Judgment of the Court (Sixth Chamber) of 19 June 2003 in Case C-315/01 (reference for a preliminary ruling from the Bundesvergabeamt Wien): Gesellschaft für Abfallentsorgungs-Technik GmbH (GAT) v Österreichische Autobahnen- und Schnellstraßen- AG (ÖSAG) (Public procurement — Directive 89/665/EEC — Review procedures relating to the award of public supply and public works contracts — Power of the review body to examine any infringement of its own motion — Directive 93/36/EEC — Procedures for the award of public supply contracts — Eligibility criteria — Award criteria)
Date: 2003-08-02
Institutions: Court of Justice
Subjects: administrative transparency, appeal to an administrative authority, award of contract, interpretation of the law, supplies contract, works contract

2.8.2003

EN

Official Journal of the European Union

C 184/9

the Sixth Council
On a proper construction of Article 13B(b) of
Directive (77/388/EEC) of 17 May 1977 on the harmonisation of
the laws of the Member States relating to turnover taxes — Common
system of value added tax: uniform basis of assessment, the grant, by
the owner of premises to an owner of a cigarette vending machine, of
the right to install the machine, and to operate and maintain it in the
premises for a period of two years, in a place nominated by the owner
of the premises, in return for a percentage of the gross profits on the
sales of cigarettes and other tobacco goods in the premises, but with no
rights of possession or control being granted to the owner of
the
machine other than those expressly set out in the agreement between
the parties, does not amount to a letting of immovable property within
the meaning of that provision.

(1) OJ C 289 of 13.10.2001.

JUDGMENT OF THE COURT

(Sixth Chamber)

of 26 June 2003

in Case C-305/01 (Reference for a preliminary ruling from
the Bundesfinanzhof): Finanzamt Groß-Gerau v MKG-
Kraftfahrzeuge-Factory GmbH (1)

(Value added tax — Sixth Directive 77/388/EEC — Field of
application — Factoring — Factoring company purchasing
debts and assuming the risk of the debtors' default)

(2003/C 184/16)

(Language of the case: German)

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

In Case C-305/01: Reference to the Court under Article 234
EC by the Bundesfinanzhof (Germany) for a preliminary ruling
in the proceedings pending before that court between Finanz-
amt Groß-Gerau and MKG-Kraftfahrzeuge-Factory GmbH, on
the interpretation of certain provisions of the Sixth Council
Directive (77/388/EEC) of 17 May 1977 on the harmonisation
of the laws of the Member States relating to turnover taxes —
Common system of value added tax: uniform basis of assess-
(Sixth Chamber),
ment
composed of:
the Chamber,
J.-P. Puissochet, President of
R. Schintgen (Rapporteur), C. Gulmann, F. Macken and
J.N. Cunha Rodrigues,
Jacobs, Advocate General;
L. Hewlett, Principal Administrator, for the Registrar, has given
a judgment on 26 June 2003, in which it has ruled:

(OJ 1977 L 145, p. 1),

Judges; F.G.

the Court

1. On a proper construction of the Sixth Council Directive (77/
388/EEC) of 17 May 1977 on the harmonisation of the laws
of the Member States relating to turnover taxes — Common
system of value added tax: uniform basis of assessment, a
business which purchases debts, assuming the
the
invoices its clients in
debtors' default, and which,
respect of
the
purposes of Articles 2 and 4 of that directive, so that it has
the status of taxable person and thus enjoys the right to deduct
tax under Article 17 thereof.

in return,
commission pursues an economic activity for

risk of

2. An economic activity by which a business purchases debts,
assuming the risk of the debtors' default, and, in return, invoices
its clients in respect of commission, constitutes ‘debt collection
and factoring’ within the meaning of
clause of
the
the Sixth Directive (77/388) and is
Article 13B(d)(3) of
therefore
exemption laid down by that
provision.

excluded from the

final

(1) OJ C 56 of 2.3.2002.

