C-111/97

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OPINION OF MR FENNELLY — CASE C-111/97

(b) compliance with Article 3 (2)(a) of that Article 2 of the Utilities Review Directive Directive in the case of the contracting provides, in relevant part, as follows: entities to which that provision applies.

'(1) The Member States shall ensure that the measures taken concerning the review procedures specified in Article 1 include provision for the powers:

(2) Member States shall ensure that there is no discrimination between undertakings likely to make a claim for injury in the context of a procedure for the award of a contract as a either result of the distinction made by this Direc- tive between national rules implementing Community law and other national rules.

(a) to take, at the earliest opportunity and by way of interlocutory procedure, interim measures with the aim of correcting the alleged infringement of preventing fur- ther injury to the interests concerned, including measures to suspend or to ensure the suspension of the procedure for the award of a contract or the implementa- tion of any decision taken by the con- tracting entity; and

(8) The Member States shall ensure that deci- sions taken by bodies responsible for review procedures can be effectively enforced. Member States may take this choice either for all contracting entities or for catego- ries of entities defined on the basis of objective criteria, in any event preserving the effectiveness of the measures laid down in order to prevent injury being caused to the interests concerned; (9) Where 4 bodies responsible for review procedures are not judicial in character, written reasons for their decisions shall always be given. Furthermore, in such a case, provision must be made to guarantee procedures (d) and, in both of the above cases, to award whereby any allegedly illegal measure taken damages to persons injured by the by the review body or any alleged defect in infringement. 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 Treaty and independent of both the contracting entity Where damages are claimed on the grounds and the review body. that a decision has been taken unlawfully, Member States may, where their system of internal law so requires and provides bodies 4 — The word 'whereas' appears here in the Official Journal but having the necessary powers for that purpose, is clearly a typographical error.

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OPINION OF MR FENNELLY — CASE C-111/97

The members of the independent body activities any of those referred to in para- referred to in the first paragraph shall be graph 2 or any combination thereof and appointed and leave office under the same operate on the basis of special or exclu- conditions as members of the judiciary as sive rights granted by a competent auth- regards the authority responsible for their ority of a Member State. appointment, their period of office, and their removal. At least the President of this inde- pendent 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.' (2) Relevant activities for the purposes of this Directive shall be:

B — Implementation in national law BVergG expressly excluded the application of the provisions of Part 4 to the water, energy, transport and telecommunications sectors.

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OPINION OF MR FENNELLY — CASE C-111/97

law. It operates bus routes on the basis of a accordance with Article 177 of the Treaty licence granted by the Amt der Niederöster- establishing the European Community: reichischen Landesregierung (Office of the Provincial Government of Lower Austria). It enjoys, according to the Bundesvergabeamt, special rights, thus bringing it within the scope of the Utilities Directive. 1 3 Since N O V O G operates a network for the provi- sion of public bus transport services, the Bundesvergabeamt deems it to be a con- '1. May an individual derive, from Arti- tracting entity. 14 cle 1(1) to (3), Article 2(1), (7) to (9) or any other provisions of Directive 92/13/EEC, a specific right to have review proceedings conducted before authori- ties or courts or tribunals complying with Article 2(9) of Directive 92/13/EEC which is so sufficiently precise and spe- 7. By a letter of 26 April 1996 to the Office cific that, in the event of non- for Official Publications of the European transposition by a Member State of the Communities, N O V O G solicited, by way of provisions of the directive in question, open invitation, tenders for the supply of 36 an individual may rely on that provi- to 46 buses for the regular inter-urban express sion? bus service in the Bundesland Niederöster- reich (Federal Province of Lower Austria). The opening of the tenders took place on 27 June 1995. Unsuccessful tenderers were informed to that effect by registered letter recorded as having been sent on 16 Novem- ber 1995. EvoBus Austria G m b H (hereinafter 'EvoBus') applied to the Bundesvergabeamt If Question 1 is answered in the affirmative: on 19 July 1996 for a review of the contract award procedure to be conducted. EvoBus complained of a subsequent amendment of the successful tender, through the alteration of the repurchase price of the buses in ques- tion from the initial rate of 34% to 55%.

