CELEX: C2001/245/16
Language: en
Date: 2001-09-01 00:00:00
Title: Case C-249/01: Reference for a preliminary ruling by the Bundesvergabeamt Wien by order of that court of 25 June 2001 in the review procedure brought by the architect and qualified engineer Werner Hackermüller against 1. BIG Bundesimmobiliengesellschaft mbH and 2. WED Wiener Entwicklungsgesellschaft mbH

C 245/8                EN                    Official Journal of the European Communities                                          1.9.2001
Reference for a preliminary ruling by the Tribunale di                        failed to fulfil its obligations under Article 3(1) of Council
Ascoli Piceno, Italy, by order of that court of 30 March                      Regulation (EEC) No 2408/92 of 23 July 1992 on access
2001 in criminal proceedings against Piergiorgio Gambelli                     for Community air carriers to intra-Community air
                            and Others                                        routes;
                                                                        2.    Order the Kingdom of the Netherlands to pay the costs
                         (Case C-243/01)
                                                                              of the proceedings.
                         (2001/C 245/14)
                                                                        Pleas in law and main arguments
Reference has been made to the Court of Justice of the
European Communities by an order of the Tribunale di Ascoli             In adopting Regulation No 2408/92 the Council, pursuant to
Piceno of 30 March 2001, which was received at the Court                Article 80(2) EC, defined the detailed rules for application of
Registry on 22 June 2001, for a preliminary ruling in                   the principle of freedom to supply services within the area of
the criminal proceedings pending before that court against              air transport, as set out in Article 49 EC. When the provisions
Piergiorgio Gambelli and Others, on the following question:             of Regulation No 2408/92 fall to be interpreted, therefore,
                                                                        recourse must be had to that principle, which goes further
                                                                        than simply prohibiting discrimination of a service provider
A decision is sought as to the compatibility with Article 43 et
                                                                        established in another Member State on the ground of that
seq. and Article 49 et seq. of the EC Treaty regarding freedom
                                                                        person’s nationality, providing as it does also for the removal
of establishment and freedom to provide cross-frontier ser-
                                                                        of any restriction whatsoever — even if applicable without
vices, and the repercussions thereof within the national legal
                                                                        distinction to domestic service providers and to service providers
order, of domestic legislation like the Italian provisions
                                                                        from other Member States — which prohibits, obstructs or
contained in Article 4(1) et seq., Article 4 bis and Article 4 ter
                                                                        renders less attractive the activities ’of a service provider who
of Law No 401 of 13 December 1989 (as most recently
                                                                        is established in another Member State and lawfully provides
amended by Article 37(5) of Law No 388 of 23 December
                                                                        similar services there. Under Article 1 of the Netherlands
2000) which impose prohibitions — enforced by criminal
                                                                        Regulation of 9 May 1995, there is an exemption from
penalties — on the pursuit, by any person and at any place, of
                                                                        mandatory checks for ’flights with a domestic destination. This
the activities of collecting, taking, booking and forwarding
                                                                        does not apply in the case of flights on which passengers can
offers of bets, in particular bets on sporting events, unless
                                                                        mingle with passengers for flights having an international
the requirements concerning concessions and authorisations
                                                                        destination’. As a result of this, a cross-border flight within the
prescribed by domestic law have been complied with.
                                                                        Community involves the carrier in higher costs than in
                                                                        the case of a comparable domestic flight. The Netherlands
                                                                        Regulation also makes it possible for security checks to be
                                                                        carried out for domestic flights (on the ground that passengers
                                                                        on such flights may mingle with passengers for international
                                                                        flights), but without any charge being levied in that connection.
Action brought on 25 June 2001 by the Commission of
the European Communities against the Kingdom of the
                           Netherlands.
