C-54/96

DORSCH CONSULT v BUNDESBAUGESELLSCHAFT BERLIN

JUDGMENT OF THE COURT 17 September 1997 *

In Case C-54/96,

R E F E R E N C E to the Court under Article 177 of the EC Treaty by the Vergabeü- berwachungsausschuß des Bundes (Germany) for a preliminary ruling in the pro- ceedings pending before that body between

Dorsch Consult Ingenieurgesellschaft mbH

and

JUDGMENT OF 17. 9. 1997 — CASE C-54/96

Advocate General: G. Tesauro, Registrar: H . A. Rühi, Principal Administrator,

after considering the written observations submitted on behalf of:

— Dorsch Consult Ingenieurgesellschaft mbH, by Franz Günter Siebeck, Rechtsanwalt, Munich,

— the German Government, by Ernst Röder, Ministerialrat at the Federal Min- istry for Economic Affairs, and Bernd Kloke, Oberregierungsrat at the same ministry, acting as Agents,

— the Commission of the European Communities, by Hendrik van Lier, Legal Adviser, and Claudia Schmidt, of its Legal Service, acting as Agents,

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Supervisory Board, hereinafter 'the Federal Supervisory Board') referred to the Court for a preliminary ruling under Article 177 of the EC Treaty a question o n the interpretation of Article 41 of Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts (OJ 1992 L 209, p. 1).

2 The question has been raised in proceedings between Dorsch Consult Ingenieurge- sellschaft m b H (hereinafter 'Dorsch Consult') and Bundesbaugesellschaft Berlin m b H (hereinafter 'the awarding authority') concerning a procedure for the award of a service contract.

3 O n 28 June 1995 the awarding authority published in the Official Journal of the European Communities a notice advertising the award of a contract for architec- tural and construction engineering services. O n 25 August 1995 Dorsch Consult submitted its tender to the awarding authority. In all, 18 tenders were received, of which seven, including that of Dorsch Consult, were chosen for further consider- ation. O n 30 November 1995, two companies, together with an architect, were chosen to form a working party to perform the services which were the subject of the contract. The contract itself was signed on 12 January 1996. Dorsch Consult was informed on 25 January 1996 that its tender was not the most advantageous economically.

6 The Federal Supervisory Board found that the Federal Republic of Germany had not yet transposed Directive 92/50. Although a circular had been issued by the Federal Ministry for Economic Affairs on 11 June 1993 stating that the directive was directly applicable and that it had to be applied by the administration, it could not be regarded as a proper transposition of the directive. According to the Federal Supervisory Board, where public service contracts are concerned, German domes- tic law does not empower a review body to determine whether the provisions gov- erning public procurement have been complied with. It is quite possible that the provisions of Directive 92/50 have direct effect. Finally, the Federal Supervisory Board is unsure whether, by virtue of Article 41 of Directive 92/50, the compe- tence of existing review bodies also applies directly to the award of public service contracts.

7 The Federal Supervisory Board therefore suspended proceedings and referred the following question to the Court of Justice:

'Is Article 41 of Council Directive 92/50/EEC of 18 June 1992 to be interpreted to the effect that, after 30 June 1993, the bodies set up by the Member States which, under Council Directive 89/665/EEC of 21 December 1989, are competent to review procedures for the award of public contracts falling within the scope of Directives 71/305/EEC and 77/62/EEC are also competent to review procedures for the award of public service contracts within the meaning of Directive

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DORSCH CONSULT v BUNDESBAUGESELLSCHAFT BERLIN

92/50/EEC in order to determine whether alleged infringements of Community public procurement law or of domestic rules enacted in implementation of that law have taken place?'

JUDGMENT OF 17. 9. 1997 — CASE C-54/96

io Article 2(8) of Directive 89/665 provides:

'Where bodies responsible for review procedures are not judicial in character, writ- ten reasons for their decisions shall always be given. Furthermore, in such a case, provision must be made to guarantee procedures whereby any allegedly illegal measure taken by the review body or any alleged defect in the exercise of the pow- ers conferred on it can be the subject of judicial review or review by another body which is a court or tribunal within the meaning of Article 177 of the E E C Treaty and independent of both the contracting authority and the review body.

The members of such an independent body shall be appointed and leave office under the same conditions as members of the judiciary as regards the authority responsible for their appointment, their period of office, and their removal. At least the President of this independent body shall have the same legal and professional qualifications as members of the judiciary. The independent body shall take its decisions following a procedure in which both sides are heard, and these decisions shall, by means determined by each Member State, be legally binding.'

