CELEX: C2002/180/27
Language: en
Date: 2002-07-27 00:00:00
Title: Case C-214/02: 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

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?
 ---pagebreak--- 27.7.2002                 EN                   Official Journal of the European Communities                                        C 180/17
2.    Do Directive 79/112/EEC or Articles 28 and 30 EC                    The obligation on the part of the United Kingdom to take
      preclude a national provision which, on the placing into            measures in order to comply with the directive for the entirety
      circulation of foodstuffs, permits health-related infor-            of its territory is not disputed.
      mation such as that described in Question (1) to be
      affixed thereto only after prior authorisation by the
      competent federal minister, whereby a condition of
      authorisation is that the health-related information is             Since the United Kingdom has not informed the Commission
      consistent with protecting the consumer from being                  of the provisions adopted to comply with the directive with
      misled?                                                             regard to Gibraltar, and since the Commission is in possession
                                                                          of no other information enabling it to conclude that the United
                                                                          Kingdom has adopted the necessary provisions, it is compelled
(1) OJ L 33, p. 1.                                                        to assume that the United Kingdom has not yet adopted such
                                                                          provisions and has thus failed to fulfil its obligations under the
                                                                          directive.
                                                                          (1) OJ L 159 of 29.6.1996, p. 1.
Action brought on 12 June 2002 by the Commission of
the European Communities against the United Kingdom
             of Great Britain and Northern Ireland
                           (Case C-218/02)
                           (2002/C 180/28)
                                                                          Action brought on 14 June 2002 by the Commission of
                                                                           the European Communities against the French Republic
An action against the United Kingdom of Great Britain and
Northern Ireland was brought before the Court of Justice of
the European Communities on 12 June 2002 by the Com-                                                (Case C-221/02)
mission of the European Communities, represented by Thomas
Cusack, acting as agent, with an address for service in
Luxembourg.                                                                                         (2002/C 180/29)
The Applicant claims that the Court should:
(1) declare that by failing to adopt for Gibraltar all the laws,
      regulations or administrative provisions necessary to               An action against the French Republic was brought before the
      comply with Council Directive 96/29/Euratom (1) of                  Court of Justice of the European Communities on 14 June
      13 May 1996 laying down basic safety standards for the              2002 by the Commission of the European Communities,
      protection of the health of workers and the general public          represented by D. Martin and M. França, acting as Agent, with
      against the dangers arising from ionizing radiation in its          an address for service in Luxembourg.
      whole territory, or in any event by failing to communicate
      them to the Commission, the United Kingdom has failed
      fully to fulfil its obligations under that Directive.
                                                                          The applicant claims that the Court should:
(2) order the United Kingdom to pay the costs.
                                                                          —     Declare that, by failing to adopt and bring into force
                                                                                within the prescribed period the laws, regulations and
                                                                                administrative provisions necessary to comply with
Pleas in law and main arguments                                                 Directive 98/7/EC of the European Parliament and of the
                                                                                Council of 16 February 1998 amending Directive 87/
                                                                                102/EEC for the approximation of the laws, regulations
According to Article 192(1) of the Treaty, Member States shall                  and administrative provisions of the Member States
take all appropriate measures, whether general or particular,                   concerning consumer credit (1), or, in any event, by failing
to ensure fulfilment of the obligations arising out of the Treaty               to communicate such provisions to the Commission, the
or resulting from action taken by the institutions of the                       French Republic has failed to fulfil its obligations under
Community.                                                                      that directive;