CELEX: C2002/219/04
Language: en
Date: 2002-09-14 00:00:00
Title: Case C-230/02: Reference for a preliminary ruling by the Bundesvergabeamt (Austria) by order of that Court of 14 May 2002 in the review procedure between Grossmann Air Service GmbH & Co KG and the Bund (Republic of Austria)

C 219/2                  EN                     Official Journal of the European Communities                                     14.9.2002
Is a CD-ROM drive which is equipped with a jack for                        Question 2:
headphones, a volume control button and a button to insert
and remove CDs, but which cannot by itself reproduce
graphics, audio, data and text, to be classified for the period            In the event that the answer given to Question 1 is no:
1 January 1995 to 21 November 1995 under heading
8521 90 00 in accordance with classification practice laid
down in Commission Regulation (EC) No 2564/95 ( 1), or                     Is the abovementioned provision to be understood as meaning
under heading 8471 93 51 in accordance with the classifi-                  that, if a tenderer’s bid is not eliminated by the contracting
cation practice laid down in Commission Regulation (EC)                    authority, but the review body finds in the course of the review
No 2491/96 (2) and the decision adopted by the Harmonized                  procedure that the contracting authority would have been
System Committee of the World Customs Organization                         bound to eliminate it, the tenderer has been or risks being
(Doc. 40.260 E and Doc. 40.600 E)?                                         harmed by the infringement alleged by him — in this case the
                                                                           finding by the contracting authority that a rival tenderer
                                                                           submitted the best bid — and that he must therefore have the
                                                                           right to bring a review procedure?
( 1) Commission Regulation (EC) No 2564/95 of 27 October 1995
     concerning the classification of certain goods in the combined
     nomenclature (OJ L 262 of 1.11.1995, p. 25).
( 2) Commission Regulation (EC) No 2491/96 of 23 December 1996             (1 ) OJ L 395 [1989], p. 33.
     amending Regulation (EEC) No 2658/87 on the tariff and
     statistical nomenclature and on the Common Customs Tariff (OJ
     L 338 of 28.12.1996, p. 14).
                                                                           Reference for a preliminary ruling by the Bundesverga-
Reference for a preliminary ruling by the Bundesverga-                     beamt (Austria) by order of that Court of 14 May 2002 in
beamt by order of that Court of 14 May 2002 in the case                    the review procedure between Grossmann Air Service
of 1. Tenderer: debis/AC, 2. ARGE Telekom & Partner, 3.                         GmbH & Co KG and the Bund (Republic of Austria)
Tenderer: SIEMENS AUSTRIA CARD against Hauptver-
    band der österreichischen Sozialversicherungsträger
                                                                                                     (Case C-230/02)
                           (Case C-229/02)
                                                                                                     (2002/C 219/04)
                           (2002/C 219/03)
                                                                           Reference has been made to the Court of Justice of the
Reference has been made to the Court of Justice of the
                                                                           European Communities by order of the Bundesvergabeamt
European Communities by order of the Bundesvergabeamt                      (Federal Public Procurement Office) of , received at the Court
(Federal Public Procurement Office) of 14 May 2002, received
                                                                           Registry on 20 June 2002, for a preliminary ruling in the
at the Court Registry on 20 June 2002, for a preliminary ruling
                                                                           review procedure between Grossmann Air Service GmbH &
in the case of 1. Tenderer: debis/AC, 2. ARGE Telekom
                                                                           Co KG and the Bund (Republic of Austria) on the following
& Partner, 3. Tenderer: SIEMENS AUSTRIA CARD against
                                                                           questions:
Hauptverband der österreichischen Sozialversicherungsträger
on the following questions:
                                                                           Question 1:
Question 1:
                                                                           Is Article 1(3) of Council Directive 89/665/EEC (1) of
Is Article 1(3) of Council Directive 89/665/EEC of 21 Decem-               21 December 1989 on the coordination of the laws, regu-
ber 1989 (1) on the coordination of the laws, regulations and              lations and administrative provisions relating to the application
administrative provisions relating to the application of review            of review procedures to the award of public supply and public
procedures to the award of public supply and public works                  works contracts to be interpreted as meaning that the review
contracts to be interpreted as meaning that any person seeking             procedure must be available to any undertaking which has
the award of a specific pending public contract is entitled to             submitted a bid, or applied to participate, in a public procure-
institute a review procedure?                                              ment procedure?
