C-315/01

OPINION OF MR GEELHOED — CASE C-315/01

OPINION OF ADVOCATE GENERAL GEELHOED delivered on 10 October 2002 1

I — Introduction I I — Legislative background

1. This request for a preliminary ruling from the Austrian Bundesvergabeamt (Fed- A — Community law eral Procurement Office) concerns the interpretation of certain articles of Direc- tive 8 9 / 6 6 5 / E E C 2 and Directive 93/36/EEC. 3More specifically, it concerns the question whether in proceedings con- cerning the award of public contracts the review body may take into account, of its 2. Article 1(1) of Directive 89/665 own volition and independently of the as amended by Article 41 of Directive submissions of the parties, facts and cir- 92/50/EEC provides: cumstances which it considers to be rel- evant to the assessment of the lawfulness of the contract award procedure. The reques- ting court also wishes to know whether a decision taken by the review body of its own volition in this way can have impli- cations for the applicant's standing to submit a claim for damages because of 'The Member States shall take the measures irregularities in the award of the contract. necessary to ensure that, as regards Questions are also asked about the admissi- contract award procedures falling within bility of a number of criteria applied during the scope of Directives 71/305/EEC, the contract award procedure in the main 77/62/EEC and 92/50/EEC, decisions taken proceedings. by the contracting authorities may be reviewed effectively and, in particular, as rapidly as possible in accordance with the 1 — Original language: Dutch. conditions set out in the following Articles 2 — Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative and, in particular, Article 2(7) on the provisions relating to the application of review procedures groundsfthat such decisions have infringed to the award of public supply and public works contracts (OJ 1989 L 395, p. 33). Community law in the field of public 3 — Council Directive 93/36/EEC of 14 June 1993 coordinating procedures for the award of public supply contracts procurement or national rules implement- (OJ 1993 L 199, p. 1). ing that law.'

(b) either set aside or ensure the setting aside of decisions taken unlawfully, including the removal of discrimina- tory technical, economic or financial specifications in the invitation to tender, the contract documents or in any other document relating to the contract award procedure; 8. Where bodies responsible for review 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 (c) award damages to persons harmed by measure taken by the review body or any an infringement. alleged defect in the exercise of the powers conferred on it can be the subject of judicial review or review by another body which is a court or tribunal within the meaning of Article 177 of the EEC Treaty [now Article 234 EC] and independent of both the contracting authority and the review body.

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The members of such an independent body for qualitative selection) of Title IV, shall be appointed and leave office under provides: the same conditions as members of the judiciary as regards the authority respon- sible for their appointment, their period of office, and their removal. At least the President of this independent body shall have the same legal and professional qualifications as members of the judiciary. 'Evidence of the supplier's technical capac- The independent body shall take its ity may be furnished by one or more of the decisions following a procedure in which following means according to the nature, both sides are heard, and these decisions quantity and purpose of the products to be shall, by means determined by each supplied: Member State, be legally binding.'

8. Paragraph 113 of this law provides:

6. Article 26(1) of Directive 93/36, which forms part of Chapter 3 (Criteria for the award of contracts) of Title IV, provides: '1.The Bundesvergabeamt is responsible on application for carrying out a review procedure in accordance with the following provisions.

'The criteria on which the contracting authority shall base the award of contracts shall be: 2. To preclude infringements of this Fed- eral Law and of the regulations implement- ing it, the Bundesvergabeamt is authorised until the time of the award:

(a) either the lowest price only;

( 1 ) to adopt interim measures and

(b) or, when award is made to the most economically advantageous tender, various criteria according to the contract in question: e.g. price, delivery (2) to set aside unlawful decisions of the date, running costs, cost-effectiveness, contracting authority. quality, aesthetic and functional char- acteristics, technical merit, after-sales service and technical assistance.' 4 — Bundesvergabegasetz 1 9 9 7 , BGBL L 5 6 / 1 9 9 7 .

