CELEX: C2003/184/21
Language: en
Date: 2003-08-02 00:00:00
Title: Judgment of the Court (Sixth Chamber) of 19 June 2003 in Case C-410/01 (reference for a preliminary ruling from the Bundesvergabeamt Wien): Fritsch, Chiari & Partner, Ziviltechniker GmbH, and Others v Autobahnen- und Schnellstraßen-Finanzierungs-AG (Asfinag) (Public procurement — Directive 89/665/EEC — Review procedures relating to the award of public supply and public works contracts — Article 1(3) — Persons to whom review procedures are accessible — Definition of "interest in obtaining a public supply contract")

C 184/12                EN                            Official Journal of the European Union                                                 2.8.2003
                  JUDGMENT OF THE COURT                                       Bundesvergabekontrollkommission established by the Bundesgesetz über
                                                                              die Vergabe von Aufträgen (Bundesvergabegesetz) (Austrian Federal
                                                                              Public Procurement Law) of 1997.
                           (Sixth Chamber)
                                                                              (1) OJ C 31 of 2.2.2002.
                           of 19 June 2003
in Case C-410/01 (reference for a preliminary ruling from
the Bundesvergabeamt Wien): Fritsch, Chiari & Partner,
Ziviltechniker GmbH, and Others v Autobahnen- und
         Schnellstraßen-Finanzierungs-AG (Asfinag) (1)
                                                                                                 JUDGMENT OF THE COURT
(Public procurement — Directive 89/665/EEC — Review
procedures relating to the award of public supply and public                                              (Third Chamber)
works contracts — Article 1(3) — Persons to whom review
procedures are accessible — Definition of ‘interest in
                obtaining a public supply contract’)                                                      of 19 June 2003
                            (2003/C 184/21)                                   in Case C-420/01: Commission of the European Commu-
                                                                                                    nities v Italian Republic (1)
                    (Language of the case: German)                            (Failure to fulfil obligations — Free movement of goods —
                                                                              Articles 28 EC and 30 EC — Prohibition on the marketing
                                                                              of energy drinks containing caffeine in excess of a certain
(Provisional translation; the definitive translation will be published in     limit — Public health — Retention of a national provision
                      the European Court Reports)                                             incompatible with Community law)
                                                                                                           (2003/C 184/22)
In Case C-410/01: reference to the Court under Article 234 EC
from the Bundesvergabeamt Wien (Austria) for a preliminary                                          (Language of the case: Italian)
ruling in the proceedings pending before that court between
Fritsch, Chiari & Partner, Ziviltechniker GmbH, and Others and
Autobahnen- und Schnellstraßen-Finanzierungs-AG (Asfinag) —                   (Provisional translation; the definitive translation will be published in
on the interpretation of Article 1(3) of Council Directive 89/                                       the European Court Reports)
665/EEC of 21 December 1989, on the coordination of the
laws, regulations and administrative provisions relating to the
application of review procedures to the award of public supply
and public works contracts (OJ 1989 L 395, p. 33), as                         In Case C-420/01, Commission of the European Communities
amended by Council Directive 92/50/EEC of 18 June 1992                        (Agent: H. van Lier and R. Amorosi) v Italian Republic (Agent:
relating to the coordination of procedures for the award of                   U. Leanza, assisted by Fiorilli): Application for a declaration
public service contracts (OJ 1992 L 209, p. 1) — the Court                    that, by applying to drinks produced and marketed in other
(Sixth Chamber), composed of: J.-P. Puissochet, President of the              Member States a rule prohibiting the marketing in Italy of
Chamber, R. Schintgen (Rapporteur), V. Skouris, F. Macken and                 energy drinks containing caffeine in excess of a certain limit,
J.N. Cunha Rodrigues, Judges; J. Mischo, Advocate General;                    without showing that that limit is necessary and proportionate
M.-F. Contet, Principal Administrator, for the Registrar, gave a              for the protection of public health, the Italian Republic has
judgment on 19 June 2003, the operative part of which is as                   failed to fulfil its obligations under Articles 28 EC and 30 EC,
follows:                                                                      the Court (Third Chamber), composed of: J.-P. Puissochet,
                                                                              President of the Chamber, F. Macken (Rapporteur) and
                                                                              J.N. Cunha Rodrigues, Judges; J. Mischo, Advocate General;
Article 1(3) of Council Directive 89/665/EEC of 21 December 1989,             R. Grass, Registrar, has given a judgment on 19 June 2003, in
on the coordination of the laws, regulations and administrative provi-        which it:
sions relating to the application of review procedures to the award of
public supply and public works contracts, as amended by Council
Directive 92/50/EEC of 18 June 1992 relating to the coordination              1.    Declares that, by applying to drinks produced and marketed in
of procedures for the award of public service contracts, precludes an               other Member States a rule prohibiting the marketing in Italy
undertaking which has participated in a public procurement procedure                of energy drinks containing caffeine in excess of a certain limit,
from being considered to have lost interest in obtaining that contract              without showing that that limit is necessary and proportionate
on the ground that, prior to making an application for a review                     for the protection of public health, the Italian Republic has
procedure, it has failed to appeal to a conciliation body, such as the              failed to fulfil its obligations under Articles 28 EC and 30 EC;