 ---pagebreak--- 14.9.2002              EN                    Official Journal of the European Communities                                         C 219/3
In the event that the answer to Question 1 is no:                       Question 2:
Question 2:
                                                                        In the event that the answer to Question 1 is no:
Is the abovementioned provision to be understood as meaning
that an undertaking only has or had an interest in a particular         Is the abovementioned provision of the Directive to be
public contract if — in addition to its participating in the            construed in such a way that — where a bid was eliminated
public procurement procedure — it takes all steps available to          otherwise than in accordance with the law but the review body
it under national law to prevent the contract from being                in the course of its review procedure assumes and establishes
awarded to another bidder?                                              as a preliminary matter that the bid had properly to be
                                                                        eliminated — the tenderer of that bid is entitled to bring an
Question 3:                                                             application in respect of an alleged infringement of the law —
                                                                        in the present case the contracting authority’s decision to make
Is Article 1(3) of Council Directive 89/665/EEC of 21 Decem-            the award to another bidder — because owing to the
ber 1989 on the coordination of the laws, regulations and               contracting authority’s defective award procedure the applicant
administrative provisions relating to the application of review         may in any event be presumed to have suffered loss and
procedures to the award of public supply and public works               errors in the award procedure can no longer be remedied
contracts, in conjunction with Article 2(1) thereof, to be              subsequently in the review procedure by substitution of
interpreted as meaning that an undertaking must be afforded             decisions of the contracting authority, and the review pro-
the opportunity in law to seek review of an award procedure             cedure must therefore be available to the applicant?
regarded by it as unlawful or discriminatory even where it is
not capable of performing the totality of the services for which
bids were invited and, for that reason, did not submit a bid in
that award procedure.                                                   (1 ) OJ L 395 [1989], p. 33.
( 1) OJ L 395 [1989], p. 33.
Reference for a preliminary ruling by the Bundesverga-                  Reference for a preliminary ruling by the korkein hallinto-
beamt (Republic of Austria) by order of that Court of                   oikeus by order of that Court of 1st July 2002 in the
14 May 2002 in the case of Neumayer Bau Ges.m.b.H                                  appeal brought by Kauppatalo Hansel Oy
against Abwasserverband Grossraum Bruck an der Leitha
                          — Neusiedl/See
                                                                                                  (Case C-244/02)
                          (Case C-231/02)
                          (2002/C 219/05)                                                         (2002/C 219/06)
Reference has been made to the Court of Justice of the
European Communities by order of the Bundesvergabeamt                   Reference has been made to the Court of Justice of the
(Republic of Austria) of 14 May 2002, received at the Court             European Communities by order of the korkein hallinto-
Registry on 20 June 2002, for a preliminary ruling in the               oikeus (Supreme Administrative Court) of 1st July 2002,
case of Neumayer Bau Ges.m.b.H against Abwasserverband                  received at the Court Registry on 4 July 2002, for a preliminary
Grossraum Bruck an der Leitha — Neusiedl/See on the                     ruling in the appeal brought by Kauppatalo Hansel Oy on the
following questions:                                                    following questions:
Question 1:
                                                                        1.    Is Council Directive 93/36/EEC (1) of 14 June 1993
Is Article 1(3) of Council Directive 89/665/EEC of 21 Decem-                  coordinating procedures for the award of public supply
ber 1989 on the coordination of the laws, regulations and                     contracts to be interpreted as meaning that a contracting
administrative provisions relating to the application of review               authority which has commenced a tender procedure on
procedures to the award of public supply and public works                     the basis of the lowest price may discontinue the
contracts ( 1) to be broadly interpreted as meaning that under it             procedure without awarding a contract when it discovers
entitlement to apply for a review procedure must be available                 after examining and comparing the tenders that because
to any person seeking to receive a specific public contract                   of the content of the invitation to tender it is not possible
whose award is pending, irrespective of whether such person                   for it to award a contract on the basis of the invitation to
has suffered or may suffer loss as a result of the alleged                    tender in question in the most advantageous way from
infringement of the law?                                                      the point of view of total costs?