C-258/97

2. Article 1(1) of the Review Directive, as amended by Article 41 of the Services Direc- tive, requires the Member States to take the measures necessary to ensure that decisions 'Where bodies responsible for review proce- taken by contracting authorities may be dures are not judicial in character, written reviewed effectively and rapidly on the reasons for their decisions shall always be grounds that such decisions have infringed 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 * Original language: Italian. the exercise of the powers conferred on it can 1 — OJ 1989 L 395, p. 33. 2 — OJ 1992 L 209, p. 1. The Services Directive was last amended be the subject of judicial review or review by by European Parliament and Council Directive 97/52/EC of another body which is a court or tribunal 13 October 1997 amending Directives 92/50/EEC, 93/36/EEC and 93/37/EEC concerning the coordination of procedures within the meaning of Article 177 of the EEC for the award of public service contracts, public supply con- Treaty and independent of both the con- tracts and public works contracts respectively (OJ L 328, p.l). tracting authority and the review body.

I - 1408

H I v LANDESKRANKENANSTALTEN-BETRIEBSGESELLSCHAFT

Under Paragraph 59 of that Law, the body responsible for review procedures is the Unab- 5. A number of provisions of the Services hängiger Vcrwaltungsscnat für Kärnten, an Directive are also relevant to the present case. independent administrative authority charged That directive contains rules for the award of with reviewing the legality of acts of the Land public service contracts, which must be administration (hereinafter: 'the UVK'). The observed within the Community for all public Law of 20 November 1990 (the Carinthian service contracts with a value exceeding the Vcrwaltungsscnatsgcsctz) 6 governs the minimum threshold provided for in Article 7. powers, composition and operation of the Article 8 requires contracts which have as UVK. The provisions of the Austrian Con- their object services listed in Annex I A to be stitution relating to the structure and opera- awarded in accordance with the provisions of tion of the independent administrative senates Titles III, IV, V and VI, whereas those listed o f t h e Länder are also nnnlirabln. 7 in Annex I b are to be awarded in accordance only with Articles 14 and 16. If the contract has as its object services listed in both annexes, the choice of the applicable rules is to be 3 — Act concerning the conditions of accession of the Kingdom determined by the service with the greater of Norway, the Republic of Austria, the Republic of Finland and the Kingdom of Sweden and the adjustments to the Trea- value. The services listed in Annex I A include, ties on which the European Union is founded (OT 1994 C 241, p. 21). in Category N o 12, architectural services; 4 — The Federal law, which was originally published in BGB!. N o engineering services and integrated engi- 639/1993, was subsequently republished following the codi- fication of public procurement legislation by the Law of 27 neering services; related scientific and tech- May 1997 (BGBl. 1997, N o 56). nical consulting services; technical testing and 5 — LGBI. 1994, N o 55. analysis services. 6 — LGBI. 1990, N o 104. 7 — Sec point 14 below.

8. The main proceedings concern the award to the company CMT Medizintechnik Gesell- schaft mbH, of Vienna, of a service contract relating to the construction of a children's hospital in Klagenfurt. The contract, which was awarded by the Landeskrankenanstalten- '1. Is Article 2(8) of Council Directive Betriebsgesellschaft (the company responsible 89/665/EEC of 21 December 1989 on for the management of regional hospitals), the coordination of the laws, regulations related to a number of engineering services, and administrative provisions relating to including planning and consultancy in con- the application of review procedures to nection with the installation and operation of the award of public supply and public various medical facilities. works contracts to be interpreted as meaning that the Unabhängiger Verwal- tungssenat für Kärnten fulfils the condi- tions for a body responsible for review procedures with respect to services?

9. H I Hospital Ingenieure Krankenhaus- technik Planungs-Gesellschaft m b H , of Munich, was a competing tenderer for the same contract. Following its exclusion, it

2. Are these or other provisions of Council 8 — LGBI. 1997, No 58. Directive 89/665/EEC on the coordina-

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HI v LANDESKRANKENANSTALTEN-BETRIEDSGESELLSCIIAFI·

11. Before considering the questions, it is necessary to determine whether the UVK is 4. Are the services mentioned in the facts competent to make a reference to the Court of the case, with reference to Article 10 of Justice under the preliminary ruling pro- of Directive 92/50/EEC, to be classified cedure. It should be pointed out in that regard

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O P I N I O N O F MR S A G G I O — CASE C-25S/97

13. The UVK, which is an independent administrative senate within the meaning of The requirement that its procedure must be inter partes, as that criterion is understood by

9 — Case C-103/97, in which I delivered my Opinion at the hearing of 24 September. 12 — Under that provision, the independent administrative sen- 10 — See, in particular, the judgments in Case 61/65 Vaassen Göb- ates of the Länder and the Administrative Court, Vienna, are bels [1966] ECR 261; Case 14/86 Pretore di Salò [1987] E C R responsible for ensuring the legality of administrative acts. 2545; Case 109/88 Danfoss [1989] ECR 3199; Case C-393/92 The following provision, Article 129a(l), lists the various Almelo and Others [1994] E C R 1-1477; Case C-54/96 Dorsch powers of the senates, which are to be exercised after the Consult [1997] ECR 1-4961. administrative remedies have been exhausted. They include 11 — In the light of the Court's case-law, it is necessary to take jurisdiction to determine appeals by private individuals account of many different factors and specifically or whether claiming that their rights have been infringed by the exercise the body is established by law, whether it is permanent, of administrative power of command and coercion (para- whether its jurisdiction is compulsory, whether its procedure graph 1), and jurisdiction to determine all other matters is inter partes, whether it applies rules of law and whether it assigned to them under the Federal or Land laws governing is impartial and independent. the individual spheres of administration (paragraph 3).

I3 the Court, is also satisfied. The Law on the relevant constitutional provisions. Article procedure before the administrative courts, u 129b(2) of the Bundcs-Vcrfassungsgesctz which makes observance of the inter partes (B-VG, Federal Constitutional Law) clearly principle mandatory, is in fact applicable in confirms that, in the execution of the tasks the present case by virtue of the reference to entrusted to them by the Constitution itself it in Article 59(2) of the Carinthian Vcrwal- and by the laws of the Lander, the members tungsscnatsgesetz. Moreover, that conclusion of the independent administrative senates may is indirectly confirmed by the Law estab­ not receive any instructions. The same provi­ lishing the UVK, which, in Article 13(5), pro­ sion states that cases arc to be distributed vides for an oral procedure, under the direc­ amongst the members of the Senate in advance tion of the President, in which the parties for a period fixed by the laws of the Länder. have the right to be heard. Once a case has been thus assigned to a member of the Senate, it may not then be withdrawn from him except by decision of the President on grounds of serious impedi­ ment, Article 129b(3) further provides that, before the expiry of their term of office, the members of the Senate may be removed only 14. Doubts have been expressed, in the course in the circumstances expressly provided for of the written procedure, concerning the con­ by law and that a collective decision of the formity of the rules governing the composi­ Senate itself is required for that purpose. tion and operation of the UVK with the Under the next paragraph, the members of requirement of independence of the judicial the Senate may not engage in any activity body. However, in contrast to my observa­ which might give rise to doubts as to their tions in the Köllensperger case, 1 5 I consider independence in the exercise of their func­ that such doubts are not founded in this case. tions. It should be added that, by providing From an analysis of the applicable rules, it is that the members of the UVK arc to exercise clear that the UVK has fully independent their functions with complete independence status which enables it to exercise its judicial and that they arc not to be bound by any function without being subject to undue pres­ instructions, Article 5 of the Carinthian Vcr- sure and interference, especially on the part waltungsscnatsgcsctz confirms the guarantees of the executive. already provided for by the Constitution.

16. That conclusion also has decisive signifi- cance with regard to the answer to be given to the first question. In fact, it supports the view that no useful purpose would be served 17. I therefore propose that the first question by the assessment requested by the UVK of be answered as follows: Article 2(8) of the whether the rules governing the latter's own Review Directive is to be interpreted as composition and operation satisfy the condi- meaning that the conditions set out therein tions referred to in Article 2(8) of the Review concern only the composition and operation Directive. My reasons for taking that view of independent bodies responsible for are the same as those set out in my Opinion reviewing decisions taken by another body in the Köllensperger case: 16 Austrian law which is competent at first instance to hear entrusts responsibility for review procedures review proceedings against the award of public at first and sole instance to a body which is a contracts and is not a court or tribunal within 'court or tribunal' within the meaning of the meaning of Article 177 of the Treaty. The Article 177, whereas Article 2(8) as a whole provision in question is therefore not relevant applies exclusively to cases where Member as far as the composition and operation of the States prefer, as is their right, to adopt a two- independent administrative senate of the Land tier system of review comprising determina- of Carinthia are concerned since the latter is tion at first instance by a review body which a judicial body which is competent to review, is not a 'court or tribunal' and at second at first and sole instance, measures awarding instance by a 'judicial' body which is inde- public contracts. pendent both of the contracting authority and of the first-instance review body. It is only

The second and third questions making the reference asks the Court whether such a right may be exercised before a body on which, at the material time, national leg- islation conferred exclusive competence to hear review proceedings against awards of works and supply contracts. 18. The second and third questions, which can be examined together, concern the com- petence of the UVK to hear review proceed- ings relating to procedures for the award of service contracts even in the absence of spe- cific national provisions implementing Direc- tive 92/50/EEC. I would point out that Article 41 of that directive amended the Review Directive to include within its scope proce- dures for the award of public service con- tracts. 21. The circumstances of this case display obvious similarities to those of the Dorsch Consult case, cited above, and the Tögel case. I 8 In particular, the second and third questions submitted to the Court by the UVK arc com- 19. The Austrian Law implementing the Ser- pletely identical to the first and second ques- vices Directive entered into force on 1 July tions submitted by the Bundcsvcrgabcamt in 1997, that is, more than two years after the the Tögel case. end of the prescribed period. Because of that delay, the award of the contract at issue in the main proceedings took place in conformity with national provisions incompatible with those of the Services Directive. The applicant undertaking in the national proceedings there- fore brought review proceedings before the UVK, a body on which, at the material time, domestic law conferred competence to hear only review proceedings concerning awards of supply and works contracts. 22. In those judgments, the Court reached conclusions to which I can subscribe. It held that 'it docs not follow from Article 41 of Directive 92/50 that, where that directive has not been transposed by the end of the period 20. The national court therefore seeks to laid down for that purpose, the appeal bodies ascertain whether, notwithstanding the non- of the Member States having competence in transposition of the directive, an individual is relation to procedures for the award of public also entitled to use the procedures provided works contracts and public supply contracts for by Article 2(8) of the Review Directive in relation to the award of a service contract. If the answer is in the affirmative, the court 18 — Judgment in Case C-76/97 [1998] ECU. 1-5357.

may also hear appeals relating to procedures service contracts. The substantive provisions for the award of public service contracts'; 19 of the Services Directive could then, in so far that is so because, in principle, it is for the as they are capable of direct effect,22 be relied legal system of each Member State to deter- on in proceedings against a State which had mine which court or tribunal has jurisdiction failed to transpose it. The national court must to hear disputes involving individual rights determine whether such a right of appeal may derived from Community law. 20 be exercised before the same bodies as those which are competent to hear appeals con- cerning the award of public supply contracts and public works contracts. 23 I would, how- ever, add that in this case it is questionable whether a similar conclusion can be reached: as has been observed previously, the text of the Austrian law, which has been in force Starting from those premisses, the Court held since 1 July 1997, expressly excludes applica- that, although Article 41 of the Services Direc- tion of the Services Directive to proceedings tive requires the Member States to adopt the which are already pending. 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 bodies for this purpose or whether those bodies are to be the same as those which the Member States have desig- nated in the field of public works contracts The Court went on to state that, if the rel- and public supply contracts. 21 evant domestic provisions cannot be inter- preted in conformity with the Services Direc- tive, the persons concerned, using the appropriate domestic law procedures, may claim compensation for the damage incurred owing to the failure to transpose the direc- tive within the time prescribed. 24 The Court added, however, that it is for the national court, in compliance with the require- ment that domestic law must be interpreted in conformity with the Services Directive and the requirement that the fullest possible pro- tection of the rights of individuals must be 23. The conclusion reached by the Court in ensured, to determine whether the relevant the cases cited is entirely appropriate to the provisions of its domestic law allow recogni- circumstances of this case, in which the issue tion of a right for individuals to bring review is precisely whether the body responsible proceedings in relation to awards of public under Austrian legislation for determining review proceedings concerning the award of

