CELEX: C2002/003/26
Language: en
Date: 2002-01-05 00:00:00
Title: Case C-424/01: Reference for a preliminary ruling by the Bundesvergabeamt (Austria) by order of 25 October 2001 in the case of CS Communications & Systems Austria GmbH v Allgemeine Unfallversicherungsanstalt

5.1.2002              EN                   Official Journal of the European Communities                                          C 3/17
Question 3                                                            1.    On a proper construction of the second subparagraph of
                                                                            Chapter I(2) in Annex A to Council Directive
Does Article 30(1) and (2) of Directive 93/37/EEC in conjunc-               85/73/EEC (1) as amended and consolidated by Council
tion with the principles of transparency and equal treatment                Directive 96/43/EC (2), is an establishment which is
prohibit a contracting authority from making the acceptance                 situated in the same building as a cutting plant but whose
of an alternative tender, which differs from a tender con-                  operator is a natural or legal person other than the
forming to the tender document in that it proposes a different              operator of the cutting plant also to be regarded as the
technical quality, conditional on a positive assessment based               ‘establishment where the meat is obtained’?
on a criterion in national legislation requiring that ‘the
performance of qualitatively equivalent work is ensured’ if the
tender document refers only to the national provision and             2.    Which criteria are relevant to the fee-levying authority’s
does not specify the comparative parameters to be used to                   decision regarding the extent to which it grants a
assess ‘equivalence’?                                                       reduction of the fees of up to 55 % as provided for in the
                                                                            second subparagraph of Chapter I(2) in Annex A to the
Question 4a                                                                 abovementioned directive?
If the answer to Question 3 is in the affirmative, may a
                                                                            In that regard, may in particular the fact that staff need
contracting authority conclude a tendering procedure like that
                                                                            less time to carry out the controls or inspections also be
described in Question 3 by awarding the contract?
                                                                            taken into consideration where the fees in respect of such
Question 4b                                                                 controls and inspections are determined by the addition
                                                                            of a standard amount pursuant to the first subparagraph
If the answers to Questions 3 and 4a are in the affirmative,                under (a) of Chapter I(2) in Annex A to the abovemen-
must a contracting authority conducting a tendering procedure               tioned directive?
as described in Question 3 reject variants proposed by
tenderers without examining their contents, at any rate if it               Moreover, if Question 1 is answered in the affirmative,
has not defined contract award criteria for assessing the                   when reducing the fee, may account nevertheless be taken
technical differences between the variant and the tender                    of the fact that the establishments situated in one building
document?                                                                   are attributable to operators regarded in law as distinct,
                                                                            and may this in principle lead to a situation where in
Question 5                                                                  such cases less of a reduction is granted than in cases
If the answers to Questions 3 and 4a are in the affirmative and             where the slaughterhouse and cutting plant are not only
the answer to Question 4b is in the negative, must a contracting            situated in the same building but are also operated by the
authority conducting a tendering procedure as described in                  same natural or legal person?
Question 3 accept a variant whose technical differences from
the tender document it is unable to assess on the basis of
contract award criteria owing to the absence of appropriate           (1) OJ L 32 of 5.2.1985, p. 14.
statements in the tender document if this variant is the              (2) OJ L 162 of 1.7.1996, p. 1.
cheapest tender and contract award criteria have not otherwise
been defined?
(1) OJ L 199, p. 54.
                                                                      Reference for a preliminary ruling by the Bundesverga-
                                                                      beamt (Austria) by order of 25 October 2001 in the case
Reference for a preliminary ruling by the Verwaltungsge-              of CS Communications & Systems Austria GmbH v
richt Neustadt an der Weinstrasse by order of that court                          Allgemeine Unfallversicherungsanstalt
of 30 July 2001 in the case of Emil Färber GmbH & Co. v
                  Stadt Neustadt/Weinstrasse
                                                                                               (Case C-424/01)
                        (Case C-423/01)
                                                                                                 (2002/C 3/26)
                         (2002/C 3/25)
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 Verwaltungsgericht               European Communities by order of 25 October 2001 by
(Administrative Court) Neustadt an der Weinstrasse of 30 July         the Bundesvergabeamt (Austrian Federal Procurement Office),
2001, which was received at the Court Registry on 26 October          which was received at the Court Registry on 26 October 2001,
2001, for a preliminary ruling in the case of Emil Färber             for a preliminary ruling in the case of CS Communications &
GmbH & Co. v Stadt Neustadt/Weinstrasse on the following              Systems Austria GmbH v Allgemeine Unfallversicherungsan-
questions:                                                            stalt on the following questions:
 ---pagebreak--- C 3/18                EN                    Official Journal of the European Communities                                         5.1.2002
Question 1                                                             Must Directive 87/102/EEC (1) and Directive 90180/EEC (2) be
                                                                       interpreted as having as their sole purpose consumer protec-
When balancing interests prior to deciding an application for          tion or, as aiming, beyond that, at the organization and
interim measures, as required by Article 2(4) of Council               regulation of the single market in credit?
