C-249/01

' 1 . The Member States shall take the meas- ures necessary to ensure that, as regards contract award procedures falling within the scope of Directives 71/305/EEC, 77/62/EEC and 92/50/EEC, decisions taken by the contracting authorities may be 2. The Bundesvergabeamt is seeking in reviewed effectively and, in particular, as essence to ascertain whether the abovemen- rapidly as possible in accordance with the tioned provision should be understood as conditions set out in the following Articles, meaning that if a tenderer's bid is not and, in particular, Article 2(7) on the eliminated by the contracting authority, but grounds that such decisions have infringed the review body finds in the course of the Community law in the field of public review procedure that the contracting auth- procurement or national rules implement- ority would have been bound to eliminate ing that law. it, the tenderer has been or risks being harmed by the infringement alleged by him.

1 — Original language: French. 2 — OJ 1989 L 395, p. 33. 3 — OJ 1992 L 209, p. 1.

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

Furthermore, except where a decision must 2. To preclude infringements of this Fed- be set aside prior to the award of damages, eral Law and of the regulations implement- a Member State may provide that, after the ing it, the Bundesvergabeamt is authorised conclusion of a contract following its until the time of the award: award, the powers of the body responsible for the review procedures shall be limited to awarding damages to any person harmed by an infringement. (1) to adopt interim measures and

(2) to set aside unlawful decisions of the contracting authority.

3. After the award of the contract or the close of the contract award procedure the Bundesvergabeamt is competent to deter- mine whether, on grounds of infringement of this Federal Law or of any regulations issued under it, the contract has not been awarded to the best tenderer....'

B — National legislation

7. Paragraph 115(1) of the BVergG pro- vides:

5. Directive 89/665 was transposed into Austrian law by the Bundesgesetz über die 'Where an undertaking claims to have an Vergabe von Aufträgen (Bundesvergabege- interest in the conclusion of a contract setz 1997) (1997 Federal Public Procure- within the scope of this Federal Law, it may ment Law, BGBl. I, 1997/56, 'the apply for the contracting authority's BVergG'). decision in the contract award procedure

11. On 29 March 1999 Mr Hackermüller applied to the Bundesvergabeamt for insti- tution of a review procedure pursuant to Paragraph 113(2) of the BVergG and requested inter alia that the Bundesver- gabeamt should set aside (1) the decision of I I — The main proceedings 8 February 1999 in which the Beratungs- gremium and/or the defendants accepted the bid of a rival tenderer as the best tender and recommended that the selection pro- cedure should be pursued with the rival tenderer in the short term, and (2) the decision by which the selection was made 9. Bundesimmobiliengesellschaft mbH without regard to the criteria laid down in (BIG) together with Wiener Entwicklungs- the invitation to tender. gesellschaft mbH für den Donauraum AG (WED) ('the defendants') invited tenders for a procedure in several stages to select architectural designs and decision par- ameters in order to award general planning contracts for building the new Engineering Faculty for the Technical University in Vienna. The first stage of the procedure 12. By decision of 31 May 1999 the involved a competition designed to be an Bundesvergabeamt dismissed both Mr 'open search for interested parties to ident- Hackermüller's applications on the ify ideas'. grounds that he did not have locus standi I - 6324

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16. On 7 July 1999 Mr Hackermüller brought an action for annulment of the Bundesvergabeamt's decision of 31 May 1999 before the Verfassungsgerichtshof 14. The Bundesvergabeamt went on to (Constitutional Court) (Austria). In its point out that, in the present case, as judgment of 14 March 2001 (B 1137/99-9) regards elimination of a project from the the Verfassungsgerichtshof, referring to an award procedure, point 1.6.7 of the invi- earlier judgment of 8 March 2001 tation to tender expressly refers to Para- (B 707/00), held that, in view of the broad graph 36(4) of the Wettbewerbsordnung interpretation that should be given, accord- der Architekten (Competition rules for ing to the Court's case-law, 4 to the concept architects, 'the WOA'), which provides of the capacity to instigate a review pro- that, where there is a ground for exclusion cedure under Article 1(3) of Directive under Paragraph 8 of the WOA, the project 89/665, it was questionable to interpret in question must be rejected, and that the conditions for making an application Paragraph 8(1)(d) eliminates from partici- under Article 115(1), in conjunction with pation in architectural competitions, among others, persons who include in the portfolio information enabling the author 4 — See in particular Case C-54/96 Dorsch Consult [1997] ECR I-4961, paragraph 46, and Case C-81/98 Alcatel Austria to be identified. and Others [1999] ECR I-7671, paragraphs 34 and 35.

