Case C-44/03: Reference for a preliminary ruling by the Bezirksgericht Dornbirn by order of that court of 16 December 2002 in the case of Helmut Horn against Dr Karl Schelling
Date: 2004-02-21
Institutions: Court of Justice
Subjects: Austria, competition law, economic sanctions, foreign policy, interpretation of the law

21.2.2004

EN

Official Journal of the European Union

C 47/11

Council Directive 93/36/EEC of 14 June 1993 coordinating
procedures for the award of public supply contracts, as amended by
Directive 97/52/EC of the European Parliament and the Council of
13 October 1997 amending Directives 92/50/EEC, 93/36/EEC
and 93/37/EEC concerning the coordination of procedures for the
award of public service contracts, public supply contracts and public
works contracts respectively, must be interpreted as meaning that a
contracting authority which has commenced a procedure for the
award of a contract on the basis of the lowest price may discontinue
the procedure, without awarding a contract, when it discovers after
examining and comparing the tenders that, because of errors
committed by itself in its preliminary assessment, the content of the
invitation to tender makes it impossible for it to accept the most
economically advantageous tender, provided that, when it adopts such
a decision, it complies with the fundamental rules of Community law
on public procurement such as the principle of equal treatment.

(1) OJ C 219 of 14.9.2002.

Reference for a preliminary ruling by the Bezirksgericht
Dornbirn by order of that court of 16 December 2002 in
the case of Helmut Horn against Dr Karl Schelling

(Case C-44/03)

(2004/C 47/18)

Reference has been made to the Court of Justice of the
European Communities by order of the Bezirksgericht (District
court) Dornbirn of 16 December 2002, received at the Court
the Court Registry on 6 February 2003, for a preliminary
ruling in the case of Helmut Horn against Dr Karl Schelling on
the following questions:

1. Are the provisions of Article 49 et seq. EC and Article 12
EC to be interpreted as precluding, on the basis of the
report of the three EU wise men, the EU sanctions and
thus as meaning that in the present case one of the
defendants’ fundamental rights guaranteed under EU law
was infringed? Under those sanctions

(a)

official bilateral diplomatic contacts at political level
are no longer to be entertained with an Austrian
government so composed;

(b) Austrian candidates are no longer to be supported in
selection procedures for international organisations;
and

(c) Austrian ambassadors are no longer to be received
at political level (ministerial contacts) but henceforth
only at technical level (contacts with officials) and
that in bilateral international relations there is no
business as usual with Austria?

2. Are Articles 49 and 12 EC to be interpreted as meaning
that they do not apply to measures under Article 7 EC
and/or analogous bilateral foreign policy measures of
individual Member States?

3. Are Articles 49 and 12 EC to be interpreted as meaning
that there are other principles in the imposition of
sanctions under Article 7 EC for the avoidance of
discrimination than for other measures of State action? If
appropriate it would be necessary to clarify what formal
or substantive preconditions must be observed in that
connection.

4. Are the provisions of Article 81 EC to be interpreted as
meaning that the prohibitions laid down therein also
apply to actions of the Member States themselves or only
to undertakings and associations of undertakings? Should
the latter be the case then it must be determined whether
Articles 49 and 12 EC are to be interpreted as meaning
that actions of Member States which fail to observe the
principles laid down in Article 81 EC in any event
infringe the prohibitions on discrimination laid down in
Articles 49 and 12 EC?

5. Are Articles 49 and 12 EC to be interpreted as meaning
that demands for a boycott of the economy or parts of
the economy of a Member State or measures likely to
affect the economy of a Member State in such a way that
competitive disadvantages may arise in that Member State
are in any event unlawful and not permissible? Which
conditions must be satisfied in order that in this respect
no infringements of the abovementioned provisions are
committed and to what extent are individual measures of
individual states in that connection also to be attributed
to other states acting jointly?

6. Are the provisions of the EC Treaty, in particular Article 7
EC, to be interpreted as meaning that a foreign policy in
regard to the imposition of sanctions is no longer
available to the individual EU Member States or, in regard
to the imposition of sanctions against individual EU
Member States, does the possibility of a bilateral foreign
the individual Member States
policy on the part of
subsist?

