CELEX: C2001/317/18
Language: en
Date: 2001-11-10 00:00:00
Title: Case C-314/01: Reference for a preliminary ruling by the Bundesvergabeamt (Austria) by order of 11 July 2001 in the case of (1) Siemens AG Österreich; (2) ARGE Telekom & Partner v Hauptverband der österreichischen Sozialversicherungsträger; intervening party: EDS/ORGA consortium

C 317/10               EN                    Official Journal of the European Communities                                    10.11.2001
4.   The Confédération belge du commerce et de la réparation                  (f)  the preparation of Medical Reports
     automobile et des secteurs connexes ASBL (Federauto) is ordered
     to bear its own costs.                                                        (i)   following the examinations referred to in (e)
                                                                                         and
                                                                                   (ii) based on medical notes but without conducting
(1) OJ C 316 of 4.11.2000.                                                               a medical examination,
                                                                              (g)  medical examinations conducted with a view to the
                                                                                   preparation of expert Medical Reports regarding
                                                                                   professional medical negligence for individuals con-
                                                                                   templating litigation, and
                                                                              (h) the preparation of Medical Reports
                                                                                   (i)   following the examinations referred to in (g)
Reference for a preliminary ruling by the VAT and Duties                                 and
Tribunals, London Tribunal Centre, by direction of that
court of 6 June 2001, in the case of 1) Dr Peter L.                                (ii) based on medical notes but without conducting
d’Ambrumenil, 2) Dispute Resolution Services Ltd against                                 a medical examination?
           Commissioners of Customs and Excise
                                                                        (1) OJ L 145 of 13.6.1977, p. 1.
                         (Case C-307/01)
                         (2001/C 317/17)
Reference has been made to the Court of Justice of the                  Reference for a preliminary ruling by the Bundesverga-
European Communities by a direction of the VAT and Duties               beamt (Austria) by order of 11 July 2001 in the case of
Tribunals, London Tribunal Centre, of 6 June 2001, which was            (1) Siemens AG Österreich; (2) ARGE Telekom & Partner
received at the Court Registry on 6 August 2001, for a                  v Hauptverband der österreichischen Sozialversiche-
preliminary ruling in the case of 1) Dr Peter L. d’Ambrumenil,            rungsträger; intervening party: EDS/ORGA consortium
2) Dispute Resolution Services Ltd against Commissioners of
Customs and Excise, on the following questions:                                                 (Case C-314/01)
1.   Is article 13A(1)(c) of Directive 77/388/EEC (1) of 17 May                                 (2001/C 317/18)
     1977 on the harmonisation of the laws of the Member
     States relating to turnover taxes to be interpreted as             Reference has been made to the Court of Justice of the
     covering the following activities when performed in the            European Communities by order of 11 July 2001 by the
     exercise of the medical profession as defined by the               Bundesvergabeamt (Austrian Federal Procurement Office),
     Member State:                                                      which was received at the Court Registry on 9 August 2001,
                                                                        for a preliminary ruling in the case of (1) Siemens AG
                                                                        Österreich; (2) ARGE Telekom & Partner v Hauptverband der
     (a)   conducting medical examinations of individuals for           österreichischen Sozialversicherungsträger; intervening party:
           employers or insurance companies.                            EDS/ORGA consortium, on the following questions:
     (b) the taking of blood or other bodily samples to test            1.    Is Council Directive 89/665/EEC (1) of 21 December
           for the presence of viruses, infections or other                   1989 on the coordination of the laws, regulations and
           diseases on behalf of employers or insurers,                       administrative provisions relating to the application of
                                                                              review procedures to the award of public supply and
                                                                              public works contracts, and in particular Article 2(1)(b)
     (c)   certification of medical fitness, for example, as to               thereof, if necessary in conjunction with Article 2(7)
           fitness to travel,                                                 thereof, to be interpreted as meaning that the legal effect
                                                                              of a decision taken by a national review body within the
     (d) giving certificates as to a person’s medical condition               meaning of Article 2(8) of Directive 89/665 relating to
           for purposes such as entitlement to a War Pension,                 the setting aside of a contracting authority’s decision not
                                                                              to cancel a contract award procedure is that if national
                                                                              law does not provide any basis for the effective and
     (e)   medical examinations conducted with a view to the                  compulsory enforcement of the review body’s decision
           preparation of expert Medical Reports regarding                    against the contracting authority, the contract award
           issues of liability and the quantification of damages              procedure is automatically terminated by the national
           for individuals contemplating personal injury liti-                review body’s decision, without the need for any further
           gation,                                                            act by the contracting authority?
