CELEX: C2002/084/64
Language: en
Date: 2002-04-06 00:00:00
Title: Case C-447/01: Reference for a preliminary ruling from the Landesgericht für Zivilrechtssachen, Vienna, by order of that court of 5 November 2001 in the case of DLD Trading Company Import-Export, spol.s.r.o. v Republic of Austria

6.4.2002               EN                    Official Journal of the European Communities                                       C 84/37
the Bundesverwaltungsgericht (Federal Administrative Court),            Giudice Unico del Tribunale di Beilla (Single-Judge Court of
which was received at the Court Registry on 19 November                 Beilla), which was received at the Court Registry on 19 Novem-
2001, for a preliminary ruling in the case of Stadt Villingen-          ber 2001, for a preliminary ruling in the case of Roberto
Schwenningen v Ophilia Akosua Owusu on the following                    Simoncello and Piera Boerio v Direzione Provinciale del lavoro
questions:                                                              (Vercelli) on the following question:
1.   With regard to the legal position on 16 May 1997, was
     prostitution engaged in on a self-employed basis by a              Are Article 9 bis (2) of Law No 608 of 28 November 1996, in
     national of Member State A in Member State B covered               so far as it provides that an employer is required to notify the
     by freedom of establishment (Article 52 of the EC Treaty)          Sezione Circoscrizionale per l’Impiego of the hiring of every
     and/or freedom to provide services (Article 59 of the              worker, and Article 10 of Legislative Decree No 469 of
     EC Treaty)? Is it in this regard relevant whether prosti-          23 December 1997, in so far as it refers to Article 9 bis of Law
     tution was at that time considered in Member State B to            608/1996 in cases where non-authorised parties have acted as
     be immoral and anti-social?                                        intermediaries, consistent with the principles of Community
                                                                        law laid down by Articles 48, 52 and 90 of the EC Treaty
2.   If the first question is answered in the negative:                 (now, after amendment, Articles 39, 43, and 86 EC).
     With regard to the legal position on 16 May 1997, did
     the national of Member State A derive a right to reside in
     Member State B directly from Article 8a of the EC Treaty?
3.   If the second question is answered in the negative:
     As the law stood on 16 May 1997, did that person have
     a right of residence under the conditions set out in               Reference for a preliminary ruling from the Landesgericht
     Article 1 of Council Directive 90/364/EEC (1) of 28 June           für Zivilrechtssachen, Vienna, by order of that court of
     1990 on the right of residence, even though Member                 5 November 2001 in the case of DLD Trading Company
     State B had not yet at that date implemented that directive               Import-Export, spol.s.r.o. v Republic of Austria
     in its domestic law?
4.   If the third question is answered in the affirmative:                                       (Case C-447/01)
     Was that person required at the time of her entry to have
     sufficient resources and to demonstrate this to the                                          (2002/C 84/64)
     competent authority, or does it suffice if, during her
     period of residence in Member State B, she did not claim
     any social assistance?
                                                                        Reference has been made to the Court of Justice of the
                                                                        European Communities by an order of the Landesgericht für
(1) OJ L 180, p. 26.
                                                                        Zivilrechtssachen (Regional Court for Civil Matters), Vienna,
                                                                        of 5 November 2001, which was received at the Court Registry
                                                                        on 20 November 2001, for a preliminary ruling in the case of
                                                                        OLD Trading Company Import-Export, spol.s.r.o. v Republic
                                                                        of Austria on the following questions:
                                                                        1.    Was a provision of directly applicable Community law or
                                                                              a directive infringed and, if so, which one, as a result of
Reference for a preliminary ruling by the Giudice Unico                       the government action described in the facts, in particular
del Tribunale di Beilla by order of 18 October 2001 in                        the alteration as from 1 January 1998 of the travellers’
case of Roberto Simoncello and Piera Boerio v Direzione                       duty-free amount to EUR 75 or EUR 100, according to
Provinciale del Lavoro, Vercelli (Principal Labour Admin-                     the case under Paragraph 97a of the customs
                        istration, Vercelli)                                  implementing law [ZollR-DG] in conjunction with Para-
                                                                              graph 19a of the corresponding implementing regulation
                                                                              [ZollR-DV] and the quantitative restriction in regard to
                         (Case C-445/01)
                                                                              the relief from turnover tax and excise duty on tobacco
                                                                              products.
