Judgment of the Court (Sixth Chamber) of 19 June 2003 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) (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 "interest in obtaining a public supply contract")
Date: 2003-08-02
Institutions: Court of Justice
Subjects: administrative transparency, entrepreneur, interpretation of the law, right of action, supplies contract, works contract

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,