 ---pagebreak--- 10.11.2001           EN                     Official Journal of the European Communities                                     C 317/11
2.  Is Directive 89/665, in particular Article 2(7) thereof, if        5.   If Question 4 is answered in the affirmative: does
    necessary in conjunction with Council Directive                         Article 2(7) of Directive 89/665, if necessary in conjunc-
    92/50/EEC (2) of 18 June 1992 relating to the coordi-                   tion with other provisions of Community law, give the
    nation of procedures for the award of public service                    review body the power in such a case to threaten
    contracts, in particular Articles 25 and 32(2)(c) thereof,              contracting authorities and the members of their execu-
    or any other provisions of Community law, in particular                 tive organs with, and to impose on them, such fines or
    having regard to the effet utile doctrine relating to the               fines and imprisonment by way of coercive penalties as
    interpretation of Community law, to be construed as                     are necessary to enforce their orders and are calculated in
    meaning that a provision in an invitation to tender which               accordance with judicial discretion, where the contracting
    prohibits subcontracting material parts of the service                  authorities and the members of their executive organs do
    concerned and, contrary to the case-law of the Court of                 not comply with the orders issued by the review body?
    Justice, in particular Case C-176/98 Holst Italia [1999]
    ECR I-8607, prevents the tenderer from using his contract
    with his subcontractor to prove that the services of a             (1) OJ 1989 L 395, p. 33.
    third party are actually available to him and which thus           (2) OJ 1992 L 209, p. 1.
    deprives him of his right to prove his own capability by
    relying on the services of a third party or to prove that he
    actually has available a third party’s services, is so clearly
    contrary to Community law that a contract concluded on
    the basis of such an invitation to tender is to be regarded
    as invalid, in particular where national law in any case
    provides that illegal contracts are invalid?
                                                                       Reference for a preliminary ruling by the Bundesverga-
                                                                       beamt (Austria) by order of 11 July 2001 in the case of
                                                                       GAT Gesellschaft für Abfallentsorgungs-Technik GmbH
                                                                       v Österreichische Autobahnen und Schnellstraßen AG
                                                                                                    (ÖSAG)
                                                                                                (Case C-315/01)
3.  Is Directive 89/665, in particular Article 2(7) thereof, or
    any other provision of Community law, in particular
                                                                                                (2001/C 317/19)
    having regard to the effet utile doctrine relating to the
    interpretation of Community law, to be construed as
    meaning that a contract concluded contrary to a decision           Reference has been made to the Court of Justice of the
    by a national review body within the meaning of                    European Communities by order of 11 July 2001 by the
    Article 2(8) of Directive 89/665 relating to the setting           Bundesvergabeamt (Austrian Federal Procurement Office),
    aside of a contracting authority’s decision not to cancel a        which was received at the Court Registry on 13 August 2001,
    contract award procedure is invalid, in particular where           for a preliminary ruling in the case of GAT Gesellschaft für
    national law in any case provides that immoral or illegal          Abfallentsorgungs-Technik GmbH v Österreichische Auto-
    contracts are void but does not provide any basis for the          bahnen und Schnellstraßen AG (ÖSAG) on the following
    effective and compulsory enforcement of the review                 questions:
    body’s decision against the contracting authority?
                                                                       1.   Is Article 2(8) of Council Directive 89/665/EEC (1) of
                                                                            21 December 1989 on the coordination of the laws,
                                                                            regulations and administrative provisions relating to the
                                                                            application of review procedures to the award of public
                                                                            supply and public works contracts, or any other provision
                                                                            of that directive or any other provision of Community
                                                                            law to be interpreted as meaning that an authority
4.  Is Directive 89/665, in particular Article 2(1)(b) thereof,             responsible for carrying out review procedures within the
    if necessary in conjunction with Article 2(7), to be                    meaning of Article 1(1) of that directive, including the
    interpreted as meaning that where national law does                     exercise of the powers referred to in Article 2(1)(c)
    not otherwise provide any basis for the effective and                   thereof, is precluded from taking into account, of its own
    compulsory enforcement of the review body’s decision                    motion and independently of the submissions of the
    against the contracting authority, the review body has, by              parties to the review procedure, those circumstances
    virtue of the direct application of Article 2(1)(b) in                  relevant under the law governing contract award pro-
    conjunction with Article 2(7), the power to issue a                     cedures which the authority responsible for carrying out
    compulsory, enforceable order to the contracting auth-                  review procedures considers material to its decision in a
    ority to ensure that the unlawful decision is set aside,                review procedure?
    even though national law authorises the review body to
    issue only non-compulsory, non-enforceable orders to               2.   Is Article 2(1)(c) of Directive 89/665/EEC, if necessary
    set aside contracting authorities ‘decisions in tenderers’              considered in conjunction with other principles of Com-
    applications for review within the meaning of Article 1(1)              munity law, to be interpreted as meaning that an authority
    of Directive 89/665?                                                    responsible for carrying out review procedures within the