                          (2002/C 84/63)
                                                                        2.    If Question 1 is answered affirmatively:
                                                                              Is the infringed provision of directly applicable Com-
Reference has been made to the Court of Justice of the                        munity law or of that directive one which confers an
European Communities by order of 18 October 2001 of the                       individual right on the plaintiff in the main proceedings?
 ---pagebreak--- C 84/38                EN                     Official Journal of the European Communities                                      6.4.2002
3.   If Question 2 is answered affirmatively:                                  an unlawful decision in review proceedings under
                                                                               Article 1 of Directive 89/665/EEC dependent on proof
     Does the Court of Justice have available to it on the                     that the unlawful decision was material to the outcome
     basis of the reference for a preliminary ruling all the                   of the procurement procedure, where that proof has to
     information needed in order to be able itself to assess                   be achieved by the review body examining whether the
     whether the government body as mentioned in the facts                     ranking of the tenders actually submitted would have
     as set out caused specific injury to the defendant or will                been different had they been re-evaluated disregarding
     it leave the reply to that question to the referring Austrian             the unlawful award criterion?
     court?
                                                                         4.    Do the provisions of Community law relating to the
                                                                               award of public contracts, in particular Article 26 of
                                                                               Directive 93/36/EEC, require the contracting authority to
                                                                               cancel the invitation to tender if it transpires in review
                                                                               proceedings under Article 1 of Directive 89/665/EEC that
                                                                               one of the award criteria it laid down is unlawful?
Reference for a preliminary ruling from the Bundesverga-                 (1) OJ 1993 L 199, p. 1.
beamt (Austria) by order of that tribunal of 13 November                 (2) OJ 1989 L 395, p. 33.
2001 in the case of (1) EVN AG and (2) Wienstrom GmbH
                     v Republic of Austria
                         (Case C-448/01)
                          (2002/C 84/65)
                                                                         Reference for a preliminary ruling by the Court of Appeal
                                                                         (England and Wales) (Civil Division) by order of that
Reference has been made to the Court of Justice of the
                                                                         court dated 11 May 2001, in the case of Abbey Life
European Communities by an order of the Bundesvergabeamt
                                                                              Assurance Company Ltd against Kok Theam Yeap
(Federal Procurement Office) of 13 November 2001, which
was received at the Court Registry on 20 November 2001, for a
preliminary ruling in the case of (1) EVN AG and (2) Wienstrom                                    (Case C-449/01)
GmbH v Republic of Austria on the following questions:
1.   Do the provisions of Community law relating to the                                            (2002/C 84/66)
     award of public contracts, in particular Article 26 of
     Directive 93/36/EEC (1), prohibit a contracting authority
     from laying down an award criterion in relation to the
     supply of electricity which is given a 45 % weighting and
     which requires a tenderer to state, without being bound             Reference has been made to the Court of Justice of the
     to a defined supply period, how much electricity he can             European Communities by an order of the Court of Appeal
     supply from renewable sources to a group of consumers               (England and Wales) (Civil Division) dated 11 May 2001,
     not more closely defined, where the maximum number                  which was received at the Court Registry on 21 November
     of points is given to whichever tenderer states the highest         2001, for a preliminary ruling in the case of Abbey Life
     amount and a supply volume is taken into account only               Assurance Company Ltd and Kok Theam Yeap on the follow-
     to the extent that it exceeds the volume of consumption             ing questions:
     to be expected in the context of the contract to which the
     invitation to tender relates?                                       1)    Can ‘policies for life assurance, annuities, health and
                                                                               pension business, unit trusts, offshore funds business,
2.   Do the provisions of Community law relating to the                        personal equity plans and other contracts offered by
     award of public contracts, in particular Article 2(1)(b) of               Abbey’ or any of them be described as ‘goods’ that fall
     Directive 89/665/EEC (2), prohibit making the setting                     within the provisions of 1993 Regulations and/or in the
     aside of an unlawful decision in review proceedings under                 Directive?
     Article 1 of Directive 89/665/EEC dependent on proof
     that the unlawful decision was material to the outcome              2)    Do ‘policies for life assurance, annuities, health and
     of the procurement procedure?                                             pension business, unit trusts, offshore funds business,
                                                                               personal equity plans and other contracts offered by
                                                                               Abbey’ or any of them have to be:
3.   Do the provisions of Community law relating to the
     award of public contracts, in particular Article 26 of
     Directive 93/36/EEC, prohibit making the setting aside of                 (i)  marketable, and/or