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OPINION OF ADVOCATE GENERAL ALBER delivered on 7 February 2002 1

I — Introduction judicial protection under Articles 6 and 13 of the European Convention on Human Rights. Consideration of the reference for a preliminary ruling also necessitates inter- preting Directive 89/665/EEC on the coor- dination of the laws, regulations and administrative provisions relating to the 1. In the present proceedings for a pre- application of review procedures to the liminary ruling, the Tribunale Amminis- award of public supply and public works trativo Regionale per la Lombardia (Lom- contracts 3(hereinafter 'Directive 89/665'). bardy Regional Administrative Tribunal) (hereinafter 'the national court') asks whether it can disregard the validity of an invitation to tender for a public supply contract which has not been challenged within the time-limit set by national law so that it can take into account the infringe- ment of Community law by a clause in the invitation to tender in (subsequent) pro- ceedings brought by a tenderer for review I I — Facts and procedure of his elimination when the award was made. The present case concerns proof of a tenderer's technical capacity under Article 22 of Directive 93/36/EEC coor- dinating procedures for the award of public supply contracts 2 (hereinafter 'Directive 2. The main proceedings are at the instance 93/36'). The national court asks whether of Santex S.p.A. (hereinafter 'the claimant') a national rule which provides for the against Unità Socio Sanitaria Locale n. 42 disapplication of unlawful administrative di Pavia (hereinafter 'the defendant') on the acts (Article 5 of Law No 2248 of 20 March ground that it was eliminated from a 1865) also applies to clauses in an invi- procurement procedure relating to a supply tation to tender which are contrary to contract. It contests the decision as to the Community law. It also asks whether that award of the contract as well as the principle follows from Article 6 of the invitation to tender which, in its opinion, Treaty on European Union in conjunction contained a precondition for admission with the right to a fair hearing and effective which was contrary to Community law.

4. The claimant stated in a letter dated 7. Thereafter, the defendant called on the 25 November 1996 addressed to the chair- participating undertakings to supplement man of the defendant's special committee the documentation already submitted with that that clause gave rise to an improper a declaration as to the turnover achieved in restriction on competition. Having regard respect of exactly the same products, with a to the very recent introduction of that kind list of the health institutions to which the of service by local health institutions products had been supplied. (aziende sanitarie locale), the application of that clause would give rise to the exclusion of numerous tenderers, including the applicant, which had nevertheless in the last year achieved aggregate turnover 8. The procurement procedure was termin- amounting to double the estimated contract ated when the claimant and two other firms figure. were excluded and the contract was awarded to Sea Mölnlycke.

9. The claimant observed that, had it been 5. In view of those comments, the defen- admitted, it would have been awarded the dant's committee postponed the opening of contract, and challenged both its exclusion the envelopes and requested the undertak- from the procedure and the subsequent ings concerned to forward comprehensive documentation, taking the view that the clause in question could be interpreted as 4 — Protocol No 1 of the award committee of 12 December referring to the overall turnover of the 1996.

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award of contract, and also contested the defendant, which had in the meantime notice of invitation to tender on grounds of suspended the supply service previously infringement of legal provisions and misuse provided by Sea Mölnlycke, entered into a of powers. definitive contract with that company for the subsequent period.

16. In the grounds of its order for refer- ence, the national court states that the fact 13. After the proceedings for interim pro- that the invitation to tender includes a tective measures had been concluded, the clause which infringes Community law and

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5 — The national court considers that there is an infringement of both Article 22 of Directive 93/36 and Article 3(1)(c) of Decree N o 358 of 24 July 1992. 7 — Clauses and prices of goods or services that are imposed by 6 — Royal Decree N o 1054 of 6 June 1924 containing the law are de jure to be inserted in contract, if need De being consolidated version of the laws governing the Italian substituted for unlawful clauses inserted by the parties. Consiglio di Stato, which also applies to the procedure t o 8 — The [judicial] authorities are to give effect to general and be followed before Regional Administrative Courts by local administrative acts and regulations to the extent to virtue of Article 19 of Law N o 1034 of 6 December 1971. which they are in conformity with primary legislation.

