C-314/01

OPINION OF MR GEELHOED — CASE C-314/01

OPINION OF ADVOCATE GENERAL GEELHOED delivered on 20 November 2003 1

I — Introduction 3. The facts and proceedings relating to the dispute in which the questions submitted for a preliminary ruling have arisen are complex. They will be described below in Part III of this Opinion. It will be clear from this context that there may be reasonable 1. In this case the Court has been asked to doubt as to the admissibility of these give a preliminary ruling on four questions questions, which, since the dispute in the concerning the interpretation of Council main action has become devoid of any Directive 89/665/EEC of 21 December subject-matter, have become completely or 1989 on the coordination of the laws, partially hypothetical. regulations and administrative provisions relating to the application of review proce- dures to the award of public supply and public works contracts,2 as amended by Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of proce- dures for the award of public service contracts (hereinafter 'Directive 89/665'). 3

2. These questions have arisen in a dispute between Siemens AG Österreich ('Siemens') and ARGE Telekom & Partner ('ARGE 4. Although the wording of the questions is Telekom'), on the one hand, and the itself complex, it provides, in conjunction Hauptverband der österreichischen Sozial- with the statement of reasons for the order versicherungsträger (Central Association of for reference, a sufficient basis for a reply. Austrian Social Security Institutions), the The relevant aspects of that order will contracting authority ('the Hauptverband'), therefore be summarised in Part III of this on the other. Opinion. In essence, the Bundesverga- beamt, the body submitting the questions, asks whether, given its (limited) powers, the 1 — Original language: Dutch. manner in which the Austrian legislature 2 — OJ 1989 L 395, p. 33. has implemented Directive 89/665 is appro- 3 — OJ 1992 L 209, p. 1. priate.

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(c) award damages to persons harmed by a court or tribunal within the meaning of an infringement. Article 177 of the EEC Treaty (now Article 234 EC) and independent of both the contracting authority and the review body.

The members of such an independent body shall be appointed and leave office under the same conditions as members of the 6. The effects of the exercise of the powers judiciary as regards the authority respon- referred to in paragraph 1 on a contract sible for their appointment, their period of concluded subsequent to its award shall be office, and their removal. At least the determined by national law. Furthermore, President of this independent body shall except where a decision must be set aside have the same legal and professional prior to the award of damages, a Member qualifications as members of the judiciary. State may provide that, after the conclusion The independent body shall take its deci- of a contract following its award, the sions following a procedure in which both powers of the body responsible for the sides are heard, and these decisions shall, by review procedures shall be limited to means determined by each Member State, awarding damages to any person harmed be legally binding.' by an infringement.

7. The Member States shall ensure that 7. Article 25 of Directive 92/50 provides: decisions taken by bodies responsible for review procedures can be effectively enforced.

'In the contract documents, the contracting authority may ask the tenderer to indicate in his tender any share of the contract he 8. Where bodies responsible for review may intend to subcontract to third parties. procedures are not judicial in character, written reasons for their decisions shall always be given. Furthermore, in such a case, provision must be made to guarantee procedures whereby any allegedly illegal measure taken by the review body or any alleged defect in the exercise of the powers This indication shall be without prejudice conferred on it can be the subject of judicial to the question of the principal service review or review by another body which is provider's liability.'

10. Paragraph 31 of the BVergG concerns the services performed by subcontractors and reads as follows:

'(1) The contract documents shall specify (h) an indication of the proportion of the whether subcontracting is permitted. contract which the service provider The subcontracting of the whole con- may intend to sub-contract. tract is not permitted except in the case

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of purchase agreements and subcon- compelling reasons, especially if before tracting to undertakings associated the end of the tendering period circum- with the contractor. In the case of stances become known which, had building contracts the subcontracting they been known earlier, would not of the majority of the services ... is not have led to an invitation to tender or permitted.... The contracting authority would have led to an invitation to shall ensure that the contractor's sub- tender essentially different in sub- contractors themselves perform the stance. greater parts of contracts subcon- tracted to them. In exceptional cases the contracting authority may specify in the contract documents, stating its reasons, that it is permissible for the majority of the contract to be subcon- tracted. Subcontracting parts of the (2) The withdrawal should be made contract is, moreover, permitted only if known in the same manner as the the subcontractor is qualified to per- invitation to tender. form his share of the work.

