CELEX: C2002/180/26
Language: en
Date: 2002-07-27 00:00:00
Title: Case C-212/02: Action brought on 5 June 2002 by the Commission of the European Communities against the Republic of Austria

27.7.2002               EN                   Official Journal of the European Communities                                      C 180/15
The Applicant claims that the Court should:                             The applicant claims that the Court should:
(1) declare that by failing to adopt for Gibraltar all the laws,        1.    Declare that, by failing to adopt all the laws, regulations
       regulations or administrative provisions necessary to                  and administrative provisions necessary to comply with
       comply with Council Directive 97/43/Euratom (1) of                     Directive 97/66/EC of the European Parliament and of
       30 June 1997 on health protection of individuals against               the Council of 15 December 1997 concerning the
       the dangers of ionizing radiation in relation to medical               processing of personal data and the protection of privacy
       exposure, and repealing Directive 84/466/Euratom, or in                in the telecommunications sector (1), the Grand Duchy of
       any event by failing to communicate them to the                        Luxembourg has failed to fulfil its obligations under that
       Commission, the United Kingdom has failed fully to fulfil              directive;
       its obligations under that Directive.
                                                                        2.    Order the Grand Duchy of Luxembourg to pay the costs.
(2) order the United Kingdom to pay the costs.
Pleas in law and main arguments                                         Pleas in law and main arguments
According to Article 192(1) of the Treaty, Member States shall          The period prescribed for transposition expired on 24 October
take all appropriate measures, whether general or particular,           1998 and 24 October 2000 (as regards Article 5 of the
to ensure fulfilment of the obligations arising out of this Treaty      directive), respectively.
or resulting from action taken by the institutions of the
Community.
                                                                        (1) OJ L 24 of 30.1.1998, p. 1.
The obligation on the part of the United Kingdom to take
measures in order to comply with the directive is not disputed.
Since the United Kingdom has not informed the Commission
of the provisions adopted to comply with the directive
concerned with regard to Gibraltar, and since the Commission
is in possession of no other information enabling it to conclude        Action brought on 5 June 2002 by the Commission of the
that the United Kingdom has adopted the necessary provisions,             European Communities against the Republic of Austria
it is compelled to assume that the United Kingdom has not yet
adopted such provisions and has thus failed to fulfil its
obligations under the directive.                                                                 (Case C-212/02)
                                                                                                 (2002/C 180/26)
(1) JO L 180 of 9.7.1997, p. 22.
                                                                        An action against the Republic of Austria was brought before
                                                                        the Court of Justice of the European Communities on 5 June
                                                                        2002 by the Commission of the European Communities,
                                                                        represented by Michel Nolin, of the Commission’s Legal
Action brought on 4 June 2002 by the Commission of the                  Service, acting as Agent, assisted by Rainer Roniger, Rechtsan-
European Communities against the Grand Duchy of                         walt, of Haarmann and Hemmelrath, Brussels, having an
                           Luxembourg                                   address for service at the office of Luis Escobar Guerrero, of
                                                                        the Commission’s Legal Service, Centre Wagner C 254.
                         (Case C-211/02)
                                                                        The applicant claims that the Court should:
                         (2002/C 180/25)
                                                                        1.    Rule that the Republic of Austria has failed to fulfil its
                                                                              obligations under the remedial Directives 89/665/EEC (1)
                                                                              and 92/13/EEC (2), in particular the obligations under
An action against the Grand Duchy of Luxembourg was                           Articles 2(1)(a) and (b) thereof, since the Land procure-
brought before the Court of Justice of the European Communi-                  ment laws of the Länder of Salzburg, Steiermark, Niederös-
ties on 4 June 2002 by the Commission of the European                         terreich and Kärnten do not ensure in all cases that the
Communities, represented by C. Schmidt, acting as Agent,                      award decision is open to review in a procedure whereby
with an address for service in Luxembourg.                                    an unsuccessful tenderer can have that decision set aside;
 ---pagebreak--- C 180/16              EN                      Official Journal of the European Communities                                       27.7.2002
2.    Order the Republic of Austria to pay the costs.                    Reference for a preliminary ruling by the Unabhängiger
                                                                         Verwaltungssenat des Landes Vorarlberg by order of that
                                                                         Court of 6 June 2002 in the appeal brought by Gerhard
                                                                                                    Lintschinger
Pleas in law and main arguments
                                                                                                  (Case C-214/02)
The Land legislatures in Salzburg, Steiermark, Niederösterreich
and Kärnten have decided to limit the effects of a review
procedure following the conclusion of a contract to awarding
damages within the meaning of Article 2(6) of Directives 89/                                      (2002/C 180/27)
665/EEC and 92/13/EEC. With the award, to be considered as
a private law declaration of intent, by the contracting authority
to the successful tenderer, the contract is closed and, according
to the provisions of the Land procurement laws — in
conformity with Article 2(6) of both directives — no longer
open to challenge by the Land bodies responsible for review
procedures.
