CELEX: C2003/171/19
Language: en
Date: 2003-07-19 00:00:00
Title: Case C-209/03: Reference for a preliminary ruling by the High Court of Justice (England and Wales), Queen's Bench Division (Administrative Court) by order of that court dated 12 February 2003, in the case of The Queen on the application of Dany Bidar against 1) London Borough of Ealing 2) Secretary of State for Education

19.7.2003                EN                      Official Journal of the European Union                                           C 171/13
same time infringed all three principles upheld by the Court in          which requires all the Member States to introduce into their
regard to the recovery of charges levied by the Member States            respective national systems review procedures full available to
in breach of Community law, that is to say not only the                  those who intend to seek reparation of damage suffered or
principle of equivalence and the maintenance of the effects of           who in any event fear that they may suffer harm as a result of
judgments of the Court declaring a charge incompatible with              a decision taken by the tenders committee for the award of a
Community law but also the principle of effectiveness.                   public procurement contract?
( 1) OJ English Special Edition 1969 II, p. 412.
                                                                         Does that interim relief which may be granted by the national
                                                                         administrative courts constitute infringement of Article 2(1)(a)
                                                                         of the Directive, which requires the Member States to take at
                                                                         the earliest opportunity and by way of interlocutory pro-
                                                                         cedures, interim measures with the aim of correcting the
                                                                         alleged infringement or preventing further damage to the
Reference for a preliminary ruling by the Tribunale                      interests concerned, including measures to suspend or to
Amministrativo Regionale per la Lombardia — Sezione                      ensure the suspension of the procedure for the award of a
Staccata di Brescia by order of that Court of 24 April                   public contract or the implementation of any decision taken
2003 in the case of Società DAC S.p.A. against Azienda                   by the contracting authority?
Ospedaliera ‘Spedali Civili’, Brescia; the third party being
                          Pellegrini S.p.A
                                                                         Finally, does that form of interim relief also constitute breach
                          (Case C-202/03)                                of Article 6(2) TEU which, in providing that the Union must
                                                                         respect fundamental rights, as guaranteed by the European
                          (2003/C 171/18)                                Convention for the Protection of Human Rights and Funda-
                                                                         mental Freedoms, has adopted the principle laid down in
                                                                         Articles 6 and 13 of that Convention that judicial protection
                                                                         must be effective, requiring the Member States to guarantee
Reference has been made to the Court of Justice of the                   that full effectiveness in their respective national legal systems?
European Communities by order of the Tribunale Amministra-
tivo Regionale per la Lombardia - Sezione Staccata di Brescia
(Regional Administrative Court for Lombardy, Brescia Div-
ision) of 24 April 2003, received at the Court Registry on               (1 ) OJ L 395, 30.12.1989, p. 33.
13 May 2003, for a preliminary ruling in the case of
Società DAC S.p.A. against Azienda Ospedaliera ‘Spedali Civili’,
Brescia; the third party being Pellegrini S.p.A. on the following
questions:
Is the judicial protection provided in respect of claims based
on Community law, which may be granted by the national
administrative courts in procurement contract proceedings,
and which differs from that provided in the national legal               Reference for a preliminary ruling by the High Court of
order in respect of rights recognised in disputes between                Justice (England and Wales), Queen’s Bench Division
private persons or in disputes between the latter and the public         (Administrative Court) by order of that court dated
authorities over which the ordinary courts have jurisdiction,            12 February 2003, in the case of The Queen on the
contrary to the principle of cooperation enshrined in                    application of Dany Bidar against 1) London Borough of
Article 10 EC, which, in the absence of any harmonised                              Ealing 2) Secretary of State for Education
procedural system, requires that claims based on Community
law must be afforded the same form of protection as claims
based on national law, rather than relief which is purely                                         (Case C-209/03)
interlocutory and therefore less effective compared to the
protection afforded generally in respect of rights under national
law?                                                                                              (2003/C 171/19)
Furthermore, in so far as it does not provide, among the
interim measures available, for the possibility of introducing
an application for interim relief ante causam, seeking an order          Reference has been made to the Court of Justice of the
restraining the authorities forthwith from concluding the                European Communities by an order of the High Court
contract at the end of a. tendering procedure, quite irrespective        of Justice (England and Wales), Queen’s Bench Division
