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3. On 5 September 1996 the contract was 7. Article 1 of Directive 89/665 provides: awarded to the chosen tenderer and signed on the same day. According to the national court, the other tenderers learned of the contract through the press. '1. The Member States shall take the mea- sures necessary to ensure that, as regards contract award procedures falling within * Original language: French. the scope of Directives 71/305/EEC and 1 — OJ 1989 L 395, p. 33. 77/62/EEC, decisions taken by the con-

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tracting authorities may be reviewed effec- interim measures with the aim of tively and, in particular, as rapidly as correcting the alleged infringement or possible in accordance with the conditions preventing further damage to the inter- set out in the following Articles, and, in ests concerned, including measures to particular, Article 2(7) on the grounds that suspend or to ensure the suspension of such decisions have infringed Community the procedure for the award of a public law in the field of public procurement or contract or the implementation of any national rules implementing that law. decision taken by the contracting authority;

(b) either set aside or ensure the setting aside of decisions taken unlawfully, including the removal of discrimina- tory technical, economic or financial specifications in the invitation to ten- 3. The Member States shall ensure that the der, the contract documents or in any review procedures are available, under other document relating to the contract detailed rules which the Member States award procedure; may establish, at least to any person having or having had an interest in obtaining a particular public supply or public works contract and who has been or risks being harmed by an alleged infringement ...' (c) award damages to persons harmed by an infringement.'

13. Paragraph 91 of the BVergG sets out the jurisdiction of the national court which 10. The national provisions applicable to has made the reference, the Bundesverga- the main proceedings are contained in the beamt, as follows: Bundesvergabegesetz (Federal Procurement Law, BGBl. No 462/1993) in the version prior to the 1997 amendments (hereinafter 'the BVergG'). '1. The Bundesvergabeamt has jurisdiction to determine applications for review in accordance with the provisions of this chapter. 11. Paragraph 9, point 14, of the BVergG defines 'award' as follows:

2. The Bundesvergabeamt has jurisdiction up until the award of the contract, upon 'The award of the contract is the declara- application tion made to the tenderer accepting his offer.'

1. to make orders for interim measures, 12. Paragraph 41(1) of the BVergG states: and

'The contractual relationship between the 2. to set aside unlawful decisions of the contracting authority and the tenderer awarding department of the contract- comes into being, within the period ing authority allowed for making the award, when the tenderer receives notification of the accep- tance of his offer. If the period allowed for making the award has expired or the terms of the contract differ from those of the in order to eliminate infringements of the offer, the contractual relationship comes present law or regulations made thereun- into being only when the tenderer gives der.

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2. significantly affects the outcome of the award procedure.

(2) If Question 1 is answered in the affirmative :

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Is the obligation described in Question Preliminary remark 1 sufficiently clear and precise to confer on individuals the right to a review corresponding to the require- ments of Article 1 of Directive 89/665/ EEC, in which the national court must 16. The Austrian Ministry of Science and in any event be able to adopt interim Transport, which is the respondent in the measures within the meaning of Arti- main proceedings, contends, in common cle 2(l)(a) and (b) of that directive and with the Austrian Government, that in fact to annul the contracting authority's the dispute in the main proceedings is now award decision, and the right to rely closed and the contract has already been in proceedings on that obligation as performed in its entirety. That being the against the Member State ? case, the answer to the questions raised will be irrelevant in the context of this dispute since the applicants can now obtain only damages, the award of which is, in any case, provided for under national law.

17. The Commission also has doubts as to the admissibility of the questions referred (3) If Question 2 is answered in the to the Court. These are based on the fact affirmative : that, whilst citing Article 2(6) of the review directive, the questions are in reality seek- ing an interpretation of Article 2(1) of that directive which is concerned with the period prior to the conclusion of the award contract. In the present case that contract has already been concluded.