9. Written and oral observations were sub­ mitted by the Republic of Austria and the Commission of the European Communities. 11. It is common ground that the Utilities Oral observations were also submitted by Review Directive should have been, but had NÖVOG. not been, implemented in Austria on the date that the contract was awarded and on that o n which EvoBus sought to initiate review pro­ ceedings pursuant to that directive, viz. 19 July 1996. In the first and second questions, the national court asks whether an individual has III — Analysis a directly effective right to bring review pro­ ceedings of the type provided for in Article 2 of the Utilities Review Directive, similar t o those enacted into national law by Part 4 of the BVergG, before the Bundesvergabeamt in respect of an award of a public contract in the A — Jurisdiction transport sector. In Tögel, 17 t h eCourt has been asked to address an almost identically worded question referred by the Bundesver­ gabeamt regarding Article 1(1) of the Review Directive (the equivalent of Article 1(1) of the Utilities Review Directive), in so far as it had been extended to public service contracts by Article 41 of Council Directive 92/50/EEC of 10. For the reasons stated in my Opinion in 18 June 1992 relating to the coordination of Walter Tögel v Niederösterreichische Gebietsk­ rankenkasse, 1 5 which draw upon the Opinion

16 — Case C-44/96, Opinion of 16 September 1997, paragraphs 34 to 45; judgment of 15 January 1998. 15 — C a s eC-76/97, Opinion of even date, hereinafter 'Togeľ. 17 — Cited above.

12. In essentially similar circumstances to those of Togel, in Dorsch Consult Ingenieurge- sellschaft mbH v Bundesbaugesellschaft Ber- lin mbH 19 the German Vergabeüberwachung- sausschuß des Bundes (Federal Public Procurement Awards Supervisory Board) 13. The Court referred in Dorsch Consult to referred a question as to whether bodies set the duty of 'all the authorities of Member u p by Member States under the Review Direc- States, including, for matters within their juris- tive to review the procedures for the award of diction, the courts', to take all appropriate public contracts for works and supplies were measures to achieve the result envisaged by a competent, by virtue of Article 41 of the Ser- directive, which gives rise to the judicial obli- vices Directive, also to review the procedures gation to interpret national law 'as far as pos- for the award of public service contracts. The sible, in the light of the wording and purpose Court answered that such a result did not follow from Article 41. 20 It observed that it was for the legal system of each Member State to determine which court or tribunal has 21 — Paragraph 40. The Court cited Case C-446/93 SEIM v Subdvreaor-Geral das Alfândegas [1996] ECR I-73, para- graph 32. Sec also Case 13/68 Salgoil v Italy [1968] ECR 453, p. 463, and Case 179/84 Bozzetti v Invernizzi [1985] ECR 2301, paragraph 17. 22 — Paragraph 41. 18 — OJ 1992 L 209, p. 1. 23 — See Joined Cases C-6/90 and C-9/90 Francovich and Others 19 — Case C-54/96, judgment of 17 September 1997, hereinfter [1991] ECR I-5357, paragraphs 12 and 23 to 27; sec also 'Dorsch Consult'. paragraph 48 of the Opinion of Advocate General Tesauro 20 — Paragraph«. of 15 May 1997 in Dorsch Consult.

14. I refer to my Opinion, also pronounced today, in Tögel, 26 in which I address certain additional arguments regarding the possible direct effect of Article 41 of the Services Direc- tive and the effectiveness of judicial protec- tion, and propose that the Court should respond to the Bundesvergabeamt's first two questions in that case in the same terms as the 16. The interpretative obligation of national operative part of the judgment in Dorsch courts, to which the Court referred in Dorsch Consult. Consult, was first identified by the Court in Von Colson and Kamann v Land Nordrhein- Westfalen, 28 in which the Court also remarked that it was for the national court alone to rule on a question concerning the interpretation of its national law 29 and that it must comply with the obligation to interpret national law in conformity with the requirements of Com- 15. The same reasoning applies, in principle, munity law, 'in so far as it is given discretion to Article 1(1) of the Utilities Review Direc- to do so under national law'. 30 tive, although its application by a national court may be complicated by the fact that Article 2(1) contains alternatives regarding the 27 — This situation may also be contrasted with the situation in Dorsch Consult, cited above, paragraphs 18 and 42, where the relevant German regulation referred only to the compe- tence of the Federal Public Procurement Awards Supervi- sory Board in respect of supply contracts and works con- tracts and the Court remarked that it was common ground 24 — Paragraph 43, emphasis added. The Court cited Case that the German Federal Government intended to extend its C-106/89 Marleasing [1990] ECR I-4135, paragraph 8; Case competence to public service contracts. C-334/92 Wagner Miret [1993] ECR I-6911, paragraph 20; and Case C-91/92 Faccini Dori v Recreb [1994] ECR I-3325, 28 — Case 14/83 [1984] ECR 1891, hereinafter 'Von Colson', para- paragraph 26. graph 26. 25 — Paragraph 46, emphasis added. 29 — Ibid., paragraph 25. 26 — Cited above. 30 — Ibid., paragraph 28.

