C-54/96

DORSCH CONSULT v BUNDESBAUGESELLSCHAFT BERLIN

OPINION OF ADVOCATE GENERAL TESAURO delivered on 15 May 1997 *

1. The question referred to the Court for a Relevant Community and national legisla- preliminary ruling in this case has been sub- tion mitted by the Vergabeüberwachungsauss- chuß des Bundes (Federal Public Procure- ment Awards Supervisory Board, hereinafter 'the Federal Supervisory Board') and con- cerns the interpretation of Article 41 of Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of proce- dures for the award of public service con- 2. In order better to understand the point of tracts (hereinafter 'the services directive'). ' this question, it is first necessary to place it in its proper legal context, by briefly looking at the relevant provisions of both Commu- nity and national law.

Article 44 of the services directive sets 1 July 1993 as the date by which Member States are required to adopt and communicate the nec- 5. Article 2(8) of the review directive pro- essary transposition measures. vides that, where bodies responsible for review procedures are not judicial in charac- ter, written reasons for their decisions must be given. In such a case, the Member States must also guarantee that 'any allegedly illegal measure taken by the review body or any alleged defect in the exercise of the powers conferred on it can be the subject of judicial 4. The review directive requires Member review or review by another body which is a States to take the measures necessary to court or tribunal within the meaning of ensure that award procedures for public Article 177 of the EEC Treaty and indepen- works contracts and public supply contracts dent of both the contracting authority and governed by the relevant Community direc- the review body'. tives 3 may be reviewed rapidly and effec- tively where the grounds of alleged illegality involve (directly or indirectly) Community law (Article 1(1)).

— The national legisføtion in the case of infringement of rules of Com- munity law (or of national provisions trans- posing them), set up a two-tier review pro- cedure for this purpose. Initial recourse lies to the award review bodies (Vergabeprüfs- 6. The Community public procurement tellen) whilst their decisions may in turn be directives were transposed into German challenged before the supervisory boards domestic law by means of an amendment of (Vergabeüberwachungsausschüsse) set up by the Haushaltsgrundsätzegesetz (Budget Prin- each of the Länder, or, in cases where the ciples Law, hereinafter 'the HGrG'). In par- impugned contract-award procedure falls ticular, the Second Law Amending the within a Federal authority's province, before H G r G , which came into effect in 1993, 4 the Federal Supervisory Board. inserted new Paragraphs 57a to 57c, which were intended by the German legislature to give effect to the directives on the award of public works contracts and public supply contracts, and to the review directive. 5 8. Paragraph 57b of the H G r G regulates, in particular, the operation of the review bod- ies. According to subparagraph (2) thereof, the terms of reference of these bodies are t o The services directive, however, has not been be determined by the Federal Government transposed into German law, and this is con- by means of regulations and with the prior firmed by the order for reference. assent of the Bundesrat. Subparagraphs (3), (4) and (5) contain a series of provisions con- cerning the commencement of the review procedure, the suspension of award proce- dures adjudged suspect and the information 7. Paragraph 57a of the H G r G constitutes which applicants are required to provide t o the general legal basis for the adoption of the the review bodies. measures implementing the Community directives on public procurement. It confers power on the Federal government to issue regulations, with the assent of the Bundesrat, governing the award of public supply con- tracts, public works contracts and public ser- Subparagraph (6) provides that the lodging vices contracts, which are put out to tender of an application with a review body does by the bodies Usted in the said Paragraph. not preclude the right of the individual con- cerned to bring an action in the ordinary courts for damages for loss suffered as a result of an award procedure. The ensuing provisions (Paragraphs 57b and 57c), which deal with the remedies available

