CELEX: C2002/003/24
Language: en
Date: 2002-01-05 00:00:00
Title: Case C-421/01: Reference for a preliminary ruling by the Bundesvergabeamt (Austria) by order of 25 September 2001 in the case of Traunfellner GmbH v Österreichische Autobahnen- und Schnellstrassen-Finanzierungs-AG (ÖSAG)

C 3/16                EN                    Official Journal of the European Communities                                       5.1.2002
2.   If the answer to Question 1(a) is in the affirmative:             3.    Is the material outlay (in particular in regard to costs) in
                                                                             which clients who have hitherto been supplied with the
                                                                             product of the undertaking having a dominant market
     (a)   Must the question concerning the similarity between               position would be involved if they were in future to go
           the trade mark and the sign in such a case be                     over to purchasing the product of a competing undertak-
           assessed on the basis of a criterion other than that              ing which does not make use of the data bank protected
           of (direct or indirect) confusion as to origin, and if            by copyright relevant to the question of abusive conduct
           so, according to what criterion?                                  by an undertaking with a dominant position on the
                                                                             market?
     (b) If the sign alleged to be an infringement in such a
           case is viewed purely as an embellishment by the
           relevant section of the public, what importance must
           be attached to that circumstance in connection with
           the question concerning the similarity between the
           trade mark and the sign?
                                                                       Reference for a preliminary ruling by the Bundesverga-
                                                                       beamt (Austria) by order of 25 September 2001 in the
                                                                       case of Traunfellner GmbH v Österreichische Autobah-
                                                                          nen- und Schnellstrassen-Finanzierungs-AG (ÖSAG)
Reference for a preliminary ruling by the Landgericht
Frankfurt am Main by order of that court of 12 July 2001                                       (Case C-421/01)
in the case of IMS Health GmbH & Co. OHG v NDC
                      Health GmbH & Co
                                                                                                (2002/C 3/24)
                        (Case C-418/01)
                          (2002/C 3/23)
                                                                       Reference has been made to the Court of Justice of the
                                                                       European Communities by order of 25 September 2001 by
                                                                       the Bundesvergabeamt (Austrian Federal Procurement Office),
                                                                       which was received at the Court Registry on 24 October 2001,
Reference has been made to the Court of Justice of the                 for a preliminary ruling in the case of Traunfellner GmbH v
European Communities by order of the Landgericht Frankfurt             Österreichische Autobahnen- und Schnellstrassen-Finan-
am Main (Regional Court) of 12 July 2001, which was received           zierungs-AG (ÖSAG) on the following questions:
at the Court Registry on 22 October 2001, for a preliminary
ruling in the case of IMS Health GmbH & Co. OHG v NDC
Health GmbH & Co on the following questions:                           Question 1
                                                                       Is an alternative tender that consists in proposing an asphalt
1.   Is Article 82 EC to be interpreted as meaning that there is       surface instead of overlaying the carriageway with concrete as
     abusive conduct by an undertaking with a dominant                 specified in the tender document a ‘variant’ within the meaning
     position on the market where it refuses to grant a licence        of the first paragraph of Article 19 of Directive 93/37/EEC (1)?
     agreement for the use of a data bank protected by
     copyright to an undertaking which seeks access to the
     same geographical and actual market if the participants           Question 2
     on the other side of the market, that is to say potential
     clients, reject any product which does not make use of
     the data bank protected by copyright because their set-up         Can a criterion established in national legislation to determine
     relies on products manufactured on the basis of that data         the admissibility of the acceptance of a ‘variant’ within the
     bank?                                                             meaning of the first paragraph of Article 19 of Directive
                                                                       93/37/EEC, whereby ‘the performance of qualitatively equiva-
                                                                       lent work is ensured’ by the variant, properly be regarded as a
2.   Is the extent to which an undertaking with a dominant             ‘minimum specification’ required and stated by the contracting
     position on the market has involved persons from the              authority in accordance with the first and second paragraphs
     other side of the market in the development of the data           of Article 19 of Directive 93/37/EEC, if the tender document
     bank protected by copyright relevant to the question of           refers only to the national provision and does not specify the
     abusive conduct by that undertaking?                              comparative parameters to be used to assess ‘equivalence’?
 ---pagebreak--- 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: