CELEX: C2002/031/04
Language: en
Date: 2002-02-02 00:00:00
Title: Case C-420/01: Action brought on 23 October 2001 by the Commission of the European Communities against the Italian Republic

C 31/2                 EN                     Official Journal of the European Communities                                      2.2.2002
R. Torrent, J. Huber and G. Houttuin), supported by Kingdom              GmbH, 4. Haus der Technik DI A. Gobiet und DI F. Schweig-
of Spain (Agent: R. Silva de Lapuerta), Italian Republic (Agents:        hofer Ziviltechniker GmbH, 5. Hopferwieser, Dipl.-Ing. Walter,
U. Leanza, assisted by F. Quadri), and Commission of the                 6. GC General Contract DI Wolfgang Wisserodt Ingenieurge-
European Communities (Agents: P.J. Kuijper and T. van Rijn)              sellschaft m.b.H, a bidding consortium, against Autobahnen-
— application for annulment of Council Regulation (EC)                   und Schnellstraßen- Finanzierungs-AG (ASFINAG) on the
No 1036/97 of 2 June 1997 introducing safeguard measures                 following questions:
in respect of imports of rice originating in the overseas
countries and territories (OJ 1997 L 151, p. 8) — the Court,             Question 1
composed of: G.C. Rodrı́guez Iglesias, President, P. Jann and
F. Macken (Rapporteur) (Presidents of Chambers), C. Gulmann,             Is Article 1(3) of Council Directive 89/665/EEC of 21 Decem-
D.A.O. Edward, A. La Pergola, J.P. Puissochet, L. Sevón,                ber 1989 (1) on the coordination of the laws, regulations and
M. Wathelet, R. Schintgen and V. Skouris, Judges; P. Léger,              administrative provisions relating to the application of review
Advocate General; H. von Holstein, Deputy Registrar, for the             procedures to the award of public supply and public works
Registrar, has given a judgment on 22 November 2001, in                  contracts to be interpreted as meaning that the review
which it:                                                                procedure must be available to any undertaking which has
                                                                         submitted a bid, or applied to participate, in a public procure-
                                                                         ment procedure?
1.    Dismisses the action as inadmissible.
                                                                         In the event that the answer to Question 1 is no:
2.    Orders the Netherlands Antilles to pay the costs.
                                                                         Question 2
3.    Orders the Kingdom of Spain, the Italian Republic and the
                                                                         Is the abovementioned provision to be understood as meaning
      Commission of the European Communities to bear their own
                                                                         that an undertaking only has or had an interest in a particular
      costs.
                                                                         public contract if — in addition to its participating in the
                                                                         public procurement procedure — it takes or took all steps
                                                                         available to it under national law to prevent the contract from
(1) OJ C 188 of 3.7.1999.                                                being awarded to another bidder and so to secure the award
                                                                         of the contract to itself?
                                                                         (1) OJ L 395, p. 33.
Reference for a preliminary ruling by the Bundesverga-
beamt Wien by order of 8 October 2001 in review
proceedings brought by 1. FRITSCH, CHIARI & PART-
NER, Ziviltechniker GmbH, 2. Büro Axis Ingenieurleis-
tungen, 3. Vasko & Partner Ingenieure, Ziviltechniker für                Action brought on 23 October 2001 by the Commission
Bauwesen GmbH, 4. Haus der Technik DI A. Gobiet und                      of the European Communities against the Italian Republic
DI F. Schweighofer Ziviltechniker GmbH, 5. Hopferwie-
ser, Dipl.-Ing. Walter, 6. GC General Contract DI Wolfgang                                        (Case C-420/01)
Wisserodt Ingenieurgesellschaft m.b.H, a bidding consor-
tium against Autobahnen- und Schnellstraßen- Finan-
                   zierungs-AG (ASFINAG)                                                           (2002/C 31/04)
                         (Case C-410/01)
                                                                         An action against the Italian Republic was brought before the
                          (2002/C 31/03)                                 Court of Justice of the European Communities on 23 October
                                                                         2001 by the Commission of the European Communities,
                                                                         represented by Hendrik Van Lier and Roberto Amorosi, acting
                                                                         as Agents.