JUDGMENT OF THE COURT

(Sixth Chamber)

of 19 June 2003

in Case C-315/01 (reference for a preliminary ruling from
the Bundesvergabeamt Wien): Gesellschaft für Abfallent-
sorgungs-Technik GmbH (GAT) v Österreichische Auto-
bahnen- und Schnellstraßen- AG (ÖSAG) (1)

(Public procurement — Directive 89/665/EEC — Review
procedures relating to the award of public supply and public
works contracts — Power of the review body to examine any
infringement of its own motion — Directive 93/36/EEC —
the award of public supply contracts —
Procedures for

Eligibility criteria — Award criteria)

(2003/C 184/17)

(Language of the case: German)

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

In Case C-315/01: 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
für Abfallentsorgungs-Technik GmbH (GAT) and
Gesellschaft

C 184/10

EN

Official Journal of the European Union

2.8.2003

Österreichische Autobahnen- und Schnellstraßen- AG (ÖSAG)
— on the interpretation 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 coordina-
tion of procedures for the award of public service contracts (OJ
1992 L 209, p. 1), and Council Directive 93/36/EEC of 14 June
1993 coordinating procedures for the award of public supply
contracts (OJ 1993 L 199, p. 1) — the Court (Sixth Chamber),
composed of:
the Chamber,
J.-P. Puissochet, President of
R. Schintgen (Rapporteur), V. Skouris, F. Macken and J.N. Cunha
Rodrigues,
Judges; 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:

1.

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, does not preclude that, in the context of an applica-
tion brought by a tenderer seeking a declaration, for the purpose
of subsequently obtaining damages, that the decision awarding a
public supply contract was unlawful, the review body should, of
its own motion, take account of the unlawfulness of a decision
than the decision being
of
that directive
contested by that
precludes dismissal by the
the application
brought by the tenderer on the ground that, as a result of the
unlawfulness raised ex proprio motu,
the award procedure
was in any event tainted and the tenderer would none the
the
less have been harmed, even in the absence of
unlawfulness alleged by him.

tenderer. On the other hand,

contracting authority other

review body of

the

the award of public

2. Directive 93/36/EEC of 14 June 1993 coordinating procedures
for
supply contracts prohibits a public
contracting authority conducting public supply contract award
procedures from taking account of
references
relating to the products offered by tenderers to other clients not
as proof of
to satisfy an award
criterion.

the tenderers' suitability but

the number of

3. Directive 93/36 precludes,

in the context of a public supply
contract, that the requirement that there should be an opportu-
nity to inspect the subject of the invitation to tender within a
300 kilometre radius of the authority issuing the invitation to
tender should serve as an award criterion.

JUDGMENT OF THE COURT

(Fifth Chamber)

of 12 June 2003

Unabhängiger

in Case C-316/01 (Reference for a preliminary ruling from
the
Eva
Glawischnig v Bundesminister für soziale Sicherheit und
Generationen (1)

Verwaltungssenat Wien):

(Freedom of access to information — Information relating to
the environment — Directive 90/313/EEC — Breaches of the
rules on labelling of foodstuffs produced from genetically
modified organisms)

(2003/C 184/18)

(Language of the case: German)

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

In Case C-316/01: Reference to the Court under Article 234
EC by the Unabhängiger Verwaltungssenat Wien (Austria) for a
preliminary ruling in the proceedings pending before that
court between Eva Glawischnig and Bundesminister für soziale
Sicherheit und Generationen, on the interpretation of Article 2
(a) of Council Directive 90/313/EEC of 7 June 1990 on the
freedom of access to information on the environment
(OJ
1990 L 158, p. 56), the Court (Fifth Chamber), composed of:
the Chamber, D.A.O. Edward
M. Wathelet, President of
(Rapporteur), A. La Pergola, P.
Judges;
A. Tizzano, Advocate General; M.-F. Contet, Principal Admin-
istrator, for the Registrar, has given a judgment on 12 June
2003, in which it has ruled:

Jann and A. Rosas,

is

environment

to information on the

Article 2(a) of Council Directive 90/313/EEC of 7 June 1990 on the
freedom of access
to be
interpreted as meaning that the name of the manufacturer and the
product description of
foodstuffs which have been the subject of
administrative measures for controlling compliance with Council Regu-
lation (EC) No 1139/98 of 26 May 1998 concerning the compulsory
indication [in]
certain foodstuffs produced from
genetically modified organisms of particulars other than those provided
for in Directive 79/112/EEC, as amended by Commission Regulation
(EC) No 49/2000 of 10 January 2000, the number of administrative
penalties imposed following those measures, and the producers and
products concerned by such penalties do not constitute information
relating to the environment within the meaning of that provision.

labelling of

the

(1) OJ C 317 of 10.11.2001.

(1) OJ C 303 of 27.10.2001.