C-470/99

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ments specified by the contracting orities, or other bodies governed by authority; public law, or subject to manage- ment supervision by those bodies, or having an administrative, mana- gerial or supervisory board, more than half of whose members are appointed by the State, regional or local authorities or by other bodies (b) "contracting authorities" shall be the governed by public law.' State, regional or local authorities, bodies governed by public law, associ- ations formed by one or several of such authorities or bodies governed by pub- lic law;

2. Directive 89/665/EEC

A "body governed by public law" means any body: 3. Council Directive 89/665/EEC of 21 De- cember 1989 on the coordination of the laws, regulations and administrative provi- sions relating to the application of review procedures to the award of public supply and public works contracts (hereinafter — established for the specific purpose 'Directive 89/665') 3provides: of meeting needs in the general interest, not having an industrial or commercial character, and

Article 1(1):

'7. The Member States shall ensure that decisions taken by bodies responsible for review procedures can be effectively enforced. 3. Wiener Landesvergabegesetz

4. The Wiener Landesvergabegesetz (Pub- lic-procurement law in the Land of Vienna, hereinafter 'WLVergG'), 4in the applicable 8. Where bodies responsible for review version for the purposes of the present procedures are not judicial in character, review procedure, contains the following written reasons for their decisions shall provisions which are of particular signifi- always be given. Furthermore, in such a cance in the consideration of the issue of case, provision must be made to guarantee the admissibility of the reference for a procedures whereby any allegedly illegal preliminary ruling, regard being had to the measure taken by the review body or any question whether the referring Vergabe- alleged defect in the exercise of the powers kontrollsenat is a court or tribunal within conferred on it can be the subject of judicial the meaning of Article 234 EC. review or review by another body which is a court or tribunal within the meaning of Ankle 177 of the EEC Treaty and indepen- 4 — LGBI. No 36/1995; as amended, LGBI. No 30/1999.

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5. Under Paragraph 94(2), the Vergabe- and third substitute shall be appointed in kontrollsenat is responsible at first and last the same manner. Substitutes, in the order instance for deciding applications for of their appointment, shall represent review. Its decisions are not liable to be members in the event of their temporary set aside or varied through administrative indisposition or, on expiry of their term of channels. Under subparagraph 3, the All- office pending the appointment of a new gemeines Verwaltungsverfahrensgesetz member. In the event of the departure of a (General Law on Administrative Pro- member or a substitute, fresh appointments cedure) and the Verwaltungsvollstreck- shall be made without delay. ungsgesetz (Law on Administrative Enforcement) apply to the review pro- cedure, unless otherwise provided for in the WLVergG.

4. on expiry of his term of office; (6) Meetings of the Vergabekontrollsenat shall be called by the President. Where a member has an interest or is temporarily unable to carry out his duties, his substitute shall be called upon to sit. Members of the Vergabekontrollsenat shall not participate 5. in the case of the President and sub- in any decision relating to any procurement stitutes, on ceasing to be a member of procedure concerning the award of a the judiciary; contract in the field of activity of the institution (or, in the case of public servants in the municipal office of the city of Vienna, the department, division or office) to which they belong. If serious grounds exist for doubting a member's impartiality, 6. if he is removed by the Vergabekon- he must decline to sit and arrange to be trollsenat. represented. Parties may reject members of the Vergabekontrollsenat on showing cause relating to impartiality. The Vergabekon- trollsenat shall decide any question relating to the alleged impartiality of a member or any applications for rejection, and the (3a) A member shall be removed from member concerned shall not be entitled to office by a decision of the Vergabekontroll- vote thereon. The President shall cause the senat if he is permanently prevented from names of the members of the Vergabekon- properly performing his duties owing to trollsenat and the institution (or in the case physical or mental injury or is guilty of of public servants in the city of Vienna, the gross dereliction of duty. The decision shall department, division or office) to which be made after hearing the member con- they belong to be published in the Amts- cerned. The member concerned shall not be blatt der Stadt Wien (Official Journal of the entitled to vote. City of Vienna) at the start of each calendar year.

(9) Members of the Vergabekontrollsenat shall be reimbursed for any necessary travelling expenses and compensated for (1) If a contractor considers that a decision their time, for which a rate shall be fixed by taken by a contracting authority before the the Land Government. award of a contract infringes this Law and he has been or risks being harmed thereby, he shall formally communicate in writing to the contracting authority a statement of reasons and his intention to institute review proceedings. (10) The Vergabekontrollsenat shall adopt its own Rules of Procedure.

(2) On receipt of the communication under subparagraph 1, the contracting authority shall either rectify the alleged infringement (11) The Amt der Wiener Landesregierung without delay and inform the contractor (Office of the Government of the Land of thereof or communicate in writing to the Vienna) shall, on a proposal from the complainant why the alleged infringement Vergabekontrollsenat, place at its disposal does not exist.'