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21. Italian law distinguishes between legit- 24. By the approach it had initially imate interests (which always necessitate a appeared to take, namely to interpret the timely challenge against the measure contested clause restrictively, or to amend adversely affecting them) and subjective it, the defendant gave the claimant the rights (which can be protected by disappli- impression that it was not necessary to cation). It appears that this distinction challenge the invitation to tender. By its customarily drawn in national law is not conduct, the defendant had created a justifiable under Community law. situation of objective legal uncertainty for the claimant. For that reason, the principles this Court developed in Peterbroeck 12 must apply here.

23. Moreover, on the basis of the decisions of the Court in Van Schijndel and van Veen 10 and Eco Swiss, 11the national court considers that it is necessary first to verify whether in fact any rights had been seri- ously adversely affected or whether it had 26. There are ample grounds for interven- been made impossible to apply Community tion by the national court of its own law as a result of the specific course of the motion. Thus, the Court of Justice has held administrative procedure laid down as a in Océano Grupo Editorial, 13 in relation to precondition for the award of the contract consumer contracts, that the national court in question, which had had a negative is entitled to determine of its own motion impact on the effectiveness of judicial whether a term of the contract before it is protection in relation to the application of unfair when making its preliminary assess- the European provisions. ment as to whether a claim should be allowed to proceed.

9 — Case 106/77 Simmenthal [1978] ECR 629. 10 —Joined Cases C-430/93 and C-431/93 Van Schijndel and 12 — Case C-312/93 Peterbroeck [1995] ECR I-4599. van Veen [1995] ECR I-4705. 13 — Joined Cases C-240/98 to C-244/98 Océano Grupo 11 — Case C-126/96 Eco Swiss China Time [1999] ECR I-3055. Editorial and Salvat Editores [2000] ECR I-4941.

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27. The conclusion to be drawn from Eco (2) Does Article 6(2) of the Treaty 15 Swiss, 14 namely that, where certain rules of which, by providing for respect of the national procedural law are not observed, fundamental rights safeguarded by the the application ex proprio motu of Com- European Convention on Human munity law is not called for, does not apply Rights and Fundamental Freedoms, in the factual and legal circumstances of the has adopted the principle of effective present case. judicial protection provided for in Articles 6 and 13 of that Convention, lead to the same conclusion?

3. If, for any valid reason, the supplier is unable to provide the references requested by the contracting authority, he may prove 3. The Member States shall ensure that the his economic and financial standing by any review procedures are available, under other document which the contracting detailed rules which the Member States authority considers appropriate.' 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. In particular, the Member States may require that the person seeking the review must 30. In the present case, Article 1(1) and (3) have previously notified the contracting and Article 2(1)(b) and (6) of Directive authority of the alleged infringement and 89/665 are also relevant. They provide: of his intention to seek review.'

'Article 1 'Article 2

1. The Member States shall take the 1. The Member States shall ensure that the measures necessary to ensure that, as measures taken concerning the review pro-

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cedures specified in Article 1 include provi- 6. The effects of the exercise of the powers sion for the powers to: referred to in paragraph 1 on a contract concluded subsequent to its award shall be determined by national law.

B — Italian Law which of the documents mentioned in paragraph 1 must be produced and any other references which are to be pro- duced.... 31. Article 13 of Legislative Decree No 358 of 24 July 1992, which is headed 'Con- solidated text of the provisions relating to public supply contracts implementing Directives 77/62/EEC, 80/767/EEC and 3. If, for any valid reason, the supplier is 88/295/EEC', transposes Article 22 of unable to provide the references requested, Directive 93/36 and provides as follows: he may prove his economic and financial standing by any other document which the contracting authority considers appropri- ate.'

'Article 13

32. Article 36(1) of Royal Decree No 1054 of 26 June 1924 (hereinafter Article 36 of the Law of 26 June 1924), which con- 1. Evidence of the competing undertakings' solidates the laws relating to the Consiglio financial and economic standing may be di Stato and whose application was furnished by one or other of the following extended to the administrative courts by documents: Article 19 of Law No 1034 of 6 December 1971, is also material in the present dis- pute. It provides:

(a) — (b)... 'Article 36

(c) a statement of the undertaking's overall turnover and its turnover in respect of 1. Except where time-limits are prescribed the products to which the contract by specific laws relating to applications for relates for the three previous financial review, the time-limit for submitting an years. application for review to the Consiglio di Stato in its judicial capacity shall be 60 days from the date on which the adminis- trative decision was notified in the form and manner laid down by regulation or from the date on which it is apparent that 2. The contracting authorities shall specify the person concerned became fully aware in the notice or in the invitation to tender of it... .'

35. However, the Italian Consiglio di Stato 38. The question arises as to the relation- has recently confirmed its case-law on ship between the general obligation of invitations to tender, stating in a judgment Member States under Article 10 EC to of 7 April 1998 that an act which adversely cooperate in the implementation of Com- affects a tenderer's right to take part in a munity law, which is incumbent on public procurement procedure must be national courts as well, and the principles challenged within the usual time-limit of of national procedural law.

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39. The Italian Government points out that Rights applies only in respect of Commu- the Court has consistently held that in the nity acts and national acts giving effect to absence of Community rules governing this them; it cannot be applied in a way that is matter, it is for the domestic legal system of detrimental to national procedural rules. each Member State to lay down the detailed rules of procedure governing actions for safeguarding rights which indi- viduals derive from the direct effect of Community law. According to that case- law, those procedural rules must not be less favourable than those governing similar rights conferred by national law, and must not render virtually impossible or excess- 42. Therefore, the Italian Government pro- ively difficult the exercise of rights con- poses that the questions referred should be ferred by Community law. answered as follows:

44. The Republic of Austria submits that it knowledge being acquired of the irregular- is permissible to make applications to the ities in the award, a time-limit is laid down competent review body for a procurement for bringing review proceedings in respect procedure subject to time-limits, provided of a specific decision of the contracting this does not undermine the objectives of authority, with the effect that, if that Directive 89/665 or infringe the principles time-limit is not complied with, that of effectiveness and equal treatment that decision can no longer be challenged in derive from the Treaty on European Union. subsequent stages of the procurement pro- The directive itself contains no exclusive cedure. The time-limit laid down must not rules as to the organisation of review be such that the bringing or the pursuit of bodies and the procedure to be followed review proceedings is rendered virtually in applications to them. For that reason, it impossible or excessively difficult. In the is for each Member State to lay down the event of knowledge being acquired of the detailed procedural rules. irregularities in the award, it may be provided that every defect must be chal- lenged within the time-limit laid down for that purpose, failing which any interests affected will be forfeited.

Community law does not require a national 49. By providing a legal framework for court seised of a matter within its jurisdic- challenges and fixing a time-limit for tion to verify the compatibility of a raising them, limitation provisions serve national legal act with Community law of the principle of legal certainty for the its own motion where the person affected benefit of all parties. Legal certainty is has not challenged that act within the one of the fundamental principles of the time-limit laid down by national pro- Community legal order. Those principles cedural law. are of a public-policy nature and must be observed by the parties and the Court.

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53. The Commission therefore suggests decision, the Commission refers to the case that the question referred for a preliminary of Alcatel 18 in which it was held that the ruling should be reformulated as follows: award decision was a decision within the meaning of Directive 89/665.

Is Directive 89/665 to be interpreted as meaning that the competent national courts 56. As regards the elimination decision, the are required to protect citizens of the Union Commission observes that this is the act by whose rights have been infringed by a which the contracting authority responds measure taken in breach of Directive 93/36 to the undertaking's application to take by disapplying clauses in an invitation to part in the procurement procedure. In tender which are incompatible with Com- making this decision, the contracting auth- munity law but which have not been ority refers to the general and special challenged within the time-limits laid down clauses in the invitation to tender and by national law, in order to apply of their thereby takes a view as regards their inter- own motion Community law at every stage pretation. Therefore, this step constitutes a of the procurement procedure, including new, autonomous decision. If the invitation the award decision? to tender infringes Community law, the contracting authority is actually obliged to give direct effect to Community law and make a lawful decision.

54. Given that Directive 89/665 lays an obligation on the Member States to ensure that effective and rapid legal procedures are 57. It followed that an elimination decision available against a contracting authority's is a decision within the meaning of Direc- decisions and allow unlawful decisions to tive 89/665 which must be capable of being be set aside irrespective of whether an challenged by rapid and effective legal earlier decision has been challenged within remedies, and it is not necessary to have the applicable time-limits, the question regard to an unlawful invitation to tender, whether the award and elimination which therefore is not to be given effect. decisions are 'decisions' within the meaning of the directive must be considered.

Directive 89/665 requires a competent national court to ensure the protection of citizens of the Union whose rights have been infringed by administrative acts taken in breach of Directive 93/36 by disapplying clauses in an invitation to tender which are incompatible with Community law but which have not been challenged within the time-limit laid down by national pro- cedural law, in order to apply of its own motion Community law at every stage of 59. The preparatory acts to Directive the procurement procedure, including the 89/665 confirm the view expressed above. award decision. The Commission's original proposal pro- vided: 'Member States shall take the meas- ures necessary to ensure, at all stages of the contract award procedure, effective admin- istrative and/or judicial remedies...' 19. In the Council, the phrase, 'at all stages of the contract award procedure' was deleted without explanation, and the Italian del- egation requested that the expression 'de- VI — Assessment cisions' should be replaced by 'every decision'. This request was subsequently withdrawn as a result of the common position on Article 1, which was included in the minutes. The common position stated in substance that the Council and 61. If one reads the questions referred in the Commission declared that for the pur- the context of the reference for preliminary poses of that directive every person ruling, it becomes clear that, contrary to excluded from taking part in a procedure the formulation of the first question the for the award of a public contract because national court is in fact not seeking an of an alleged infringement was a person interpretation of Article 22 of Directive who had or had had an interest in the 93/36. The national court appears to be award of a public contract and whose convinced that the disputed clause in the rights had been or risked being infringed. invitation to tender is unlawful. It considers that the clause infringes both Article 22 of Directive 93/36 and Article 3(1)(c) of 19 —OJ 1987 C 230, p. 6. Legislative Decree No 358 of 24 July 1992,

63. As regards the decision in the proceed- ings before it, the national court finds itself confronted with the problem that it con- siders the clause that led to the elimination of the claimant from the procurement procedure to be unlawful but to have 65. The national court pointed out in the become unchallengeable by virtue of order for reference that the Italian Con- national procedural law. 2 0 It appears from siglio di Stato has held that where a the Italian Government's submissions that regulatory provision conflicts with legis- not only is a belated challenge to the lation of a higher order, the administrative administrative act inadmissible, but also courts as well may, in the same way as the any causes of action in other proceedings ordinary judicial authorities under civil law, disapply it, in order to protect sub- jective rights. The national court has no 20 — See Article 36 of Royal Decree No 1054 of 26 June 1924, doubt that this applies also in respect of according to which a person must challenge an adminis- administrative acts which conflict with trative act within 60 days of becoming aware of it; otherwise the administrative act becomes unchallengeable. Community law.

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66. Therefore, it appears that under Article 22 of Directive 93/36 and, poten- national law, whether an incidental chal- tially, its direct effect would also be rel- lenge to an unlawful administrative act is evant, since the Court's doctrine of the admissible depends on the classification of direct effect of the provisions of a directive the potential claimant — whether he can is based on the premiss that legal rights claim subjective rights or 'merely' legit- granted to individuals by a directive merit imate interests. protection. According to established case- law, an individual can rely on provisions of a directive against the State if, as far as their subject-matter is concerned, they are unconditional and sufficiently precise, pro- vided that they define rights. 21

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(c) a statement of the supplier's overall relevant provision was correctly 22 trans- turnover and its turnover in respect of posed into national law. The problems the products to which the contract which arise in the main proceedings from relates for the three previous financial the infringement of these provisions arise at years.' the level of legal protection.

74. Legal protection against an unlawful clause in an invitation to tender can be 71. It appears from paragraph 2 of this relevant at different levels. On the one provision that the various types of reference hand, it might concern a direct challenge to can be required either alternatively or the invitation to tender which, under Ita- cumulatively, and that the list of types of lian law, must be made within 60 days, as reference is not exhaustive. Accordingly, has already been explained. On the other the contracting authority must also state in hand, however, the unlawfulness may also the contract notice or in the invitation to continue, become reinforced or indeed first tender which references other than those come to light at later stages of the pro- mentioned under paragraph 1 are to be cedure, in which case the subject of the produced. In addition, paragraph 3 gives a challenge is not the invitation to tender as potential supplier the right to prove his such but the decision regulating or ter- economic and financial standing by any minating the particular stage of the pro- other document which the contracting cedure. In the main proceedings, it is the authority considers appropriate, if for 'any elimination decision which directly affects valid reason' he is unable to provide the the claimant and which is the subject of its references requested by the contracting challenge. authority.

trative acts. However, as regards the trans- matter, it is for the domestic legal system to position of Community law, the principles designate the courts and tribunals having the Court has developed in its consistent jurisdiction and to lay down the detailed case-law must be observed. These are the procedural rules governing actions for safe- principles of equivalence and effectiveness. guarding rights which individuals derive These principles, which were not described from the direct effect of Community as such in the case-law of the Court until law'. 26 recently, 23 state that procedural rules gov- erning actions for safeguarding rights which individuals derive from Community law must not be less favourable than those governing similar rights conferred by national law and must not render virtually impossible or excessively difficult the exer- 78. Therefore, one must first ascertain cise of rights conferred by Community whether there are any Community rules law. 24 governing the facts of the present case. Directive 89/665 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 lays down minimum requirements for the legal pro- tection to be conferred. Article 1(1) of the directive provides that the Member States are to take the measures necessary to ensure that decisions taken by the con- tracting authorities may be reviewed effec- tively, and, in particular, as rapidly as possible, on the grounds that such decisions 77. The Court has repeatedly stated in a have infringed Community law in the field consistent line of decisions 25 that, under of public procurement. Under Article 1(3), the principle of cooperation, it is for the the Member States are to ensure that the national courts to ensure the legal protec- review procedures are available at least to tion which individuals derive from the any person having or having had an interest direct effect of Community law. 'In the in obtaining a particular public supply or absence of Community rules governing a public works contract and who has been or risks being harmed by an alleged infringe- ment. 23 — See Edis (cited above, footnote 17), paragraph 34. 24 — See the judgments referred to in Peterbroeck (cited above, footnote 12), paragraph 12, and in the written observa- tions of the Italian Government, p. 9. 25 — See, inter alia, Case 33/76 Rewe [1976] ECR 1989, paragraph 5, Case 45/76 Comet [1976] ECR 2 0 4 3 , paragraphs 12 to 16, Case 68/79 just [1980] ECR 5 0 1 , paragraph 25, Case 199/82 San Giorgio [1983] ECR 3595, paragraph 14, Joined Cases 331/85, 376/85 and 378/85 Bianco and Girard [1988] ECR 1099, paragraph 12, Case 79. There is no question that under that 1 0 4 / 8 6 Commission v Italy [1988] ECR 1799, paragraph 7, Joined Cases 123/87 and 330/87 Jeune- provision a tenderer who has been elimin- homme and EGI [1988) ECR 4517, paragraph 17, Case C-96/91 Commission v Spain [1992] ECR I-3789, paragraph 12, Joined Cases C-6/90 and C-9/90 Francovich and Others [19911 ECR I-5357, paragraph 4 3 and 26 — See Peterbroeck (cited above, footnote 12), paragraph 12 Peterbroeck (cited above, footnote 12), paragraph 12. (emphasis added).

80. Even if the main proceedings may concern discriminatory economic or finan- cial specifications, it is not clear at what stage in the procurement procedure these 83. Given the purpose of Directive 89/665, must be challenged. Therefore, it depends as defined in Article 1(3) thereof, namely on whether the elimination decision as such that the review procedure must be available is, for the purposes of the directive, a at least to any person having or having had decision which may be challenged and, if so, whether the discriminatory nature of the economic or financial specifications 27 — Case C-81/98 (cited above, footnote 18). may be raised in these proceedings. 28 — See paragraph 37 of the judgment.

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87. What is none the less in doubt is what effects the validity of an administrative measure adopted at an earlier stage in the 85. Having regard both to the person procurement procedure have on the ques- entitled to initiate review proceedings and tion whether the challenge to the elimin- ation decision is well founded. Specifically, the validity of the invitation to tender has 29 — For a view in favour of extensive legal protection against in substance the same effect as a limitation all decisions made in a procurement procedure see the provision since, as explained above, 31 Opinion of Advocate General Tizzano in Case C-92/00 HI [2002] ECR I-5553, paragraph 21 et seq.; for the view, by causes of action founded on its unlawful- implication, that decisions in a procurement procedure which follow from an earlier decision may be reviewed, see ness must be rejected as inadmissible. the Opinion of Advocate General Mischo in Case C-81/98 Alcatel Austria and Others (cited above, footnote 18), point 46. 30 — See above, paragraph 59. 31 — See above, paragraph 63.

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89. The case of Peterbroeck, 33 which has already been referred to a number of times, was between a company and the Belgian State and concerned the applicable rate of non-resident tax. In the main proceedings, 91. After having considered the particular the complaint of an infringement of Com- features of the procedure in question, the munity law was raised for the first time Court came to the conclusion in that case before the Cour d'Appel (Court of Appeal). that Community law precluded application According to the relevant domestic law, a of a domestic procedural rule whose effect litigant could no longer raise a new plea was to prevent the national court, seised of based on Community law before the Cour a matter falling within its jurisdiction, from d'Appel once the 60-day period with effect considering of its own motion whether a from the lodging by the Director of a measure of domestic law was compatible certified true copy of the contested decision with a provision of Community law when had elapsed. 3 4 the latter provision had not been invoked by the litigant within a certain period. 37

90. The Court considered that a period of 92. Joined Cases Van Scbijndel and van 60 days so imposed on a litigant was not Veen 38 concerned the applicability of the

32 — See, for example, Case C-312/93 Peterbroeck (cited above, footnote 12); Joined Cases Van Schijndel and van Veen 35 — See paragraph 16 of the judgment. (cited above, footnote 10); Edis (cited above, footnote 17); 36 — See paragraph 14 of the judgment. and Eco Swiss (cited above, footnote 11). 37 — See paragraph 21 and the operative part of the judgment. 33 — Case C-312/93 (cited above, footnote 12). 38 — See Joined Cases C-430/93 and C-431/93 (cited above, 34 — See paragraph 15 of the judgment. footnote 10).

competition rules under the Treaty in a 94. The Court reached the conclusion that dispute concerning compulsory partici- the national court had to take into account pation in an occupational pension scheme. of its own motion mandatory rules of In that case, the complaint of infringement Community law in the same way as it had of Community law was first raised in to take into account mandatory rules of cassation proceedings before the Nether- national law. However, this applied only to lands Hoge Raad (Supreme Court). The the extent that the courts were not obliged nature of cassation proceedings is that they 'to abandon the passive role assigned to exclude new submissions unless on points them by going beyond the ambit of the of law. In support of their complaint, the dispute defined by the parties'. 42 claimants relied on facts and circumstances which had not been relied on before the lower courts. 39 For the national court, the question arose as to whether it was none the less required to take Community law into account of its own motion. 95. The case of Edis 43 concerned the repayment of amounts paid, though not due, in respect of a registration charge in breach of Community law. The fact that the charge infringed Community law came to light only in a judgment of the Court. 44 In reliance on a three-year limitation period which applied in tax law, the authority rejected the franchise debtor's claim to recover the money. The Court held that Community law did not prohibit a Member State from resisting actions for repayment 93. On that point, the Court stated: of charges levied in breach of Community '[W]here, by virtue of domestic law, courts law by relying on a time-limit under or tribunals must raise of their own motion national law of three years, provided that points of law based on binding domestic that time-limit applied in the same way to rules which have not been raised by the actions based on Community law for parties, such an obligation also exists where repayment of such charges as to those binding Community rules are concerned... based on national law. The position is the same if domestic law confers on courts and tribunals a discretion to apply of their own motion binding rules of law'. 40 In considering the principles of equivalence and effectiveness, the Court stated that each case 'must be analysed by 96. The case of Eco Swiss 45 concerned, reference to the role of that provision in the inter alia, the question whether a national procedure, its progress and its special features, viewed as a whole, before the various national instances'. 41 42 — See the operative part of the judgment. 43 — See Case C-231/96 (cited above, footnote 17). 44— Joined Cases C-71/91 and C-178/91 Ponente Carni and Cispadana Costruzioni [1993] ECR I-1915; see 39 — See paragraph 11 of the judgment. paragraph 5 of the judgment in Edis (cited above, 40 — See paragraph 13 et seq. of the judgment. footnote 17). 41 — See paragraph 19 of the judgment. 45 — See Case C-126/96 (cited above, footnote 11).

100. As regards the principle of equival- ence, in the absence of any information to the contrary it is to be assumed that the limitation period relates in the same way to claims to enforce rights under national law as it does to claims to enforce rights under Community law. 98. However, it appears from the judg- ments referred to above 49 that the prin- 50 — See Peterbroeck (cited above, footnote 12), paragraphs 12 and 14; Van Schijndel and van Veen (cited above, footnote 10), paragraphs 17 and 19; and Edis (cited 46 — See paragraph 43 of the judgment. above, footnote 17), paragraph 19. 47 — See paragraph 45 of the judgment. 51 — See point 77 et seq. 48 — C-470/99 |2002] ECR I-11617, paragraph 68. 52 — See my Opinion in Universale-Bau (cited above, 49 — See above, paragraphs 89 to 96. footnote 48), paragraph 69.

