Judgment of the Court (First Chamber) of  1 December 2005  in Case C-309/04 Reference for a preliminary ruling from the Bundesfinanzhof Fleisch-Winter GmbH & Co. KG v Hauptzollamt Hamburg-Jonas (Export refunds — Condition for grant — Beef and veal — Regulation (EEC) No 3665/87 — Bovine spongiform encephalopathy — Export ban — Sound and fair marketable quality — Export declaration — National application for a payment — Sanction)
Date: 2006-02-25
Institutions: Court of Justice
Subjects: export refund, export restriction, interpretation of the law, marketing, product quality

C 48/8

EN

Official Journal of the European Union

25.2.2006

JUDGMENT OF THE COURT

JUDGMENT OF THE COURT

(First Chamber)

of 1 December 2005

in Case C-309/04 Reference for a preliminary ruling from
the Bundesfinanzhof Fleisch-Winter GmbH & Co. KG v
Hauptzollamt Hamburg-Jonas (1)

(Export refunds — Condition for grant — Beef and veal —
Regulation (EEC) No 3665/87 — Bovine spongiform ence-
phalopathy — Export ban — Sound and fair marketable
quality — Export declaration — National application for a
payment — Sanction)

(2006/C 48/15)

(Language of the case: German)

In Case C-309/04: reference for a preliminary ruling under
Article 234 EC from the Bundesfinanzhof (Germany), made by
Decision of 20 April 2004, received at the Court on 21 July
2004, in the proceedings pending before that court between
Fleisch-Winter GmbH & Co. KG and Hauptzollamt Hamburg-
Jonas — the Court: (First Chamber) composed of P. Jann, Presi-
dent of the Chamber, N. Colneric, J.N. Cunha Rodrigues, E.
Juhász and E. Levits, Judges; P. Léger, Advocate General, K.
Sztranc, Registrar, gave a judgment on 1 December 2005, the
operative part of which is as follows:

1. Article 13 of Commission Regulation (EEC) No 3665/87 of 27
November 1987 laying down common detailed rules for the appli-
cation of the system of export refunds on agricultural products, as
amended by Commission Regulation (EC) No 2945/94 of 2
December 1994 must be interpreted as meaning that it precludes
beef that is subject to a ban, laid down by Community law, on
export from one Member State to other Member States and non-
member countries from being regarded as being of ‘sound and fair
marketable quality’ for the purpose of the payment of refunds, and
that the exporter must show that the exported product does not
originate in a Member State from which exports are banned,
where the national administration has evidence that the product is
subject to an export ban.

2. The assurance in a national request for payment that a product is
of ‘sound and fair marketable quality’, within the meaning of the
first sentence of Article 13 of Regulation No 3665/87, as
amended by Regulation No 2945/94, is not part of the informa-
tion provided pursuant to the combined provisions of the second
subparagraph of Article 11(1) and Article 3 of that regulation.
However, it may be regarded by the national court as evidence for
the purpose of determining the exporter's position.

(1) OJ C 239 of 25.04.2004.

(Second Chamber)

of 24 November 2005

in Case C-331/04 Reference for a preliminary ruling from
the Consiglio di Stato: ATI EAC Srl e Viaggi di Maio Snc
and Others v ACTV Venezia SpA and Others (1)

service

(Public
contracts — Directives 92/50/EEC and
93/38/EEC — Award criteria — The economically most
advantageous tender — Observance of award criteria set out
in the contract documents or the contract notice — Establish-
ment of subheadings for one of the award criteria in the
contract documents or the contract notice — Decision to
apply weighting — Principles of equal treatment of tenderers
and transparency)

(2006/C 48/16)

(Language of the case: Italian)

In Case C-331/04: REFERENCE for a preliminary ruling under
Article 234 EC from the Consiglio di Stato (Italy), made by
Decision of 6 April 2004, received at the Court on 29 July
2004, in the proceedings pending before that court between
ATI EAC Srl e Viaggi di Maio Snc and Others v ACTV Venezia
SpA and Others — the Court: (Second Chamber) composed of
C.W.A. Timmermans, President of the Chamber, C. Gulmann
(Rapporteur), R. Schintgen, G. Arestis and J. Klučka, Judges; D.
Ruiz-Jarabo Colomer, Advocate General; M. Ferreira, Principal
Administrator,
for the Registrar, gave a judgment on 24
November 2005, the operative part of which is as follows:

Article 36 of Council Directive 92/50/EEC of 18 June 1992 relating
to the coordination of procedures for the award of public service
contracts and Article 34 of Council Directive 93/38/EEC of 14 June
1993 coordinating the procurement procedures of entities operating in
the water, energy, transport and telecommunications sectors must be
interpreted as meaning that Community law does not preclude a jury
from attaching specific weight
to the subheadings of an award
criterion which are defined in advance, by dividing among those head-
ings the points awarded for that criterion by the contracting authority
when the contract documents or the contract notice were prepared,
provided that that decision:

— does not alter the criteria for the award of the contract set out in

the contract documents or the contract notice;

— does not contain elements which, if they had been known at the
time the tenders were prepared, could have affected that prepara-
tion;