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Application for review (3) The application under subparagraph 2 shall contain:

'Paragraph 97. 1. the precise designation of the award procedure concerned and of the decision challenged;

UNIVERSALE-BAU AND OTHERS

c e d u r e in a c c o r d a n c e w i t h Paragraph 52 applies, three days after Paragraph 96 of the alleged infringe- notification of the refusal; 5 ment and of the intention to apply for review, and reference to the contract- ing authority's failure to rectify the infringement within the specified time- limit. 2. as regards provisions in the notification by which contractors are invited to apply to take part in a restricted or negotiated procedure or as regards provisions of the invitation to tender, (4) The review procedure does not have a two weeks, and where Paragraph 52 suspensory effect on the contract award applies, one week before expiry of the procedure to which it relates. date for submitting applications or tenders;

(5) The maximum penalty for abuse (Paragraph 35 of the AVG) which may be 3. as regards the award of a contract, two imposed in the review procedure shall be weeks after the publication of the 1% of the estimated value of the contract, award in the Official Journal of the not exceeding ATS 800 000.' European Communities or, where the award is not published, six months after the award of the contract.'

Time-limits

'Paragraph 98. I I I — Facts

Applications for review on the ground of 1. Main proceedings the following alleged infringements shall be lodged with the Vergabekontrollsenat within the following time-limits: 7. In the Official Gazette of the City of Vienna, Entsorgungsbetriebe Simmering GesmbH (hereinafter 'EBS') advertised its

The candidate shall identify reference pro- jects completed within the last five years comparable to the tasks to be undertaken. The evaluation of the applications sub- mitted shall be made according to a scoring procedure. 8

Only such references as have been carried 6 — Under Article 1(f) of Directive 93/37, restricted procedures are procedures 'whereby only those contractors invited by out by a candidate or a sub-contractor the contracting authority may submit tenders'. itself, as a leader of a consortium or as the 7 — Annex 3 to the order for reference, p. 7. 8 — Scoring procedure usually means according to the number person within a consortium who is respon- of points scored. sible for and who carries out the technical

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OPINION OF MR ALBER — CASE C-470/99

poration does not warrant any finding that not perform the task of sewage treatment EBS was to meet general-interest needs of a with a view to profit. Rather, it is a non-industrial or non-commercial nature. public-service activity entrusted to EBS and carried out on a break-even basis. Thus, EBS' activity in this area is not managed on an industrial or commercial basis. The deed of incorporation was not amended when this task was transferred.

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ified way, though the City of Vienna does IV — Questions referred not have any influence over the actual organisation of the building work.

18. The Vergabekontrollsenat has referred the following questions to the Court for a preliminary ruling:

16. It is clear from the planning notice that EBS applied for planning permission. The 1. Does a legal person constitute a 'con- owner of the land on which the work is to tracting authority' within the meaning be executed is the City of Vienna. In a of Article 1(b) of Directive 93/37/EEC document of 8 September 1999, which was even if it was not established for the included as annex 8 to the order for specific purpose of meeting needs in the reference, EBS stated: 'We will retain general interest, not having an indus- ownership of the sewage plant extension... trial or commercial character, but now The sewage plant will be transferred in the meets such needs? event of termination of the lease and management contract which have been concluded for an indefinite period between the City of Vienna and ourselves. In that case the City of Vienna shall be obliged to take over, inter alia, our sewage plant. It must pay us the current market value of the 2. If Entsorgungsbetriebe Simmering sewage plant'. According to the Vergabe- GesmbH is not a contracting authority, kontrollsenat, such a provision is compat- does the planned construction of the ible with Austrian law. second biological treatment phase of the principal sewage plant, Vienna, constitute the execution, by whatever means, of a work corresponding to the requirements specified by the contract- ing authority, and thus a 'public works contract' within the meaning of Article 1(a), read in conjunction with Article 1(c), of Directive 93/37/EEC?

decision of the contracting authority so admissibility of the reference for a prelimi- that on expiry of that time -limit the nary ruling. However, the Vergabekontroll- decision can no longer be challenged in senat gave detailed reasons as to why it is the course of the ongoing contract entitled to make a reference and the Aus- award procedure? Is it necessary for trian Government made submissions in that the persons concerned to plead every regard. Referring to a judgment of the defect, failure to do so entailing loss of Court concerning the Tiroler Vergabesenat their right to do so? (Procurement Chamber for the Tyrol), both consider the reference for a preliminary ruling to be admissible. In that case, the Advocate General was of the opinion that the reference for a preliminary ruling was inadmissible, 10 whereas the Court held the 4. If Question 1 or Question 2 is question referred to be admissible. 11 The answered in the affirmative, is it suffi- Court has not yet decided whether the cient for the body inviting tenders to referring Wiener Vergabekontrollsenat is determine that the applications will be entitled to make a reference. The question evaluated according to a method also arises in Case C-92/00. In his Opinion lodged with a notary, or is it necessary in that case, Advocate General Tizzano has for the evaluation criteria already to by implication assumed that the Wiener have been communicated in the call for Vergabekontrollsenat is entitled to make a candidates 9or the tender documents? reference. However, he did not expressly state his view on that question. The judg- ment in that case is still pending. It is therefore appropriate to express a view on this question in the present proceedings.

