that court dated
12 February 2003, in the case of The Queen on the
application of Dany Bidar against 1) London Borough of
Ealing 2) Secretary of State for Education

(Case C-209/03)

(2003/C 171/19)

Justice of the
Reference has been made to the Court of
the High Court
European Communities by an order of
of
Justice (England and Wales), Queen’s Bench Division
(Administrative Court), dated 12 February 2003, which was
received at the Court Registry on 15 May 2003,
for a
preliminary ruling in the case of The Queen on the application
of Dany Bidar against 1) London Borough of Ealing 2) Secretary
of State for Education on the following questions:

C 171/14

EN

Official Journal of the European Union

19.7.2003

1. Whether, given the decisions of the Court of Justice of
the European Communities in case C-39/86 Lair v
Universität Hannover [1988] ECR 3161, and case C-189/
97 Brown v Secretary of State for Scotland [1988] ECR
3205, and developments in the law of the European
Union, including the adoption of Article 18 EC and
developments in relation to the competence of the
European Union in the field of education, assistance
with maintenance costs for students attending university
courses, such assistance being given by way of either
(a) subsidised loans or (b) grants, continues to fall outside
the scope of the application of the EC Treaty for the
purposes of Article 12 EC and the prohibition on
discrimination on grounds of nationality.

2.

3.

If either part of question 1 is answered in the negative,
and if assistance with maintenance costs for students in
the form of grants or loans do now fall within the scope
of Article 12 EC, what criteria should the national court
apply in determining whether the conditions governing
eligibility for such assistance are based on objectively
justifiable considerations not dependent on nationality?

If either part of question 1 is answered in the negative,
whether Article 12 EC may be relied upon to claim
entitlement to assistance with maintenance costs from a
date prior to the date of the judgment of the Court of
Justice in the present case and, if so, whether an exception
should be made for those who initiated legal proceedings
before that date?

erty), to be interpreted as precluding national legislation
which prohibits any person from supplying, offering or
agreeing to supply, exposing for supply or possessing for
supply any product made wholly or partly of tobacco
which is either in powder or particulate form or any
combination of those forms or is presented in a form
resembling a food product and is intended for oral use
other than smoking or chewing?

(2)

Is Article 8 of Directive 2001/37/EC (1) invalid in whole
or in part by reason of:

a.

infringement of the principle of non-discrimination;

b.

Infringement of Article 23 and/or 29 EC;

c.

infringement of the principle of proportionality;

d.

the inadequacy of Article 95 and/or Article 133 as a
legal basis;

e.

infringement of Article 95(3);

f. misuse of powers;

Reference for a preliminary ruling by the High Court of
Justice (England and Wales), Queen’s Bench Division
(Administrative Court) by order of that court dated
17 April 2003, in the case of The Queen on the application
of 1) Swedish Match AB 2) Swedish Match UK Ltd against
Secretary of State for Health

g.

infringement of Article 253 EC and/or the duty to
give reasons;

h.

infringement of the fundamental right to property?

(Case C-210/03)

(2003/C 171/20)

Reference has been made to the Court of Justice of the
European Communities by an order of
the High Court
of
Justice (England and Wales), Queen’s Bench Division
(Administrative Court), dated 17 April 2003, which was
for a
received at the Court Registry on 15 May 2003,
preliminary ruling in the case of The Queen on the application
of 1) Swedish Match AB 2) Swedish Match UK Ltd against
Secretary of State for Health on the following questions:

(1) Are Articles 28-30 EC, applied compatibly with the
general principles of proportionality, non-discrimination
and fundamental rights (in particular the right to prop-

(3)

In circumstances where:

a.

b.

a national measure implementing Article 8a of
Directive 89/622/EEC (2) was adopted in 1992;

the said national measure was adopted pursuant to
powers in domestic law which do not depend on
the existence of an obligation to implement the
Directive;

c. Directive 89/622/EEC (as subsequently amended by
the Act of Accession of Austria, Finland and Sweden)
is repealed and replaced by Directive 2001/37/EC,
Article 8 of which re-enacts Article 8a of Directive
89/622/EEC; and