Judgment of the Court (Third Chamber) of 19 June 2003 in Case C-420/01: Commission of the European Communities v Italian Republic (Failure to fulfil obligations — Free movement of goods — Articles 28 EC and 30 EC — Prohibition on the marketing of energy drinks containing caffeine in excess of a certain limit — Public health — Retention of a national provision incompatible with Community law)
Date: 2003-08-02
Institutions: Court of Justice
Subjects: European Commission, Italy, action for failure to fulfil an obligation, beverage, market approval, public health

C 184/12

EN

Official Journal of the European Union

2.8.2003

JUDGMENT OF THE COURT

Bundesvergabekontrollkommission established by the Bundesgesetz über
die Vergabe von Aufträgen (Bundesvergabegesetz)
(Austrian Federal
Public Procurement Law) of 1997.

(Sixth Chamber)

of 19 June 2003

(1) OJ C 31 of 2.2.2002.

in Case C-410/01 (reference for a preliminary ruling from
the Bundesvergabeamt Wien): Fritsch, Chiari & Partner,
Ziviltechniker GmbH, and Others v Autobahnen- und
Schnellstraßen-Finanzierungs-AG (Asfinag) (1)

(Public procurement — Directive 89/665/EEC — Review
procedures relating to the award of public supply and public
works contracts — Article 1(3) — Persons to whom review
procedures are accessible — Definition of
in
obtaining a public supply contract’)

‘interest

JUDGMENT OF THE COURT

(Third Chamber)

of 19 June 2003

(2003/C 184/21)

in Case C-420/01: Commission of the European Commu-
nities v Italian Republic (1)

(Language of the case: German)

(Provisional translation; the definitive translation will be published in
the European Court Reports)

(Failure to fulfil obligations — Free movement of goods —
Articles 28 EC and 30 EC — Prohibition on the marketing
of energy drinks containing caffeine in excess of a certain
limit — Public health — Retention of a national provision
incompatible with Community law)

In Case C-410/01: reference to the Court under Article 234 EC
from the Bundesvergabeamt Wien (Austria) for a preliminary
ruling in the proceedings pending before that court between
Fritsch, Chiari & Partner, Ziviltechniker GmbH, and Others and
Autobahnen- und Schnellstraßen-Finanzierungs-AG (Asfinag) —
on the interpretation of Article 1(3) of Council Directive 89/
665/EEC of 21 December 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
(OJ 1989 L 395, p. 33), as
amended by Council Directive 92/50/EEC of 18 June 1992
relating to the coordination of procedures for the award of
public service contracts (OJ 1992 L 209, p. 1) — the Court
(Sixth Chamber), composed of: J.-P. Puissochet, President of the
Chamber, R. Schintgen (Rapporteur), V. Skouris, F. Macken and
J.N. Cunha Rodrigues,
J. Mischo, Advocate General;
M.-F. Contet, Principal Administrator, for the Registrar, gave a
judgment on 19 June 2003, the operative part of which is as
follows:

Judges;

Article 1(3) of Council Directive 89/665/EEC of 21 December 1989,
on the coordination of the laws, regulations and administrative provi-
sions relating to the application of review procedures to the award of
public supply and public works contracts, as amended by Council
Directive 92/50/EEC of 18 June 1992 relating to the coordination
of procedures for the award of public service contracts, precludes an
undertaking which has participated in a public procurement procedure
from being considered to have lost interest in obtaining that contract
on the ground that, prior to making an application for a review
procedure, it has failed to appeal to a conciliation body, such as the

(2003/C 184/22)

(Language of the case: Italian)

(Provisional translation; the definitive translation will be published in
the European Court Reports)

In Case C-420/01, Commission of the European Communities
(Agent: H. van Lier and R. Amorosi) v Italian Republic (Agent:
U. Leanza, assisted by Fiorilli): Application for a declaration
that, by applying to drinks produced and marketed in other
Member States a rule prohibiting the marketing in Italy of
energy drinks containing caffeine in excess of a certain limit,
without showing that that limit is necessary and proportionate
for the protection of public health, the Italian Republic has
failed to fulfil its obligations under Articles 28 EC and 30 EC,
J.-P. Puissochet,
the Court
President of
and
F. Macken (Rapporteur)
J. Mischo, Advocate General;
J.N. Cunha Rodrigues,
R. Grass, Registrar, has given a judgment on 19 June 2003, in
which it:

(Third Chamber), composed of:

the Chamber,

Judges;

1. Declares that, by applying to drinks produced and marketed in
other Member States a rule prohibiting the marketing in Italy
of energy drinks containing caffeine in excess of a certain limit,
without showing that that limit is necessary and proportionate
the Italian Republic has
for
failed to fulfil its obligations under Articles 28 EC and 30 EC;

the protection of public health,

2.8.2003

EN

Official Journal of the European Union

C 184/13

2. Orders the Italian Republic to pay the costs.

JUDGMENT OF THE COURT

(1) OJ C 31 of 2.2.2002.

JUDGMENT OF THE COURT

(Fifth Chamber)

of 26 June 2003

in Case C-422/01 (Reference for a preliminary ruling from
Skandia
the Regeringsrätten):

Försäkringsaktiebolaget

(publ), Ola Ramstedt v Riksskatteverket (1)

(Occupational endowment pension insurance — Policy taken
out with a company in another Member State — Difference
in tax treatment — Compatibility with Article 49 EC)

(2003/C 184/23)

(Fifth Chamber)

of 12 June 2003

in Case C-425/01: Commission of the European Commu-
nities v Portuguese Republic (1)

(Failure of a Member State to fulfil obligations — Incom-
plete transposition of Directive 89/391/EEC — Safety and
health of workers)

(2003/C 184/24)

(Language of the case: Portuguese)

(Provisional translation; the definitive translation will be published in
the European Court Reports)

In Case C-425/01, Commission of the European Communities
(Agents: H. Kreppel and M. França) v Portuguese Republic
(Agents: L. Fernandes and F. Ribeiro Lopes): Application for a
declaration that the Portuguese Republic has failed to fulfil its
obligations under Articles 4 and 10 to 12 of Council Directive
89/391/EEC of 12 June 1989 on the introduction of measures
to encourage improvements in the safety and health of workers
at work (OJ 1989 L 183, p. 1), the Court (Fifth Chamber),
the Chamber, C.W.
composed of: M. Wathelet, President of
A. Timmermans, P.
(Rapporteur) and
A. Rosas,
Judges; C. Stix-Hackl, Advocate General; R. Grass,
Registrar, has given a judgment on 12 June 2003, in which it:

Jann, S. von Bahr

1. Dismisses the action;

(Language of the case: Swedish)

2. Orders the Commission of the European Communities to pay

the costs.

(Provisional translation; the definitive translation will be published in
the European Court Reports)

(1) OJ C 348 of 8.12.2001.

In Case C-422/01: Reference to the Court under Article 234
EC by the Regeringsrätten (Sweden) for a preliminary ruling in
the proceedings pending before that court between Försäk-
ringsaktiebolaget Skandia (publ), Ola Ramstedt and Riksskatte-
verket, on the interpretation of the EC Treaty and Article 49
(Fifth Chamber), composed of:
EC in particular,
of
M. Wathelet
the Chamber,
President
C.W.A. Timmermans, A. La Pergola, P.
Jann and A. Rosas,
Judges; P. Léger, Advocate General; R. Grass, Registrar, has
given a judgment on 26 June 2003, in which it has ruled:

the Court
(Rapporteur),

Article 49 EC precludes an insurance policy issued by an insurance
company established in another Member State which meets
the
conditions laid down in national law for occupational pension insur-
ance, apart from the condition that the policy must be issued by an
insurance company operating in the national
from being
treated differently in terms of taxation, with income tax effects which,
depending on the circumstances in the individual case, may be less
favourable.

territory,

(1) OJ C 84 of 6.4.2002.

JUDGMENT OF THE COURT

(Fifth Chamber)

of 5 June 2003

in Case C-438/01 (Reference for a preliminary ruling from
the Cour de cassation): Design Concept SA v Flanders
Expo SA (1)

(Sixth VAT Directive — Article 9(2)(e) — Place of taxable
transactions — Fiscal connection — Advertising services)

(2003/C 184/25)

(Language of the case: French)

(Provisional translation; the definitive translation will be published in
the European Court Reports)

In Case C-438/01: Reference to the Court under Article 234
EC by the Cour de cassation (Luxembourg) for a preliminary
ruling in the proceedings pending before that court between