The supervisory boards review only the 10. Finally, Paragraph 57c(7) lays down spe- legality of the award procedures and do not cific rules applicable to the Federal Supervi- sory Board. Its official members are selected from the chairmen and assessors serving in 6 — These rules also apply to the Federal Supervisory Board, the decision-making departments of the save for the specific provisions contained in Paragraph 57c(7) (see infra). Bundeskartellamt. 8 The chairmen of the 7 — The relevant Paragraphs of the DRiG are: chambers of the supervisory board are — Paragraph 18(1) and (2), which specifies the circum- stances in which the appointment of a judge is void appointed from the chairmen of the (appointment by an authority acting outside its powers, appointment of a person w h o is not a German national Bundeskartellamt decision-making depart- or is not qualified to hold public office); however, Para- graph 18(3) (which provides that the nullity of an ments. The president of the Bundeskartel- appointment may not t>e relied upon until declared in a court decision having the force of res judicata) is n o t lamt appoints lay assessors 9 on a proposal applicable and in its place Paragraph 57c(3) provides that the nullity of an appointment may not be relied upon from the top public-law trade boards, until it has been declared by the authority which made decides on the formation and composition of the appointment and that decision has become final; — Paragraph 19(1) and (2), which deal with the cases in chambers and exercises administrative super- which appointments can be withdrawn. Paragraph 19(3), visory control on behalf of the Federal Gov- which makes withdrawal of an appointment subject to the consent of the party concerned or a court decision ernment. having the force of res judicata, does not apply, however, — Paragraph 26(1) and (2), which provides that administra- tive supervisory control over members of the judiciary may not limit their independence; — Paragraph 27(1), (judges are assigned to a particular court); 8 — The national administrative authority responsible for compe- — Paragraph 30(1) and (3), Paragraphs 31 to 33, and Para- tition matters. graph 37, which lay down the conditions for removing a 9 — As well as the "official" members (Bundeskartellamt person- judge from his office or for transferring him; in general, nel), the Federal Supervisory Board also has outside or lay this may happen pursuant to formal disciplinary proceed- assessors. At present it is composed of a single chamber, pre- ings or on the grounds of court restructuring. It is to be sided over by a Bundeskartellamt department chairman, and noted that Paragraph 30(2), which provides that removal has four official members, five lay members and five alternate from office or transfer other than for organizational rea- lay members (see Stockmann, Die Vergabeüberwachung des sons shall require a court order having the force of res Bundes, W U W 1995, p. 572 et seq.; the author is the presi- judicata, does not apply. dent of the Federal Supervisory Board).

This subparagraph also provides that the 12. Finally, Paragraph 3 of the review regu- Federal Supervisory Board is to adopt its lation deals with the operation of the super- own internal rules of procedure to regulate visory boards. It provides that the supervi- the allocation and conduct of cases. sory boards must make a reference to the Court of Justice under Article 177 when they consider that a ruling on the interpreta- tion of the Treaty or on the validity or inter- pretation of legal acts adopted on the basis of the Treaty is necessary. 11. On the basis of the provisions described above, the Federal Government adopted two implementing regulations on 22 February 1994, after having obtained the assent of the Bundesrat. The first regulation, governing the award of public procurement contracts, expressly applies only to public works con- tracts and public supply contracts and does not therefore apply to public service con- tracts. 10 It also provides that the supervisory boards are to adopt internal rules of procedure in the light of the principles set out in the Law amending the H G r G . They must issue rea- soned determinations in writing after having heard the parties. Finally, Paragraph 3(4) The second regulation, however, is of general provides that the supervisory boards, unlike application and contains provisions fulfilling the review bodies, shall not be empowered to the obligation to provide for appropriate suspend a procedure for the award of a con- review procedures in the field of public pro- tract. curement (hereinafter 'the review regu- lation'). n Paragraph 1 of this regulation des- ignates the bodies competent to conduct reviews in respect of each of the awarding authorities listed in Paragraph 57a of the H G r G . Under Paragraph 2, the review body has power to suspend the award procedure; its determinations are to be given in writing, contain a statement of reasons and be noti- fied to the awarding authority and to the 13. The rules of procedure of the Federal person claiming an infringement of the pro- Supervisory Board came into effect on 1 curement rules; the review body must draw August 1995 and have not been published. the latter's attention to the possibility of The version produced by the German Gov- challenging the determination before a super- ernment in these proceedings consists of five visory board and specify the supervisory sections regulating the organization and allo- board competent to hear such a challenge. cation of cases within the Board, the conduct of procedure, which includes a written stage and an oral hearing, and its decisions and 10 — BGBl. 1994, 1, p. 321 e tseq. other technical matters, including formalities 1 1— BGBl. 1994, 1, p. 324 et seq. relating to final determinations.

