CELEX: C2002/084/65
Language: en
Date: 2002-04-06 00:00:00
Title: Case C-448/01: Reference for a preliminary ruling from the Bundesvergabeamt (Austria) by order of that tribunal of 13 November 2001 in the case of (1) EVN AG and (2) Wienstrom GmbH v Republic of Austria

C 84/38                EN                     Official Journal of the European Communities                                      6.4.2002
3.   If Question 2 is answered affirmatively:                                  an unlawful decision in review proceedings under
                                                                               Article 1 of Directive 89/665/EEC dependent on proof
     Does the Court of Justice have available to it on the                     that the unlawful decision was material to the outcome
     basis of the reference for a preliminary ruling all the                   of the procurement procedure, where that proof has to
     information needed in order to be able itself to assess                   be achieved by the review body examining whether the
     whether the government body as mentioned in the facts                     ranking of the tenders actually submitted would have
     as set out caused specific injury to the defendant or will                been different had they been re-evaluated disregarding
     it leave the reply to that question to the referring Austrian             the unlawful award criterion?
     court?
                                                                         4.    Do the provisions of Community law relating to the
                                                                               award of public contracts, in particular Article 26 of
                                                                               Directive 93/36/EEC, require the contracting authority to
                                                                               cancel the invitation to tender if it transpires in review
                                                                               proceedings under Article 1 of Directive 89/665/EEC that
                                                                               one of the award criteria it laid down is unlawful?
Reference for a preliminary ruling from the Bundesverga-                 (1) OJ 1993 L 199, p. 1.
beamt (Austria) by order of that tribunal of 13 November                 (2) OJ 1989 L 395, p. 33.
2001 in the case of (1) EVN AG and (2) Wienstrom GmbH
                     v Republic of Austria
                         (Case C-448/01)
                          (2002/C 84/65)
                                                                         Reference for a preliminary ruling by the Court of Appeal
                                                                         (England and Wales) (Civil Division) by order of that
Reference has been made to the Court of Justice of the
                                                                         court dated 11 May 2001, in the case of Abbey Life
European Communities by an order of the Bundesvergabeamt
                                                                              Assurance Company Ltd against Kok Theam Yeap
(Federal Procurement Office) of 13 November 2001, which
was received at the Court Registry on 20 November 2001, for a
preliminary ruling in the case of (1) EVN AG and (2) Wienstrom                                    (Case C-449/01)
GmbH v Republic of Austria on the following questions:
1.   Do the provisions of Community law relating to the                                            (2002/C 84/66)
     award of public contracts, in particular Article 26 of
     Directive 93/36/EEC (1), prohibit a contracting authority
     from laying down an award criterion in relation to the
     supply of electricity which is given a 45 % weighting and
     which requires a tenderer to state, without being bound             Reference has been made to the Court of Justice of the
     to a defined supply period, how much electricity he can             European Communities by an order of the Court of Appeal
     supply from renewable sources to a group of consumers               (England and Wales) (Civil Division) dated 11 May 2001,
     not more closely defined, where the maximum number                  which was received at the Court Registry on 21 November
     of points is given to whichever tenderer states the highest         2001, for a preliminary ruling in the case of Abbey Life
     amount and a supply volume is taken into account only               Assurance Company Ltd and Kok Theam Yeap on the follow-
     to the extent that it exceeds the volume of consumption             ing questions:
     to be expected in the context of the contract to which the
     invitation to tender relates?                                       1)    Can ‘policies for life assurance, annuities, health and
                                                                               pension business, unit trusts, offshore funds business,
2.   Do the provisions of Community law relating to the                        personal equity plans and other contracts offered by
     award of public contracts, in particular Article 2(1)(b) of               Abbey’ or any of them be described as ‘goods’ that fall
     Directive 89/665/EEC (2), prohibit making the setting                     within the provisions of 1993 Regulations and/or in the
     aside of an unlawful decision in review proceedings under                 Directive?
     Article 1 of Directive 89/665/EEC dependent on proof
     that the unlawful decision was material to the outcome              2)    Do ‘policies for life assurance, annuities, health and
     of the procurement procedure?                                             pension business, unit trusts, offshore funds business,
                                                                               personal equity plans and other contracts offered by
                                                                               Abbey’ or any of them have to be:
3.   Do the provisions of Community law relating to the
     award of public contracts, in particular Article 26 of
     Directive 93/36/EEC, prohibit making the setting aside of                 (i)  marketable, and/or