'1. Where an undertaking claims to have an 11. Paragraph 39(1) and (2) of the All- interest in the conclusion of a contract gemeines Verwaltungsverfahrengesetz within the scope of this Federal Law, it may 1991 provides: apply for the contracting authority's decision in the contract award procedure to be reviewed on the ground of unlawful- ness, provided that it has been or risks being harmed by the alleged infringement. '1. The evaluation procedure shall be gov- erned by the provisions of administrative law.

2. In so far as the administrative provisions do not cover a matter, the authority shall I - 6358

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proceed ex proprio motu and shall deter- while that of another tenderer came to mine the procedure for the evaluation ATS 4 168 690, excluding value added tax. subject to the provisions contained in this Part.

14. Point B.1.13 of the conditions in the invitation to tender, entitled 'Tender Evalu- ation', provided:

'B.1.13 Tender Evaluation

2.1 Reference list of road sweeper vehicle customers in the geographical area comprising the part of the Alps within the European Union (references to be 16. In accordance with the award proposal provided in German): weighting 20 of 31 July 2000, OAF & Steyr Nutzfahr- points zeuge OHG was awarded the contract by letter of 23 August 2000. By letters of 12 July 2000, the other tenderers were notified that a decision had been taken regarding the recipient of the award. GAT Evaluation formula: was informed by letter of 17 July 2000 that its tender had been eliminated, and by letter of 5 October 2000 it was notified of the identity of the recipient of the award and the contract price. The highest number of customers divided by the next highest number and multiplied by 20 points.'

the authority issuing the invitation to Community law to be interpreted as tender' contravened Community law meaning that an authority responsible because it constituted indirect discrimi- for carrying out review procedures nation. The contracting authority was within the meaning of Article 1(1) of required to accept any products within that directive, including the exercise of Europe that could be used as a reference. the powers referred to in Article 2(1)(c) In addition, that criterion could be used thereof, is precluded from taking into only as an award criterion and not as a account, of its own motion and inde- selection criterion, which was how the pendently of the submissions of the contracting authority had subsequently parties to the review procedure, those wrongly used it. It also pointed out that, circumstances relevant under the law although it was true that the basic version governing contract award procedures of the road sweeper it had tendered could which the authority responsible for be used only at temperatures down to 0 °C, carrying out review procedures con- the contracting authority had reserved the siders material to its decision in a right to purchase an additional option. The review procedure? additional option tendered by the applicant would operate at -5°C, as required in the invitation to tender. Finally, its tender was not at an implausible price. The applicant had been able to give an adequate expla- 1b. Is A r t i c l e 2 ( 1 ) ( c ) of D i r e c t i v e nation of its low price to the contracting 89/665/EEC, if necessary considered authority. in conjunction with other principles of Community law, to be interpreted as meaning that an authority responsible for carrying out review procedures within the meaning of Article 1(1) of that directive, including the exercise of IV — Questions submitted for a prelimi- the powers referred to in Article 2(1)(c) nary ruling thereof, is precluded from dismissing an application by a tenderer that is indirectly aimed at obtaining damages, 18. As the Bundesvergabeamt considers a where the contract award procedure is ruling by the Court to be necessary, by already tainted by a material legal order of 11 July 2001, the Bundesver- infringement attributable to a decision gabeamt referred the following questions taken by the contracting authority, to the Court for a preliminary ruling: other than the decision being contested by that tenderer, on the ground that if the contested decision had not been taken the tenderer would none the less have been harmed for other reasons? ' l a . Is Article 2(8) of Council Directive 89/665/EEC 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 w o r k s 2. If Question la is answered in the contracts, or any other provision of negative: Is Directive 93/36/EEC coor- that directive or any other provision of dinating procedures for the award of

19. In this procedure written observations have been submitted to the Court by GAT, the Austrian Government and the Commis- sion. Both the Commission and the Aus- 4. Is it compatible with Community law, trian Government have disputed the in particular the principle of equal admissibility of the questions. This is the treatment, for an award criterion to first aspect to be considered below. I - 6362