12 — The Commission indicated in fact that it had doubts as t o which version of the rules of procedure was to be regarded as in .force. It explains that the only version officially sub- In 1995, the Bundesbaugesellschaft Berlin mitted by the German Government which has not been fol- lowed by any official revision or amendment is that of June m b H (hereinafter 'the contracting authority') 1994, which was produced as an official document in the course of an enforcement action brought by the Commis- issued an invitation to tender for the award sion against Germany under Article 169 (regarding which, see infra). of a general planning services contract relat- 13 — Case C-433/93 Commission v Germany [1995] ECR 1-2303; the directives applicable at the time of the relevant facts were Council Directive 88/295/EEC of 22 March 1988 in respect of public supply contracts (OJ 1988 L 127, p. 1) and Council Directive 89/440/EEC of 18 July 1989 in respect of 14 — Case C-253/95 Commission v Germany [1996] ECR 1-2423. public works contracts (OJ 1989 L 210, p. 1). In line with 15 — The letter of formal notice dated 31 December 1995 its established case-law, the Court confirmed the breach of has been published, in German, in Zeitschrift für obligations b y reference to the legal position existing at the Wirtschaftsrecht und Insolvenzpraxis, N. 23/95, p. 1940 et expiry of the period set by the Commission in its reasoned seq. The reasoned opinion in the case was delivered on opinion (in this case, 3 February 1993). 29 July 1996 (see Commission press release N o IP/96/614).

16. Dorsch Consult Ingenieurgesellschaft m b H (hereinafter 'the applicant') took part in the tendering procedure and submitted its tender on 25 August 1995. By letter of 20 December 1995, the review body declined jurisdiction and dismissed the application without consideration of the merits of the claim. The decision was based on the grounds that the federal regulation provided for under the legislation, by which The contracting authority examined the 18 the Federal Government was to have tenders received and drew up a short list of extended the jurisdiction of the review bod- seven. It then decided to award the contract ies to include the hearing and determination to two of the other firms which had submit- of disputes concerning service contracts, had ted a tender, which were required to form a still not been enacted. working party to provide the services in question. The contract was signed on 12 January 1996, after the working party had already commenced its work.

The Federal Supervisory Board decided to The issue was the subject of lively argument stay the proceedings and to refer to the between the parties, both in their written Court of Justice the question whether observations and at the hearing. It is note- Article 41 of the services directive is to be worthy that the applicant itself, which had interpreted as meaning that the bodies set u p expressly requested (albeit as an alternative by the Member States for the purposes of the relief) a reference to be made to the Court of review directive are also competent, from the Justice for a preliminary ruling on the point date by which the services directive ought to in issue, accepted that the Federal Supervi- have been transposed into national law, to sory Board does not constitute a court or tri- review procedures for the award of public bunal within the meaning of Article 177; it service contracts. submitted none the less that the Court should in any case answer the question referred to it, but — not without self- contradiction — on grounds relating to the effective protection of individual rights by the courts.

Admissibility

17 — The sole purpose of this examination is, incidentally, to determine whether the subjective conditions for acceptance of the reference are satisfied and not to establish whether the review directive was properly transposed, which may 18 — This point was raised at the hearing by the Commission, eventually be the subject of separate proceedings. Of which saw it as further proof that the supervisory boards as course, the enforcement action brought by the Commission presently constituted are not courts; this was disputed by against the German Government for failure corrccdy to the German Government, which at the hearing argued that transpose the review directive, which I mentioned earlier, the amendments in question were aimed solely at making a has points in common with the present case; but there are number of improvements to a system already providing sat- also many dissimilarities, so that a rigorous distinction isfactory legal protection, and it pointed out that this infor- between the two cases should be maintained, with regard to mation had been supplied in the course of other, separate both form and substance. proceedings.