                          (Case C-246/0l)                               Reference for a preliminary ruling by the Bundesverga-
                                                                        beamt Wien by order of that court of 25 June 2001 in the
                         (2001/C 245/15)                                review procedure brought by the architect and qualified
                                                                        engineer Werner Hackermüller against 1. BIG Bundesim-
                                                                        mobiliengesellschaft mbH and 2. WED Wiener Entwick-
An action against the Kingdom of the Netherlands was brought                                   lungsgesellschaft mbH
before the Court of Justice of the European Communities
on 25 June 2001 by the Commission of the European                                                   (Case C-249/01)
Communities, represented by M. Huttunen and H.M.H. Spey-
art, acting as Agents.                                                                             (2001/C 245/16)
The applicant claims that the Court should:                             Reference has been made to the Court of Justice of the
                                                                        European Communities by order of the Bundesvergabeamt
1.    Rule that, by adopting and maintaining in force                   Wien (Federal Contracting Authority, Vienna) of 25 June 2001,
      Articles 37g and 37j of the Luchtvaartwet (Law on Air             received at the Court Registry on 28 June 2001, for a
      Traffic) and Article 1 of the Regulation of the Netherlands       preliminary ruling in the review procedure brought by the
      Minister of Justice of 9 May 1995 on the exemption of             architect and qualified engineer Werner Hackermüller against
      flights on which passengers are subject to checks for             1. BIG Bundesimmobiliengesellschaft mbH and 2. WED Wien-
      dangerous objects, the Kingdom of the Netherlands has             er Entwicklungsgesellschaft mbH on the following questions:
 ---pagebreak--- 1.9.2001              EN                    Official Journal of the European Communities                                         C 245/9
Question 1:                                                            The appellant claims that the Court should:
Is Article 1(3) of Council Directive 89/665/EEC of 21 Decem-           —     find the present appeal admissible;
ber 1989 (1) 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              —     find the appeal well founded as to the substance;
contracts to be interpreted as meaning that any person seeking
the award of a specific pending public contract is entitled to
institute a review procedure?                                          —     order, if the Rules of Procedure of the Court of Justice
                                                                             allow it, the present appeal to be joined to the appeal
                                                                             against the order of the Court of First Instance (Second
                                                                             Chamber) of 7 June 2001 in Case T-328/00 concerning
                                                                             the same dispute and lodged this day;
Question 2:
                                                                       —     set aside the order delivered by the Court of First Instance
                                                                             (Second Chamber) of 7 June 2001 in Case T-202/00
In the event that the answer given to Question 1 is no:
                                                                             Costacurta v Commission;
Is the abovementioned provision to be understood as meaning            —     make a decision as to how Case T-202/00 Costacurta v
that, if a tenderer’s bid is not eliminated by the contracting               Commission is to proceed in accordance with Article 54
authority, but the review body finds in the course of the review             of the Rules of Procedure of the Court of Justice;
procedure that the contracting authority would have been
bound to eliminate it, the tenderer has been or risks being
harmed by the infringement alleged by him — in this case the           —     order the Commission of the European Communities
finding by the contracting authority that a rival tenderer                   already to pay the costs of the interlocutory proceedings
submitted the best bid — and that he must therefore have the                 and of the present appeal;
right to bring a review procedure?
                                                                       —     reserve the costs as to the substance; find, none the less,
( 1) OJ L 395, p. 33.                                                        that Article 88, rather than Article 87(2), of the Rules of
                                                                             Procedure of the Court of First Instance are applicable;
                                                                       —     reserve to the appellant all other rights, dues, pleas and
                                                                             actions.
Appeal brought on 2 July 2001 by Mario Costacurta
against the order delivered on 7 June 2001 by the Second               Pleas and main arguments
Chamber of the Court of First Instance of the European
Communities in Case T-202/00 between Mr Costacurta
     and the Commission of the European Communities
                                                                       —     Lack of jurisdiction of the Court of First Instance and
                                                                             breach of Community law.
                       (Case C-250/01 P)
                                                                       —     Prejudice to the appellant’s interests, misuse of powers.
                        (2001/C 245/17)
                                                                       —     Error in law inasmuch as the Court of First Instance ruled
An appeal against the order delivered on 7 June 2001 by the                  that retirement meant that the appellant no longer had
Second Chamber of the Court of First Instance of the European                any right to seek annulment of the contested act: the
Communities in Case T-202/00 between Mr Costacurta and                       appellant claims the right to have his administrative
the Commission of the European Communities was brought                       status regularised a posteriori.
before the Court of Justice of the European Communities on
2 July 2001 by Mario Costacurta, represented by Mr Petit,
of the Luxembourg Bar, with an address for service in
Luxembourg.