Reference has been made to the Court of Justice of the
European Communities by order of 8 October 2001 by
the Bundesvergabeamt Wien (Austrian Federal Procurement                  The applicant claims that the Court should:
Office, Vienna), which was received at the Court Registry on
16 October 2001, for a preliminary ruling in the review                  —     Declare that, by applying rules to drinks manufactured
proceedings brought by 1. FRITSCH, CHIARI & PARTNER,                           and marketed in other Member States prohibiting the
Ziviltechniker GmbH, 2. Büro Axis Ingenieurleistungen,                         marketing in Italy of energy drinks containing caffeine in
3. Vasko & Partner Ingenieure, Ziviltechniker für Bauwesen                     excess of a certain limit, without showing how such a
 ---pagebreak--- 2.2.2002               EN                   Official Journal of the European Communities                                           C 31/3
      limit is proportionate and necessary for the protection of       recovery the trainee’s maintenance claim against his parents,
      human health, the Italian Republic has failed to fulfil its      which arises under private law and has been transferred to the
      obligations under Articles 28 and 30 of the EC Treaty;           plaintiff by statute, in respect of the period for which the
      and                                                              education grant was paid?
—     Order the Italian Republic to pay the costs.
Pleas in law and main arguments
                                                                       Action brought on 9 November 2001 by the Commission
                                                                       of the European Communities against the United
The competent Italian authorities prohibit the marketing of                                           Kingdom
energy drinks which, although lawfully manufactured and
marketed in other Member States, have a caffeine content in
excess of 125 mg/l. Such a prohibition constitutes an obstacle                                   (Case C-434/01)
to the free movement of goods prohibited by Article 28 EC.
                                                                                                  (2002/C 31/06)
In the present case, Article 30 EC cannot properly be relied
upon by the authorities in order to justify the abovementioned
prohibition on marketing of energy drinks inasmuch as the
                                                                       An action against the United Kingdom was brought before the
Italian authorities have not indicated on what scientific data
                                                                       Court of Justice of the European Communities on 9 November
they based the adoption of the disputed prohibitive provisions
                                                                       2001 by the Commission of the European Communities,
nor demonstrated the extent to which a caffeine content in
                                                                       represented by Richard Wainwright, acting as agent, with an
excess of 125 mg/l is harmful to public health.
                                                                       address for service in Luxembourg.
                                                                       The Applicant requests that the Court should:
                                                                       —     declare that, by failing to ensure that the United Kingdom
                                                                             is in compliance with its obligations under Articles 12
                                                                             and 16 of Directive 92/43/EEC (1), the United Kingdom
Reference for a preliminary ruling by the Bundesge-                          has failed to fulfil its obligations under that Directive:
richtshof by order of 26 September 2001 in the case of
               Freistaat Bayern v Jan Blijdenstein                     —     order the United Kingdom to pay the costs.
                         (Case C-433/01)
                                                                       Pleas in law and main arguments
                          (2002/C 31/05)
                                                                       The Commission maintains that, by allowing decisions of local
                                                                       planning authorities, who are not relevant authorities for the
Reference has been made to the Court of Justice of the                 purposes of Article 12 and 16 of the directive, to pre-empt
European Communities by order of 26 September 2001 by                  decisions by the national conservation bodies, the Agriculture
the Bundesgerichtshof (Federal Supreme Court), which was               Minister or Secretary of State for the Environment, as to
received at the Court Registry on 9 November 2001, for a               whether a derogation under Article 16(1) can be granted and
preliminary ruling in the case of Freistaat Bayern v Jan               thus failing to correctly apply the two-pronged test laid down
Blijdenstein on the following question:                                in the first paragraph of Article 16(1) as well as the test of
                                                                       showing that imperative reasons of overriding interest exist,
                                                                       the United Kingdom is in breach of its obligations under
                                                                       Articles 12 and 16 of the Directive.
May a plaintiff rely on the special rule on jurisdiction in
Article 5(2) of the Convention of 27 September 1968 on
Jurisdiction and the Enforcement of Judgments in Civil and             (1) Council Directive 92/43/EEC of 21 May 1992 on the conservation
Commercial Matters, as amended by the Convention on the                    of natural habitats and of wild fauna and flora (OJ L 206,
accession of the Kingdom of Spain and the Portuguese                       22.7.1992, p. 7).
Republic of 26 May 1989, where its authorities have paid an
education grant to a trainee for a certain period of time under
public law and the plaintiff seeks to enforce in an action for