I - 4970

DORSCH CONSULT v BUNDESBAUGESELLSCHAFT BERLIN

20. My first observation in considering this should be borne in mind that the case-law issue is that, in German domestic law itself, developed by reference to the individual the Federal Supervisory Board (as well as the cases that have come before the Court has supervisory boards of the Länder) are not led to a general, exhaustive definition of described as 'quasi-judicial bodies' (gericht- the concept of court or tribunal within the sähnliche Einrichtungen) and not as courts meaning of Article 177. or tribunals strictu sensu. , 9

21. I shall therefore begin by briefly review- ing those leading decisions of the Court in The Court expressly took the following fac- this area which are relevant here, but it tors into account: the Scheidsgericht was a body duly established under Dutch law; it was permanent; it was charged with the 19 — See the preamble to the Second Law Amending the HGrG, settlement of disputes and had to follow which inserted new Paragraphs 57a to 57c, discussed above (BT-Drucksache 12/4636, p. 12). The designation is not sur- rules of inter partes procedure similar to prising if one has regard to the particularities of German those applying in the ordinary courts of law; Constitutional law. Were a fully-fledged Federal "court" to have been established by means of an ordinary law (such as it was required to apply rules of law; further- the HGrG) this would have been in breach of the relevant Constitutional provisions (at least as regards the Federal more, all those belonging to the relevant Supervisory Board); this is because the German Basic Law (Articles 95 and 96) contains an exhaustive list of all Federal industry had to bring any dispute with their courts, any addition to which would require a constitu- insurer before the Scheidsgericht; finally, the tional amendment. 20 — The definition of which, in the obvious interests of the uni- members of the body in question were form application of Community law, cannot be left to the discretion of the courts of the Member States (see in general Case 49/71 Hagen [1972] ECR 23). 21 — See, for example, Case 61/65 Vaassen (neé Göbbels) [1966] ECR 261 22 — Loc. cit., footnote 21.

25. The line of judgments beginning with 24. A number of subsequent judgments Simmenthal 25 is to be viewed in the same should also be read in this light, like that in, light. In that case, a reference was made to the Court by the Preture di Alessandria in proceedings for an interlocutory order. The 23 — In more recent decisions the Court also confirmed that Italian Government contested the jurisdic- employment arbitration tribunals which satisfy the afore- tion of the Court to reply to the questions mentioned criteria are courts or tribunals within the mean- ing of Article 177. See, for example, Case 109/88 Danfoss submitted by the Preture on the grounds [1989] ECR 3199, in which the Court found that the b o d y that the procedure was not inter partes, making the reference, a Danish industrial arbitration board, had been established by law (which laid down detailed rules pointing out that the judge in question had governing its composition, the number of members t o be nominated by the parties and the manner of appointment of the umpire), had exclusive and final jurisdiction over the relevant disputes and could hear a case brought by either party irrespective of the objections of the other. Advocate General Lenz also pointed out that the board was also 24 — Case 246/80 [1981] ECR 2311, discussed in greater detail in required to apply rules of law, such as the provisions of the paragraphs 39 and 40 infra. relevant collective agreements. 25 — Case 70/77 [1978] ECR 1453, paragraph 10.

I - 4972

D O R S C H CONSULT v BUNDESBAUGESELLSCHAFT BERLIN

26. While adopting this broad interpretation, offer the necessary guarantees of impartiality the Court has none the less set clear limits to between parties to disputes which it was the concept of court or tribunal within the called upon to resolve. 31 That case involved meaning of the Treaty. In its order in Luxembourg's Director of Taxation and Borker, 27 subsequently confirmed in Regina Excise who had jurisdiction under the law to Greis Unterweger, 2S the Court held that it hear at first instance disputes between tax- had jurisdiction to give preliminary rulings payers and the departments (of which he was only on questions submitted by a court or Director) which had charged them to tax. tribunal called upon to give judgment 'in proceedings intended to lead to a decision of a judicial nature'. 29 The referring bodies in 30 — See also, on this point, the recent judgment in Case question in those cases were, respectively, the C - l l l / 9 4 Job Centre [1995] ECR 1-3361, which concerned Paris Bar Council (which had been requested voluntary proceedings involving an application for approval of a company's memorandum of association with a view t o by a lawyer on its register to issue a declara- its registration. The Court held that the Tribunale di Milano, which made the reference, was in this instance tion to be produced as evidence in legal performing the functions of an administrative authority rather than those of a judicial body. 31 — Case C-24/92 [1993] ECR 1-1277.

