CELEX: C2001/317/20
Language: en
Date: 2001-11-10 00:00:00
Title: Case C-323/01: Action brought on 24 August 2001 by Commission of the European Communities against Italian Republic

C 317/12              EN                     Official Journal of the European Communities                                       10.11.2001
     meaning of Article 1(1) of that directive, including the           Action brought on 24 August 2001 by Commission of the
     exercise of the powers referred to in Article 2(1)(c)                    European Communities against Italian Republic
     thereof, is precluded from dismissing an application by a
     tenderer that is indirectly aimed at obtaining damages,                                       (Case C-323/01)
     where the contract award procedure is already tainted by
     a material legal infringement attributable to a decision
     taken by the contracting authority, other than the decision                                   (2001/C 317/20)
     being contested by that tenderer, on the ground that if
     the contested decision had not been taken the tenderer             An action against the Italian Republic was brought before the
     would none the less have been harmed for other reasons?            Court of Justice of the European Communities on 24 August
                                                                        2001 by the Commission of the European Communities,
3.   If Question 1 is answered in the negative: Is Council              represented by Richard Wainwright and Roberto Amorosi,
     Directive 93/36/EEC (2) of 14 June 1993 coordinating               acting as Agents.
     procedures for the award of public supply contracts, in
     particular Articles 15 to 26 thereof, to be interpreted as         The applicant claims that the Court should:
     prohibiting a public contracting authority conducting
     contract award procedures from taking account of refer-            1.    Declare that, by failing to adopt and bring into force
     ences relating to the products offered by tenderers not as               within the prescribed period the laws, regulations or
     proof of the tenderers’ suitability but to satisfy an award              administrative provisions necessary to comply with Com-
     criterion, such that the fact that those references are given            mission Directive 98/101/EC (1) of 22 December 1998
     a negative evaluation would not exclude the tenderer                     adapting to technical progress Council Directive
     from the contract award procedure but would merely                       91/157/EEC (2) on batteries and accumulators containing
     result in the tender receiving a lower evaluation, for                   certain dangerous substances, the Italian Republic has
     example under a points system in which a poor evaluation                 failed to fulfil its obligations under that directive;
     of references might be offset by a lower price?
                                                                        2.    Order the Italian Republic to pay the costs.
4.   If Questions 1 and 3 are answered in the negative: Is it
     compatible with the relevant provisions of Community
     law, including Article 26 of Directive 93/36/EEC, the
     principle of equal treatment and the obligations of the            Pleas in law and main arguments
     Communities under international law for an award
     criterion to provide that product references are to be             The mandatory nature of the provisions of the third paragraph
     evaluated on the basis of the number of references alone,          of Article 249 and the first paragraph of Article 10 of the EC
     there being no substantive examination as to whether               Treaty requires Member States to adopt the measures necessary
     contracting authorities’ experiences of the product have           to transpose directives addressed to them into their domestic
     been good or bad, and, moreover, that only references              law before the expiry of the period prescribed for doing so.
     from the geographical area comprising the part of the              That period expired on 1 January 2000 without Italy having
     Alps within the European Union are to be taken into                brought into force the necessary provisions.
     account?
                                                                        (1) OJ 1999 L 1, p. 1.
5.   Is it compatible — with Community law, in particular               (2) OJ 1991 L 78, p. 38.
     the principle of equal treatment, for an award criterion to
     permit opportunities to inspect examples of the subject
     of the invitation to tender to receive a positive evaluation
     only if available within a 300 kilometre radius of the
     authority issuing the invitation to tender?
6.   If Question 3 is answered in the affirmative, or Question 4        Appeal brought on 29 August 2001 (by fax on 27 August
     or 5 answered in the negative: Is Article 2(1)(c) of               2001) by Telefon & Buch Verlagsgesellschaft mbH, against
     Directive 89/665/EEC, if necessary considered in conjunc-          the judgment delivered on 14 June 2001 by the Fourth
     tion with other principles of Community law, to be                 Chamber of the Court of First Instance of the European
     interpreted as meaning that if the contracting authority’s         Communities in Joined Cases T-357/99 and T-358/99
     infringement consists in imposing an unlawful award                between Telefon & Buch VerlagsgmbH and the Office for
     criterion, the tenderer will be entitled to damages only if        Harmonisation in the Internat Market (Trade Marks and
     he can actually prove that, but for the unlawful award                                        Designs) (OHIM)
     criterion, he would have submitted the best tender?
                                                                                                  (Case C-326/01 P)
(1) OJ 1989 L 395, p. 33.
                                                                                                   (2001/C 317/21)
(2) OJ 1993 L 199, p. 1.
                                                                        An appeal against the judgment delivered on 14 June 2001 by
                                                                        the Fourth Chamber of the Court of First Instance of the