public supply and public works contracts is contract should have been awarded in con­ also competent to hear review proceedings in formity with the procedures referred to in relation to services. I therefore propose that Titles III, IV, V and VI of the Services Direc­ the second and third questions referred by tive. the UVK be answered as follows: neither Article 2(8) nor other provisions of Directive 89/665/EEC arc to be interpreted as meaning that, in the absence of national measures to implement the directive within the period laid down for that purpose, the review bodies of the Member States which are competent in relation to procedures for the award of public It will be recalled that Category N o 12 covers works contracts and public supply contracts the following: architectural services; engi­ arc also entitled to review procedures for the neering services and integrated engineering; award of public service contracts. However, urban planning and landscape architectural the requirement that domestic law must be services; related scientific and technical con­ interpreted in conformity with Directive sulting services; technical testing and analysis 92/50/EEC and the requirement that the rights services. That category corresponds to Refer­ of individuals must be protected effectively ence N o 867 of the common product classi­ mean that the national court must determine fication (CPC) nomenclature of the United whether the relevant provisions of domestic Nations. law allow recognition of a right for indi­ viduals to bring review proceedings in rela­ tion to the award of public service contracts.

services can clearly be regarded as 'engineer- 28. The fifth question corresponds to the ing services' and 'related scientific and tech- second part of the third question referred to nical consulting services' as referred to in the Court in the Tögel case. In the judgment Category N o 12. They therefore come fully in that case, the Court held that the provi- within the scope of the Services Directive, so sions of the Services Directive may be relied that the contracts for those services must he on directly by individuals before national awarded in conformity with the provisions of courts. 26 I see no reason to dispute that con- Titles III to VI of the Services Directive. clusion, which is based on an analysis of the wording of the directive. Although the provi- sions of Title I, relating to the persons and matters covered by the directive (Articles 1 to 7), are not inherently capable of creating rights for individuals, they are nevertheless essential for the purpose of identifying the persons enjoying rights and having obligations under the directive, so that, in combination with the substantive provisions, they may be relied on directly before a court. 26. Finally, by its fifth question, the UVK asks the Court to rule on the direct applica- bility of the provisions of the Services Direc- tive. Although in the text of the question the UVK refers to the directive generally, in the grounds of the order for reference it expressly refers only to Articles 1 to 7.

The same conclusion applies, in principle, to and unconditional, are not capable of direct the provisions contained in the subsequent effect was supported by the circumstance that titles. Those provisions relate to the 'choice a comprehensive analysis of all the provisions of award procedures and rules governing of the titles in question was not warranted by design contests' (Title III), the 'common rules the specific facts of the case. Consideration of in the technical field' (Title IV), the 'common whether particular provisions of those titles advertising rules' (Title V) and the 'common arc capable of direct effect must await a refer- rules on participation' (Title VI). They specify ence for a preliminary ruling in which such in detail the obligations imposed on con- an examination is specifically required. 29 tracting authorities in the preparation and conduct of invitations to tender. Observance of the rules set out therein may therefore be called for directly by an individual before the competent courts. 27

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OPINION OF MR SAGGIO — CASE C-258/97

Conclusion

29. In the light of the foregoing, I propose that the Court answer the questions submitted by the Unabhängiger Verwaltungssenat für Kärnten for a preliminary ruling as follows:

(1) Article 2(8) of the Review Directive is to be interpreted as meaning that the conditions contained therein concern exclusively the composition and opera- tion of independent bodies responsible for reviewing decisions taken by another body which is competent, at first instance, to hear review proceedings against the award of public contracts and which is not a court or tribunal as referred to in Article 177 of the Treaty. The provision in question is therefore not rel- evant for the purpose of assessing the composition and operation of the inde- pendent administrative senate of the Land of Carinthia, since the latter is a judicial body which is competent, at first and sole instance, to review measures awarding public contracts.

(2) Neither Article 2(8) nor any other provision of Directive 89/665/EEC is to be interpreted as meaning that, in the absence of national implementing measures adopted within the period laid down for that purpose, the review 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 review pro- ceedings relating to the award of public service contracts. However, in order to fulfil the requirement that domestic law must be interpreted in conformity with Directive 92/50/EEC 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 indi- viduals to bring review proceedings in relation to the award of public service contracts.