2 1 . Under Paragraph 94(2) of the 2. The first question WLVergG, the Vergabekontrollsenat is the body responsible at first and last instance for reviewing decisions by a contracting authority in a procurement procedure. Thus, its activity is established by law and 22. By its first question, the Vergabekon- its jurisdiction is compulsory. It is also a trollsenat asks whether a body which, permanent body. Decisions of contracting whilst not established for the specific pur- authorities are reviewed in accordance with pose of performing general-interest tasks, the WLVergG and, unless otherwise pro- of a non-industrial and non-commercial vided therein, under Paragraph 94(3) of the nature, subsequently takes on and from WLVergG, on the basis of the General Law then actually performs such a task, is to be on Administrative Procedure and the Law regarded as a body governed by public law on Administrative Enforcement. Paragraph within the meaning of Article 1(b) of 94(2) of the WLVergG guarantees the Directive 93/37. independence of the Vergabekontrollsenat from the administration, by providing that its decisions are not liable to be varied or set aside through administrative channels. Moreover, Paragraph 95(4) of the WLVergG guarantees that members must be able to exercise their office indepen- (a) Submissions of the parties dently and free from instructions. Subparagraph 6 makes provision in respect of partiality, a criterion on which the Court placed particular emphasis in Köllensperger and Atzwanger. 13Under Paragraph 95(7), the Vergabekontrollsenat's notices are to be 23. Universale, the consortium and the issued in writing. On the basis of these Austrian Government are of the view that findings the Vergabekontrollsenat may be EBS is a contracting authority for the presumed to satisfy the criteria in the purposes of the Directive. That issue is determined by the tasks actually performed by the body at the time of the invitation to 12 — See Köllensperger and Atzwanger (cited above, footnote tender and the award of the contract, 11), paragraph 17, with further references; Case C-54/96 rather than by the terms of its deed of Dorsch Consult (1997) ECR I-4961, paragraph 23. 13 — Köllensperger and Atzwanger (cited above, footnote 11), incorporation. In support of its view, the paragraph 22. consortium relies on existing case-law,

24. Conversely, EBS and the Commission are of the view that EBS is not a contracting 25. Like the consortium, the Netherlands authority for the purposes of the Directive. Government points to the functional inter- In the first place, EBS points out that it was pretation it considers to have been given to established in 1976 in order to perform the the concept of a contracting authority in task of incinerating specific waste on a the case-law. On this approach, it reaches commercial basis. It had to bear the the conclusion that a body governed by associated economic risk. Only 10 years private law which performs general-interest after it had been established was the tasks, though it was not established for that general-interest task of sewage disposal specific purpose, is to be regarded as a transferred to EBS, which it carried out contracting authority for the purposes of on a break-even basis. However, it had not Directive 93/37. However, like the Com- been established for that purpose. Under mission, it requires this fact to be capable the terms of Article 1 of the Directive and of objective verification. It points out that of existing case-law, the question whether the wording of Article 1(b), subparagraph 2 it was a body governed by public law for of Directive 93/37 does not refer to the the purposes of Directive 93/37 depended legal basis of the tasks performed by the

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28. However, what is disputed is the extent to which EBS can be regarded as 'estab- 26. The first question concerns the defini- lished for the specific purpose' of perform- tion of a body governed by public law ing general-interest tasks of a non-indus- under Article 1(b) of Directive 93/37. All trial and non-commercial nature. Accord- the parties to the proceedings agree that ing to the findings of the referring Vergabe- EBS, as a GmbH (limited liability com- kontrollsenat, EBS was established in 1976 pany), has legal personality and that the to dispose of special waste on a commercial City of Vienna, a regional or local auth- basis. In its original version, the deed of ority, has majority control of it. incorporation did not contain any indi- cation that EBS was intended to be estab- lished for the purpose of performing gen- eral-interest tasks, of a non-industrial and non-commercial nature. Therefore, if reliance is placed solely on the deed of incorporation in force when EBS was established, EBS does not satisfy the con- 27. The only matter in dispute is whether ditions laid down in regard to a body EBS also satisfies the third criterion of the governed by public law under Directive statutory definition, that is to say whether 93/37. EBS was established for the specific pur- pose of performing general-interest tasks, of a non-industrial and non-commercial 14 — Case C-360/96 BFI Holding [1998] ECR I-6821. nature. The parties to the proceedings all 15 — On this criterion, see my Opinion in Joined Cases C-223/99 and C-260/99 Agora and Excelsior [2001] agree that in managing the principal sew- ECR I-3605, paragraphs 57 et seq.