I - 4973

OPINION OF MR TESAURO — CASE C-54/96

The criterion of independence also appears a judicial function only on an occasional to have been a key factor, albeit with the basis; its competence to resolve a dispute by opposite result, in Asociación Española de a decision of a judicial nature; the conduct, Banca Privada. 32 In that case the body mak- before it, of a procedure analogous to that ing the reference was Spain's Tribunal de which is followed in ordinary courts of law, Defensa de la Competencia, which Advocate involving (within the limits discussed above) General Jacobs, in his Opinion, found to exchange of argument inter partes; the appli- present a number of characteristics constitu- cation by the body in question of rules of tive of a court or tribunal within the mean- law (rather than principles of fairness); com- ing of Article 177; these included the adver- pulsory jurisdiction, which means that alter- sarial nature of the procedure which was native remedies are not available; and finally clearly laid down by law, the independent independence, in the sense that it acts as a exercise by its members of their functions third party in relation to the parties to the and the fact that its members could not be dispute and that its members may not be removed from office. 33 In its judgment the removed from office. Court did not specifically address the issue; but the fact that it replied to the questions submitted indicates that the Court implicitly endorsed the view of the Advocate General.

29. To return to the case in hand, it is now therefore necessary to establish whether the Federal Supervisory Board possesses the 28. These decisions therefore clearly show characteristics allowing it to be regarded as that, even in the absence of a general defini- performing a judicial function, as required tion of the concept of court or tribunal by the Court for the purposes of Article 177 within the meaning of Article 177, the Court of the Treaty. has developed a number of tests which must be satisfied in order for a body to be entitled to make a reference for a preliminary ruling.

present case where there is no competent before ordinary courts of law. On the con- review body at first instance. The Commis- trary, the fact that, under the legislation, sion also makes these points: that the refer- rules of procedure are to be adopted autono- ring body does not make its determinations mously by each supervisory board, which following an inter partes procedure, as is may subsequently amend them autono- confirmed in the grounds of its first mously, and that in addition there is no decision; 34 that its proceedings are governed requirement that they be published, leads me by internal rules of procedure which have to conclude that the degree of transparency not been published and which may be and legal certainty required in any judicial amended autonomously at any time; that process is not guaranteed here. there is no legislative provision for its deter- minations to have binding legal effect; that it is not an independent body, since it is linked to the staff and organizational structure of the Bundeskartellamt, which is itself an administrative rather than a judicial body; and that the minimum term of office of its Official' members and of its chairman is not fixed by law.

I - 4975

O P I N I O N O F MR T E S A U R O — CASE C-54/96

was 'bound by rules of adversary procedure 33. There are also serious doubts, in my simUar to those used by the ordinary courts opinion, regarding the independence of the of Uw'. 36 Federal Supervisory Board, at least as regards the question of unremoveability of its mem- bers from office.

32. In the present case, however, I find it Of significance in this regard is Paragraph difficult to see similar procedural safeguards; 57c(7) of the H G r G , which I shall recapitu- if they do exist, they are subject to Opaque' late for the sake of convenience: the Official' autonomous amendment by the decision- members of the Federal Supervisory Board making body and this seems to me to run are Bundeskartellamt department chairmen counter to the most basic requirements of and assessors, with the former acting as legal certainty. The point is borne out, chairmen of the chambers of the Board. The indeed, by the Commission's doubts, president of the Bundeskartellamt appoints referred to above, as to the version of the the lay assessors, decides on the formation rules of procedure now in force due to the and composition of chambers and exercises discrepancies between the version provided administrative supervisory control by del- by the German Government in the course of egation from the Government. 37 The Federal the enforcement proceedings and the version Supervisory Board also uses the Bundeskar- produced in this case. tellamts facilities and services.