7. Are the provisions of the EC Treaty to be interpreted as
meaning that the imposition of sanctions without any
formal procedure being pending under Article 7 EC and
without any examination or in the absence of
the
substantive preconditions for sanctions under Article 7
EC, even though those sanctions were published in the
form of a measure of the European Union (EU Council),
constitute an act contrary to Community law or indeed a
non-act which is therefore irrelevant and unlawful as a
sovereign act?

C 47/12

EN

Official Journal of the European Union

21.2.2004

8. Are the provisions of the EC Treaty founding state liability
under the criteria laid down by the Court of Justice where
rights directly conferred on EC citizens by the EC Treaty
are grossly and culpably infringed to be interpreted as
meaning that relevant restrictions on state liability under
the national legal order, or also on the basis of decisions
of national courts (in particular to the effect that claims
for compensation in regard to foreign policy measures
are precluded), are in any event unlawful?

does not provide in the event of irregular legislative
measures (Paragraph 1 AHG — ‘in enforcement of the
Laws ...’), also to be classified as a damages claim?

(1) Brasserie du Pêcheur SA v Bundesrepublik Deutschland and The
Queen v Secretary of State for Transport, ex parte: Factortame Ltd
and Others [1996] ECR I-1029.

(2) Courage Ltd v Bernard Crehan [2001] ECR I-6297.

Reference for a preliminary ruling by the Landesgericht
für Zivilrechtssachen Wien by order of that court of
15 April 2003 in the case of Helmut Fröschl against
Republic of Austria

Reference for a preliminary ruling by the Landesgericht
für Zivilrechtsachen Wien by order of that court of
7 April 2003 in the case of Monika Herbstrith against
Republic of Austria

(Case C-184/03)

(2004/C 47/19)

(Case C-229/03)

(2004/C 47/20)

Reference has been made to the Court of Justice of the
European Communities by order of the Landesgericht für
Zivilrechtssachen Wien (Regional Court for civil cases, Vienna)
of 15 April 2003, received at the Court Registry on 5 May
2003, for a preliminary ruling in the case of Helmut Fröschl
against Republic of Austria on the following questions:

1.

In 1998 was it contrary to then directly applicable
Community law, in particular Articles 12, 43 and 49 of
the EC Treaty, to interpret Paragraph 373c(3)(a), (b) and
(c) of the Gewerbeordnung 1994 (Trade Code, GewO
1994), BGBl No 194, in the version of BGBl No I 63/
1997, and the Regulation of the Federal Minister for
Economic Affairs on the grant of exemption from the
prescribed proof of competence for nationals of Member
States of the Agreement on the European Economic Area,
in such a way that a national
BGBl No 775/1993,
photographer is prohibited from exercising his trade
because the qualifications set out there for proof of
competence have been acquired by him in Austria and
not in another State of the EEA?

If question 1 is answered in the affirmative:

According to the settled case-law of the Court of Justice
(e.g. Joined Cases C-46/93 and C-48/93 (1); Case C-453/
99 (2)), is the payment of the costs which the plaintiff has
to incur in domestic proceedings, including his recourse
to public law courts, in order to have a law contrary to
Community law set aside and for which national law

Reference has been made to the Court of Justice of the
European Communities by order of the Landesgericht für
Zivilrechtsachen Wien (Regional civil court, Vienna) of 7 April
2003, received at the Court Registry on 26 May 2003, for a
preliminary ruling in the case of Monika Herbstrith against
Republic of Austria on the following questions:

1.

2.

Is EU law concerning equal treatment of men and women
at work, in particular Directive 76/207/EEC (1), directly
applicable, so that, as to amount, a claim for compen-
sation under Paragraph 15(1) of the B-GBG may be
obtained to the full extent of the damage occasioned,
irrespective of any limitation under Austrian domestic
legislation or, in the absence of any such direct applica-
bility of EU law, is there a claim founded on state liability
for compensation to the full extent of the damage?

In the assessment of claims in respect of the foregoing is
the rule concerning the burden of proof in Article 4 of
Council Directive 97/80/EC (2) directly applicable and, if
so,

(a)

does that apply on the basis that an expert opinion
within the meaning of Paragraph 22(1) of the B-
GBG is sufficient for the purposes of attestation if it
appears conclusively and unreservedly that there is
discrimination and it cannot be ruled out that such
discrimination arose for gender-related reasons, with
the result that in the case giving rise to this reference
the opinion of the federal committee on equal
treatment of 9 November 1998 satisfies this require-
ment