(3) Tenderers and applicants to whom the contract documents have already been (2) The contracting authority shall ask the forwarded should be notified without tenderer in the contract documents to delay of the withdrawal and of the indicate in his tender the proportion of reasons therefor.' the contract which he may intend to subcontract to third parties. This information shall be without prejudice to the question of the contractor's liability.' 12. Paragraphs 52, 53, 53a, 54, 55 and 56 of the BVergG — on the assessment of tenders — read as follows:

8. tenders which do not satisfy the tender requirements and faulty and (1) The contracting authority should incomplete tenders, if these short- inform the remaining tenderers with- comings have not been or cannot out delay in writing or by fax ... of the be remedied, or partial tenders, if tenderer to which the contract is to be they are not admitted; awarded. In connection with subpara- graph 4, this communication may be used to give the unsuccessful tenderers all the reasons for the rejection of their tenders.

9. tenders received from applicants who, immorally or contrary to the principle of effective competition, have come to agreements with other applicants which are disad- (2) On penalty of annulment, the contract vantageous to the contracting shall not be awarded within a refrain- authority; ing period of two weeks from the

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announcement of the decision award- or with the legitimate commercial ing the contract referred to in subpar- interests of undertakings or does not agraph 1 ... . If an accelerated harm free and fair competition. procedure is adopted because of a need for urgency, the refraining period shall be shortened to one week.

(5) If an unsuccessful tenderer takes the view that the decision taken by the contracting authority infringes the provisions of this Law and that he is consequently at risk of suffering a loss, he must inform the contracting author- (3) Unsuccessful tenderers may request in ity without delay of his intention to writing within a period of one week or, open a review procedure, stating his if because of a need for urgency an reasons. accelerated procedure is adopted pur- suant to Paragraph 69, within a period of three days, after the announcement of the decision awarding the contract, to be informed of the grounds on which their tenders did not quality Paragraph 54 (Award and implementing and of the features and advantages of agreement) the selected tender.

(3) The invitation to tender shall be 13. Paragraph 113 of the BVergG defines deemed to have been cancelled if no the powers of the Bundesvergabeamt. It tenders are received or if only one reads as follows: tender is received.

'(1) The Bundesvergabeamt is responsible (4) Tenderers shall be informed without on application for carrying out a delay if the invitation to tender is review procedure in accordance with cancelled and shall be informed of the the following provisions. reason.

(5) The cancellation of an invitation to (2) Until the award of the contract, and tender ... shall be announced in the for the purposes of removing infringe- same way as the invitation to tender. ments of this Federal Law and of the

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regulations made hereunder, the Bun- procedure shall be declared void by desvergabeamt may: administrative order of the Bundesver- gabeamt, with due regard for the recommendation of the mediation committee in the case concerned, if it

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contract award procedure from the con- the prohibited act or omission. The tracting authority to which the conduct of penalty threatened shall be imposed the bodies of the awarding department immediately the first time the prohib- must be ascribed.' ited act is committed, or once the period allowed for the act required to be done has expired without that act having been done. At the same time, a penalty, on each occasion more severe than the previous, shall be threatened 16. Under Paragraph 125(2) of the BVergG for repetition or for further delay. As a claim for damages, which must be lodged soon as the obligation has been per- with a civil court, is admissible only if the formed, a penalty that has been threa- Bundesvergabeamt has previously reached tened shall not be imposed. a conclusion within the meaning of Para- graph 113(3). This conclusion is binding on the court applied to and on the parties to the proceedings before the Bundesverga- beamt. (3) In any individual case, the penalty shall not exceed ATS 10 000 or imprison- ment for longer than four weeks.

17. Paragraph 5 of the Verwaltungsvoll- streckungsgesetz (Law on Enforcement of Administrative Measures) stipulates: (4) Imposition of a penalty by way of fines is also permissible against legal per- sons, partnerships governed by com- m e r c i a l law and r e g i s t e r e d associations, except for bodies gov- erned by public law.' '(1) Where, due to its particular features, an obligation to permit something to be done, not to do something, or to do something cannot be performed by a third party, it shall be enforced by the authority responsible for enforcement 18. Paragraph 879 of the Allgemein Bür- requiring the person subject to the gerliches Gesetzbuch (General Civil Code) obligation to perform it on pain of (ABGB) reads as follows: fines or imprisonment.

A — Facts of the case and proceedings before the national authorities 21. According to the contracting authority, as is evident from the order for reference, that condition was imposed as a criterion of reliability for the purpose of ensuring that the services supplied would be free of technical errors, because if the card suppli- 19. On 21 September 1999, in the Supple- ers were personally liable, they would have ment to the Official Journal of the Eur- a greater incentive to supply a service free opean Communities, the Hauptverband of errors and the contracting authority announced a two-stage contract award would have greater influence. procedure which it intended to conduct for the award of a contract to design, plan and construct a smart-card-based electronic data-processing (EDP) system, including the Austria-wide delivery, initialisation, perso- nalisation, distribution and disposal of cards, delivery, installation and full-service maintenance of terminals, and support for EDP system operations, a call centre, card management and other services necessary 22. Austria Card, a card supply company, for the operation of the system. which was to supply the part of the service I - 2562

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26. The pleadings reveal that this decision by the Bundesvergabeamt was annulled by judgment of the Verfassungsgerichtshof (Constitutional Court) of 12 June 2001 on the ground that the constitutional right of the three consortia to proceedings in a court of law had been infringed. Before taking its decision, the Bundesvergabeamt had 24. The consortia that were not to be omitted to submit to the Court for a awarded the contract thereupon requested preliminary ruling a question on whether the Bundesvergabekontrollkommission a tenderer whose tender had not been (Federal Procurement Review Commission) eliminated by the contracting authority to carry out arbitration proceedings. The could be refused his right to bring proceed- latter refused to carry out arbitration ings before the competent national author- proceedings in one case and attempted, ity. unsuccessfully, to reach an amicable settle- ment in the other two cases. The three unsuccessful consortia then lodged review applications with the Bundesvergabeamt. The applications sought, primarily, the setting aside of the contracting authority's 27. On 28 and 29 March 2001, Debis, the decision to award the contract to the EDS/ third unsuccessful consortium, and ARGE ORGA consortium. Alternatively, they Telekom again instituted, consecutively, requested that the Hauptverband be review proceedings before the Bundesver- ordered to cancel the invitation to tender. gabeamt. They applied for annulment of the

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29. In their applications Debis and ARGE Telekom presented arguments based on both national and Community law in 30. By notice of 20 April 2001, the support of their position that the invitation Bundesvergabeamt (Ninth Chamber) to tender was unlawful. They maintained granted the applications of Debis and that the invitation to tender should be ARGE Telekom and, in accordance with cancelled because it followed from the Paragraph 113(2), No 2, of the BVergG Bundesvergabeamt's decision of 19 March declared void the Hauptverband's decision 2001 that only one undertaking still quali- not to cancel the invitation to tender. In fied for the award of the contract. After all, support of its decision, the Bundesverga- if the tenders submitted by Siemens, ARGE beamt stated that the invitation to tender Telekom and Debis could be eliminated had to be cancelled because it contained a under Paragraph 52(1) of the BVergG on substantially unlawful provision. Specifi- the ground that they infringed the principle cally, the Hauptverband's prohibition of of fair competition, it followed from the subcontracting infringed the tenderer's provisions of Paragraph 55(2) and (3) of right under Community law to rely on the BVergG that the invitation to tender subcontractors' capacity in order to prove had to be cancelled, since only one tenderer its own capacity, as interpreted by the (EDS/ORGA) remained. The invitation to Court in Holst Italia. 5 tender was, moreover, inconsistent with Community law, since an inadmissible standard of quality had been established 4 — Case C-176/98 [1999] ECR I-8607. in Point 1.8 of the invitation to tender of 15 5 — Cited in footnote 4.

35. On 18 May 2001 Siemens again applied for interim measures and for the annulment of the Hauptverband's decisions not to cancel the contract award procedure, 33. On 30 April 2001 Siemens initiated a to award the contract to EDS/ORGA, to review procedure before the Bundesverga- issue a letter of award to EDS/ORGA and beamt seeking the setting aside of various to conclude the contract with this consor- decisions taken by the Hauptverband relat- tium without first validly announcing the ing to the decision to award the contract to award decision.

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36. By decision of 9 July 2001, the authority, the contract award proce- Bundesvergabeamt dismissed ARGE Tele- dure is automatically terminated by the kom's and Siemens' applications for interim national review body's decision, with- measures and otherwise reserved its deci- out the need for any further act by the sion. contracting authority?

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3. Is Directive 89/665, in particular Arti- contracting authority to ensure that the cle 2(7) thereof, or any other provision unlawful decision is set aside, even of Community law, in particular hav- though national law authorises the ing regard to the effet utile doctrine review body to issue only non-compul- relating to the interpretation of Com- sory, non-enforceable orders to set munity law, to be construed as mean- aside contracting authorities' decisions ing that a contract concluded contrary in tenderers' applications for review to a decision by a national review body within the meaning of Article 1(1) of within the meaning of Article 2(8) of Directive 89/665? Directive 89/665 relating to the setting aside of a contract authority's decision not to cancel a contract award proce- dure is invalid, in particular where national law in any case provides that immoral or illegal contracts are void but does not provide any basis for the effective and compulsory enforcement of the review body's decision against the contracting authority?

39. To substantiate the first question, the Bundesvergabeamt points out inter alia that its decisions under Paragraph 113(2)(2) of the BVergG do not comprise any directions to the contracting authority that are enforceable at the instance of the successful applicant. In this respect the powers of the Bundesvergabeamt differ from those of As Community law relating to public similar national authorities in the areas of procurement does not contain any provi- commercial law, construction law and the sions that give an explicit answer to the law on water resources, for example. Those question as to the extent to which unlawful authorities do have the power to issue awards result in the invalidity of the enforceable instructions. This means that contracts concluded on that basis, the interested parties are in a far weaker legal question as to the validity of the contract position under public procurement law can be regarded as one of national law. than parties in other areas of law. The Bundesvergabeamt wonders whether this outcome of national legislation is compa- tible with the requirements of Community law, as set out in particular in Article 2(7) of Directive 89/665.

Weighed against the principle of the effet utile of Community law, however, such a conclusion would be unsatisfactory. A contracting authority which did not abide by the provisions of Community law or comply with the review body's decisions might, after all, frustrate the achievement of the objectives of Community law without 40. In the case of Question 2 the Bundes- fear of any sanction where, as in the present vergabeamt points out that, in accordance case, national law could not guarantee with the Court's case-law, it proceeded in compulsory enforcement of the review its decision of 20 April 2001 on the basis body's decisions.

42. In the case of Question 3 the Bundes- IV — Proceedings before the Court vergabeamt states that the Hauptverband, the contracting authority, not only disre- garded the substantive provisions of Com- munity public procurement law but also deliberately departed from the decision of the national review body within the mean- ing of Article 1(3) of Directive 89/665. Such 44. In the order for reference the Bundes- an attitude should be regarded as immoral, vergabeamt requests that the accelerated

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procedure for which Article 104a of the V — Assessment Rules of Procedure of the Court of Justice provides be applied to the questions referred. It argues that an accelerated procedure might prevent the contracting authority from frustrating the enforcement of Community law, as interpreted by the Court, by establishing a fait accompli. If the questions referred were answered in the A — Preliminary observations affirmative, a rapid decision could prevent major losses since the performance of the contract between the Hauptverband and EDS/ORGA had not yet commenced at the time when the order for reference was issued. 47. The background to the order for reference described in depth in points 19 to 37 above and the Bundesvergabeamt's comments on the questions it has submitted prompt a number of preliminary observa- tions.

45. By order of 13 September 2001 the President of the Court dismissed this request, on the ground that the circum- stances described by the Bundesvergabeamt did not indicate any exceptionally urgent 48. Once the Hauptverband, the contract- need for answers to the questions. ing authority, had made it known to the remaining applicants in the contract award procedure pursuant to Paragraph 53 of the BVergG that it intended to award the contract to EDS/ORGA, three groups initiated proceedings before the Bundesver- gabeamt:

unsuccessful in this, their application thus ignoring the Bundesvergabeamt's being declared inadmissible by order of order of 20 April 2001 that the 19 March 2001. contract award procedure be cancelled. In the course of this third set of proceedings the Bundesvergabeamt raised the questions submitted for a preliminary ruling. From the order for reference it can be deduced that the applicants in these proceedings base (2) In a second set of proceedings the their demands mainly on two argu- unsuccessful applicants called on the ments: Bundesvergabeamt inter alia to set aside the — notional — decision of the Hauptverband, the contracting authority, not to cancel the contract award procedure. They were forced to take this course because, as the Haupt- verband and the Austrian Government have emphasised in their written and — the decision of 18 December 2000 oral observations, the decision to to award the contract was invalid award the contract itself could not be from the outset because the so- challenged before the Bundesverga- called Smart Card Committee had beamt a second time. The unsuccessful not yet given the approval required applicants succeeded with this second for the award of the contract; demand. By an interim measure of 5 April 2001 the Hauptverband was prohibited until 20 April 2001 from proceeding to award the contract. By order of 20 April 2001 the Bundesver- gabeamt then set aside the notional decision not to cancel the contract — the decisions that led to the con- award procedure. This order did not, clusion of the contract between the however, prevent the conclusion of the Hauptverband and EDS/ORGA contract between the contracting were all void because they were authority and EDS/ORGA a few days taken in the context of an invalid later. contract award procedure.

51. To the extent to which this background to the questions has prompted the Bundes- vergabeamt, implicitly on some occasions, 55. The Commission doubts that the Bun- more explicitly on others, to question the desvergabeamt is a court or tribunal, since compatibility as such of the legal system it itself recognises in the order for reference underlying Austrian public procurement that its decision does not contain 'any law with Directive 89/665, it exceeds the recommendations to the contracting limits imposed by Article 234 EC on the authority that are capable of implementa- preliminary ruling procedure, which tion'. It therefore asks whether the ques- restricts cooperation between the national tions submitted by the Bundesvergabeamt courts and the Court of Justice to the are admissible, having regard to the Court's interpretation of Community law for the case-law and specifically to the judgments benefit of a decision in the main action. in Victoria Film 6 and Salzmann, 7accord- ing to which a national court may refer a question to the Court under Article 234 EC only if there is a case pending before it and if it is called upon to give judgment in proceedings intended to lead to a decision 52. It is therefore necessary to examine of a judicial nature. whether the Court's answers to the ques- tions referred to it for a preliminary ruling can be beneficial to a decision in the main 6 — Case C-134/97 [1998] ECR I-7023, paragraph 14. action. 7 — Case C-178/99 [2001] ECR I-4421, paragraph 14.

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60. The Austrian Government and the 58. Nor was the Bundesvergabeamt com- Hauptverband contend that, as a result of petent to submit questions for a preliminary this judgment by the Verfassungsgerichts- ruling because after its decision of 19 hof, the relevance to the main action of the March 2001 an appeal against the decision questions referred to the Court is at least awarding the contract was no longer partly lost, namely to the extent that they possible. The Bundesvergabeamt was there- explicitly or implicitly concern the Bundes- fore no longer entitled to assess the validity vergabeamt's decision of 20 April 2001, the of that decision or the decisions which the questions thus becoming hypothetical. Hauptverband had subsequently taken. According to the Court's case-law, this Nor did the Bundesvergabeamt have any would make them inadmissible. This would

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62. Nor, it seems to me, does the Austrian Government's second objection to admissi- 9 — See, inter alia, Case 63/76 Inzirillo [1976] ECR 2057, paragraph 6. bility serve any purpose. It can indeed be 10 — See, inter alia, Case 104/77 Oehlschläger[1978] ECR 791, deduced from the detailed order for refer- paragraph 4, and Case C-181/96 Wilkens [1999] ECR ence and the explanation it contains what I-399, paragraph 33. 11 — See, inter alia, Joined Cases C-175/98 and C-177/98 the Bundesvergabeamt is seeking to achieve Lirussi and Bizzaro [1999] ECR I-6881, paragraphs 37 and 38, and Case C-390/99 Canal Satélite Digital [2002] ECR I-607, paragraph 18, and Case C-167/01 Inspire Art [2003] ECR I-10155, paragraph 43. 12 — See, inter alia, Case C-343/90 Lourenço Dias [1992] ECR 8 — Case C-315/01 [2003] ECR I-6351, paragraphs 25 to 29. I-4673, paragraph 14, and Canal Satélite Digital, cited in footnote 11, paragraph 43. I - 2574

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order for reference, from the court docu- gabeamt but a civil court which is compe- ments forwarded and from written and oral tent to assess the legal validity of the observations that the answers to the ques- contract concluded on 23 April 2002 tions referred can clearly have no influence between the Hauptverband and EDS/ on the outcome of the main action and that ORGA, the answers to the questions they are therefore of a hypothetical nature, referred cannot in principle make any they should, again according to settled case- contribution to the settlement of the main law of the Court, 13 be dismissed without a action. ruling.

65. As I have already observed in points 48 to 51 above, the Hauptverband has con- cluded a contract with EDS/ORGA without abiding by the decision of the Bundesver- gabeamt in which the Hauptverband's — 68. Now that it appears to have been notional — decision not to cancel the established that in the situation underlying contract award procedure was set aside. In the main action the decision awarding the the main action the applicants now state contract taken by the contracting authority inter alia that the decisions by the Haupt- was not annulled by the Bundesvergabeamt verband which ultimately resulted in the and, to implement that decision, one or conclusions of the contract are all void more contracts were concluded as a result because they were taken in the context of of their award, it must be assumed that only an invalid contract award procedure. a civil court is competent to assess the contracts which have emerged from the contract award procedure here at issue.

66. Now that it has been determined that under Austrian law it is not the Bundesver-

69. In the light of the foregoing I take the 13 — Sec, inter aha. Case 244/80 Foglia v Novello [1981] ECR view that it must be assumed that the 3045, paragraph 21, Case C-451/99 CuraAnlagen [2002] LCR I-3193, paragraph 26, and Inspire An, cited in questions submitted by the Bundesverga- footnote 11, paragraph 47, beamt, which essentially ask whether the

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14 — Most recently, Inspire Art (cited in footnote 11), paragraph 45. 15 — Cited in footnote 4.

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Question 2. However correct it may be, the that it follows from the Court's ruling in Court does not need to consider it now that Hoist Italia 16 that the condition imposed by it forms part of a ruling by the Bundesver- Point 1.8 of the contract award require- gabeamt which cannot play any further ments of 15 March 2000 for permitting part in the main action. subcontractors' services is contrary to Community law.

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case of the performance of the contract which are necessary for performance of the once it has been awarded. contract...'.

79. The ruling of the Court in Hoist 80. I interpret this ruling as follows: Italia, 17 to which the Bundesvergabeamt potential applicants for a public works refers, concerned the assessment and selec- contract may not be eliminated on the tion phase of a contract award procedure. ground that they do not themselves have all the skills needed for the performance of the contract. Such a prohibition might result in the number of applicants being severely limited from the outset, especially in the case of large and technically complex In paragraph 26 of that judgment the Court contracts. This would mar the effect of ruled in this respect: 'From the object and Directive 92/50. However, to ensure that wording of those provisions, it follows that the contract, once awarded, is performed a party cannot be eliminated from a appropriately, the contracting authority procedure for the award of a public service may require that, where a tenderer relies contract solely on the ground that that on the skills of other entities, he vouch for party proposes, in order to carry out the the availability of their resources. contract, to use resources which are not its own but belong to one or more other entities.'

tract from being left to entities whose pretation of its case-law pass unchallenged. capacities and qualities it has been unable This is all the truer if it formed the basis of to assess during the contract award proce- the decision of the Bundesvergabeamt to dure, is not inconsistent with Directive which its questions refer and which may, 92/50. It is evident from the wording of for that and other reasons, make those Article 25 of that directive that it applies questions hypothetical. explicitly to the tendering and assessment phase of the contract award procedure. Article 25 provides for the contracting authority to have an insight into the capacities of the entities concerned, which is necessary for a correct assessment of the tenders submitted. From this it is impossible to deduce an argument for prohibiting subcontracting in the phase in which the contract on the performance of the work is concluded with the selected tenderer after the contract has been awarded. 85. Furthermore, leaving aside the substan- tive premiss of the decision of 20 April and assuming that the invitation to tender included a condition inconsistent with Community law or continued despite a notice issued in view of this inconsistency by a review body within the meaning of Article 2(8) of Directive 89/665, an assess- 83. It follows from this that the premiss on ment should be made in accordance with which the Bundesvergabeamt's decision of applicable national law of the validity and 20 April 2001 is based, namely that Point possibly the cancellation of the contracts 1.8 of the contract award requirements is already concluded. contrary to Community law and that, therefore, the contract award procedure should be cancelled in its entirety, is in itself incorrect.

— declare the questions referred to the Court in the Bundesvergabeamt's order for reference of 11 July 2001 inadmissible;

— in the alternative, declare Questions 1, 3, 4a and 4b inadmissible and answer Question 2 as follows:

If there has been a contract award procedure which included a tender requirement inconsistent with Community law, or if the contract has been awarded despite a decision issued in view of this inconsistency by a review body within the meaning of Council Directive 89/665/EEC 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, the validity and possible cancellation of the contracts already concluded should be assessed in accordance with applicable national law.

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