                                                                         Reference has been made to the Court of Justice of the
                                                                         European Communities by order of the Unabhängiger Verwal-
The Land procurement laws which the Commission is challeng-              tungssenat des Landes Vorarlberg (Independent Administrative
ing do not, however, contain a definition of the ‘award                  Chamber of the Land Vorarlberg) of 6 June 2002, received at
decision’. They therefore also do not lay down any specific              the Court Registry on 10 June 2002, for a preliminary ruling
form for the decision by the contracting authority to award a            in the appeal brought by Gerhard Lintschinger on the following
particular tenderer the contract. Nor are uniform rules laid             questions:
down as to whether, and how, tenderers can obtain knowledge
of such award decisions. The award decision is rather an
internal decision by the contracting authority, of which
tenderers cannot acquire any knowledge. The award decision               1.    Does Article 2(1)(b) of Council Directive 79/112/EEC (1)
becomes public knowledge only once the contract is con-                        of 18 December 1978 on the approximation of the
cluded.                                                                        laws of the Member States relating to the labelling,
                                                                               presentation and advertising of foodstuffs for sale to
                                                                               the ultimate consumer (now consolidated in European
                                                                               Parliament and Council Directive 2000/13/EC of
The Austrian system is therefore not in compliance with the                    20 March 2000 — OJ 2000 L 109, p. 29), under which
directive inasmuch as, through that nomination as well as                      — subject to Community provisions applicable to natural
through the coincidence of the award decision and the                          mineral waters and to foodstuffs for particular nutritional
conclusion of the contract, the tenderer is deprived of any                    uses — the labelling and methods used may not attribute
chance to contest the award decision and effectively to prevent                to any foodstuff the property of preventing, treating or
an unlawful award decision by applying at the same time for a                  curing a human disease, or suggest that it possesses such
provisional order. That is contrary to the effective review                    properties, preclude national legislation which makes it
procedures required by the directives, under which it must be                  an offence when marketing foodstuffs:
possible to apply for a provisional order at least until the
conclusion of the contract.
                                                                               (a)   to refer to physiological or pharmacological effects,
                                                                                     in particular those which preserve youthfulness,
As a consequence of the Court’s judgment in Case C-81/                               inhibit signs of ageing, promote slimming or main-
98 Alcatel (3), the Austrian Federal Chancellery prepared a                          tain health, or to create the impression of any such
memorandum intended to ensure an approach to contract                                effect;
awards in compliance with that judgment until statutory
regulations have been issued. However, a non-binding memor-
andum does not establish an unequivocal legal framework
such as the Republic of Austria is required to create.                         (b) to refer to case-histories, recommendations made by
                                                                                     doctors or medical experts’ reports;
(1) OJ 1989 L 395, p. 33.
(2) OJ 1992 L 76, p. 14.                                                       (c)   to use health-related, pictorial or stylised represen-
(3) OJ 2000 C 34, p. 6.                                                              tations of organs of the human body, pictures
                                                                                     of members of the health-care professions or of
                                                                                     sanatoria or other pictures or illustrations referring
                                                                                     to health-care activities?