CELEX: C1998/209/27
Language: en
Date: 1998-07-04 00:00:00
Title: Reference for a preliminary ruling by the Bundesvergabeamt by order of 3 March 1998 in the case of Alcatel Austria AG, Stuag Bau-AG, Österreichisches Forschungszentrum Seibersdorf GmbH, Siemens Aktiengesellschaft Österreich - Bietergemeinschaft 'Ecoroute' and Sag-Schrack Anlagentechnik AG v. Bundesministerium für Wissenschaft und Verkehr (Case C-81/98)

4.7.98                EN                  Official Journal of the European Communities                                  C 209/13
and Dominique Voillemot, of the Paris Bar, with an                   H. Ragnemalm, President of the Chamber, G. F. Mancini,
address for service in Luxembourg at the Chambers of                 P. J. G. Kapteyn (Rapporteur), G. Hirsch and K. M.
Jacques Loesch, 11 Rue Goethe,                                       Ioannou, Judges; G. Cosmas, Advocate General; R. Grass,
                                                                     Registrar, has made an order on 30 April 1998, the
Ð appeal against the judgment of the Court of First                  operative part of which is as follows:
     Instance (Third Chamber, Extended Composition) of
     27 February 1997 in Case T-106/95 FFSA and Others
     v. Commission [1997] ECR II-229, seeking to have                The references for a preliminary ruling made by the
     that judgment set aside, the other party to the                 Pretura Circondariale di Roma, Sezione Disticcata di
     proceedings being the Commission of the European                Tivoli, by orders of 5 February and 19 February 1997, are
     Communities (Agent: GeÂrard Rozet), supported by the            inadmissible.
     French Republic (Agents: Kareen Rispal-Bellanger and
     Jean-Marc Belorgey) and La Poste, a corporation                 (1) OJ C 181 of 14.6.1997.
     governed by French public law, established in
     Boulogne-Billancourt (France), represented by HerveÂ
     Lehman, of the Paris Bar, with an address for service
     in Luxembourg at the Chambers of Aloyse May, 31
     Grand Rue,
Ð the Court (Fourth Chamber), composed of:                           Reference for a preliminary ruling by the Bundesvergabe-
     H. Ragnemalm, President of the Chamber, P. J. G.                amt by order of 3 March 1998 in the case of Alcatel
     Kapteyn (Rapporteur) and J. L. Murray, Judges;                  Austria AG, Stuag Bau-AG, Österreichisches Forschungs-
     A. Saggio, Advocate General; R. Grass, Registrar, has           zentrum Seibersdorf GmbH, Siemens Aktiengesellschaft
     made an order on 25 March 1998, the operative part              Österreich Ð Bietergemeinschaft Ecoroute' and Sag-
     of which is as follows:                                         Schrack Anlagentechnik AG v. Bundesministerium für
                                                                                       Wissenschaft und Verkehr
     1. The appeal is dismissed.
                                                                                            (Case C-81/98)
     2. The appellants are ordered to pay the costs.
                                                                                             (98/C 209/27)
(1) OJ C 199 of 28.6.1997.
                                                                     Reference has been made to the Court of Justice of the
                                                                     European Communities by order of the Bundesvergabeamt
                                                                     (Federal Procurement Office), Austria, of 3 March 1998,
                                                                     received at the Court Registry on 25 March 1998, for a
                  ORDER OF THE COURT                                 preliminary ruling in the case of Alcatel Austria AG, Stuag
                                                                     Bau-AG, Österreichisches Forschungszentrum Seibersdorf
                       (Sixth Chamber)                               GmbH, Siemens Aktiengesellschaft Österreich Ð Bieter-
                       of 30 April 1998                              gemeinschaft Ecoroute' and Sag-Schrack Anlagentechnik
                                                                     AG v. Bundesministerium für Wissenschaft und Verkehr
in Joined Cases C-128/97 and C-137/97 (reference for a
                                                                     (Federal Ministry for Science and Transport) on the
preliminary ruling from the Pretura Circondariale di
                                                                     following questions:
Roma, Sezione Disticcata di Tivoli): criminal proceedings
against Italia Testa (C-128/97) and Mario Modesti
(C-137/97) Ð intervener: SocietaÁ Italiana degli Autori ed
                                                                     A. When implementing Directive 89/665/EEC (1), are
                       Editori (SIAE) (1)
                                                                         Member States required by Article 2(6) thereof to
    (Reference for a preliminary ruling Ð Inadmissibility)               ensure that the contracting authority's decision prior
                                                                         to the conclusion of the contract as to the bidder in a
                         (98/C 209/26)
                                                                         tender procedure with which, in the light of the
                                                                         procedure's results, it will conclude the contract (i. e.
                (Language of the case: Italian)
                                                                         the award decision) is in any event open to a
                                                                         procedure whereby an applicant may have that
  (Provisional translation; the definitive translation will be           decision annulled if the relevant conditions are met,
          published in the European Court Reports)                       notwithstanding the possibility once the contract has
                                                                         been concluded of restricting the legal effects of the
In Joined Cases C-128/97 and C-137/97: reference to the                  review procedure to an award of damages?
