CELEX: C2004/085/11
Language: en
Date: 2004-04-03 00:00:00
Title: Judgment of the Court (Sixth Chamber) of 12 February 2004 in Case C-230/02 (Reference for a preliminary ruling from the Bundesvergabeamt): Grossmann Air Service, Bedarfsluftfahrtunternehmen GmbH & Co. KG v Republik Österreich (Public procurement — Directive 89/665/EEC — Review procedures for the award of public contracts — Articles 1(3) and 2(1)(b) — Persons to whom review procedures must be available — Definition of "interest in obtaining a public contract")

C 85/8                     EN                        Official Journal of the European Union                                              3.4.2004
                    JUDGMENT OF THE COURT                                                      JUDGMENT OF THE COURT
                             (Sixth Chamber)                                                           (Sixth Chamber)
                           of 22 January 2004                                                        of 12 February 2004
In Joined Cases C-133/02 and C-134/02 (Reference for a                       in Case C-230/02 (Reference for a preliminary ruling
preliminary ruling from the Gerechtshof te Amsterdam):                       from the Bundesvergabeamt): Grossmann Air Service,
Timmermans Transport & Logistics BV, formerly Tim-                           Bedarfsluftfahrtunternehmen GmbH & Co. KG v Repub-
mermans Diessen BV, v Inspecteur der Belastingdienst —                                                 lik Österreich (1)
Douanedistrict Roosendaal, and Hoogenboom Production
Ltd and Inspecteur der Belastingdienst — Douanedistrict                      (Public procurement — Directive 89/665/EEC — Review
                               Rotterdam (1)                                 procedures for the award of public contracts — Articles 1(3)
                                                                             and 2(1)(b) — Persons to whom review procedures must be
(Classification of goods for customs tariff purposes —                       available — Definition of ‘interest in obtaining a public
Binding tariff information — Conditions for the revocation                                                  contract’)
                            of an information)
                                                                                                        (2004/C 85/11)
                              (2004/C 85/10)
                                                                                                 (Language of the case: German)
                       (Language of the case: Dutch)
                                                                             (Provisional translation; the definitive translation will be published
                                                                                                 in the European Court Reports)
(Provisional translation; the definitive translation will be published
                      in the European Court Reports)
                                                                             In Case C-230/02: Reference to the Court under Article 234
                                                                             EC by the Bundesvergabeamt (Austria) for a preliminary
In Joined Cases C-133/02 and C-134/02: Reference to the                      ruling in the proceedings pending before that court between
Court under Article 234 EC by the Gerechtshof te Amsterdam                   Grossmann Air Service, Bedarfsluftfahrtunternehmen GmbH
(Netherlands) for a preliminary ruling in the proceedings                    & Co. KG and Republik Österreich, on the interpretation of
pending before that court between Timmermans Transport &                     Articles 1(3) and 2(1)(b) of Council Directive 89/665/EEC of
Logistics BV, formerly Timmermans Diessen BV, and Inspecte-                  21 December 1989 on the coordination of the laws, regu-
ur der Belastingdienst — Douanedistrict Roosendaal, and                      lations and administrative provisions relating to the application
between Hoogenboom Production Ltd and Inspecteur der                         of review procedures to the award of public supply and public
Belastingdienst — Douanedistrict Rotterdam, on the interpret-                works contracts (OJ 1989 L 395, p. 33), as amended by
ation of Article 9(1) and 12(5)(a)(iii) of Council Regulation                Council Directive 92/50/EEC of 18 June 1992 relating to the
(EEC) No 2913/92 of 12 October 1992 establishing the                         coordination of procedures for the award of public service
Community Customs Code (OJ 1992 L 302, p. 1), as amended                     contracts (OJ 1992 L 209, p. 1), the Court (Sixth Chamber),
by Regulation (EC) No 82/97 of the European Parliament and                   composed of: V. Skouris, acting as President of the Sixth
of the Council of 19 December 1996 (OJ 1997 L 17, p. 1, and                  Chamber, C. Gulmann, J. N. Cunha Rodrigues, J.-P. Puissochet
Corrigendum, OJ 1997 L 179, p. 11), the Court (Sixth                         and R. Schintgen (Rapporteur), Judges; L.A. Geelhoed, Advo-
Chamber), composed of: C. Gulmann (Rapporteur), acting for                   cate General; M.-F. Contet, Principal Administrator, for the
the President of the Sixth Chamber, J. N. Cunha Rodrigues, J.-               Registrar, has given a judgment on 12 February 2004, in
P. Puissochet, R. Schintgen and F. Macken, Judges; P. Léger,                 which it has ruled:
Advocate General; H. von Holstein, Deputy Registrar, has
given a judgment on 22 January 2004, in which it has ruled:
                                                                             1.    Articles 1(3) and 2(1)(b) of Council Directive 89/665/EEC of
                                                                                   21 December 1989 on the coordination of the laws, regulations
Article 9(1) read in conjunction with Article 12(5)(a)(iii) of Council             and administrative provisions relating to the application of
Regulation (EEC) No 2913/92 of 12 October 1992 establishing                        review procedures to the award of public supply and public
the Community Customs Code, as amended by Regulation (EC)                          works contracts, as amended by Council Directive 92/50/EEC
No 82/97 of the European Parliament and of the Council of                          of 18 June 1992 relating to the coordination of procedures for
19 December 1996, must be interpreted as meaning that they                         the award of public service contracts, must be interpreted as not
provide the customs authorities with a legal basis for withdrawing a               precluding a person from being regarded, once a public contract
binding tariff information where those authorities change the                      has been awarded, as having lost his right of access to the
interpretation given therein of the legal provisions applicable to the             review procedures provided for by the Directive if he did not
tariff classification of the goods concerned.                                      participate in the award procedure for that contract on the
                                                                                   ground that he was not in a position to supply all the services
                                                                                   for which bids were invited, because there were allegedly
(1) OJ C 144 of 15.6.2002.                                                         discriminatory specifications in the documents relating to the
                                                                                   invitation to tender, but he did not seek review of those
                                                                                   specifications before the contract was awarded.