1 1 Directive 89/665 was transposed into German law by a Law of 26 November 1993 (BGBl. I, p . 1928), which supplemented the H G r G by adding Paragraphs 57a to 57c.

i2 Paragraph 57a(l) of the H G r G provides:

is Paragraph 57c(l) of the H G r G provides that the Federation and the Länder must each establish a supervisory board, performing its functions independently and on its own responsibility, to supervise procedures for the award of contracts in the fields concerning them. According to subparagraphs (2), (3) and (4) of that provi- sion, each supervisory board is to sit in chambers composed of a chairman, an offi- cial assessor and a lay assessor, who are to be independent and subject only to observance of the law. The chairman and one of the assessors must be public offi- cials. As regards annulment or withdrawal of their appointment and their indepen- dence and dismissal, various provisions of the Richtergesetz (Law on the Judiciary) apply by analogy. As regards the annulment or withdrawal of a lay member's appointment, certain provisions of the Richtergesetz also apply by analogy. Where

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JUDGMENT OF 17. 9. 1997 — CASE C-54/96

a lay member commits a serious breach of his duties, his appointment must be annulled. The term of office of a supervisory board's lay members is five years.

i6 Under subparagraph (5), the supervisory board is to determine the legality of determinations made by review bodies but it does not review the way in which they ascertain the facts. Where a determination is found to be unlawful, the super- visory board directs the review body t o make a fresh determination taking account of its own legal findings. Paragraph 57c(6) of the H G r G provides that any person claiming that the provisions governing the award of public contracts have been infringed may make application to the supervisory board within a period of four weeks following the relevant determination of the review body.

20 Paragraph 3 provides:

'(1) Procedure before the Public Procurement Awards Supervisory Board shall be governed by Paragraph 57c of the Haushaltsgrundsätzegesetz and by this regulation according to the rules of procedure which the board shall adopt.

(2) The Public Procurement Awards Supervisory Board shall be obliged, under Article 177 of the Treaty establishing the European Community, to make a reference to the Court of Justice of the European Communities when it con- siders that a preliminary ruling on a question relating to the interpretation of that Treaty or to the validity and interpretation of a legal act adopted on that basis is necessary in order to enable it to make its determination.

(3) Before a chamber makes any determination, the parties to the procedure before the procurement review body shall be heard.

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JUDGMENT OF 17. 9. 1997 — CASE C-54/96

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unkown [1987] ECR 2545, paragraph 7; Case 109/88 Danfoss [1989] ECR 3199, paragraphs 7 and 8; Case C-393/92 Almelo and Others [1994] ECR 1-1477; and Case C - l l l / 9 4 / o ^ Centre [1995] ECR 1-3361, paragraph 9).

24 As regards the question of establishment by law, the Commission states that the H G r G is a framework budgetary law which does not give rise to rights or obliga- tions for citizens as legal persons. It points out that the Federal Supervisory Board's action is confined to reviewing determinations made by review bodies. However, in the field of public service contracts, there is, as yet, no competent review body. The Commission therefore concludes that in such matters the Federal Supervisory Board has no basis in law on which it can act.

25 It is sufficient to note in this regard that the Federal Supervisory Board was estab- lished by Paragraph 57c(7) of the H G r G . Its establishment by law cannot there- fore be disputed. In determining establishment by law, it is immaterial that domes- tic legislation has not conferred on the Federal Supervisory Board powers in the specific area of public service contracts.

26 N o r is there any doubt about the permanent existence of the Federal Supervisory Board.

3i It must be reiterated that the requirement that the procedure before the hearing body concerned must be inter partes is not an absolute criterion. Besides, under Paragraph 3(3) of the Verordnung über das Nachprüfungsverfahren für öffentliche Aufträge, the parties to the procedure before the procurement review body must be heard before any determination is made by the chamber concerned.

32 According to the Commission, the criterion relating to the application of rules of law is not met either, because, under Paragraph 57c of the H G r G and Paragraph 3(1) of the Verordnung über das Nachprüfungsverfahren für öffentliche Aufträge, procedure before the Federal Supervisory Board is governed by rules of procedure which it itself adopts, which do not take effect in relation to third parties and which are not published.

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33 It is, however, undisputed that the Federal Supervisory Board is required to apply provisions governing the award of public contracts which are laid down in Com- munity directives and in domestic regulations adopted to transpose them. Further- more, general procedural requirements, such as the duty to hear the parties, to make determinations by an absolute majority of votes and to give reasons for them are laid down in Paragraph 3 of the Verordnung über das Nachprüfungsverfahren für öffentliche Aufträge, which is published in the Bundesgesetzblatt. Conse- quently, the Federal Supervisory Board applies rules of law.