29. EBS only took on the management of Case C-44/96 Mannesmann, concerning the sewage plant in 1986. However, this the Austrian State printing office, and Case extension of its business activity was not C-360/96 BFI Holding. In its judgment in accompanied by any alteration to the Case C-44/96, the Court relied on the objects clause in the deed of incorporation document founding the State printing of EBS. Even subsequently, in particular in office, the Bundesgesetz über die Öster- 1996 when EBS reached agreement with reichische Staatsdruckerei (Federal Law on the City of Vienna for an extension to the the Austrian State Printing Office). How- sewage plant, concerning which the main ever, in addition to this analysis of the legal proceedings arose, the objects clause in the foundations of the State printing office, the deed of incorporation was not altered. Court also took account of the actual Thus, if reliance were to be placed solely circumstances, namely that the State print- on the deed of incorporation as being ing office subsequently assumed responsi- determinative of the question raised here, bility for other tasks of an industrial or EBS could not be regarded as a contracting commercial nature. In this respect it held authority for the purposes of Directive that provided that it continued to perform 93/37. the tasks which it was specifically obliged to perform, a body did not lose its status as one governed by public law by carrying out other activities. 16 In Case C-360/96, the Court, developing this case-law, held that the fact that meeting needs in the general interest constituted only a relatively small 30. However, in light of the fact that EBS proportion of the activities the entity pur- has in actual fact performed general-inter- sued was also irrelevant, provided that it est tasks, of a non-industrial and non- continued to attend to such needs. 17 commercial nature, since 1986, the con- clusion reached on the basis of an analysis of the deed of incorporation appears to be dubious. The applicants in the main pro- ceedings and the Austrian Government therefore rely on a 'functional' approach to the concept of a public body and suggest that the subsequent change in the scope of EBS' activities be taken into account and 32. On the basis of an analysis of this that, irrespective of its deed of incorpor- case-law two points immediately arise. ation EBS be regarded as a body governed First, under this case-law the focus is not by public law. only on the time of establishment, but also on the subsequent evolution of the entity. Second, not only legal but also factual changes in the tasks performed must be taken into account. Consequently, it is immaterial that the original 1976 deed of incorporation did not contain any provi- sion under which EBS was established for 31. The criterion of establishment for the specific purpose of performing general- interest tasks has hitherto been considered 16 — Paragraphs 25 and 26. by the Court in two cases in particular: 17 — BFI Holding (cited above, footnote 14), paragraph 55.

35. However, it must be pointed out that Case C-44/96, in contrast to the present case, concerned an undertaking which, it 33. Nor, on the basis of the judgments was not disputed, had initially been estab- cited, does the fact that EBS continues to lished for the specific purpose of meeting dispose of special waste on a commercial needs in the general interest of a non- basis in addition to managing the sewage industrial and non-commercial nature. plant preclude its being classified as a body Only subsequently did it start to carry out governed by public law for the purposes of activities on a commercial basis. In the case Directive 93/37. EBS can at the same time of EBS it was exactly the opposite. It was perform tasks on a commercial basis and established for industrial and commercial general-interest tasks of a non-industrial purposes and only subsequently assumed and non-commercial nature. EBS need not tasks in the general interest, of a non- even perform predominantly general-inter- industrial and non-commercial nature. For est tasks. The proportion of non-commer- that reason, it must be examined whether cial activities to commercial activities is an undertaking can also subsequently irrelevant to the classification of the acquire the status of a contracting auth- body. 18 ority.

36. First, the wording of Article 1(b) of Directive 93/37 militates against that possi- 34. Furthermore, the Court has held that bility. It expressly requires that the body classification as a body governed by public concerned must have been established for law extends to all the activities carried out

the specific purpose of meeting needs in the with the City of Vienna. A contract is an general interest. Thus, the material date is objective fact which is just as clearly the date of establishment, or the matter discernible to an objective bystander as a must at least be determined by the deed of deed of incorporation or a statute. There- incorporation. However, it is not disputed fore, there does not appear to be any reason that EBS was not established for the why this contract, or, to be exact, the two specific purpose of managing the city contracts concluded between EBS and the sewage plant; nor was that object in any City of Vienna in 1986 and 1996, should way subsequently inserted into the com- not be taken into account for the purpose pany's statutes, at the time when EBS of determining the objects of EBS. For, as actually assumed this task. stated, the wording of Article 1(b) of Directive 93/37 does not confine the analy- sis to the body's deed of incorporation. On that interpretation of the wording of Article 1(b) of Directive 93/37, EBS could be said to be a body governed by public law 37. In this regard, one cannot but concur within the meaning of that provision. with the view expressed by the Netherlands Government that on the wording of Article 1(b) of Directive 93/37 the legal analysis is not confined to the body's deed of incorporation. The purpose for which a body has been established can be deduced from other sources as well. 20 40. That the answer should not be deter- mined solely by the deed of incorporation is also borne out by the following consider- ation. The application of the provisions concerning public procurement cannot be made to depend on instruments governed 38. As the Netherlands Government and by company law, such as a deed of incor- the Commission submit, all that is required poration. Whether as a matter of company is that it may be objectively ascertained that law it accurately reflects the company's the body exists for the specific purpose of purpose at the time of establishment or meeting needs in the general interest of a whether, as the case may be, it has been non-industrial and non-commercial nature. adapted to circumstances which have in Therefore, it is not a requirement that the actual fact changed, is purely a problem of body was established for that specific company law. The interpretation of the purpose since subsequent developments public procurement provisions cannot have to be taken into account. depend on a matter of company law such as that. Otherwise, the application of those provisions would be at the discretion of the shareholders. For that reason, it is not only the deed of incorporation or the company statutes in force on incorporation which are 39. General-interest tasks were transferred to be taken into account in classifying the to EBS by the conclusion of the contract body, but also all objectively ascertainable circumstances, which can include a contract such as that concluded between 20 — BFI Holding (cited above, footnote 14), paragraph 62. EBS and the City of Vienna.

42. Nor, moreover, do the scheme of Article 1 of Directive 93/37 and of the 44. As EBS itself concedes, the costs of Directive as a whole provide any further extending the sewage plant are reimbursed guidance as regards the answer to the to EBS directly by the City of Vienna under question raised in the present case. point IV.2 of the contract of 8 July 1996. In light of the purpose pursued by the legis- lature in formulating the statutory defini- tion, that is to say to make all projects financed out of public funds subject to the laws on public procurement, it is therefore appropriate to regard EBS as a body governed by public law within the meaning 43. The history of the provision suggests of Article 1 of Directive 93/37. that EBS is to be regarded as a body governed by public law. The statutory definition in Article 1(b) of Directive 93/37 was inserted on the initiative of the Euro- pean Parliament. In its proposal, the Com- mission had merely referred to 'legal per- sons' instead of bodies governed by public 45. This result also accords with the pur- law. 21 In order to ensure that the scope of pose of Directive 93/37. According to its the Directive concerning works contracts second recital, Directive 93/37 pursues the was as comprehensive as possible, the objective of attaining freedom of establish- Parliament introduced the concept of ment at the same time as freedom to 'organ governed by public law', 22 which provide services in the field of public works was subsequently changed to 'body'. The contracts. The Directive is intended to inclusion of the statutory definition was counter the risk of preference being intended to replace the registers required to accorded to national tenderers or candi- be established under Article 1(b) of Direc- dates in the award of contracts, thus tive 71/305/EEC determining the list of assisting in the creation of an internal market for works contracts. The decisive factor in examining the criteria determining 21 — Proposal for a Council Directive amending Directive 71/305/EEC concerning the coordination of procedures for the award of public works contracts, COM(86) 679 final of 23 December 1986, pp. 6 and 22. 23 — See the report cited, Reasons, p. 33. 22 — Fourth Proposed Amendment, report of the Committee on 24 — See the explanation given by the rapporteur Mr Beumer in Economic and Monetary Affairs and Industrial Policy, the sitting of the European Parliament of 17 May 1988, Documents of the Sittings of the European Parliament, Proceedings of the European Parliament, 17 May 1988, 1988/89, document A2-37/88, p. 6 and Reasons, p. 33. No 2-365, p. 83.

whether a body is governed by public law is decision on the award of works contracts to whether there is a risk that the body will be guided by factors other than economic allow its decisions on contract awards to be ones. To that extent there is a requirement guided by considerations other than econ- to protect freedom of establishment and omic ones. 25If so, attainment of freedom freedom to provide services by means of the of establishment and freedom to provide application of Directive 93/37. services is jeopardised, which justifies the application of the Directives on public procurement. 26 Ultimately, the question thus arises as to whether the body bears the economic risk of its activity. 27 If it does, attainment of freedom of establish- ment and free movement of services is not 47. It may be inferred from the meaning jeopardised, if it does not, that is a reason and purpose of the Directive that the for applying the directives on public pro- situation of establishment for industrial or curement and thereby protecting the fun- commercial purposes and subsequent com- damental freedoms. mencement of activities of a non-industrial or non-commercial nature cannot be treated differently from the decided cases of Mannesmann and BFI Holding, in which the body concerned met needs in the general interest which were of a non-indus- trial or non-commercial nature from the time it commenced business, and the per- 46. Under the 1996 agreement with the formance of tasks on a commercial basis City of Vienna, EBS does not bear the came only later. For the time at which a financial risk of the management of the danger to the fundamental freedoms arises sewage plant or of the agreed extension. is a matter of secondary importance. All Admittedly, EBS is to undertake the latter that matters is the existence of a danger to in its own name and on its own account those freedoms. (point 1.2 of the contract of 8 July 1996). However, under point IV. 1 of the contract 'all of the expenses arising out of the construction and management of the plants including the sewage works related to the project, less any sums received by EBS,... shall be reimbursed...' by means of the remuneration to be paid by the City of 48. This approach is supported principally Vienna. Because the City of Vienna by the consideration that it is only in this finances the extension works in this way, way that it is generally possible to counter there is a risk that EBS will allow its the risk of circumvention of the provisions on public procurement. If the question depended on which needs are met first, it 25 — Case C-237/99 Commission v France [2001] ECR I-939, would be easy to circumvent the appli- iaragraph 42; Case C-380/98 University of Cambridge cation of the provisions on public procure- f 2000] ECR I-8035, paragraph 17. 26 — Case C-237/99 Commission v France (cited above, foot- ment by entrusting a body first with needs note 25), paragraph 41; Case C-380/98 University of of a non-industrial or non-commercial Cambridge (cited above, footnote 25), paragraph 16. nature and only subsequently with needs 27 — See the Opinion in Joined Cases Agorà and Excelsior (cited above, footnote 15), paragraph 71. not having an industrial or commercial

49. Admittedly, in the order for reference 3. The second question the referring court expressly rejected any intention on the part of the City of Vienna in the present case to circumvent the rules. However, the interpretation of Article 1 of 51. By its second question, the referring Directive 93/37 cannot depend on whether court asks whether the planned extension on the facts giving rise to the order for to the sewage plant is a public works reference a risk of circumvention actually contract. It raised this question only in the subsists. In preliminary reference proceed- event that EBS could not be categorised as a ings, the Court decides on the interpre- body governed by public law for the tation of Community law that has signifi- purposes of Directive 93/37. However, cance beyond the individual case. since this question has already been answered affirmatively, consideration is given to the second question only in the alternative, in the event that the Court does not adopt the reply proposed in this con- nection to the first question and does not regard EBS as a body governed by public 50. On the basis of the foregoing consider- law within the meaning of Article 1(b) of ations it must be stated that actually taking Directive 93/37. over the performance of general-interest tasks, on the basis of objectively ascertain- able circumstances such as the conclusion of a contract, may be assimilated to its establishment for that specific purpose. Therefore, it is proposed that the reply to (a) Submissions of the parties the first question should be as follows:

over, if the lease is terminated the munici- viewed, is a contract for services and not a pality would be required to take over the works contract, and for that reason sug- plant. The construction was undertaken gests that the second question should be according to requirements specified by the answered in the negative. contracting authority (the City of Vienna) in so far as the extension of the sewage plant served to meet a need in the general interest, the City of Vienna having an interest in ensuring that that need was met. Furthermore, a specific mode of operation is prescribed for the sewage plant, the new 55. The Netherlands Government merely construction having to be integrated with formulates general views. The decisive the existing plant. criterion for deciding the question whether the contract is a public works contract is whether the contracting authority has specified particular requirements and that the works must become the property of the contracting authority. Furthermore, in order to be a public works contract, a 53. By contrast, EBS is of the view that the contract must be carried out on the basis of contract at issue is not a public works a specific award by a contracting authority. contract. The extension works were to be awarded by EBS in its own name and on its own account. Moreover, the City of Vienna did not have any influence on the actual organisation of the extension works or on the procurement procedure itself. The decision as to the technical and structural (b) Opinion execution of the works for the sewage plant was to be taken by EBS alone. Finally, it points out that the costs of the extension were to be reimbursed only indirectly, according to the agreements applicable generally to the operation of the sewage plant. 56. According to the statutory definition in Article 1(a) of Directive 93/37, 'public works contracts' are 'contracts for pecuni- ary interest concluded in writing between a contractor and a contracting authority as defined in (b), which have as their object either the execution, or both the execution 54. Nor does the Commission consider that and design, of works related to one of the EBS awards a public works contract. In the activities referred to in Annex II or a work present case, there could at most be a defined in (c) below, or the execution, by contract between the City of Vienna and whatever means, of a work corresponding EBS. However, the Commission is of the to the requirements specified by the con- opinion that the sewage treatment taken tracting authority'. For the purposes of the over by EBS, in the context of which the question referred, EBS should be presumed extension to the sewage plant must be to be a contractor within the meaning of

59. It is therefore questionable whether, conversely, the obligation in point 1.2 to extend the existing plant can be regarded as a works contract for the purposes of 57. The question referred seeks to ascertain Directive 93/37. Admittedly, this obli- to what extent the contract at issue has as gation involves the execution of works. its object '... the execution, by whatever However, its execution would have to be in means, of a work corresponding to the accordance with the requirements laid requirements specified by the contracting down by the City of Vienna. That is borne authority...'. The parties to the main pro- out by the fact that the extension is ceedings dispute both whether the object of specified at least by reference to its func- the contract is the execution of a work and tion. The plant is required to be capable of whether the execution of the work cor- treating all incoming waste water at the responds to requirements specified by the rate of up to 18 cubic metres per second City of Vienna. (point II.1). In favour of the proposition that the agreement is for the execution of works corresponding to requirements spec- ified by the City of Vienna, it may also be observed that it concerns the extension of a main municipal sewage plant, that is to say a facility for whose operation the City of Vienna is ultimately responsible as a matter 58. The Commission has doubts as to of public-health provision. This responsi- whether the contract is for the execution bility is reflected in the assumption of of a work and considers rather that it is a contract for services. In that connection it should be stated that under point 1.2 of the 28 — Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public contract, EBS is obliged to extend the City service contracts (OJ 1992 L 209, p. 1).

61. For the sake of completeness, it must also be noted that even if one were to regard the specification of the purposes of the works to be sufficient, there would be yet another point to examine. As estab- 60. However, the 1996 agreement provides lished above, the 1996 agreement also for only one aspect of the way in which the contains elements of a contract for services. extended plant must function, namely by According to the 16th recital of Directive prescribing a capacity of 18 cubic metres 9 2 / 5 0 , it follows from D i r e c t i v e per second. However, the agreement does 71/305/EEC, '... that for a contract to be not contain any provisions as to the actual a public works contract, its object must be construction, in particular as regards tech- the achievement of a work; whereas, in so nical and structural execution. Whether far as these works are incidental rather this is sufficient for there to be the execu- than the object of the contract, they do not tion of works corresponding to the require- justify treating the contract as a public ments specified by the contracting auth- works contract.' Under the terms of Case ority is not free from doubt. Moreover, the C-331/92 the referring court would there- contracts for the requisite works are fore have to consider whether any obli- awarded by EBS in its own name and on gation to execute a work is predominant in its own account (point 1.2 of the agree- relation to the agreed obligation to supply ment). It is not apparent that the City of services. 30 Vienna is in any way involved in the formulation of the detailed specifications or in the award of the individual contracts. That means that it is not able to make the general capacity requirement any more specific at a subsequent stage of the award procedure. In Case C-331/92, both the 62. Without anticipating the judgment of Advocate General in his Opinion and the the national court, one can hardly imagine, Court in its judgment emphasised that for on the basis of the circumstances of the there to be a works contract, the works to present case as described, that the execu- be executed must be specified in detail. 29 tion of work would be held to predomi- However, the 1996 agreement does not nate. Instead, the agreement is the continu- contain any description of works to be ation of 10 years' cooperation, and the executed, but states only the result to be agreed works, if at all, are the adaptation of achieved. It follows that the agreement existing capacity to changed circumstances.