The Court stated that its ruling concerned 'the limits which Community law might impose on the obligation or power of the national court to interpret the rules of its national law in the light of the Directive'. 33 Although that case concerned the liability in criminal law of persons who act in contraven- 19. The limits imposed by the Court on tion of the provisions of a directive, those national courts' interpretative obligation in principles are also of application in situations Von Colson and in Kolpinghuis Nijmegen are where Community law has purely civil con- not of the same character. The judgment in sequences. Von Colson refers to the extent of the national court's interpretative discretion as a matter of national law. In Kolpinghuis Nijmegen, on the other hand, the Court identified a negative restriction on the national court's obligation and power arising from Community law itself, a restriction which, therefore, is applicable irrespective of the discretion accorded by the 18. The limits imposed on the national court's interpretative obligation, having regard to the 34 — Marleasing, cited above, paragraph 8, emphasis added; sec also Wagner Miret, cited above, paragrapn 20; and Faccini Dori v Recreb, cited above, paragraph 26. 31 — Case 80/86 [1987] ECR 3969, paragraph 12. 35 — Cited above, paragraph 22. 32 — Ibid., paragraph 13. 36 — Cited above, paragraph 27. 33 — Ibid., paragraph 15, emphasis added. 37 — Joined Cases C-6/90 and C-9/90, cited above.

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EVOBUS AUSTRIA v N Ö V O G

20. The agent for Austria suggested at the oral hearing that the principle of attributed competence in Austrian law made it unlikely that the BVergG could be construed in order to extend the competence of the Bundesver- gabeamt to types of contract which were not 21. To conclude my analysis in this section, I expressly referred to in the relevant provi- propose that the Court respond to the first sions, and that this argument applied a for- and second questions referred by the Bundes- tiori in the case of expressly excluded sec- vergabeamt by reiterating the first two sen- tors. 40 It is, therefore, merely in order to tences of the operative part of its judgment in furnish the fullest possible answer to the Dorsch Consult, appropriately amended to second question from the point of Commu- refer to Article 1(1) of the Utilities Review nity law that I express my view that, quite Directive, and supplemented by the following independently of the level of interpretative statement: discretion accorded by national law, it would be contrary to the Community-law principle of legal certainty for a directive to be deemed to be implemented in national law by legisla- tion which, on its face, as in Paragraph 7(2) of the BVergG, expressly excludes the applica- tion of the relevant legislative provisions to the fields governed by the directive. Such an interpretation would leave individuals in a It would, however, be contrary to the prin- ciple of legal certainty for Article 1(1) of the Utilities Review Directive to be deemed to be implemented by national legislation estab- 38 — Paragraph 8 of the Opinion. The Advocate General repeated lishing bodies to hear appeals concerning the the formula used in paragraph 13 of the Court's judgment in Kolpinghuis Nijmegen but added that legal certainty pre- award of public supply contracts and public cluded an unimplemented directive from introducing a civil penalty, such as nullity. works contracts which, on its face, expressly 39 — Case 5/88 Wachauf v Bundesamt für Ernährung und Forstwirtschaft [1989] ECR 2609, paragraphs 17, 19 and 22. 40 — See also Decision B 3067/95-9 of the Verfassungsgerichtshof (Austrian Constitutional Court) of 11 December 1995, dis- cussed at paragraph 27 of my Opinion in Togel. 41 — Cited above.

