CELEX: C2002/003/19
Language: en
Date: 2002-01-05 00:00:00
Title: Case C-379/01: Reference for a preliminary ruling by the Bundesvergabeamt (Austria) by order of 12 September 2001 in the case of Ortner Gesellschaft m.b.H. v Allgemeine Unfallversicherungsanstalt

C 3/14                EN                   Official Journal of the European Communities                                       5.1.2002
Reference for a preliminary ruling by the Bundesverga-                (C-395/01) and 17 October 2001 (C417/01) by the Unabhän-
beamt (Austria) by order of 12 September 2001 in                      giger Verwaltungssenat of the Land Vorarlberg (Independent
the case of Ortner Gesellschaft m.b.H. v Allgemeine                   Administrative Chamber of the Land Vorarlberg), which were
                   Unfallversicherungsanstalt                         received at the Court Registry on 10 October 2001 and
                                                                      22 October 2001 for a preliminary ruling in the appeals
                                                                      brought by Herbert Bregenzer on the following questions:
                        (Case C-379/01)
                         (2002/C 3/19)
                                                                      1.   Does Article 2(1)(b) of Council Directive 79/112/EEC (1)
                                                                           of 18 December 1978 on the approximation of the
                                                                           laws of the Member States relating to the labelling,
Reference has been made to the Court of Justice of the                     presentation and advertising of foodstuffs for sale to
European Communities by order of 12 September 2001 by                      the ultimate consumer (now consolidated in European
the Bundesvergabeamt (Austrian Federal Procurement Office),                Parliament and Council Directive 2000/13/EC of
which was received at the Court Registry on 3 October 2001,                20 March 2000, OJ 2000 L 109, p. 29; hereinafter
for a preliminary ruling in the case of Ortner Gesellschaft                ‘the labelling Directive’), under which — subject to
m.b.H. v Allgemeine Unfallversicherungsanstalt on the follow-              Community provisions applicable to natural mineral
ing questions:                                                             waters and to foodstuffs for particular nutritional uses,
                                                                           the labelling and methods used may not attribute to any
1.   Is Article 1(3) of Council Directive 89/665/EEC (1) of                foodstuff the property of preventing, treating or curing a
     21 December 1989 on the coordination of the laws,                     human disease, or suggest that it possesses such proper-
     regulations and administrative provisions relating to the             ties, preclude national legislation which makes it an
     application of review procedures to the award of public               offence when marketing foodstuffs:
     supply and public works contracts to be interpreted as
     meaning that any person seeking the award of a specific
     pending public contract is entitled to institute a review             (a)   to refer to physiological or pharmacological effects,
     procedure?                                                                  in particular those which preserve youthfulness,
                                                                                 inhibit signs of ageing, promote slimming or main-
2.   In the event that the answer given to Question 1 is no:                     tain health, or to create the impression of any such
                                                                                 effect;
     Is the abovementioned provision to be understood as
     meaning that, if a tenderer’s bid is not eliminated by the
     contracting authority, but the review body finds in the
     course of the review procedure that the contracting                   (b) to refer to case histories, recommendations made by
     authority would have been bound to eliminate it, the                        doctors or medical experts’ reports;
     tenderer has been or risks being harmed by the infringe-
     ment alleged by him — in this case the finding by the
     contracting authority that a rival tenderer submitted the
     best bid — and that he must therefore have the right to               (c)   to use health-related, pictorial or stylised represen-
     bring a review procedure?                                                   tations of organs of the human body, pictures
                                                                                 of members of the health-care professions or of
                                                                                 sanatoria or other pictures or illustrations referring
(1) OJ L 395, p. 33.                                                             to health-care activities?
                                                                      2.   Do the labelling Directive or Articles 28 and 30 EC
                                                                           preclude a national provision which, on the placing into
                                                                           circulation of foodstuffs, permits health-related infor-
                                                                           mation such as that described in question (1) to be affixed
Reference for a preliminary ruling by the Unabhängiger                     thereto only after prior authorisation by the competent
Verwaltungssenat of the Land Vorarlberg by orders of                       federal minister, whereby a condition of authorisation is
8 October 2001 and 17 October 2001 in the appeals                          that the health-related information is consistent with
                 brought by Herbert Bregenzer                              protecting the consumer from being misled?
                (Cases C-395/01 and C-417/01)
                         (2002/C 3/20)                                (1) OJ L 33, p. 1.
Reference has been made to the Court of Justice of the
European Communities by orders of 8 October 2001