65. Universale and the consortium regard the time-limits for bringing proceedings provided for in the WLVergG as too short. According to Universale, foreign tenderers 63. In light of the foregoing, it is submitted are usually unable to adhere to these time- in the alternative that the second question limits. On the one hand, that defeats the should be answered as follows: objective of ensuring that public contracts are awarded without discrimination and, on the other, frustrates the objective of giving undertakings access to a large com- mon market while strengthening the com- petitiveness of European undertakings. As A contractual provision which describes the evidence of the correctness of its view of the work only by reference to the function to law it points to the fact that the time-limit be fulfilled and at the same time is the has in the meantime been extended to four continuation of an existing contract for weeks. As a matter of fact, it again services is not a public works contract emphasises that it was in a position to within the meaning of Article 1(a) of notice the mistake in the conditions in the Directive 93/37. invitation to tender only when studying the evaluation of the application documents after EBS had already rejected it and after the two-week time-limit had expired. The consortium adds that in the short period for bringing proceedings candidates are not in a position to analyse the contracting auth- ority's reasons for elimination and expose 4. The third question those which are without substance. Fur- thermore, the obligation in Paragraphs 96 and 97 of the WLVergG to give the contracting authority prior notice of a challenge means that the two-week time- 64. By its third question the Vergabekon- limit for bringing proceedings, which runs trollsenat seeks to ascertain whether the from the date of notification of the rejec- limitation periods of two weeks provided tion, has already expired by the time the for in Paragraph 98 of the WLVergG are contracting authority to whom notice has compatible with Council Directive 89/665 been given replies to the candidate. of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts. 31 66. In contrast, EBS points to the discretion granted to the Member States by Directive 31 — Cited above, footnote 3. 89/665. The Community legislature

required only that decisions taken by down minimum r e q u i r e m e n t s . The awarding departments could be reviewed Member States have a discretion as regards as rapidly as possible (Article 1(1)), that the fixing time-limits for bringing proceedings. review procedures had to be available to However, all three emphasise that the any person who had an interest in a Directive requires that effective legal pro- contract and who risked being harmed by tection be provided. Moreover, the Aus- the alleged infringement (Article 1(3)), that trian Government observes that time-limits Member States could require prior notice to for bringing proceedings have the effect of be given to the contracting authority speeding up the procedure and of reducing (Article 1(3)) and finally that interim the risk of any abusive resort to legal measures had to be available, unlawful action. Both correspond to the objectives decisions set aside and damages awarded to of Directive 89/665. The Commission also tenderers who were harmed (Article 2(1)). submits that the legal protection must not In EBS' view, short time-limits correspond be less favourable than for similar actions to the objective in the fifth recital to the concerning national law only. Directive of not causing disproportionate delay to the performance of public contracts. However, national procedural rules cannot render the enforcement of Community law impossible in practice. Finally, EBS points out that a time-limit of two weeks for bringing proceedings (b) Opinion against State acts is in general usual and, as e v i d e n c e t h e r e o f , r e f e r s t o Paragraph 63(5) of the General Law on Administrative Procedure, under which every challenge to a decision by an auth- ority must be made within two weeks, as 68. As regards the time-limit fixed by the well as to Paragraph 403(3) of the EO, 32 WLVergG for challenging provisions con- under which interim measures granted by tained in a public contract notice, it should civil courts are to be challenged within two first of all be observed that Directive weeks. 89/665 merely lays down minimum requirements as to the legal protection to be secured. It contains no provisions either as to the period within which specific acts may be challenged or as to whether or not national implementing measures may con- tain limitation provisions.

Union can exercise the rights conferred on decisions to be set aside and damages to be them by Community law. However, such awarded (Article 2(1)). procedural rules must not be less favour- able than those in respect of similar rights conferred by national law (principle of equivalence) and must not render virtually impossible the exercise of rights conferred by Community law (principle of effective- ness). 33 In this context, the Court has also held that it is essentially compatible, in the interests of legal certainty, with the prin- ciple of effectiveness to lay down reason- 71. However, effective legal protection for able limitation periods for bringing pro- the purposes of Directive 89/665 is guar- ceedings. Such time-limits are not liable to anteed only if the time-limits do not render render virtually impossible or excessively impossible enforcement of the legal pro- difficult the exercise of rights conferred by tection granted. For that reason, the time- Community law. 34 In the absence of Com- limits must not be so short as to prevent munity rules on limitation periods, no tenderers and candidates from exercising objection can be raised under the case-law their rights. In view of the fact that cited to the enactment in the WLVergG of Article 1(1) of Directive 89/665 requires a time-limits for bringing proceedings. In that contracting authority's decisions to be connection, the national legislature has a reviewed as rapidly as possible, a time-limit margin of discretion. of two weeks as provided for in the WLVergG appears not to be unreasonable. In particular, it should in principle be possible for foreign candidates to comply with it and to allow the candidates con- cerned time to clarify whether their rights have been infringed. The enactment of limitation periods in the procedural rules also promotes legal certainty. Candidates in whose favour a decision has been taken 70. However, the Directive specifies inter should be entitled to rely on the unchanged alia the following objectives to be achieved continuance of their legal position. by implementation and whose realisation must not be defeated by the enactment of limitation provisions. Decisions of con- tracting authorities must be able to be reviewed effectively and as rapidly as poss- ible (Article 1(1)); the Member States may provide that the contracting authority must be notified in advance of the intention to seek review (Article 1(3)); the national legislature must ensure the availability of 72. The extent to which this legal protec- interim measures and enable unlawful tion is equivalent to the legal protection granted for the enforcement of legal rights conferred by national provisions and the 33 — Case C-231/96 Edis [1998] ECR I-4951, paragraph 34. extent to which it follows that the principle 34 — Edis (cited above, footnote 33), paragraph 35. of equivalence is complied with remains a