taneously perform the functions of Federal vides that the members of the Board are to Supervisory Board members and those of be independent and unremovable, is suffi- Bundeskartellamt members. Moreover, the cient to justify taking a different view, since legislation establishing the body in question it is contradicted by the fact that the Board does not include any provision as to the term members belong to the administrative auth- of office of its 'official' members, and the fact ority and continue to belong to it, even from that the term of office of the lay members is a functional point of view. Such a system, fixed (at five years) 3S suggests that the omis- under which a limited number of administra- sion was not inadvertent. tive officials are, temporarily and for the per- formance of specific functions, given the title of judge and then made subject to an equally limited number of provisions applicable to members of the judiciary, but excluding the safeguards which ordinarily apply to the judiciary in relation to removal from office What all this amounts to, in effect, is that not and re-assignment, appears to me to be too only do the members of the Federal Supervi- complicated and too intransparent to guaran- sory Board enjoy no guarantee against dis- tee in practice the stability required to ensure missal, but neither do they have the assur- the independence of those performing judi- ance of a fixed term of office, which is an cial functions. essential prerequisite of independence. O n the contrary, they can be relieved of their 'additional' duties and re-assigned to their Ordinary' duties at any moment and by means of purely internal organizational mea- sures. While it is true, as we have seen, that some of the provisions of the DRiG regard- ing the permanence and independence of members of the judiciary apply by analogy to the members of the Board when acting in that capacity, 39 it is also the case that the lat- ter are not covered by the DRiG provisions which give members of the judiciary the right to challenge their removal from office or re-assignment, with the result that they 36. One can have further doubts about the may be freely 'dismissed' at any time by the specific question of the impartiality of the president of the Bundeskartellamt. Federal Supervisory Board in relation to dis- putes falling within its area of jurisdiction. This body is, as we have seen, part of the Bundeskartellamt, which is part of the public administration, but it is given power, in spite of this, to adjudicate in disputes involving public procurement awards, that is to say in 35. N o r do I believe that the petitio principii disputes between the public administration contained in Paragraph 57c(3), which pro- itself and citizens. This fact alone would make it impossible to regard the Federal Supervisory Board as acting as a third party, thus independently. Unless, of course, one 38 — HGrG. Paragraph 57c(2). 39 — Sec supra note 7. regards judicial independence as a moral

38. So, in view of all of the points I have made, I consider that the Federal Supervi- sory Board does not satisfy the require- ments, certainly as far as procedural safe- guards and guarantees of independence are 37. Lastly, the Commission put forward a concerned, for it to qualify as a court or tri- further telling argument with which I would bunal within the meaning of Article 177 and agree. The legislation establishing the Federal therefore that its reference is inadmissible. Supervisory Board makes no provision con- cerning the legal effects of its determinations, especially their binding force. Since the body in question is one which, under national law, is not a court, the general principle that all judicial determinations are binding does not apply. So, in the absence of express provi- sions, the fact that the body in question was 39. It could be argued, on the other hand, established using the so-called 'budget solu- that when a reference is made by a body tion', with the declared aim of not creating which'offers the only legal remedy available individual rights for those taking part in to an individual relying on Community law, public tendering procedures, 4I gives rise to the Court should accept the reference in any doubts as to the binding nature of its deci- event, in order to prevent the applicant from sions. 42 being deprived of an effective remedy and to ensure the uniform application of Commu- nity law. 40 — See the judgment in Corbiau (loc. cit. footnote 31). It is true that in that case the referring body was linked to the very departments which had made the disputed tax assessment: however, the rationale of the Court's judgment (and of the Advocate General's Opinion) is not unfikc the approach which should prevail in the present case, since the Federal Supervisory Board is, after all, an integral part of the public administration and thus is not a third party in relation to disputes between the administraron and citizens. 41 — See the explanatory memorandum to the Draft Amending Law to the H G r G (BT-Drucksache 12/4636, p. 12). 42 — See the doubts expressed by legal writers, in particular by This is, in substance, the argument put for- Boesen, EuZW 1996, p. 586, who points out that lhe deci- ward by the applicant. As mentioned above, sions of the Federal Supervisory Board are not enforceable; see also, on the same point, the letter of formal notice and even though the applicant submits that the the reasoned opinion sent by the Commission to the Ger- Federal Supervisory Board is not a court or man Government in the enforcement proceedings referred to above. tribunal within the meaning of Article 177, it