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HACKERMÜLLER

recent judgment, 5which is whether the '... the main case relates to the period after Bundesvergabeamt constitutes a court or the award of the contract. However, it is tribunal within the meaning of Article 234 common ground that in Austrian law both EC. the parties and the civil courts which are seised of a claim in damages during that time are bound in any case by the findings of the Bundesvergabeamt.

19. That issue was raised in particular by the Commission in Swoboda, cited above, following the order for reference from the In those circumstances, the binding nature Bundesvergabeamt of 11 July 2001 in of the decision of the Bundesvergabeamt in Siemens and Arge Telekom & Partner, 6 the main case cannot reasonably be called in which the Bundesvergabeamt acknowl- into question.' edged that its decisions did not contain any 'binding, enforceable directions addressed to the contracting authority'. 7

22. The issue now is whether that con- clusion also applies in the present case, in which the Bundesvergabeamt is exercising its powers during the period before the 20. In Swoboda, cited above, a case in award of the contract. which the Bundesvergabeamt was exercis- ing its powers during the period after the award of the contract, the Court held that it was a court within the meaning of Article 234 EC.

23. I am of the view that the answer is indisputably yes.

21. In paragraphs 27 and 28 of Swoboda the Court held that: 24. Unlike the period after the award of the 5 — See Case C-411/00 [2002] ECR I-10567, the Opinion of contract, during which the Bundesver- Advocate General Léger in Case C-44/96 Mannesmann gabeamt has jurisdiction under Paragraph Anlagenbau Austria and Others [1998] ECR I-73, my Opinion in Swoboda, cited above, and the Opinion of 113(3) of the BVergG to 'determine Advocate General Geelhoed in Case C-315/01, judgment of whether... the contract had not been 19.6.2003, ECR I-6351, I-6354. 6 — C-314/01, pending before the Court awarded to the best bidder...', the period 7 — Swoboda, cited above, paragraph 25. before the contract was awarded is dif-

B — First question

32. Directive 89/665 therefore permits Member States to make access to review procedures subject to two cumulative con- 27. In the first question the Bundesver- ditions, namely, (1) the tenderer must have gabeamt is seeking to ascertain whether an interest in obtaining a public works Article 1(3) of Directive 89/665 is to be contract and (2) the tenderer must have interpreted as meaning that any person been or have risked being harmed. seeking the award of a specific public contract is entitled to institute a review procedure. 8 — Emphasis added.

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33. The Commission is therefore right to there was a deliberate choice on the part of consider that 'mere interest in obtaining a the Council to enable Member States to contract is insufficient on its own'. make access to review procedures subject to the two conditions mentioned above.

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39. Mr Hackermüller considers that if the procedure, under Paragraph 52(1), answer to the first question is no the subparagraph 8, of the BVergG. 11 answer to the second question should at any event be yes, otherwise the review procedure will be unavailable whenever a tenderer is eliminated by the contracting authority for any reason.

43. In its question the Bundesvergabeamt is therefore seeking, in substance, to ascertain whether Directive 89/665, and in particular Article 1(3) thereof, precludes such a rule of national law which it is applying. 40. However, the defendants, the Austrian Government and the Commission propose that the answer should be no. The obser- vations of the Italian Government may be interpreted as meaning that that govern- ment also proposes that the answer should be no if the Bundesvergabeamt may be 44. As the Austrian Government rightly regarded as a court. notes in its written observations, '... the review directive does not contain any provision concerning the assessment crite- ria which the review body should apply.... It therefore falls to Member States to adopt appropriate provisions, which must unquestionably comply with the general principles of public works contract law 41. Those interveners rely in that regard on such as transparency and non-discrimi- the purpose of the review procedure, the nation. Nor should such provisions conflict effect of Directive 89/665 and the principle with the purpose of the review directive...'. of equal treatment, which preclude an applicant from being awarded the contract or damages despite his own infringement of the invitation to tender or the provisions governing public works contracts.

