C-76/97

1 — OJ 1989 L 395, p. 33. 2. Article 1 of Council Directive 89/665/EEC 2 — The word 'nation' appears in the Official Journal but is clearly of 21 December 1989 on the coordination of a typographical error. 3 — This amended version was introduced by Article 41 of Council Directive 92/50/EEC of 18 June 1992 relating to the coordi- nation of procedures for the award of public service con- tracts, cited below. The original version referred only to con- tract award procedures within the scope of Council Directives * Original language: English. 71/305/EEC and 77/62/EEC, cited below.

I - 5360

TÖGEL v NIEDERÖSTERREICHISCHE GEBIETSKRANKENKASSE

(2) Member States shall ensure that there is economic or financial specifications in the no discrimination between undertakings invitation to tender, the contract docu- claiming injury in the context of a procedure ments or in any other document relating for the award of a contract as a result of the to the contract award procedure; distinction made by this Directive between national rules implementing Community law and other national rules.'

(c) award damages to persons harmed by an infringement.

Article 2 of the Review Directive provides, in relevant part, as follows:

damages to any person harmed by an infringe- means determined by each Member State, be ment. legally binding.'

(7) The Member States shall ensure that deci- sions taken by bodies responsible for review procedures can be effectively enforced.

3. Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of proce- dures for the award of public service con- tracts 4 (hereinafter referred to as 'the Services Directive') establishes procurement proce- (8) Where bodies responsible for review pro- dures for certain types of public service con- cedures are not judicial in character, written tracts. The seventh recital in the preamble to reasons for their decisions shall always be the Services Directive provides as follows: 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 powers 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 EEC Treaty and independent of both the con- tracting authority and the review body.

'In awarding public service contracts or in organising design contests contracting author- ities shall apply procedures adapted to the provisions of this Directive.' 'Whereas full application of this Directive must be limited, for a transitional period, to contracts for those services where its provi- sions will enable the full potential for increased cross-frontier trade to be realised; whereas contracts for other services need to be moni- Articles 4 to 6 of the Services Directive pro- tored for a certain period before a decision is vide for the non-application of that Directive taken on the full application of this Direc- in a variety of specified exceptional situations. tive.' Article 7 of the Services Directive provides for the application of the Directive to public service contracts with an estimated value, net of VAT, which is not less than E C U 200 000, and identifies the methods by which contracts are to be valued.

'Contracts which have as their object services listed in both Annex I A and I B shall be awarded in accordance with the provisions of Titles III to VI where the value of the services 9. C P C reference number 712 is a subdivi- Usted in Annex I A is greater than the value sion of Division 71 ('Land transport services') of the services listed in Annex I B. Where this and is entitled 'Other land transport ser- is not the case, they shall be awarded in vices'. 7 Subdivision 712 includes 'Non- accordance with Articles 14 and 16.' scheduled passenger transportation' (7122), which is further subdivided into 'Taxi ser- vices' (71221), 'Rental services of passenger cars with operator' (71222), 'Rental services of buses and coaches with operator' (71223), 'Passenger transportation by man-or animal- drawn vehicles' (71224) and 'Other non- scheduled passenger transportation n. e. c ' 7. Title III of the Services Directive regulates (71229). 8 In Division 93 of the C P C ('Health the choice of award procedures and the rules and Social Services'), subdivision 931 on governing design contests. Title IV relates t o 'Human health services' includes 'Other technical specifications for public service con- human health services' (9319), one of the ele- tracts. Title V establishes common advertising ments of which is headed 'Ambulance ser- rules. Title VI is divided into three chapters, vices' (93192), followed by the fuller descrip- which set out, respectively, common rules o n tion: '[g]eneral and specialised medical services participation by service providers in the con- delivered in the ambulance'. tract award process, criteria for qualitative selection and criteria for the award of con- tracts.