excludes the application of the relevant legis- which, if unobserved, bar proceedings, in prin- lative provisions to the fields governed b y ciple satisfies the conditions laid down for the that Directive. application of national procedural rules in Reive v Landwirtschaftskammer Saarland 44 and in Amministrazione delle Finanze dello Stato v San Giorgio, 45 that they are not less favourable than those governing similar domestic actions and that they do not render impossible or excessively difficult the exercise C — The third question of rights conferred by Community law. The Court also held in Emmott, however, that 'until such time as a directive has been prop- erly transposed, a defaulting Member State may not rely on an individual's delay in ini- tiating proceedings against it in order to pro- tect rights conferred upon him by the provi- 22. The third question essentially relates to sions of the directive, and that a period laid the applicability of the time-limit established down by national law within which proceed- by Paragraph 92(3) of the BVergG for the ings must be initiated cannot begin to run commencement of review proceedings before before that time'. 46 the Bundesvergabeamt. The Bundesverga- beamt made the question conditional upon an affirmative answer to the first question. In the light of my recommendation to the Court that Community law precludes the compe- tence of the Bundesvergabeamt in the present case, the time-limit for the introduction of an action before that body is irrelevant. It is not, therefore, necessary to propose a formal response to the third question. For the sake of completeness, however, I will address 24. However, the Court has held in a number briefly the possibility raised by the Court's of subsequent cases, most recent of which is case-law of the exceptional non-application Fantask and Others v Industriministeriet (Erh- of national time-limits for the commencement vervsministeriet), 47 that 'the solution adopted of proceedings in respect of rights contained in Emmott was justified by the particular cir- in an unimplemented directive. cumstances of that case, in which the time-bar had the result of depriving the applicant of any opportunity whatever to rely on her right to equal treatment under a Community direc- tive'.

25. For the purposes of the present case, it is implementation of the Utilities Review Direc- necessary to note that the rules on the award tive, no national court had competence to of contracts by entities operating in the water, enforce the provisions of the Utilities Direc- energy, transport and telecommunications sec- tive, whether as transposed by the BVergG or tors, set out in the Utilities Directive, appear by virtue of the principle of the direct effect to have been implemented in Austrian law at of directives, or if a competent national court the material time through the BVergG. The did not provide adequate remedies to ensure agent for Austria observed at the oral hearing the protection of rights under the Utilities that, in the absence of an express attribution Directive, despite its Community-law obliga- of competence to the Bundesvergabeamt, the tion to do so. In that case, however, the most ordinary civil courts would hear cases appropriate response might be the initiation regarding alleged breaches of the BVergG. If of proceedings for State liability in accord- that is the case, and if those courts dispose of ance with the Court's judgment in Francovich a satisfactory range of potential remedies, it and Others. 48 cannot be said, despite the statement in the second recital in the preamble to the Utilities Review Directive that 'existing arrangements at ... national level ... for ensuring ... applica- tion [of the Utilities Directive] are not always 26. In the circumstances of the case, it is not adequate', that EvoBus has been deprived of necessary for me to address the separate issue any opportunity whatever to rely on its rights of whether the time-limit imposed by Para- under the Utilities Directive. The situation graph 92(3) of the BVergG is a reasonable would be different, of course, if, pending the one.

ating in the water, energy, transport and telecommunications sectors that, where that directive has not been transposed by the end of the period laid down for that pur- pose, the appeal bodies of the Member States having competence in relation to pro- cedures for the award of public works contracts and public supply contracts may also hear appeals relating to procedures for the award of contracts in those sectors. However, in order to observe the requirement that domestic law must be interpreted in conformity with Directive 92/13/EEC and the requirement that the rights of indi- viduals 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 contracts in the relevant sectors. It would, however, be contrary to the principle of legal certainty for Article 1(1) of Directive 92/13/EEC to be deemed to be implemented by national legislation establishing bodies to hear appeals concerning the award of public supply contracts and public works contracts which, on its face, expressly excludes the application of the relevant legislative provisions to the fields governed by that Directive.

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