'... provided that the relevant national rules "reduce" legal protection for the tenderer are not less favourable than those govern- in the main case since he has no remedy ing similar domestic actions (principle of against the decision to eliminate him taken equivalence) and that they do not make it by the Bundesvergabeamt instead of the practically impossible or excessively dif- contracting authority'. 15 ficult to exercise rights conferred by Com- munity law (principle of effectiveness) (see, by analogy, Case C-390/98 Banks v Coal Authority and Secretary of State for Trade and Industry [2001] ECR I-6117, paragraph 121 and Case C-453/99 Courage and Crehan [2001] ECR I - 6 2 9 7 , paragraph 29)'. 12 48. If it were true that as a result of the criterion in question the tenderer did not have any remedy against a decision which proves to be a decision eliminating him, I should indeed take the view that that criterion makes it excessively difficult to assert the rights conferred under Commu- nity law and, in particular, Directive 89/665. 46. The question which arises is therefore whether the abovementioned rule used by the Bundesvergabeamt in its decision of 31 May 1999 does or does not make it practically impossible or excessively dif- ficult to exercise rights conferred by Com- munity law. 13 49. There is indeed no doubt that a decision excluding a tenderer constitutes a decision within the meaning of Article 1(1) of Directive 89/665 against which it should be possible to institute a review procedure.

51. Is it correct to state, however, in a situation such as that in the main case that 'the tenderer has no remedy against the 55. In that regard, it seems to me to be decision to eliminate him taken by the beyond dispute that if, hypothetically, the Bundesvergabeamt instead of the contract- contracting authority had first accepted Mr ing authority'? Hackermüller's bid and if another tenderer, being aware that Mr Hackermüller may have infringed the requirement of anonym- ity, had then instituted proceedings for infringement by the contracting authority of the rules governing public procurement, 52. In my view everything hangs on the Bundesvergabeamt could have decided whether the review body has come to the that Mr Hackermüller should have been conclusion that the tenderer should have eliminated from the tendering procedure been eliminated following an adversarial even though the contracting authority had procedure, that is to say, after the tenderer not decided to do so earlier. has been given the opportunity to express his views on the grounds for possible elimination.

56. The only difference between that situ- ation and the situation in the main pro- ceedings therefore lies in the fact that in the 53. It is clear from Article 2(8) of Directive first case the plea of infringement of the 89/665, which states that '... the indepen- rule of anonymity is raised by one of the dent body [is to] take its decisions follow- parties, whilst in the second case it is raised ing a procedure in which both sides are by the review body of its own motion. heard...', that such a procedure constitutes an essential feature of a review procedure within the meaning of Directive 89/665.

60. It appears to me to be contrary to that objective of having effective and rapid review procedures if, in a situation such 63. Moreover, the fact that the review as that in the present case, the review body body should be able to raise such a plea is required to wait until a problem regard- of infringement of its own motion seems all ing the legality of the contract, which it the more justified with regard to the discovers itself, is referred to it by one of principle of equal treatment since, as the the parties. Austrian Government rightly observes, the tenderers are usually unaware of grounds for excluding any of their competitors from the contract. 19 — Case C-315/01, cited above footnote 5. 20 — Point 67, suggested answer 1(a), of the abovementioned Opinion of Advocate General Geelhoed. 21 — Alcatel Austria and Others, cited above, paragraph 34. See 22 — Case C-513/99 Concordia Bus Finland (2002] ECR also HI, cited above, paragraph 52, and Universale-Bau, cited above, paragraph 74. I-7213, paragraph 81.

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HACKERMÜLLER

the application of review procedures to the award of public supply and public works contracts, as amended by Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts, must be interpreted as meaning that the review procedures must be available to any person having or having had an interest in obtaining a public works contract provided that person has also been or risks being harmed by the alleged infringement.'

— to the second question:

'Article 1(3) of Directive 89/665, as amended by Directive 92/50, does not preclude a tenderer being considered not to have been· harmed by the infringement alleged by him — in this case the finding by the contracting authority that a rival tenderer submitted the best bid — if that tenderer's bid has not been eliminated by the contracting authority, but the review body finds in the course of the review procedure that the contracting authority would have been bound to eliminate it, provided the grounds for exclusion relied upon as against the tenderer have been the subject of a procedure in which both sides were heard.'

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