12. The Commission adopted a Common Procurement Vocabulary (CPV) in 1996. 12 The preface states that the main CPV is 'a detailed adaptation, tailored to the needs of public procurement, of the CPA ... nomen- Article 1(1) of the CPA Regulation states that clature .... The CPV will ultimately become '[t]he purpose of this Regulation is to estab- a harmonised nomenclature that will replace lish a classification of products by activity the different ones referred to in the public within the Community in order to ensure procurement directives'. In Division 60 of the comparability between national and Commu- CPV, reference number 60231400-0 relates t o nity classifications and hence national and 'Other non-scheduled passenger transport n. Community statistics'. 10 Article 1(3) states: e. c ' , while in Division 85, reference 'This Regulation shall apply only to the use number 85141400-3 relates to 'Ambulance ser- of this classification for statistical purposes'. vices'. Article 3(1) of the CPA Regulation states, in relevant part, that '[t]he CPA shall be used by the Commission and the Member States as a classification'.

13. The fifth and sixth recitals in the pre- amble to Commission Recommendation 96/527/EC of 30 July 1996 on the use of the Common Procurement Vocabulary (CPV) for 11. The CPA comprises a Division 60, 'Land Transport ...' and a Division 85, 'Health and Social Work Services'. Although the compo- 11 — For example, CPA classes 85.12 'Medical practice services' and 85.13 'Dental practice services' appear to correspond to the single CPC reference number 9312 'Medical and dental services', which is then subdivided into 'General medical ser- vices' (93121), 'Specialised medical services' (93122) and 9 — OJ 1993 L 342, p. 1. 'Dental services' (93123). 10 — Article 1(1) of the CPA Regulation. 12 — OJ 1996 S 169, p. 2.

13 — OJ 1996 L 222, p. 10. Both the CPV Recommendation and the CPV itself were published on 3 September 1996. 14 — The Services Directive, Council Directive 93/36/EEC of 16 — Bundesgesetzblatt für die Republik Österreich N o 462/1993. 14 June 1993 concernine the coordinating procedures for the award of public supply contracts, OJ 1993 L 199, p. 1; 17 — OJ 1994 C 241, p. 21. Council Directive 93/37/EEC of 14 June 1993 coordinating 18 — Austria was already under an obligation to transpose the procedures for the award of public works contracts, OJ 1993 Services Directive into its law by 1 July 1994, by virtue of L 199, p. 54; Council Directive 93/38/EEC of 14 June 1993 Articles 1 and 3 of and Annex 14(b)(5b) to Decision of the coordinating the procurement procedures of entities oper- EEA Joint Committee N o 7/94 of 21 March 1994 amending ating in the water, energy, transport and telecommunication Protocol 47 and certain annexes to the EEA Agreement, sectors, OJ 1993 L 199, p. 84. OJ 1994 L 160, p. 1. It has not been suggested that the 15 — The date when the Agreement on the European Economic present case relates to the period between 1 July 1994 and 1 January 1995. Area came into force. This was one year later than the date initially foreseen by Article 129(3) of that Agreement 19 — Bundesgesetzblatt für die Republik Österreich N o 776/1996.

I - 5366

TÖGEL v NIEDERÖSTERREICHISCHE GEBIETSKRANKENKASSE

I - 5367

OPINION OF MR FENNELLY — CASE C-76/97

that a public tender procedure should, there- must a national court having the attributes fore, be carried out. of the Bundesvergabeamt disregard pro- visions of national law such as Para- graph 91(2) and (3) of the Bundesverga- begesetz, which confer on the Bundesvergabeamt powers of review only in the case of infringements of the Bundesvergabegesetz and regulations 19. The Bundesvergabeamt stayed the pro- adopted thereunder, on the ground that ceedings and referred the following questions those provisions preclude a review pro- for a preliminary ruling in accordance with cedure from being conducted under the Article 177 of the Treaty establishing the Euro- Bundesvergabegesetz for awards of con- pean Community: tracts for services, and must such a national court conduct a review pro- cedure in accordance with the fourth part of the Bundesvergabegesetz?