34 Finally, both Dorsch Consult and the Commission consider that the Federal Supervisory Board is not independent. They point out that it is linked to the orga- nizational structure of the Bundeskartellamt, which is itself subject to supervision by the Ministry for Economic Affairs, that the term of office of the chairman and the official assessors is not fixed and that the provisions for guaranteeing impartial- ity apply only to lay members.

38 It follows from all the foregoing that the Federal Supervisory Board, in the pro- cedure which led to this reference for a preliminary ruling, is to be regarded as a court or tribunal within the meaning of Article 177 of the Treaty, so that the ques- tion it has referred to the Court is admissible.

Substance

39 By its question, the Federal Supervisory Board is asking in effect whether it fol- lows from Article 41 of Directive 92/50 that, if that directive has not been trans- posed by the end of the period laid down for that purpose, the appeal bodies of the Member States having competence in relation to procedures for the award of public works contracts and public supply contracts may also hear appeals relating to procedures for the award of public service contracts.

40 It must be stated first of all that it is for the legal system of each Member State to determine which court or tribunal has jurisdiction to hear disputes involving indi- vidual rights derived from Community law. However, it is the Member States' responsibility to ensure that those rights are effectively protected in each case. Sub- ject to that reservation, it is not for the Court to involve itself in the resolution of questions of jurisdiction to which the classification of certain legal situations based on Community law may give rise in the national judicial system (judgment in Case C-446/93 SEIM [1996] E C R 1-73, paragraph 32).

4i Although Article 41 of Directive 92/50 requires the Member States to adopt the measures necessary to ensure effective review in the field of public service contracts, it does not indicate which national bodies are to be the competent

43 That being the case, it must be reiterated first of all that the Member States' obliga- tion arising from a directive to achieve the result envisaged by the directive and their duty under Article 5 of the EC Treaty to take all appropriate measures, whether general or particular, to ensure fulfilment of that obligation is binding on all the authorities of Member States, including, for matters within their jurisdic- tion, the courts. It follows that, when applying national law, whether adopted before or after the directive, the national court having to interpret that law must do so, as far as possible, in the light of the wording and the purpose of the direc- tive so as to achieve the result it has in view and thereby comply with the third paragraph of Article 189 of the E C Treaty (see the judgments in Case C-l06/89 Marleasing [1990] ECR 1-4135, paragraph 8; Case C-334/92 Wagner Miret [1993] E C R 1-6911, paragraph 20; and in Case C-91/92 Faccini Dori [1994] ECR 1-3325, paragraph 26).

44 Secondly, the question of the designation of a body competent to hear appeals in relation to public service contracts is relevant even where Directive 92/50 has not been transposed. Where a Member State has failed to take the implementing mea- sures required or has adopted measures which do not conform to a directive, the Court has recognized, subject to certain conditions, the right of individuals to rely in law on a directive as against a defaulting Member State. Although this minimum guarantee cannot justify a Member State absolving itself from taking in due time implementing measures sufficient to meet the purpose of each directive (see, in par- ticular, the judgment in Case C-253/98 Commission v Germany [1996] ECR 1-2423, paragraph 13), it may nevertheless have the effect of enabling individuals to rely, as against a Member State, on the substantive provisions of Directive 92/50.

46 The answer to be given to the question referred to the Court must accordingly be that it does not follow from Article 41 of Directive 92/50 that, where that directive has not been transposed by the end of the period laid down for that purpose, the appeal bodies of the Member States having competence in relation to procedures for the award of public works contracts and public supply contracts may also hear appeals relating to procedures for the award of public service contracts. However, in order to observe the requirement that domestic law must be interpreted in con- formity with Directive 92/50 and the requirement that the rights of individuals must be protected effectively, the national court must determine whether the rel- evant provisions of its domestic law allow recognition of a right for individuals to bring an appeal in relation to awards of public service contracts. In circumstances such as those arising in the present case, the national court must determine in par- ticular whether such a right of appeal may be exercised before the same bodies as those established to hear appeals concerning the award of public supply contracts and public works contracts.

Costs

47 The costs incurred by the German Government and by the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the proceedings pending before the national tribunal, the decision on costs is a matter for that body.

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Gulmann Edward Puissochet Hirsch

Jann Ragnemalm Wathelet Schintgen

Delivered in open court in Luxembourg on 17 September 1997.

R. Grass G. C. Rodriguez Iglesias

Registrar President

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