of whether or not an action challenging an act in that                   (Administrative Court), dated 12 February 2003, which was
procedure has already been brought, does Article 21 of Law               received at the Court Registry on 15 May 2003, for a
No 1034 of 6 December 1971, as amended by Law No 205                     preliminary ruling in the case of The Queen on the application
of 21 July 2000, constitute sufficient implementation of                 of Dany Bidar against 1) London Borough of Ealing 2) Secretary
Article 1(3) of Directive 98/665/EEC (1) of 21 December 1989,            of State for Education on the following questions:
 ---pagebreak--- C 171/14              EN                         Official Journal of the European Union                                       19.7.2003
1.   Whether, given the decisions of the Court of Justice of                  erty), to be interpreted as precluding national legislation
     the European Communities in case C-39/86 Lair v                          which prohibits any person from supplying, offering or
     Universität Hannover [1988] ECR 3161, and case C-189/                    agreeing to supply, exposing for supply or possessing for
     97 Brown v Secretary of State for Scotland [1988] ECR                    supply any product made wholly or partly of tobacco
     3205, and developments in the law of the European                        which is either in powder or particulate form or any
     Union, including the adoption of Article 18 EC and                       combination of those forms or is presented in a form
     developments in relation to the competence of the                        resembling a food product and is intended for oral use
     European Union in the field of education, assistance                     other than smoking or chewing?
     with maintenance costs for students attending university
     courses, such assistance being given by way of either
     (a) subsidised loans or (b) grants, continues to fall outside
                                                                         (2) Is Article 8 of Directive 2001/37/EC ( 1) invalid in whole
     the scope of the application of the EC Treaty for the
                                                                              or in part by reason of:
     purposes of Article 12 EC and the prohibition on
     discrimination on grounds of nationality.
2.   If either part of question 1 is answered in the negative,                a.    infringement of the principle of non-discrimination;
     and if assistance with maintenance costs for students in
     the form of grants or loans do now fall within the scope
     of Article 12 EC, what criteria should the national court                b.    Infringement of Article 23 and/or 29 EC;
     apply in determining whether the conditions governing
     eligibility for such assistance are based on objectively
     justifiable considerations not dependent on nationality?
                                                                              c.    infringement of the principle of proportionality;
3.   If either part of question 1 is answered in the negative,
     whether Article 12 EC may be relied upon to claim
     entitlement to assistance with maintenance costs from a                  d.    the inadequacy of Article 95 and/or Article 133 as a
     date prior to the date of the judgment of the Court of                         legal basis;
     Justice in the present case and, if so, whether an exception
     should be made for those who initiated legal proceedings
     before that date?
                                                                              e.    infringement of Article 95(3);
                                                                              f.    misuse of powers;
                                                                              g.    infringement of Article 253 EC and/or the duty to
Reference for a preliminary ruling by the High Court of                             give reasons;
Justice (England and Wales), Queen’s Bench Division
(Administrative Court) by order of that court dated
17 April 2003, in the case of The Queen on the application
of 1) Swedish Match AB 2) Swedish Match UK Ltd against                        h.    infringement of the fundamental right to property?
                 Secretary of State for Health
                        (Case C-210/03)                                  (3) In circumstances where:
                        (2003/C 171/20)
                                                                              a.    a national measure implementing Article 8a of
                                                                                    Directive 89/622/EEC (2) was adopted in 1992;
Reference has been made to the Court of Justice of the
European Communities by an order of the High Court                            b.    the said national measure was adopted pursuant to
of Justice (England and Wales), Queen’s Bench Division                              powers in domestic law which do not depend on
(Administrative Court), dated 17 April 2003, which was                              the existence of an obligation to implement the
received at the Court Registry on 15 May 2003, for a                                Directive;
preliminary ruling in the case of The Queen on the application
of 1) Swedish Match AB 2) Swedish Match UK Ltd against
Secretary of State for Health on the following questions:                     c.    Directive 89/622/EEC (as subsequently amended by
                                                                                    the Act of Accession of Austria, Finland and Sweden)
(1) Are Articles 28-30 EC, applied compatibly with the                              is repealed and replaced by Directive 2001/37/EC,
     general principles of proportionality, non-discrimination                      Article 8 of which re-enacts Article 8a of Directive
     and fundamental rights (in particular the right to prop-                       89/622/EEC; and