I - 5368

TÖGEL v NIEDERÖSTERREICHISCHE GEBIETSKRANKENKASSE

(b) Do the provisions of Articles 1 to 7 III — Analysis satisfy the preconditions laid down in paragraph 12 of the judgment in Case 41/74 Van Duyn v Home Office on the direct applicability of a Com- munity Directive, with the result that A — Jurisdiction services coming under Annex I B to the Directive are to be awarded under the procedure therein mentioned or are the relevant provisions of the Directive for the services mentioned in Annex I A capable of fulfilling the preconditions laid down in the 21. I would first observe that the Bundesver- abovementioned case? gabeamt is, in my view, 'a court or tribunal of a Member State' for the purposes of Arti- cle 177 of the Treaty. To this end, I adopt fully the reasoning of Advocate General Léger in Mannesmann Ardagenbau Austria AG and Others v Strohal Rotationsdruck GesmbH. 20 Furthermore, this reasoning appears to have been implicitly accepted by the Court, whose judgment examined the questions referred by the Bundesvergabeamt in that case without a preliminary analysis of their admissibility. 21 4. Is there under Article 5 or other provi- sions of the EC Treaty, or under Direc- tive 92/50/EEC, an obligation on the State to interfere in existing legal situa- tions concluded for an indefinite period or for several years but which were not B — The first and second questions entered into in accordance with the abovementioned directive?'

22. The Services Directive contains the sub- stantive provisions on the award of public contracts for services as well as providing for the extension to the field of services of the review procedures set out in the Review Directive. It is common ground that the Ser- vices Directive should have been, but had not 20. Written and oral observations were sub- been, implemented, in Austria on the date the mitted by the defendant, the Republic of Austria and the Commission of the European Communities. Oral observations were also submitted by the applicant and the French 20 — Case C-44/96 [1998] ECR I-73, Opinion of 16 September 1997, paragraphs 34 to 45. Republic. 21 — Judgment of 15 January 1998.

23. In essentially similar circumstances, the 24. This conclusion excluded the possibility German Vergabeüberwachungsausschuß des of Article 41 of the Services Directive giving Bundes (Federal Public Procurement Awards rise to a directly effective right to have review Supervisory Board) referred a question in proceedings conducted before the Vergabeü- Dorsch Consult Ingenieurgesellschaft mbH v berwachungsausschuß des Bundes, because Bundeshaugesellschaft Berlin mbH 22 as to one of the essential elements was missing, that whether bodies set up by Member States is, an identifiable person or body under a under the Review Directive to review only duty to conduct the review proceedings in the procedures for the award of public con- question. 26 It implicitly rejects the argument tracts for works and supplies were compe- initially submitted by Austria (but, in light of tent, by virtue of Article 41 of the Services Dorsch Consult, not pursued at the oral Directive, to review also the procedures for hearing) that in the case of partial implemen- the award of public service contracts. The tation of the Review Directive through the C o u r t answered that such a result did not establishment in respect of works and sup- follow from Article 41 of the Services Direc- plies of a review body such as the Bundes- tive. 23 It observed that it was for the legal vergabeamt, that body is sufficiently closely system of each Member State to determine which court or tribunal has jurisdiction to 24 — Paragraph 40. The Court cited Case C-446/93 SEIM v Subdirector-Geral das Alfândegas [1996] ECR I-73, para- graph 32. See also Case 13/68 Salgoil v Italy [1968] ECR 453, 22 — Case C-54/96 [1997] ECR I-4961, judgment of 17 September p. 463, and Case 179/84 Bozzetti v Invemizzi [1985] 1997, hereinafter 'Dorsch Consult. ECR 2301, paragraph 17. 23 — Paragraph 46. Article 41, as appears from footnote 2, extends 25 — Paragraph 41. the scope of Member States' obligation to establish review 26 — See Joined Cases C-6/90 and C-9/90 Francovich and Others mechanisms to the field of services. [1991] ECR I-5357, paragraphs 12 and 23 to 27.

26. The Court referred, however, in Dorsch Consult to the duty of 'all the authorities of Member States, including, for matters within their jurisdiction, the courts', to take all appro- priate measures to achieve the result envis- aged by a directive, which gives rise to the judicial obligation to interpret national law, as far as possible, in the light of the wording and purpose of the directive. 31 This requires the national court to 'determine whether the 25. The present case is quite different, in my relevant provisions of its domestic law allow view, from the situation in a case such as Fac- recognition of a right for individuals to bring tortame and Others, 27 which was mentioned an appeal in relation to awards of public ser- by the Bundesvergabeamt in its order for ref- vice contracts ... [and] in particular whether erence. In that case, the Court required the such a right of appeal may be exercised before national court to set aside a national rule pre- the same bodies as those established to hear cluding, in certain circumstances, the grant of interim relief, which was deemed essential for Community-law rights to have full force and 29 — It appears that Paragraph 7(2) of the BVcrgG expressly effect. However, it was clear that the national excludes the jurisdiction of the Bundesvergabeamt over dis- putes in the water, energy, transport and telecommunications court, the House of Lords, had jurisdiction sectors, which are governed by the review provisions of Council Directive 92/13 of 25 February 1992 coordinating over the subject-matter of the dispute and the laws, regulations and administrative provisions relating was properly seised of it. 28 I do not accept to the application of Community rules on the procurement procedures of entities operating in the water, energy, trans- the applicant's argument that, as a matter of port and telecommunications sectors, OJ 1992 L 76, p. 14, whereas it is merely silent regarding disputes arising under Community law, all national courts and tri- the Services Directive. See further my Opinion of even date bunals have jurisdiction to apply all direcdy in Case C-111/97 EvoBus Austria GmbH v Niederöster- reichische Verkehrsorganisations Geseüschaft mbH (NÖVOG). 30 — Opinion of 15 May 1997, paragraph 48. 31 — Paragraph 43, emphasis added. The Court cited Case C-106/89 Marleasing [1990] ECR I-4135, paragraph 8; Case C-334/92 Wagner Miret [1993] ECR I-6911, paragraph 20; 27 — Case C-213/89 [1990] ECR I-2433. and Case C-91/92 Faccini Dori v Recreb [1994] ECR I-3325, 28 — Sec paragraph 21. paragraph 26.

34 — Paragraph 44. The Court's reference to Case C-253/95 Com- mission v Germany [19961 ECR I-2423, paragraph 13, indi- cates that it had in mind the principle of direct effect, rather 28. If the Bundesvergabeamt is ultimately than that of compensation for damage, which it raised in the immediately following paragraph o f its judgment in Dorsch found not to enjoy the claimed jurisdiction, Consult. two principal options remain open to indi- 35 — See paragraph 48 of the Opinion of Advocate General Tesauro in Dorsch Consult. viduals who seek a remedy for an alleged 36 — It appears to me that the remedies prescribed in Article 2(1) breach of the terms of the Services Directive. of the Review Directive — interim measures, the setting aside of unlawful awards, and damages for loss — would, as a matter of Community law, have to be made available in the competent ordinary courts if the substantive provisions of the Services Directive were directly effective; see J. M. Fernández Martín, The EC Public Procurement Rules: A 32 — Paragraph 46, emphasis added. Critical Analysis (Clarendon, Oxford, 1996), pp. 200-202, 33 — Decision B 3067/95-9. 227.

I - 5372

TÕGEL v NIEDERÖSTERREICHISCHE GEBIETSKRANKENKASSE

Directive within the time prescribed. 37 The to the content of those framework contracts, existence of these potential remedies does not, although the response I propose should also however, affect my conclusion regarding the assist in determining the appropriate pro- issue raised by the first and second questions, cedure for the award of a contract of more which I would answer in the same terms as limited scope. the operative part of the judgment in Dorsch Consult.

I - 5373

O P I N I O N OF MR FENNELLY - CASE C-76/97

and the Member States as a classification' purposes, to have the interpretative value of cannot, in my view, in the absence of a fur- a recommendation 'designed to supplement ther legislative act, override the earlier descrip- binding Community provisions'. 39 tion of its objectives in Article 1(3). The fact that the CPA is employed for classification purposes under Directive 93/36/EEC coordi- nating the procedures for the award of public supply contracts 38 does not indicate that its normal scope of application should be extended to fields other than that governed by that Directive.

I - 5374

TÖGEL v NIEDERÖSTERREICHISCHE GEBIETSKRANKENKASSE

I - 5375

OPINION OF MR FENNELLY — CASE C-76/97

relevant. Furthermore, the term 'services' in 40. I would first state that, in my view, the the Services Directive should not be under- specific terms of Article 10 of the Services stood as relating only to economic activities Directive prevail, in cases of conflict, over the within Chapter 3, 'Services', of Title III of the interpretative rules of the C P C itself, as the Treaty. The Services Directive was adopted C P C is simply used as a point of reference on the basis not only of Article 66 but also of rather than to dictate the rules by which the Article57(2) of the Treaty, which relates to appropriate award procedure is chosen. I have establishment. Thus, service providers estab- in mind, in particular, C P C interpretative rule lished in Austria from other Member States B, which states, in relevant part: would also satisfy the criterion in the twenty- first recital.

I - 5376

TÖGEL v NIEDERÖSTERREICHISCHE GEBIETSKRANKENKASSE

In the light of the foregoing analysis, 'ambu- 42. On the other hand, the Commission, sup- lance services' does not describe the services ported by the applicant, examined the trans- at issue more specifically than does 'non- port of patients in the broadest sense, that is, scheduled passenger transportation'. Further- without distinguishing between the three dif- more, Article 10 clearly sets out a rule ferent contractual types of service. It argued regarding contracts for multiple or composite that the transport of patients comprised cer- services which is at variance with that in tain services governed by Article 8 of the Ser- rule B 1(b) of the CPC. However, different vices Directive and others governed by Arti- means of applying Article 10 have been pro- cle 9. Article 10 could, therefore, be applied posed. in the light of the relative value of these two elements of the overall contract. The appli- cant contended that the transport element of the services provided was the greater.

I - 5377

OPINION OF MR FENNELLY — CASE C-76/97

does not reflect the clear distinction in the 46. I recognise, none the less, the validity of Annexes between transport and 'medical ser- the submissions by France and Austria vices delivered in the ambulance'. The notion regarding the difficulty of conducting a valu- in Article 10 of 'services listed' in either ation in accordance with service categories Annex I A or I B is a Community-law notion. other than those employed by the contracting Accordingly, Community-law criteria—those authority or parties themselves. The calcula- used to subdivide the annexed lists into a tion of the relative value of a number of cat- number of categories by reference, in par- egories of service which are the object of a ticular, to the C P C — should be used to single public service contract also gives rise to identify and distinguish the various services difficulties of a more general kind. The ten- which are the object of a single public service dering process is founded on the premiss that contract. This process would be distorted if it different service providers will have different were forced to conform to a prior contractual cost structures, some more competitive than subdivision of the relevant services into classes others. This may result in differing relative different from the categories set out in the values, as between service providers, for the Annexes to the Services Directive. The three service categories which are taken into account types of contractual service provided for in in the total prices they quote for the services the disputed contract cut across the categories tendered or contracted for. Furthermore, it of service employed in the Annexes, so that cannot be expected that a contracting auth- it would be impossible accurately to reflect ority will know in advance the exact relative the relative value of the services listed in cost for each potential service provider of the Annexes I A and I B which are the object of different service categories which constitute the contract if the contract rather than the the object of an envisaged contract. Annexes were used as the framework for analysis.

48. In cases where the contracting authority's estimate of the relative value of the service categories which are the object of a public service contract is disputed, recognition of the problems involved in preparing such an 50. In paragraph 12 of its judgment in Van estimate in advance dictates that the burden Duyn v Home Office, 42 the Court established of proving the contrary should be borne by the principle of the possible direct effect of the complaining party and that the authority unimplemented directives. The Court has con- be permitted a certain margin of appreciation. sistently held that 'wherever the provisions of The complainant should have to demonstrate, a directive appear, as far as their subject- on the basis of the information which was or matter is concerned, to be unconditional and should have been considered by the con- sufficiently precise, those provisions may, in tracting authority, from previous contracts, the absence of implementing measures adopted commercial and accounting practice, past levels within the prescribed period, be relied upon of demand and so on, and taking into account as against any national provision which is its margin of appreciation, that the values incompatible with the directive or in so far as placed on the services were clearly incorrect. the provisions of the directive define rights In the present case, it is for the competent which individuals are able to assert against national court to find the facts necessary for the State'. 43 such a determination.

53. On the other hand, in the light of the broadly similar content of the other public procurement directives, 46the following state- ment by the Court regarding Directive 71/305 in CEI v Association Intercommunale pour les 52. For the purpose of such an inquiry, I Autoroutes des Ardennes 47 should be borne would first observe that the application of the in mind: Review Directive to services strongly indi- cates that the Services Directive was intended to involve specific justiciable rights for indi- viduals. I would add, secondly, that, although provisions of a directive which define its per- sonal and material scope may not as such create rights for individuals, they are essential to the identification of the bearers of rights and duties and of the extent of rights and duties under the directive and may, read with 'The directive ... does not lay down a uniform substantive rights-creating provisions, be and exhaustive body of Community rules. capable of direct effect. Thirdly, provisions of Within the framework of the common rules a directive whose application entails the exer- which it contains, the Member States remain cise by Member State authorities of adminis- free to maintain or adopt substantive and trative discretion in accordance with pre- procedural rules in regard to public works scribed criteria, as distinct from substantive contracts on condition that they comply with discretion regarding the means of their trans- all the relevant provisions of Community law J position into national law, may be directly effective in the case of non-implementation. This is borne out by the decision in Van Duyn v Home Office regarding the criteria in accord- 45 — OJ, English Special Edition 1963-64 Series (IX p. 117. ance with which Member States were to take 46 — The twenty-second recital in the preamble to the Services measures on grounds of public policy or Directive states that 'the rules for the award of public service contracts should be as close as possible to those concerning public security, which were set out in Arti- public supply contracts and public works contracts'; the twenty-third recital states that 'the procurement rules con- tained in Directives 71/305/EEC and 77/62/EEC can be appropriate, with necessary adaptations ...'. 47 — Joined Cases 27/86 to 29/86 [1987] ECR 3347, paragraph 15; see also Case 31/87 Beentjes v Netherlands Suue [1988] 44 — Cited immediately above, paragraph 12. ECR 4635, paragraph 20.

54. Areas not exhaustively regulated by the lents of Articles 23, 32 and 37 of the Services procurement directives include the determi- Directive, and that these could, therefore, be nation of a contractor's financial standing, the relied upon by an individual before the fixing of a maximum value for works 48 and national courts. 52 the imposition of conditions regarding the employment of unemployed persons. 49 By way of contrast, the Court found in Trans- poroute v Minister of Public Works 50 that Articles 23 to 26 of Directive 71/305, the equivalents of Articles 29, 30(2) and (3), 31 and 32(2) and (3) of the Services Directive, set out exhaustively the possible means of proof of a tenderer's good standing and qualifica- tions (as distinct from his financial and econ- omic standing). 56. Turning now to the general provisions of the Services Directive, I am of the view that the bearers of rights and the public bodies bound by obligations under that Directive are sufficiently clearly identified by Article 1, as are the types of public service contracts to which the Directive applies by Articles 2 to 7. 53 Of particular importance is Article 3(1) of the Services Directive, which establishes an unconditional and precise right to the award 55. The non-exhaustive character of the of public service contracts in accordance with common rules established by the public pro- procedures adapted to the provisions of that curement directives regarding certain aspects Directive. I would add that the same is true of the contract award procedure does not of Articles 8 to 10 of the Services Directive, preclude the direct effect of those rules, in so whereby the applicable contract award pro- far as they satisfy the test outlined above. cedure is determined. These provisions, taken Even if the non-exhaustive character of the together, establish, in my view, the directly procurement directives means that full com- enforceable right of service providers to par- pliance with them will not guarantee a remedy ticipate in the award of public service con- to an aggrieved service provider if he has not tracts in accordance with the provisions of also complied with any applicable and com- the Services Directive, in so far as those patible national requirements, those directives detailed provisions themselves create rights still afford, as Austria put it, certain minimum for individuals, are unconditional and are suf- guarantees. In Beentjes v Netherlands State, 51 ficiently clear and precise to be enforceable in the Court found that no specific implementing the absence of national implementing mea- measure was necessary for compliance with sures. the requirements set out in Articles 20, 26 and 29 of Directive 71/305, the broad equiva-

57. I am also of the view that the detailed for an indefinite period but which was awarded provisions of Titles III to VI on the choice of prior to the date for transposition of, and award procedures, common technical and otherwise than in accordance with, the provi- advertising rules, participation, and selection sions of the Services Directive. 55 In the and award criteria are, subject to exceptions absence of transposition of the Services Direc- and qualifications which are apparent from tive at the material time, this question is their terms, unconditional, sufficiently precise hypothetical. The Court stated in Faccini Dori and designed to create rights for individuals. v Recreb 56 that, in the absence of transposi- These provisions specify in detail the obliga- tion of Council Directive 85/577/EEC of tions imposed on contracting authorities in 20 December 1985 concerning protection of order to secure access for service providers to the consumer in respect of contracts negoti- the award procedures for public service con- ated away from business premises, 57 con- tracts and are, for the most part, analogous to Articles 20, 26 and 29 of Directive 71/305, in sumers could not derive from the directive that no specific implementing measure is nec- itself an enforceable right of cancellation as essary for compliance with them. 5 4However, against traders with whom they had con- a comprehensive analysis of those provisions cluded a contract. Despite the public or of Titles III to VI of the Services Directive public-law character of contracting authori- which are or are not capable of direct effect ties, the same principle precludes, in my view, is not warranted by the facts of the case as it the existence of a Community-law right for a now stands. Consideration of the quality of a service provider, under the Services Directive, particular provision should, in my view, await to require the cancellation of an existing con- a concrete factual situation. It is, therefore, tract between a contracting authority and appropriate to limit the answer to another private party. The related principle Question 3(b) to Titles I and II of the Ser- that the State cannot rely upon an unimple- vices Directive. mented directive so as to affect detrimentally the rights of individuals would also prevent a contracting authority from justifying its oth- erwise unlawful cancellation of such a con- tract by reference to the Services Directive. 58

59. The question referred by the Bundesver- demands and where the legitimate expecta­ gabeamt raises, none the less, the real possi­ tions of those concerned are duly respected. bility that, if the Services Directive were Furthermore, Community law presumes that, deemed to be capable, upon implementation, in the absence of a clear provision, legislation of affecting existing contracts, the aggrieved is not to be interpreted as having retroactive 61 service provider could seek a remedy in respect effect. The Services Directive does not of the contracting authority's non-observance, expressly state that it has retroactive effect. or the State's non-implementation, of the pro­ Article 44 merely requires the Member States visions of Titles III to VI of that Directive, in to bring into force the laws, regulations and particular regarding services listed in administrative provisions necessary to comply Annex I A. The grant of a remedy in such cir­ with the Directive before a specified date after cumstances is contingent on a determination its adoption. In addition, there is nothing of the requirements of the Services Directive either in the terms or the general scheme and upon full transposition. objectives of the Services Directive which would suggest that it should have a general retroactive effect. Its title, the third recital in the preamble, Articles 3(1), 8 to 10 and 23, and Chapter 3 of Title VI all speak of proce­ dures or criteria for the award of public ser­ vice contracts, which implies that existing contracts, already awarded and concluded, are 60. In the context of the present case, this not, in principle, to be disturbed. question raises three related issues, which I will address in the following order: first, whether the Services Directive applies retro­ actively to existing contracts; secondly, whether that Directive affects in any way national rules regarding the continued exist­ ence of a contract; and, thirdly, whether public authorities are obliged to use any power of termination granted by an existing contract. 5 9 62. The Court has already observed that the procurement directives do not establish exhaustive sets of common rules regarding the award of public contracts. The directives lay down rules intended to ensure the open­ ness and non-discriminatory nature of public procurement procedures but do not affect 61. The principle of legal certainty normally substantive national rules about the means of precludes a Community measure from taking conclusion, validity, terms and duration of effect from a point in time before its publica­ contracts which result from these proce- tion, although it may exceptionally be other­ wise where the purpose to be achieved so 60 — Case 98/78 Račke v Hauptzollamt Mainz [1979] ECR 69, paragraph 20; Case C-368/89 Crispottoni [1991] ECR I-3695, paragraph 17. 59 — Such an obligation, being based on the terms of the contract 61 — Case 100/63 Kalabeek v Sodale Verzekeringsbank [1964] itself, would, if found to exist, bind the contracting auth­ ECR 565, at p. 575; Case 88/76 Société pour l'Exportation ority even in the absence of transposition of the Services dei Sucres v Commission [1977] ECR 709; see also Crispol- Directive. toni, cited immediately above, paragraph 20.

dures. 62 Indeed, the proper functioning of position of the Services Directive. If the rela- the Services Directive presupposes the con- tionship between contracting parties is firm tinuing application of national rules to the and binding in national law, so that even conclusion of contracts subsequent to an variations in price and other terms occur award in accordance with its terms. This is against the background of a continuing single borne out by the emphasis placed in the Ser- binding contract, then it is not affected by the vices Directive on procedures which bind Services Directive. If, on the other hand, it contracting authorities regarding the award amounts, in national law, merely to a long- of contracts, rather than binding both parties standing relationship providing a framework regarding the conclusion of contracts. Arti- for periodic renegotiation of terms, then, in cle 2(6) of the Review Directive illustrates the my view, the procedures envisaged in the Ser- effects of this distinction, which preserves the vices Directive must be followed at the first role of national contract rules in the field of opportunity. Into which category a relation- public procurement. It stipulates that the ship falls is, in any event, a matter to be effects of the remedies provided for in that determined by national courts in accordance Directive, which are all directed against con- with their own law. Thus, where a framework tracting authorities, on a contract concluded contract concluded before the date for trans- subsequent to its award by such an authority position of the Services Directive provides for shall be determined by national law. The the periodic renegotiation of certain of its prospect that such a concluded contract would terms, it is national contract law and the continue to be binding in national law appears national courts which will determine whether to underlie the licence granted to the Member the parties' relationship remains, at all times States by the Community legislator to limit and in all circumstances (even if, for example, the remedies available to an award of dam- the renegotiation fails), subject to an existing ages to any person harmed by an infringe- binding contract. If, by virtue of national ment by the contracting authority. It is ulti- contract law, the renegotiation is deemed to mately for national law to determine whether give rise to a new contract, or the failure of the full effects of a contract are to be pre- the renegotiation is deemed to put an end to served in such circumstances. the contract, the new public service contract must be awarded in accordance with the terms of the Services Directive.

tract. Such an argument could be based on outlined above were accepted, it would entail the anticipated prejudice to the achievement the grant of the remedies provided for in the of the objectives of the Services Directive if a Review Directive to interested service pro- considerable part of the public market for viders in the event of non-compliance with services, and, in particular, that for Annex I A the terms of Titles III to VI of the Services services, were removed from its effective scope Directive. This could leave a contracting auth- of application through contracts which were ority in the invidious position of being bound, awarded before the date for transposition and in national law, to continue to observe the which national law deemed to exist without terms, including those regarding price reviews, interruption despite the renegotiation of cer- of what is regarded as a validly subsisting tain key terms, such as those relating to contract, while at the same time being bound price, 63 within the framework of the con- in Community law, without having acted in tract. any way unlawfully in awarding and con- cluding the contract, to compensate persons harmed by its failure, upon such a price review, to initiate a new contract award procedure. Such an arbitrary outcome is not warranted by the terms and scheme of the Services Directive.

I-5385

OPINION OF MR FENNELLY — CASE C-76/97

IV — Conclusion

67. In the light of the foregoing, I recommend that the Court respond as follows to the questions referred by the Bundesvergabeamt:

(1) It does not follow from Article 41 of the Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts 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 conformity with Directive 92/50 and the requirement that the rights of individuals must be protected effectively, the national court must determine whether the relevant 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 circum- stances such as those arising in the present case, the national court must deter- mine in particular 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.

(4) Directive 92/50 does not apply retroactively to existing public service contracts concluded before the date for transposition of that Directive. It is a question of national law whether the renegotiation of terms agreed under an existing public service contract results in a break in the continuity of that contract, leading to the application of the relevant provisions of Directive 92/50 to the award of the subsequent contract. Community law does not require a con- tracting authority to use a right of termination provided for in a pre-existing public service contract after the date for transposition of Directive 92/50.

I-5387