CELEX: C2003/184/22
Language: en
Date: 2003-08-02 00:00:00
Title: Judgment of the Court (Third Chamber) of 19 June 2003 in Case C-420/01: Commission of the European Communities v Italian Republic (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 limit — Public health — Retention of a national provision incompatible with Community law)

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;
 ---pagebreak--- 2.8.2003                 EN                           Official Journal of the European Union                                                C 184/13
2.    Orders the Italian Republic to pay the costs.                                             JUDGMENT OF THE COURT
                                                                                                         (Fifth Chamber)
(1) OJ C 31 of 2.2.2002.
                                                                                                         of 12 June 2003
                                                                              in Case C-425/01: Commission of the European Commu-
                                                                                               nities v Portuguese Republic (1)
                                                                              (Failure of a Member State to fulfil obligations — Incom-
                                                                              plete transposition of Directive 89/391/EEC — Safety and
                                                                                                        health of workers)
                                                                                                         (2003/C 184/24)
                   JUDGMENT OF THE COURT
                                                                                                (Language of the case: Portuguese)
                            (Fifth Chamber)                                   (Provisional translation; the definitive translation will be published in
                                                                                                    the European Court Reports)
                           of 26 June 2003
                                                                              In Case C-425/01, Commission of the European Communities
                                                                              (Agents: H. Kreppel and M. França) v Portuguese Republic
in Case C-422/01 (Reference for a preliminary ruling from                     (Agents: L. Fernandes and F. Ribeiro Lopes): Application for a
the Regeringsrätten): Försäkringsaktiebolaget Skandia                         declaration that the Portuguese Republic has failed to fulfil its
          (publ), Ola Ramstedt v Riksskatteverket (1)                         obligations under Articles 4 and 10 to 12 of Council Directive
                                                                              89/391/EEC of 12 June 1989 on the introduction of measures
                                                                              to encourage improvements in the safety and health of workers
(Occupational endowment pension insurance — Policy taken                      at work (OJ 1989 L 183, p. 1), the Court (Fifth Chamber),
out with a company in another Member State — Difference                       composed of: M. Wathelet, President of the Chamber, C.W.
    in tax treatment — Compatibility with Article 49 EC)                      A. Timmermans, P. Jann, S. von Bahr (Rapporteur) and
                                                                              A. Rosas, Judges; C. Stix-Hackl, Advocate General; R. Grass,
                                                                              Registrar, has given a judgment on 12 June 2003, in which it:
                            (2003/C 184/23)
                                                                              1.    Dismisses the action;
                     (Language of the case: Swedish)                          2.    Orders the Commission of the European Communities to pay
                                                                                    the costs.
(Provisional translation; the definitive translation will be published in
                                                                              (1) OJ C 348 of 8.12.2001.
                       the European Court Reports)
In Case C-422/01: Reference to the Court under Article 234
EC by the Regeringsrätten (Sweden) for a preliminary ruling in                                  JUDGMENT OF THE COURT
the proceedings pending before that court between Försäk-
ringsaktiebolaget Skandia (publ), Ola Ramstedt and Riksskatte-                                           (Fifth Chamber)
verket, on the interpretation of the EC Treaty and Article 49
EC in particular, the Court (Fifth Chamber), composed of:                                                of 5 June 2003
M. Wathelet (Rapporteur), President of the Chamber,
C.W.A. Timmermans, A. La Pergola, P. Jann and A. Rosas,                       in Case C-438/01 (Reference for a preliminary ruling from
Judges; P. Léger, Advocate General; R. Grass, Registrar, has                  the Cour de cassation): Design Concept SA v Flanders
given a judgment on 26 June 2003, in which it has ruled:                                                    Expo SA (1)
                                                                              (Sixth VAT Directive — Article 9(2)(e) — Place of taxable
Article 49 EC precludes an insurance policy issued by an insurance               transactions — Fiscal connection — Advertising services)
company established in another Member State which meets the
conditions laid down in national law for occupational pension insur-                                     (2003/C 184/25)
ance, apart from the condition that the policy must be issued by an
insurance company operating in the national territory, from being                                  (Language of the case: French)
treated differently in terms of taxation, with income tax effects which,
depending on the circumstances in the individual case, may be less            (Provisional translation; the definitive translation will be published in
favourable.                                                                                         the European Court Reports)
(1) OJ C 84 of 6.4.2002.                                                      In Case C-438/01: Reference to the Court under Article 234
                                                                              EC by the Cour de cassation (Luxembourg) for a preliminary
                                                                              ruling in the proceedings pending before that court between