73. As regards the consortium's complaint, that the obligation in Paragraphs 96 and 97 of the WLVergG to notify the contracting authority in advance results in expiry of the 74. Therefore, it is proposed that the third period for bringing an action under question should be answered as follows: Paragraph 98 of the WLVergG by the time Directive 89/665 does not preclude a the contracting authority replies to the national provision which fixes a time-limit candidate, it must be pointed out that the for the review of an individual decision of time-limits can hardly ever overlap. the contracting authority in such a way Paragraphs 96 and 97 of the WLVergG that, on expiry of that time-limit, the concern a time-limit prior to the award of decision can no longer be challenged in the contract, whereas the time-limits in the course of the ongoing contract award Paragraph 98(1) and (3) of the WLVergG procedure, provided that it is ensured that refer to time-limits after the award of the the legal protection afforded is not less contract. Nor, in relation to the time-limit favourable than for comparable rights in subparagraph 2 of that provision, is conferred by national law and the exercise there ever likely to be a conflict. of the rights conferred by Directive 89/665 Admittedly, this provision is concerned is not rendered impossible in practice. In with a period prior to expiry of the that connection, every defect in the pro- application period and thus also prior to cedure must be pleaded by the persons the award of the contract. The time-limit concerned, subject to loss of the right to provided for in Paragraph 98 relates to object in the event of failure to do so.

76. As regards the scoring procedure, Uni- versale and the consortium complain of an infringement of the principle of transpar- 79. The Austrian Government and the ency and intelligibility. Universale believes Commission also point out that Directive that the weight attached to the individual 93/37 does not contain any detailed provi- selection criteria listed must be clearly sions concerning the evaluation of appli- stated in the invitation to tender so as to cations to take part within the framework preclude arbitary decisions. For that rea- of the public prospecting of candidates in a son, not only the order of importance of the restricted procedure. The Austrian Govern- criteria but also their relative weight, and ment relies on Article 22 of Directive thus an objectively intelligible evaluation 93/37, which makes no provision as to scheme, must be indicated in the prior the procedure for selecting candidates. On information or in the tender documents. general principles, the procedure chosen This is not guaranteed where the evaluation must be objective and non-discriminatory. scheme is lodged with a notary. However, there is no obligation to adver- tise in advance in the tender documents the evaluation scheme for selecting the candi- dates to be invited to tender. The Commis- sion points out that under Article 11(6) of the Directive, only specified documents 77. In the final analysis, the Netherlands may be requested. The selection must be Government shares that view. Applications based on these documents.

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82. Article 11(6) states what information contracting authorities may request from 85. Finally, Article 30(2) of the Directive candidates. As the Commission rightly requires that where the award is to be made inferred, the criteria which may be applied to the most economically advantageous in selecting candidates may be discerned tender all the award criteria to be used from this. However, this does not say are to be stated in the contract documents whether the candidates must be told of or in the contract notice. 'Where possible', the system applied in evaluating the indi- they are to be stated in order of import- vidual details. ance. Admittedly, it can be inferred from this that all the criteria on which the selection is to be based must be advertised. However, even Article 30 merely requires that the criteria on the basis of which the 83. Article 13(2) specifies the minimum award is made should be indicated. Fur- information to be included in the invitation thermore, the wording of the provision

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86. Nor is it possible to derive support for Universale's and the consortium's legal argument from the Directive's purpose of attaining freedom of establishment and freedom of movement for persons in respect of public works contracts (see the second recital). For this objective is intended to be achieved by the advertise- 88. The restricted obligation here proposed ment of the individual works contracts to of advertising the applicable award criteria, be awarded. The fourth question does not where possible, in the order of importance

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VI — Conclusion

91. For the foregoing reasons, it is proposed that the questions referred by the Vergabekontrollsenat Wien should be answered as follows:

(1) A legal person constitutes a 'contracting authority' within the meaning of Article 1(b) of Directive 93/37/EEC even if it was not established for the specific purpose of meeting needs in the general interest, but which subsequently meets such needs, provided that the assumption of such tasks is founded on objectively ascertainable circumstances.

(2) A contractual provision which describes the work only by reference to the function to be fulfilled and at the same time is the continuation of an existing contract for services is not a public works contract within the meaning of Article 1(a) of Directive 93/37.