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104. The contracting authority reacted to the doubts the claimant expressed by post- poning the opening of the envelopes and 102. A priori, Directive 89/665, which requesting the undertakings affected by requires there to be 'effective' and 'rapid' that problem to forward comprehensive measures for the review of a contracting documentation, 'taking the view that the authority's decisions, 54 does not provide a clause in question could he interpreted as basis for criticising a 60-day limitation referring to the overall turnover of the period. On the other hand, it has already participating undertakings and that the been pointed out in the consideration of supply of products identical to those called whether an elimination decision may be for... could be taken into consideration, not challenged that a subsequent decision in a as a precondition for admission to the procurement procedure can amount to the tendering procedure but solely as a basis for practical application of an earlier decision, awarding points for quality'. 55 with its own independent regulatory con- tent.

105. The contracting authority thereby 103. Therefore, a purely theoretical con- gave it to be understood that it would take sideration of the limitation period is not the claimant's objections into account and created an expectation that it would apply

53 — See the settled case-law on this point (cited above, footnote 25). 55 — Quoted from the order for reference, referring to document 54 — See Article 1(1) of the directive. No 1 of 12 December 1996 of the awards committee.

the clause in question in a way that the particular clause was unlawful, is conformed with Community law. Only in ultimately a question to be answered by the shape of the elimination decision did it reference to national procedural law. take a definitive view as regards the inter- pretation it puts forward of the terms of the invitation to tender. In doing so, the con- tracting authority put forward an interpre- tation of the terms of the invitation to tender which made them appear unlawful (under Community law), at least in the estimation of the national court, whose task it is to decide the dispute. 108. On the present facts, one must in any case assume that the exercise of rights conferred on the claimant by Community law has been rendered excessively difficult. It would therefore be unjust if the claimant were no longer permitted to raise in proceedings challenging the elimination 106. What is highly significant is the fact decision the infringement of Community that a different interpretation of the terms law which was admittedly already immi- of the invitation to tender could have nent in the terms of the invitation to tender prevented the clause from being unlawful but which breached the claimant's rights and that the contracting authority initially only by means of the elimination decision. created the impression that it would pro- ceed accordingly. Only through the elimin- ation decision did the claimant obtain final clarity concerning what it considered to be the unlawful interpretation of the clauses in the invitation to tender. It was only by means of that decision that an illegality, admittedly already latent in the terms of the invitation to tender, was made specific. 109. However, the French Government has pointed out that the claimant could have raised a protective action against the terms of the invitation to tender even though it was in negotiations with the contracting authority as regards the particular clause in the invitation to tender which it considered 107. It is therefore also arguable that it was to be unlawful. That might have been true only through the elimination decision that if the contracting authority had not reacted it became absolutely clear to the claimant to the doubts the claimant expressed. that the clauses in the invitation to tender However, given the way in which the were unlawful. That knowledge, in its turn, authority initially approached those could have consequences for the time from doubts, the claimant was entitled to believe which the 60-day limitation period started that its request would be considered and, if to run. Whether it starts to run on pub- appropriate, even be acted upon. One must lication of the invitation to tender in every also remember that the claimant was wait- case, or, possibly, in the circumstances in ing for the contract to be awarded and it point here, only once it became known that would perhaps not have been opportune

111. As regards the consequences of that situation, the question arises as to whether the 60-day period for challenging the invitation to tender had not already been stopped from running. It is also conceivable that the contracting authority's conduct interrupted the time-limit for bringing pro- ceedings, since it was evident that it initially considered the claimant's doubts 113. The proposed approach means that and requested supplementary information the national court's second question need not only from the claimant but also from not be considered, since the interests of the the other tenderers affected. Since the eliminated tenderer in terms of legal pro- tection in the correct application of Com- munity law are taken into account by the 56 — See, concerning a comparable situation, the Opinion of exhaustion of remedies available under Advocate General Mischo in Alcatel Austria and Others (cited above, footnote 29), point 38. national law.

I - 1905

OPINION OF MR ALBER — CASE C-327/00

V I I— Conclusion

In conclusion, I suggest on the basis of the above considerations that the reference for a preliminary ruling should be answered as follows: