CELEX: C1997/108/34
Language: en
Date: 1997-04-05 00:00:00
Title: Reference for a preliminary ruling by the Bundesvergabeamt by order of that court of 5 December 1996 in the case of Walter Tögel against Niederösterreichische Gebietskrankenkasse (Case C-76/97)

No C 108/ 18            EN                   Official Journal of the European Communities                                        5 . 4 . 97
      91 /689/EEC of     12     December    1991    on hazardous               procedure from being conducted under the Federal
      waste 0 ), the Kingdom of Spain has failed to fulfil its                 Procurement Law for awards of contracts for services,
      obligations under the EC Treaty,                                         and must such a national court conduct a review
                                                                               procedure in accordance with the fourth part of the
                                                                               Federal Procurement Law ?
— order the Kingdom of Spain to pay the costs.
                                                                        3 . ( a ) Are the services mentioned in the facts of the case
Pleas in law and main arguments adduced in support:                                 (with reference to Article 10 of Directive 92/50/
                                                                                    EEC ) to be classified as services coming under
The pleas in law and main arguments are similar to those                            Annex IA, category No 2 ( land transport services )
                                                                                    and contracts for such services are thus to be
relied on in Case C-56/97 ( 2); the time-limit expired on
26 June 1995 .                                                                      awarded in accordance with the provisions of
                                                                                    Titles II and IV of the Directive, or are they to be
                                                                                    classified as services coming under Annex IB of
(') OJ No L 377, 31 . 12 . 1991 , p. 20 .                                           Directive 92/50/EEC ( health ) with the result that
(2) See page 12 of this Official Journal .                                          contracts for such services are to be awarded in
                                                                                    accordance with the provisions of Articles 13 and
                                                                                    14, or do those services fall outside the sphere of
                                                                                    application of Directive 92/50/EEC ?
                                                                               ( b) Do the provisions of Articles 1 to 7, points 14 and
Reference        for    a preliminary ruling by the                                 16 , satisfy the preconditions laid down in the Van
Bundesvergabeamt by order of that court of 5 December                               Duyn Judgment on the direct applicability of a
1996 in the case of Walter Togel against                                            Community Directive, with the result that services
            Niederosterreichische Gebietskrankenkasse                               coming under Annex IB of the Directive are to be
                          ( Case C-76/97)
                                                                                    awarded under the procedure therein mentioned or
                                                                                    are the relevant provisions of the Directive for the
                            ( 97/C 108/34 )                                         services mentioned in Annex 1A capable of
                                                                                    fulfilling the preconditions laid down in the
                                                                                    abovementioned case ?
Reference has been made to the Court of Justice of the
European Communities by order of the Bundesvergabeamt                   4 . Is there under Article 5 or other provisions of the EEC
 ( Federal Procurement Office ) of 5 December 1996,
                                                                               Treaty, or under Directive 92/50/EEC, an obligation
received at the Court Registry on 20 February 1997, for a                      on the State to interfere in existing legal situations
preliminary ruling in the case of Walter Togel against                         concluded for an indefinite period or for several years
Niederosterreichische           Gebietskrankenkasse      on    the
                                                                                but which were not entered into in accordance with
 following questions:                                                           the abovementioned Directive ?
  1 . May an individual derive, from Article 1 ( 1 ) and ( 2 )           H OJ No L 395 , 30 . 12 . 1989 , p . 33 .
       and Article 2 ( 1 ) or other provisions of Council                ( 2 ) OJ No L 209, 24 . 7. 1992 , p . 1 .
       Directive 89/665/EEC ( ] ) 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, a
       specific right to have review proceedings conducted
       before authorities or courts which comply with the
                                                                         Reference for a preliminary                 ruling from the
       provisions of Article 2 ( 8 ) of Directive 89/665/EEC,
                                                                         Handelsgericht Wien by order                of that court of
       which right is so sufficiently precise and specific that,         20 December 1996 in the case of Osterreichische Unilever
       in the event of non-transposition of the Directive in                  GmbH v. Smithkline Beecham Markenartikel GesmbH
       question by the Member State, an individual may
       successfully assert that legal right against that Member                                      ( Case C-77/97)
       State in legal proceedings ?                                                                    ( 97/C 108/35
  2 . In conducting a review procedure on the basis of an
        individual's right, founded on Article 41 of Directive            Reference has been made to the Court of Justice of the
        92/50/EEC (2 ) in conjunction with Directive 89/665/              European Communities by an order of the Handelsgericht
        EEC, to the conduct of a review procedure, must a                 Wien ( Commercial Court, Vienna ) of 20 December 1996 ,
        national court, analogous to the Federal Procurement              which was received at the Court Registry on 21 February
        Office, refuse to take cognizance of provisions of                 1997, for a preliminary ruling in the case of
                                                                           Osterreichische Unilever GmbH v. Smithkline Beecham
        national law such as Section 91 ( 2 ) ( 3 ) BVergG, which
        confer on the Federal Procurement Office powers of                 Markenartikel GesmbH on the following question:
        review only in the case of infringements of the Federal
        Procurement law and regulations adopted thereunder,                Does Article 30 of the EC Treaty in conjunction with
        on the ground that those provisions preclude a feview              Council Directive 76/768/EEC of 27 July 1976 on the