19. It must nevertheless be noted that the fact that the national court is a court of last resort does not exclude the possibility that 23. The Commission notes first that crim- the questions referred are hypothetical in inal proceedings are pending to ascertain nature. whether any offence was committed when the contract was awarded. If that was the case then the contracting authority would be entitled to rescind the contract and, the Commission considers, depending on the interpretation to be given in this case to the 20. The national court adds, however, that requirements of Community law, there under national law it remains relevant to might even be an obligation to rescind the establish if it was entitled, or even required, contract. as a matter of Community law, to set aside its decision of 4 April 1997, by which, in determining that the awards procedure did not result in the contract being awarded to the tenderer who had made the best offer, it 24. The Commission further emphasises brought an end to the first set of proceed- that the answers to the questions raised ings. The questions referred will affect the may affect the level of any damages payable outcome of that issue in the main proceed- to the applicants. ings, which will in any event have to be resolved, regardless of the awards proce- dure which underlies it, even if the awards procedure in question is completely settled in the meantime. 25. Lastly the Commission states that the Court's answer to the first question could result in the contract or award decision being void, which would then render it necessary to deal with the second and third questions. 21. The national court further emphasises that at this stage it is not yet possible to determine whether this is the case. Account must be taken of the fact that the warranty period for the performance of the contract 26. In my opinion the considerations raised in question has not yet expired and it by the Commission are such as to justify therefore theoretically remains open to the the conclusion that the answers to the awarding authority to rescind the contract questions raised may affect the subsequent which cannot yet therefore be considered course of the main proceedings. The refer- definitively executed. ence by the national court should not,

31. This purpose would be compromised if paradoxically the most important decision 28. Article 2(1) of the review directive sets in the procedure, namely the award of the out the review procedures which the Mem­ contract itself, could not be treated as one ber States are obliged to put in place. They of the unlawful decisions capable of being must provide for the powers to adopt set aside, as the applicants in the main 'interim measures' by way of 'interlocutory proceedings rightly point out. procedures' with the aim of eliminating the alleged infringement or preventing further damage to the interests concerned (point (a)), the setting aside of decisions taken unlawfully (point (b)), and the award of damages (point (c)). 32. The Court 2 has already stated the importance of this objective of effectiveness in the context of the directive, emphasising that the directive's purpose is that of 'reinforcing existing arrangements at both national and Community levels for ensur­ 29. The provision does not define exhaus­ ing effective application of Community tively what is meant by 'decisions taken unlawfully' which may be required to be set aside, instead referring by way of example 2 — Case C-433/93 Commission ν Germany [1995] to discriminatory technical, economic or ECR 1-2303, paragraph 23.

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directives on the award of public contracts, the Community legislature, the conclusion in particular at the stage where infringe- of the contract and the decision awarding ments can still be rectified'. the contract cannot coincide in time.

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to put it back into a position where it could restricting the review procedures applicable win the contract. 3 to those administrative decisions which precede the conclusion of the contract.

39. The effectiveness of the review direc- tive, and in particular its objective, set out in Article 1(1), of establishing rapid and 43. National legislation cannot therefore effective review procedures, would be com- invoke Article 2(6) for the purpose of promised if it were open to a Member State excluding a procedure for having the deci- to widen the limitation provided for in sion awarding the contract set aside. Article 2(6) to such an extent that the most important decision of the contracting authority, namely the award of the con- tract, would systematically be covered by the limitation, and would thus be removed from the full protection established by 44. It should, moreover, be emphasised that Article 2(1). that solution is perfectly compatible with the view that the review directive does not undermine the private law systems in the Member States because it is the national legal system alone which determines the 40. The objective of reinforcing remedies effects of the remedies envisaged by the which is laid down by the review directive directive in respect of the contract which requires that the possibility left open to the follows the award decision. Member States to limit them should be regarded as an exception and so be inter- preted restrictively.

45. I would add lastly that there would be a number of paradoxical consequences were 41. The purpose of such a limitation is to it accepted that national legislation could ensure legal certainty in protecting the define the time of conclusion of the con- contract, thus recognising the contract's tract, at which point the legal protection of specific status in the award procedure in the unsuccessful tenderers becomes limited, theoretically bringing it to an end. in such a way that the decision awarding the contract was also affected by that limitation.

47. Furthermore, irregularities in the deci- sion awarding the contract would then be highly unlikely to have any consequences for the award of the contract. The only 51. According to the Bundesvergabeamt, means of challenging the award decision whilst it is strictly true that the decision would be by seeking to set aside the awarding the contract precedes the conclu- contract, although the problem does not sion of the contract, it takes place within intrinsically arise from the contract but the internal organisation of the contracting from the failure to observe the necessary authority and is not communicated to the conditions for the legality of an adminis- interested parties before being notified to trative act, which is not the same as the the chosen tenderer. That notification, as contract. Procedural effectiveness and well as being the first external manifesta- economy therefore require that there tion of the decision, seals the contract and should be a separate procedure for review- thus renders the decision immune from ing, in sufficient time, the validity of the proceedings to set it aside. decision awarding the contract.

52. The national court considers that it follows from this that the award decision as such, by which the contracting authority 48. I turn now to consider the application chooses the tenderer with which it will of those principles to the present case. contract, is not open to challenge. The unsuccessful tenderers are, furthermore, not generally aware of the decision, nor can they become so.

49. As the national court has explained, as a matter of Austrian law the contract is considered to be concluded when the 53. It must therefore be concluded that the decision awarding the contract is notified effect of the relevant national legislation is, to the successful tenderer. That notification as a general rule, to exclude the possibility is treated in civil law as the acceptance of of a review procedure to set aside the the tenderer's offer. decision awarding the contract.

57. The Ministry of Science and Transport specifically denies that the unsuccessful tenderers are unable to learn of the decision 61. It is appropriate however in this case to awarding the contract before the conclu- take into account what is required for the sion of the contract. It claims that those effectiveness of the review directive. This tenderers can avail themselves of the legis- means, as we have seen, that a procedure lation relating to access to administrative for having the decision awarding the con- documents and request the administration tract set aside must be possible. It necessa- to inform them of its decision. rily follows that, having regard to the short duration of procedures for the award of public contracts, a reasonable time must elapse between the time when the decision awarding the contract is notified to the unsuccessful tenderers, so that they may challenge the decision, and the conclusion of the contract, after which time Arti- 58. It must be pointed out, however, that cle 2(6) applies. such a possibility cannot be regarded as adequate compensation for the lack of any obligation on the part of the administration to inform the unsuccessful tenderers of the decision awarding the contract before the conclusion of the contract, thereby giving 62. The United Kingdom Government sub- them a genuine opportunity to commence mits that since there are different types of review proceedings. award procedures it is not possible to fix a

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64. The Austrian Government, supported by the German Government, points out that the review directive is a coordinating rather than a harmonising directive. Accordingly, it must be assumed that the Council did not intend to constrain those Member States such as the Republic of 68. In any event, it is the actual wording of Austria, the Federal Republic of Germany the review directive, as enacted by the and, to a certain extent, the United King- legislature, which is determinant. Even if dom, in which it is possible for notification the wording is not of sufficient clarity for it of the decision awarding the contract to to require no effort in interpretation, it is coincide in time with the conclusion of the nevertheless the case, as we have just seen, contract, to change their public procure- that it is not so obscure as to require ment procedures. reference to external factors in order to determine the intention expressed by the legislature.

4 — Amended proposal for a Council Directive coordinating the laws, regulations and administrative provisions relating to 65. The fact remains, however, that that the application of Community rules procedures for the argument is not supported by the travaux award of public supply and public works contracts (sub- mitted by the Commission pursuant to Article 149(3) of the préparatoires of the review directive. EEC Treaty), Document (88) 733 final.

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74. That provision is, however, identical to Article 5a(l) of Directive 89/440, cited above, which, as we have just seen, in the Council's view did not contain any specific 71. It appears clearly from the review provisions on remedies. directive that it is intended to supplement the system established by the abovemen- tioned two directives. Thus the first recital in the preamble to the review directive notes that the earlier directives 'do not contain any specific provisions ensuring their effective application'. 75. I would add, moreover, that one could 5 — OJ 1993 L 199, p. 1. ask oneself why the Council would impose 6 — Council Directive of 18 July 1989 amending Directive such a short time-limit for the administra- 71/305/EEC concerning coordination of procedures for the tion to reply to the queries of unsuccessful award of public works contracts (OJ 1989 L 210, p. 1) 7 — Council Directive of 22 March 1988 amending Directive tenderers, namely 15 days, if the purpose 77/62/EEC relating to the coordination of procedures on the was not that the latter should be informed award of public supply contracts and repealing certain provisions of Directive 80/767/EEC (OJ 1988 L 217, p. 1). within sufficient time to enable them it to

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have the decision set aside before it was too 79. The respondent in the main proceed- late and the contract was awarded. ings and the Austrian Government consider that the review directive leaves a margin of discretion to the Member States to deter- mine the bodies competent to perform the review procedures required by the review directive. 76. For the above reasons, I would propose the following reply to the first question.

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incompatible with the directive or in so far that the Member States have a margin of as the provisions of the directive define discretion when establishing suitable bodies rights which individuals are able to assert means that the provision in question cannot against the State.' have direct effect.

83. In particular, '... the right of a State to choose among several possible means of 87. The Commission rightly points out in achieving the result required by a directive this context that this question has already does not preclude the possibility for indivi- been raised in Dorsch Consult 10 and HI 11 duals of enforcing before the national as well as in a number of other cases. 12It courts rights whose content can be deter- follows from that case-law that the Mem- mined sufficiently precisely on the basis of ber States' margin for manoeuvre when the provisions of the directive alone'. organising the review system prevents the review directive from having direct effect.

94. I consider that a distinction should be 90. The system of competence would there- drawn between the situation in which a fore appear to be definitively established, Member State has set up the necessary all the more so since the national law sets body, and has only to vest that body with out all of the review procedures laid down the necessary powers, and that in which no in Article 2(1) of the review directive. The provision has been made to implement the national legislature has therefore already obligation to establish a system of review. implemented the obligation to set up a system of review and it is open to indivi- duals to select the competent forum to adjudicate on their complaint.

95. The second situation is effectively an 91. I accept that analysis. insurmountable obstacle to recognition of direct effect. Conversely, in the first case such effect cannot be excluded because the body which will implement the obligation imposed by the review directive already exists. 92. The argument derived from the exis- tence of a margin of discretion can, by its very nature, only be raised while that discretion has not been exercised. As soon as it has been exercised that discretion necessarily disappears and can no longer prevent recognition of direct effect.

96. I would add that I also share the Commission's view when it suggests that in the present case it is by no means certain that the applicants need to avail themselves 93. The fact that this discretionary power of direct effect. As we have already seen, all may not have been exercised in compliance of the problems stem from the fact that in

99. The national provisions in question are Question 3 capable of being applied so as to comply with the requirements of the review direc- tive. Recourse to the concept of direct effect is therefore unnecessary. 102. By this question the Bundesverga- beamt asks whether it is required to apply the provisions of Article 2(l)(a) and (b) of the review directive,, even if the BVergG 100. It should be noted in passing that that contains no provisions to that effect, or finding clearly does not imply that those conflicting provisions.

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103. It should first be noted that this duty to give full effect to those provisions, question is closely linked to the preceding if necessary refusing of its own motion to question. This is because, like Question 2, apply any conflicting provision of national it only arises where the issue is one of direct legislation, even if adopted subsequently, effect and not of the interpretation or and it is not necessary for the court to application of a national law so as to request or await the prior setting aside of comply with the review directive. such provision by legislative or other con- stitutional means ...' (paragraph 24)

104. Having said that, I am of the opinion that the Court's case-law provides a ready '... national courts must protect rights answer: if a Community law text recog- conferred by provisions of the Community nises a right of individuals against the legal order and ... it is not necessary for Member State, the national court seised of such courts to request or await the actual the matter must give full application to the setting aside by the national authorities Community law right and must disapply, so empowered so to act of any national far as may be necessary, any inconsistent measures which might impede the direct provisions of national law. and immediate application of Community rules' (paragraph 26).

(2) The combined provisions of Article 2(6) and (1)(a) and (b) of Directive 89/665 are to be interpreted as meaning that the obligations set out therein are sufficiently clear and precise so that individuals can rely upon them in procedures against the Member State where the Member State in question has adopted definitive rules as to the jurisdiction of review bodies charged with implementing the various phases of the review procedures and has already adopted the necessary procedural rules for each step in the procedure.

(3) The national court which, within the limits of its jurisdiction, must apply the provisions of Community law, is required to guarantee the protection of the I - 7691

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rights provided by the Community legal order and to ensure the full effectiveness of those rules by disapplying, of its own initiative where necessary, any conflicting national provision without having to request or await the setting aside by the competent national bodies of any national measures impeding the direct and immediate effect of the Community rules.

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