In the present case, however, a person who considers himself to have been unlawfully excluded from a contract-award procedure is 40. I cannot subscribe to the applicant's expressly given the possibility of bringing an argument; the ratio of Broekmeulen should action in damages for any loss suffered, not be stretched too far. The subjective and which in itself could well provide, at least in objective conditions for the functioning of principle, a satisfactory remedy. the system of cooperation between national courts and the Court of Justice, which was created by Article 177 of the Treaty, cannot vary in accordance with the particular cir- cumstances of each case. If a body is not a judicial body, it does not become one simply because there is no better solution. To hold otherwise and interpret Broekmeulen to that 42. Moreover, even in the absence of any effect would mean conferring crucial impor- express legislative provision and despite the tance on an aspect of the procedural system doubts expressed by legal writers, ordinary of which the body in question is part rather German courts seem to have come round to than on features of the body itself, so that it the view that they have jurisdiction to hear would no longer matter whether the require- cases brought by participants in contract- award procedures for alleged infringements of the relevant provisions, including those of 43 — Broekmeulen (loc. cit. footnote 24), paragraph 17. Community law. This is borne out by two

I - 4979

O P I N I O N O F MR T E S A U R O — CASE C-54/96

recent decisions in 'which the Kammergericht offers a wider perspective going beyond the (Appeal Court) of Berlin ruled admissible — present case and affords a greater safeguard before dismissing them on the merits — of individual rights, for which only a court applications for interlocutory relief by ten- of law can provide effective protection. derers •who had been excluded from public Underlying this conclusion is, quite clearly, tendering procedures and were seeking the the conviction that only those bodies which suspension of the award procedures. 44 are able to provide all the safeguards of indi- vidual rights developed by the Court can be treated as courts or tribunals for the pur- poses of Article 177, and no others.

I - 4980

DORSCH CONSULT v BUNDESBAUGESELLSCHAFT BERLIN

States have designated the ordinary courts or, The question is, as I have stated, whether, in those Member States where they exist, the after expiry of the period for transposition of administrative courts, subject to the appellate the services directive, the review bodies are jurisdiction of the Council of State. 46 also competent to review procedures for the award of public service contracts in the absence of any express measure conferring such jurisdiction upon them (in this case, a Federal regulation, although this is provided for by statute).

This is a significant factor which, in my view, should be given due weight, whilst observing the distinction between this case and the enforcement action brought by the Commis- sion under Article 169 of the Treaty.

47. Both the applicant and the German Gov- ernment argue that, since the relevant provi- sions of the services directive must be 45. Having regard to all the considerations regarded as having direct effect, 47 the bodies set forth above, I propose, in conclusion, set up for the purposes of the review direc- that the reference for a preliminary ruling tive should also be able to adjudicate in dis- should be declared inadmissible on the putes in relation to public service contracts. ground that the body which made it is not a court or tribunal within the meaning of Article 177 of the Treaty.

Substance Clearly, however, this is an issue which can- not be determined by the Court in these proceedings. For the Court may not take the place of the national legislature, to which the relevant power has been expressly reserved by law, and decide whether the review bod- 46. O n the substance of the reference, ies should also review procedures for the which I shall consider solely for the sake of award of public service contracts. completeness, a few remarks will suffice.

48. Relying on the direct effect of the provi- Community law for want of a court compe- sions of the services directive does n o t tent to hear his case, this would, of course, change matters. Even if the Court were to indicate the existence of a clear violation of find that the relevant provisions are indeed Community law. 49 Such a violation could, of directly effective, this would merely mean course, be pursued by the competent that an individual had the right to rely on authorities using the procedures provided for those provisions before a court; under no in such cases and could also bring into play circumstances could it go so far as to indicate the remedies which the Court has established before which court that should be, for this in the area of State liability towards indi- would encroach on the domain of the viduals who have suffered material loss as a national legislature. 48 result of the failure of the State in question to fulfil its obligations under Community law. But, to repeat, these are remedies which, both in form and in substance, are distinct from the procedure now in point and there- If an individual had no actual possibility of fore have no bearing on the solution which I relying on a directly effective provision of have proposed in this case.

49. In view of the considerations set out above, I therefore propose that the Court should declare the reference for a preliminary ruling inadmissible, on the ground that the Federal Public Procurement Awards Supervisory Board, which made the reference, is not a court or tribunal within the meaning of Article 177 of the Treaty.