CELEX: C2003/184/18
Language: en
Date: 2003-08-02 00:00:00
Title: Judgment of the Court (Fifth Chamber) of 12 June 2003 in Case C-316/01 (Reference for a preliminary ruling from the Unabhängiger Verwaltungssenat Wien): Eva Glawischnig v Bundesminister für soziale Sicherheit und Generationen (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)

C 184/10                EN                           Official Journal of the European Union                                                 2.8.2003
Österreichische Autobahnen- und Schnellstraßen- AG (ÖSAG)                                      JUDGMENT OF THE COURT
— 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                                            (Fifth Chamber)
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                                        of 12 June 2003
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),                 in Case C-316/01 (Reference for a preliminary ruling from
composed of: J.-P. Puissochet, President of the Chamber,                     the      Unabhängiger         Verwaltungssenat           Wien):      Eva
R. Schintgen (Rapporteur), V. Skouris, F. Macken and J.N. Cunha              Glawischnig v Bundesminister für soziale Sicherheit und
Rodrigues, Judges; J. Mischo, Advocate General; M.-F. Contet,                                           Generationen (1)
Principal Administrator, for the Registrar, gave a judgment on
19 June 2003, the operative part of which is as follows:
                                                                             (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)
1.    Council Directive 89/665/EEC of 21 December 1989, on the
      coordination of the laws, regulations and administrative provi-                                   (2003/C 184/18)
      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                             (Language of the case: German)
      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        (Provisional translation; the definitive translation will be published in
      public supply contract was unlawful, the review body should, of                              the European Court Reports)
      its own motion, take account of the unlawfulness of a decision
      of the contracting authority other than the decision being
      contested by that tenderer. On the other hand, that directive
      precludes dismissal by the review body of the application
      brought by the tenderer on the ground that, as a result of the         In Case C-316/01: Reference to the Court under Article 234
      unlawfulness raised ex proprio motu, the award procedure               EC by the Unabhängiger Verwaltungssenat Wien (Austria) for a
      was in any event tainted and the tenderer would none the               preliminary ruling in the proceedings pending before that
      less have been harmed, even in the absence of the                      court between Eva Glawischnig and Bundesminister für soziale
      unlawfulness alleged by him.                                           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:
                                                                             M. Wathelet, President of the Chamber, D.A.O. Edward
                                                                             (Rapporteur), A. La Pergola, P. Jann and A. Rosas, Judges;
                                                                             A. Tizzano, Advocate General; M.-F. Contet, Principal Admin-
2.    Directive 93/36/EEC of 14 June 1993 coordinating procedures            istrator, for the Registrar, has given a judgment on 12 June
      for the award of public supply contracts prohibits a public            2003, in which it has ruled:
      contracting authority conducting public supply contract award
      procedures from taking account of the number of references
      relating to the products offered by tenderers to other clients not
                                                                             Article 2(a) of Council Directive 90/313/EEC of 7 June 1990 on the
      as proof of the tenderers' suitability but to satisfy an award
                                                                             freedom of access to information on the environment is to be
      criterion.
                                                                             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] the labelling of certain foodstuffs produced from
                                                                             genetically modified organisms of particulars other than those provided
3.    Directive 93/36 precludes, in the context of a public supply           for in Directive 79/112/EEC, as amended by Commission Regulation
      contract, that the requirement that there should be an opportu-        (EC) No 49/2000 of 10 January 2000, the number of administrative
      nity to inspect the subject of the invitation to tender within a       penalties imposed following those measures, and the producers and
      300 kilometre radius of the authority issuing the invitation to        products concerned by such penalties do not constitute information
      tender should serve as an award criterion.                             relating to the environment within the meaning of that provision.
(1) OJ C 317 of 10.11.2001.                                                  (1) OJ C 303 of 27.10.2001.