 ---pagebreak--- 3.4.2004                 EN                            Official Journal of the European Union                                                C 85/9
2.    Article 1(3) of Directive 89/665, as amended by Directive 92/            The first sentence of Article 7(1) and Article 7(1)(f) of Commission
      50, must be interpreted as precluding a person who has                   Regulation (EEC) No 536/93 of 9 March 1993 laying down
      participated in a contract award procedure from being regarded           detailed rules on the application of the additional levy on milk and
      as having lost his interest in obtaining the contract on the             milk products should be interpreted as meaning that the stock
      ground that, before seeking the review provided for by the               accounts which producers are required to keep need state only the
      Directive, he failed to refer the case to a conciliation committee       quantities, per month and per product, of milk and/or milk products
      such as Bundes-Vergabekontrollkommission (Federal Public                 sold.
      Procurement Review Commission, established by the Bundesge-
      setz über die Vergabe von Aufträgen (Bundesvergabegesetz)
      1997 (1997 Federal Law on Public Procurement).                           (1) OJ C 202 of 24.8.2002.
(1) OJ C 219 of 14.9.2002.
                                                                                                JUDGMENT OF THE COURT
                                                                                                         (Fifth Chamber)
                                                                                                       of 5 February 2004
                  JUDGMENT OF THE COURT
                                                                               in Case C-265/02 (Reference for a preliminary ruling from
                                                                               the Corta suprema di cassazione): Frahuil SA v Assitalia
                          (Sixth Chamber)
                                                                                                              SpA (1)
                        of 12 February 2004                                    (Brussels Convention — Special jurisdiction — Article 5(1)
                                                                               — Meaning of ‘matters relating to a contract’ — Contract
                                                                               of guarantee entered into without the knowledge of the
in Case C-236/02 (Reference for a preliminary ruling from                      principal debtor — Subrogation of the guarantor to the
the College van Beroep): J. Slob v Productschap Zuivel (1)                     rights of the creditor — Right of recourse of the guarantor
                                                                                                  against the principal debtor)
(Milk and milk products — Direct sales — Reference
quantity — Overruns — Additional levy on milk — Obli-                                                     (2004/C 85/13)
gation on producer to keep stock accounts — Contents —
Interpretation of Article 7(1)(f) of Regulation (EEC) No 536/                                      (Language of the case: Italian)
                                   93)
                                                                               (Provisional translation; the definitive translation will be published
                            (2004/C 85/12)                                                        in the European Court Reports)
                     (Language of the case: Dutch)                             In Case C-265/02: Reference to the Court under the Protocol
                                                                               of 3 June 1971 on the interpretation by the Court of Justice of
(Provisional translation; the definitive translation will be published         the Convention of 27 September 1968 on jurisdiction and the
                    in the European Court Reports)                             enforcement of judgments in civil and commercial matters by
                                                                               the Corte suprema di cassazione (Italy) for a preliminary ruling
                                                                               in the proceedings pending before that court between Frahuil
                                                                               SA and Assitalia SpA, on the interpretation of Article 5(1) of
                                                                               the abovementioned Convention of 27 September 1968 (OJ
In Case C-236/02: Reference to the Court under Article 234                     1978 L 304, p. 36), as amended by the Convention of
EC by the College van Beroep voor het bedrijfsleven (Nether-                   9 October 1978 on the accession of the Kingdom of Denmark,
lands) for a preliminary ruling in the proceedings pending                     Ireland and the United Kingdom of Great Britain and Northern
before that court between J. Slob and Productschap Zuivel, on                  Ireland (OJ 1978 L 304, p. 1 and — amended version —
the interpretation of Article 7(1)(f) of Commission Regulation                 p. 77), by the Convention of 25 October 1982 on the
(EEC) No 536/93 of 9 March 1993 laying down detailed rules                     accession of the Hellenic Republic (OJ 1982 L 388, p. 1) and
on the application of the additional levy on milk and milk                     by the Convention of 26 May 1989 on the accession of the
products (OJ 1993 L 57, p. 12), the Court (Sixth Chamber),                     Kingdom of Spain and the Portuguese Republic (OJ 1989
composed of: C. Gulmann, acting for the President of the Sixth                 L 285, p. 1), the Court (Fifth Chamber), composed of: P. Jann
Chamber, J.N. Cunha Rodrigues, J.-P. Puissochet, F. Macken                     (Rapporteur), acting for the President of the Fifth Chamber,
and N. Colneric (Rapporteur), Judges; F.G. Jacobs, Advocate                    C. W. A. Timmermans and S. von Bahr, Judges; P. Léger,
General; M.-F. Contet, Principal Administrator Registrar, has                  Advocate General; R. Grass, Registrar, has given a judgment
given a judgment on 12 February 2004, in which it has ruled:                   on 5 February 2004, in which it has ruled: