Judgment of the Court (Sixth Chamber) of 12 February 2004 in Case C-230/02 (Reference for a preliminary ruling from the Bundesvergabeamt): Grossmann Air Service, Bedarfsluftfahrtunternehmen GmbH & Co. KG v Republik Österreich (Public procurement — Directive 89/665/EEC — Review procedures for the award of public contracts — Articles 1(3) and 2(1)(b) — Persons to whom review procedures must be available — Definition of "interest in obtaining a public contract")
Date: 2004-04-03
Institutions: Court of Justice
Subjects: award of contract, interpretation of the law, supplies contract, tendering, works contract

C 85/8

EN

Official Journal of the European Union

3.4.2004

JUDGMENT OF THE COURT

JUDGMENT OF THE COURT

(Sixth Chamber)

of 22 January 2004

(Sixth Chamber)

of 12 February 2004

In Joined Cases C-133/02 and C-134/02 (Reference for a
preliminary ruling from the Gerechtshof te Amsterdam):
Timmermans Transport & Logistics BV, formerly Tim-
mermans Diessen BV, v Inspecteur der Belastingdienst —
Douanedistrict Roosendaal, and Hoogenboom Production
Ltd and Inspecteur der Belastingdienst — Douanedistrict
Rotterdam (1)

(Classification of goods for customs tariff purposes —
Binding tariff information — Conditions for the revocation
of an information)

in Case C-230/02 (Reference for a preliminary ruling
from the Bundesvergabeamt): Grossmann Air Service,
Bedarfsluftfahrtunternehmen GmbH & Co. KG v Repub-
lik Österreich (1)

(Public procurement — Directive 89/665/EEC — Review
procedures for the award of public contracts — Articles 1(3)
and 2(1)(b) — Persons to whom review procedures must be
available — Definition of ‘interest in obtaining a public
contract’)

(2004/C 85/10)

(Language of the case: Dutch)

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

In Joined Cases C-133/02 and C-134/02: Reference to the
Court under Article 234 EC by the Gerechtshof te Amsterdam
for a preliminary ruling in the proceedings
(Netherlands)
pending before that court between Timmermans Transport &
Logistics BV, formerly Timmermans Diessen BV, and Inspecte-
ur der Belastingdienst — Douanedistrict Roosendaal, and
between Hoogenboom Production Ltd and Inspecteur der
Belastingdienst — Douanedistrict Rotterdam, on the interpret-
ation of Article 9(1) and 12(5)(a)(iii) of Council Regulation
(EEC) No 2913/92 of 12 October 1992 establishing the
Community Customs Code (OJ 1992 L 302, p. 1), as amended
by Regulation (EC) No 82/97 of the European Parliament and
of the Council of 19 December 1996 (OJ 1997 L 17, p. 1, and
Corrigendum, OJ 1997 L 179, p. 11),
(Sixth
Chamber), composed of: C. Gulmann (Rapporteur), acting for
the President of the Sixth Chamber, J. N. Cunha Rodrigues, J.-
P. Puissochet, R. Schintgen and F. Macken, Judges; P. Léger,
Advocate General; H. von Holstein, Deputy Registrar, has
given a judgment on 22 January 2004, in which it has ruled:

the Court

Article 9(1) read in conjunction with Article 12(5)(a)(iii) of Council
Regulation (EEC) No 2913/92 of 12 October 1992 establishing
the Community Customs Code, as amended by Regulation (EC)
No 82/97 of the European Parliament and of the Council of
19 December 1996, must be interpreted as meaning that they
provide the customs authorities with a legal basis for withdrawing a
binding tariff
change the
information where those authorities
interpretation given therein of the legal provisions applicable to the
tariff classification of the goods concerned.

(1) OJ C 144 of 15.6.2002.

(2004/C 85/11)

(Language of the case: German)

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

(Austria)

In Case C-230/02: Reference to the Court under Article 234
EC by the Bundesvergabeamt
for a preliminary
ruling in the proceedings pending before that court between
Grossmann Air Service, Bedarfsluftfahrtunternehmen GmbH
& Co. KG and Republik Österreich, on the interpretation of
Articles 1(3) and 2(1)(b) of Council Directive 89/665/EEC of
21 December 1989 on the coordination of the laws, regu-
lations 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: V. Skouris, acting as President of the Sixth
Chamber, C. Gulmann, J. N. Cunha Rodrigues, J.-P. Puissochet
and R. Schintgen (Rapporteur), Judges; L.A. Geelhoed, Advo-
cate General; M.-F. Contet, Principal Administrator, for the
in
Registrar, has given a judgment on 12 February 2004,
which it has ruled:

1. Articles 1(3) and 2(1)(b) 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, 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, must be interpreted as not
precluding a person from being regarded, once a public contract
has been awarded, as having lost his right of access to the
review procedures provided for by the Directive if he did not
participate in the award procedure for that contract on the
ground that he was not in a position to supply all the services
for which bids were invited, because there were allegedly
discriminatory specifications in the documents relating to the
invitation to tender, but he did not seek review of
those
specifications before the contract was awarded.

3.4.2004

EN

Official Journal of the European Union

C 85/9

2. Article 1(3) of Directive 89/665, as amended by Directive 92/
50, must be interpreted as precluding a person who has
participated in a contract award procedure from being regarded
as having lost his interest in obtaining the contract on the
ground that, before seeking the review provided for by the
Directive, he failed to refer the case to a conciliation committee
such as Bundes-Vergabekontrollkommission (Federal Public
Procurement Review Commission, established by the Bundesge-
setz über die Vergabe von Aufträgen (Bundesvergabegesetz)
1997 (1997 Federal Law on Public Procurement).

The first sentence of Article 7(1) and Article 7(1)(f) of Commission
Regulation (EEC) No 536/93 of 9 March 1993 laying down
detailed rules on the application of the additional levy on milk and
milk products should be interpreted as meaning that the stock
accounts which producers are required to keep need state only the
quantities, per month and per product, of milk and/or milk products
sold.

(1) OJ C 202 of 24.8.2002.

(1) OJ C 219 of 14.9.2002.

JUDGMENT OF THE COURT

(Sixth Chamber)

of 12 February 2004

in Case C-236/02 (Reference for a preliminary ruling from
the College van Beroep): J. Slob v Productschap Zuivel (1)

(Milk and milk products — Direct sales — Reference
quantity — Overruns — Additional levy on milk — Obli-
gation on producer to keep stock accounts — Contents —
Interpretation of Article 7(1)(f) of Regulation (EEC) No 536/
93)

(2004/C 85/12)

(Language of the case: Dutch)

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

In Case C-236/02: Reference to the Court under Article 234
EC by the College van Beroep voor het bedrijfsleven (Nether-
lands) for a preliminary ruling in the proceedings pending
before that court between J. Slob and Productschap Zuivel, on
the interpretation of Article 7(1)(f) of Commission Regulation
(EEC) No 536/93 of 9 March 1993 laying down detailed rules
on the application of the additional levy on milk and milk
products (OJ 1993 L 57, p. 12), the Court (Sixth Chamber),
composed of: C. Gulmann, acting for the President of the Sixth
Chamber, J.N. Cunha Rodrigues, J.-P. Puissochet, F. Macken
and N. Colneric (Rapporteur), Judges; F.G. Jacobs, Advocate
General; M.-F. Contet, Principal Administrator Registrar, has
given a judgment on 12 February 2004, in which it has ruled:

JUDGMENT OF THE COURT

(Fifth Chamber)

of 5 February 2004

in Case C-265/02 (Reference for a preliminary ruling from
the Corta suprema di cassazione): Frahuil SA v Assitalia
SpA (1)

(Brussels Convention — Special jurisdiction — Article 5(1)
— Meaning of ‘matters relating to a contract’ — Contract
of guarantee entered into without the knowledge of the
principal debtor — Subrogation of the guarantor to the
rights of the creditor — Right of recourse of the guarantor
against the principal debtor)

(2004/C 85/13)

(Language of the case: Italian)

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

In Case C-265/02: Reference to the Court under the Protocol
of 3 June 1971 on the interpretation by the Court of Justice of
the Convention of 27 September 1968 on jurisdiction and the
enforcement of judgments in civil and commercial matters by
the Corte suprema di cassazione (Italy) for a preliminary ruling
in the proceedings pending before that court between Frahuil
SA and Assitalia SpA, on the interpretation of Article 5(1) of
the abovementioned Convention of 27 September 1968 (OJ
1978 L 304, p. 36), as amended by the Convention of
9 October 1978 on the accession of the Kingdom of Denmark,
Ireland and the United Kingdom of Great Britain and Northern
Ireland (OJ 1978 L 304, p. 1 and — amended version —
p. 77), by the Convention of 25 October 1982 on the
accession of the Hellenic Republic (OJ 1982 L 388, p. 1) and
by the Convention of 26 May 1989 on the accession of the
Kingdom of Spain and the Portuguese Republic (OJ 1989
L 285, p. 1), the Court (Fifth Chamber), composed of: P. Jann
(Rapporteur), acting for the President of the Fifth Chamber,
C. W. A. Timmermans and S. von Bahr, Judges; P. Léger,
Advocate General; R. Grass, Registrar, has given a judgment
on 5 February 2004, in which it has ruled: