CELEX: C2004/047/18
Language: en
Date: 2004-02-21 00:00:00
Title: Case C-44/03: Reference for a preliminary ruling by the Bezirksgericht Dornbirn by order of that court of 16 December 2002 in the case of Helmut Horn against Dr Karl Schelling

21.2.2004                EN                         Official Journal of the European Union                                          C 47/11
Council Directive 93/36/EEC of 14 June 1993 coordinating                    2.   Are Articles 49 and 12 EC to be interpreted as meaning
procedures for the award of public supply contracts, as amended by               that they do not apply to measures under Article 7 EC
Directive 97/52/EC of the European Parliament and the Council of                 and/or analogous bilateral foreign policy measures of
13 October 1997 amending Directives 92/50/EEC, 93/36/EEC                         individual Member States?
and 93/37/EEC concerning the coordination of procedures for the
award of public service contracts, public supply contracts and public
works contracts respectively, must be interpreted as meaning that a
contracting authority which has commenced a procedure for the               3.   Are Articles 49 and 12 EC to be interpreted as meaning
award of a contract on the basis of the lowest price may discontinue             that there are other principles in the imposition of
the procedure, without awarding a contract, when it discovers after              sanctions under Article 7 EC for the avoidance of
examining and comparing the tenders that, because of errors                      discrimination than for other measures of State action? If
committed by itself in its preliminary assessment, the content of the            appropriate it would be necessary to clarify what formal
invitation to tender makes it impossible for it to accept the most               or substantive preconditions must be observed in that
economically advantageous tender, provided that, when it adopts such             connection.
a decision, it complies with the fundamental rules of Community law
on public procurement such as the principle of equal treatment.
                                                                            4.   Are the provisions of Article 81 EC to be interpreted as
(1) OJ C 219 of 14.9.2002.                                                       meaning that the prohibitions laid down therein also
                                                                                 apply to actions of the Member States themselves or only
                                                                                 to undertakings and associations of undertakings? Should
                                                                                 the latter be the case then it must be determined whether
                                                                                 Articles 49 and 12 EC are to be interpreted as meaning
                                                                                 that actions of Member States which fail to observe the
                                                                                 principles laid down in Article 81 EC in any event
                                                                                 infringe the prohibitions on discrimination laid down in
Reference for a preliminary ruling by the Bezirksgericht                         Articles 49 and 12 EC?
Dornbirn by order of that court of 16 December 2002 in
     the case of Helmut Horn against Dr Karl Schelling
                                                                            5.   Are Articles 49 and 12 EC to be interpreted as meaning
                           (Case C-44/03)                                        that demands for a boycott of the economy or parts of
                                                                                 the economy of a Member State or measures likely to
                           (2004/C 47/18)                                        affect the economy of a Member State in such a way that
                                                                                 competitive disadvantages may arise in that Member State
                                                                                 are in any event unlawful and not permissible? Which
                                                                                 conditions must be satisfied in order that in this respect
Reference has been made to the Court of Justice of the                           no infringements of the abovementioned provisions are
European Communities by order of the Bezirksgericht (District                    committed and to what extent are individual measures of
court) Dornbirn of 16 December 2002, received at the Court                       individual states in that connection also to be attributed
the Court Registry on 6 February 2003, for a preliminary                         to other states acting jointly?
ruling in the case of Helmut Horn against Dr Karl Schelling on
the following questions:
1.    Are the provisions of Article 49 et seq. EC and Article 12            6.   Are the provisions of the EC Treaty, in particular Article 7
      EC to be interpreted as precluding, on the basis of the                    EC, to be interpreted as meaning that a foreign policy in
      report of the three EU wise men, the EU sanctions and                      regard to the imposition of sanctions is no longer
      thus as meaning that in the present case one of the                        available to the individual EU Member States or, in regard
      defendants’ fundamental rights guaranteed under EU law                     to the imposition of sanctions against individual EU
      was infringed? Under those sanctions                                       Member States, does the possibility of a bilateral foreign
                                                                                 policy on the part of the individual Member States
                                                                                 subsist?
      (a)   official bilateral diplomatic contacts at political level
            are no longer to be entertained with an Austrian
            government so composed;
                                                                            7.   Are the provisions of the EC Treaty to be interpreted as
      (b) Austrian candidates are no longer to be supported in                   meaning that the imposition of sanctions without any
            selection procedures for international organisations;                formal procedure being pending under Article 7 EC and
            and                                                                  without any examination or in the absence of the
                                                                                 substantive preconditions for sanctions under Article 7
      (c)   Austrian ambassadors are no longer to be received                    EC, even though those sanctions were published in the
            at political level (ministerial contacts) but henceforth             form of a measure of the European Union (EU Council),
            only at technical level (contacts with officials) and                constitute an act contrary to Community law or indeed a
            that in bilateral international relations there is no                non-act which is therefore irrelevant and unlawful as a
            business as usual with Austria?                                      sovereign act?