Directive 89/665/EEC of 21 December 1989 (1) on the coordi-
nation of the laws, regulations and administrative provisions
relating to the application of review procedures to the award          Must the obligation to interpret those directives in conformity
of public supply and public works contracts, as amended by             with their purpose, and at least in way protective of consumers,
Directive 92/50/EEC of 18 June 1992(2), is the ‘body respon-           prompt the national court to prefer an interpretation of its law
sible for review procedures’ within the meaning of Article 2(8)        that would allow it to raise, of its own motion, issues of
of Directive 89/665/EEC required to take into account the              irregularity affecting consumer credit agreements, such as a
prospects of success of an application for an unlawful decision        failure to indicate in writing the percentage rate of charge, in
of a contracting authority to be set aside pursuant to                 actions for payment of a debt brought before it by credit
Article 2(1)(b) of that Directive?                                     institutions?
Question 2
                                                                       (1) Council Directive 87/102/EEC of 22 December 1986 for the
                                                                           approximation of the laws, regulations and administrative pro-
When balancing interests prior to deciding an application for              visions of the Member States concerning consumer credit (OJ
interim measures, as required by Article 2(4) of Council                   L 42 of 12.2.1987, p. 48).
Directive 89/665/EEC of 21 December 1989 on the coordi-                (2) Council Directive 90/88/EEC of 22 February 1990 amending
nation of the laws, regulations and administrative provisions              Directive 87/102/EEC for the approximation of the laws, regu-
relating to the application of review procedures to the award              lations and administrative provisions of the Member States
of public supply and public works contracts, as amended by                 concerning consumer credit (OJ L 61, 10.3.1990, p. 14).
Directive 92/50/EEC of 18 June 1992, is the ‘body responsible
for review procedures’ within the meaning of Article 2(8) of
Directive 89/665/EEC entitled to take into account the pros-
pects of success of an application for an unlawful decision of
a contracting authority to be set aside pursuant to
Article 2(1)(b) of that Directive?
(1) OJ 1989 L 395, p. 33.                                              Reference for a preliminary ruling by the Bundessozial-
(2) OJ 1992 L 209, p. 1.                                               gericht by order of that court of 2 August 2001 in the
                                                                       case of Dülger Trans Uluslararasi Tazimacilik Ltd. Sti v
                                                                                            Bundesanstalt für Arbeit
                                                                                                (Case C-427/01)
                                                                                                  (2002/C 3/28)
Reference for a preliminary ruling by the Tribunal d’In-
stance, Vienne, by judgment of that court of 19 October
2001 in the case of SA Société ACCEA Finances v                        Reference has been made to the Court of Justice of the
                         Christian Giner                               European Communities by order of the Bundessozialgericht
                                                                       (Federal Social Court) of 2 August 2001, received at the Court
                                                                       Registry on 30 October 2001, for a preliminary ruling in the
                         (Case C-426/01)
                                                                       case of Dülger Trans Uluslararasi Tazimacilik Ltd. Sti. v
                                                                       Bundesanstalt für Arbeit (Federal Labour Office) on the follow-
                          (2002/C 3/27)                                ing questions:
                                                                       1.     Is Article 41(1) of the Additional Protocol of 23 Novem-
                                                                              ber 1970 to the Agreement establishing an Association
                                                                              between the European Economic Community and Turkey
Reference has been made to the Court of Justice of the                        to be interpreted as meaning that there is also a restriction
European Communities by judgment of the Tribunal d’Instance                   on the freedom to provide services where a Member State
(District Court), Vienne, of 19 October 2001, received at the                 of the Community abolishes an existing work permit
Court Registry on 29 October 2001 for a preliminary ruling                    exemption for Turkish drivers engaged in international
in the case of SA Société ACCEA Finances v Christian Giner                    haulage who are employed by a (Turkish) employer with
on the following questions:                                                   its seat in Turkey?