Court under Article 177 of the EC Treaty from the
Pretura Circondariale di Roma, Sezione Disticcata di
Tivoli, for a preliminary ruling in the criminal proceedings         B. If Question A is answered in the affirmative:
pending before that court against Italia Testa (C-128/97)
and Mario Modesti (C-137/97) Ð intervener: SocietaÁ
Italiana degli Autori ed Editori (SIAE) Ð on the                         Is the obligation described under A. sufficiently clear
interpretation of Articles 30, 36, 85 and 86 of the EC                   and precise to confer on individuals the right to a
Treaty in the light of national rules relating to copyright              review corresponding to the requirements of Article 1
management Ð the Court (Sixth Chamber), composed of                      of Directive 89/665/EEC, in which the national court
 ---pagebreak--- C 209/14               EN                 Official Journal of the European Communities                                     4.7.98
     must in any event be able to adopt interim measures                   (3) alternatively, specify a date in the near future
     within the meaning of Article 2(1)(a) and (b) of that                       when that calculation and determination are to
     directive and to annul the contracting authority's                          take place;
     award decision, and the right to rely in proceedings on
     that obligation as against a Member State?                      (III) order the respondents to pay the costs.
C. If Question B is answered in the affirmative:                     Pleas in law and main arguments adduced in support:
                                                                     Ð     The contested order wrongly held that the request
     Is the obligation described under A. also sufficiently
                                                                           made pursuant to Article 90(1) of the Staff
     clear and precise to mean that in such a procedure the
                                                                           Regulations, and thus the action, were inadmissible.
     national court must disregard contrary provisions of
                                                                           The appellant contests, first, the construction placed
     national law which would prevent the court from
                                                                           on the provisions applicable in the present case,
     fulfilling that obligation, and must fulfil that
                                                                           which is diametrically opposed to the clear wording
     obligation directly as part of Community law even if
                                                                           of those provisions and is wholly unjustified.
     national law lacks any basis on which to act?
                                                                           Contrary to the view expressed by the Court of First
                                                                           Instance, the words without prejudice to' appearing
(1) OJ L 395, 30.12.1989, p. 33.                                           in the phrase without prejudice to the decisions to
                                                                           be taken by the Council' are meaningless for the
                                                                           purposes of determining whether the fixing of the
                                                                           weightings is to be definitive or provisional, because
                                                                           they are compatible with both of those
                                                                           interpretations. The answer to that question is, by
                                                                           contrast, clearly apparent from the words to be
Appeal brought on 26 March 1998 by Max Kögler
                                                                           taken', which, as is indicated by the corresponding
against the order made on 20 January 1998 by the Third
                                                                           wording in the French text Ð . . . est appeleÂ aÁ
Chamber of the Court of First Instance of the European
                                                                           prendre' Ð can only be intended to mean must take'
Communities in Case T-160/96 between Max Kögler and
                                                                           or is required to take'. Contrary to the reasoning
the Court of Justice of the European Communities,
                                                                           contained in the contested order, the appellant has at
      supported by the Council of the European Union
                                                                           no time asserted that he relied on the application of
                        (Case C-82/98 P)                                   the Berlin weightings; there was no need whatever
                          (98/C 209/28)                                    for him to do so in order to substantiate his claim.
                                                                           On the contrary, the appellant clearly stated that he
                                                                           relied solely on the undertaking by the Council that
                                                                           a definitive regulation, the content of which was
An appeal against the order made on 20 January 1998 by
                                                                           unknown, would in due course be adopted.
the Third Chamber of the Court of First Instance of the
European Communities in Case T-160/96 between Max
Kögler and the Court of Justice of the European                            The Court of First Instance wrongly stated that the
Communities, supported by the Council of the European                      appellant should have contested the pension
Union, was brought before the Court of Justice of the                      statements received by him for the period from 1 July
European Communities on 26 March 1998 by Max                               1991 to 30 June 1994 within the prescribed time-
Kögler, represented by Theo Baltes, Rechtsanwalt, Trier,                   limit; where a person fails to contest a measure
with an address for service in Luxembourg at the                           within the time-limit laid down, he cannot start time
Chambers of ReneÂ Weber, 3 Rue de la Loge, L-1945                          running afresh by submitting a request pursuant to
Luxembourg.                                                                Article 90(1) of the Staff Regulations. In the present
                                                                           case, the Court of First Instance could only have
                                                                           come to that conclusion, which is certainly a correct
The appellant claims that the Court should:                                statement of the position as regards definitive
                                                                           decisions of the appointing authority, because, by
                                                                           failing to take into account the fact that the
(I)    set aside the order of the Court of First Instance of
                                                                           provisions on which the said pension statements
       20 January 1998 dismissing as inadmissible the
                                                                           were based were provisional, and by nonsensically
       application in Case T-160/96 (1);
                                                                           misconstruing the appellant's reliance on the
                                                                           undertaking given by the Council, it failed to take
(II)   determine the dispute definitively, and in particular:              account of the distinctive characteristics of the
                                                                           present case.
       (1) annul the decision of the respondent's
             Complaints Committee of 1 July 1996;                    Ð     The appellant requests the Court of Justice to
                                                                           determine the entire dispute, since, in his view, the
       (2) rule that the appellant's retirement pension for                only matters to be decided are points of law.
             the period from 1 July 1991 to 30 June 1994 be
             recalculated and definitively determined on the         (1) OJ C 94, 28.3.1998, p. 23.
             basis of the weightings for Berlin fixed annually
             by the Council;