 ---pagebreak--- C 47/12                 EN                       Official Journal of the European Union                                             21.2.2004
8.    Are the provisions of the EC Treaty founding state liability             does not provide in the event of irregular legislative
      under the criteria laid down by the Court of Justice where               measures (Paragraph 1 AHG — ‘in enforcement of the
      rights directly conferred on EC citizens by the EC Treaty                Laws ...’), also to be classified as a damages claim?
      are grossly and culpably infringed to be interpreted as
      meaning that relevant restrictions on state liability under
      the national legal order, or also on the basis of decisions        (1) Brasserie du Pêcheur SA v Bundesrepublik Deutschland and The
      of national courts (in particular to the effect that claims            Queen v Secretary of State for Transport, ex parte: Factortame Ltd
      for compensation in regard to foreign policy measures                  and Others [1996] ECR I-1029.
      are precluded), are in any event unlawful?                         (2) Courage Ltd v Bernard Crehan [2001] ECR I-6297.
                                                                         Reference for a preliminary ruling by the Landesgericht
Reference for a preliminary ruling by the Landesgericht                  für Zivilrechtsachen Wien by order of that court of
für Zivilrechtssachen Wien by order of that court of                     7 April 2003 in the case of Monika Herbstrith against
15 April 2003 in the case of Helmut Fröschl against                                              Republic of Austria
                        Republic of Austria
                                                                                                   (Case C-229/03)
                         (Case C-184/03)
                                                                                                    (2004/C 47/20)
                          (2004/C 47/19)
                                                                         Reference has been made to the Court of Justice of the
                                                                         European Communities by order of the Landesgericht für
Reference has been made to the Court of Justice of the                   Zivilrechtsachen Wien (Regional civil court, Vienna) of 7 April
European Communities by order of the Landesgericht für                   2003, received at the Court Registry on 26 May 2003, for a
Zivilrechtssachen Wien (Regional Court for civil cases, Vienna)          preliminary ruling in the case of Monika Herbstrith against
of 15 April 2003, received at the Court Registry on 5 May                Republic of Austria on the following questions:
2003, for a preliminary ruling in the case of Helmut Fröschl
against Republic of Austria on the following questions:                  1.    Is EU law concerning equal treatment of men and women
                                                                               at work, in particular Directive 76/207/EEC (1), directly
                                                                               applicable, so that, as to amount, a claim for compen-
1.    In 1998 was it contrary to then directly applicable                      sation under Paragraph 15(1) of the B-GBG may be
      Community law, in particular Articles 12, 43 and 49 of                   obtained to the full extent of the damage occasioned,
      the EC Treaty, to interpret Paragraph 373c(3)(a), (b) and                irrespective of any limitation under Austrian domestic
      (c) of the Gewerbeordnung 1994 (Trade Code, GewO                         legislation or, in the absence of any such direct applica-
      1994), BGBl No 194, in the version of BGBl No I 63/                      bility of EU law, is there a claim founded on state liability
      1997, and the Regulation of the Federal Minister for                     for compensation to the full extent of the damage?
      Economic Affairs on the grant of exemption from the
      prescribed proof of competence for nationals of Member
      States of the Agreement on the European Economic Area,             2.    In the assessment of claims in respect of the foregoing is
      BGBl No 775/1993, in such a way that a national                          the rule concerning the burden of proof in Article 4 of
      photographer is prohibited from exercising his trade                     Council Directive 97/80/EC (2) directly applicable and, if
      because the qualifications set out there for proof of                    so,
      competence have been acquired by him in Austria and
      not in another State of the EEA?                                         (a)   does that apply on the basis that an expert opinion
                                                                                     within the meaning of Paragraph 22(1) of the B-
      If question 1 is answered in the affirmative:                                  GBG is sufficient for the purposes of attestation if it
                                                                                     appears conclusively and unreservedly that there is
      According to the settled case-law of the Court of Justice                      discrimination and it cannot be ruled out that such
      (e.g. Joined Cases C-46/93 and C-48/93 (1); Case C-453/                        discrimination arose for gender-related reasons, with
      99 (2)), is the payment of the costs which the plaintiff has                   the result that in the case giving rise to this reference
      to incur in domestic proceedings, including his recourse                       the opinion of the federal committee on equal
      to public law courts, in order to have a law contrary to                       treatment of 9 November 1998 satisfies this require-
      Community law set aside and for which national law                             ment