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A — Jurisdiction of the Bundesver- B — Admissibility of the questions sub- gabeamt to submit questions for a prelimi- mitted for a preliminary ruling nary ruling

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procedure before the Bundesvergabeamt is awarding damages to anyone harmed by an necessary since a subsequent action for infringement if the contract has already damages in a civil court would otherwise be been concluded following its award. inadmissible. Secondly, the parties and the civil court are bound by the opinion of the Bundesvergabeamt. I therefore agree with Advocate General Mischo's conclusion that the Bundesvergabeamt, being a judicial 26. The directive requires the Member body, has the authority to submit questions States to provide for powers relating to for a preliminary ruling. interlocutory procedures, procedures for setting aside decisions and procedures for the award of damages. The fact that within the framework of procedures for the award of damages the Austrian legislature has provided in its national law for a two-stage procedure (what the Austrian Government calls the assessment procedure before the Bundesvergabeamt and the actual pro­ cedure for the award of damages in a civil 24. It then needs to be considered whether court) does not preclude the Bundesver- all the questions submitted are admissible, gabeamťs power to submit questions for a as this is disputed by the Austrian Govern­ preliminary ruling, especially as the civil ment. Austria states that the assessment courts are bound by the Bundesver- procedures are not review procedures gabeamt's decisions. The procedures are within the meaning of Directive 89/665. I thus closely linked. It would be contrary to cannot share this view. the proper purpose of the directive for the Bundesvergabeamt to be unable to submit questions for a preliminary ruling in what the Austrian Government terms an assess­ ment procedure.

28. I cannot therefore share the Austrian Government's position that the first ques- tion submitted is irrelevant. It is this very 31. In the order for reference the Bundes- body which is required to determine vergabeamt explains that Paragraph 39(2) whether an infringement has occurred. It AVG requires it to take a decision ex has an interest in knowing whether it may, proprio motu and therefore to examine ex proprio motu, include in the case aspects whether award criteria other than those which have not been submitted by the contested by the applicant are lawful. If it parties. The situation is different where the emerges that other criteria are also unlaw- fifth question is concerned. It asks when a ful, the review may be rejected. The tenderer is entitled to damages. Under Bundesvergabeamt considers this inference Austrian law this is a matter for a civil from the wording of Paragraph 113(3) court. Whether there is entitlement to BVergG in conjunction with the principle damages in this particular case is therefore of ex proprio motu in administrative pro- a question which should be answered by cedures to be consistent, generally, with that court in accordance with its national Community law. In view of the spirit of law. Paragraph 113(3) BVergG, however, it may be open to question whether this inference is also consistent with the principle of effective legal protection. 29. I therefore conclude that the Austrian Bundesvergabeamt has the authority to submit questions for a preliminary ruling and that, with the exception of Question 5, all the questions submitted by this body are admissible. 32. The referring court also observes that it is generally unaware of any provisions of Community law precluding action ex pro- prio motu, whilst it accepts that there is something of a contradiction between action ex proprio motu in administrative VI — Merits procedures and the audi alteram partem principle.

this pursuant to the third paragraph of proprio motu, GAT essentially argues that Article 234 EC. This action is prompted it is inconsistent with the directive for specifically by the judgment of the Bundes- circumstances which have not been cited verfassungsgericht (Federal Constitutional by the parties to be taken into account in Court) of 8 March 2001, in which ques- the assessment ex proprio motu. tions arose about the compatibility of action ex proprio motu with the principle set out in Article 2(8) of Directive 89/665 that both sides are to be heard in the review procedure. The Bundesverfassungsgericht has set aside a number of decisions taken by the Bundesvergabeamt on the ground that this body took unlawful aspects of the contract award procedure into account ex proprio motu. 36. It must first be observed that the Bundesvergabeamt is a court or tribunal within the meaning of Article 234 EC. On a previous occasion, the Court explained that, under the first subparagraph of Article 2(8), the Member States may choose between two solutions in establishing 34. The Commission points out that the arrangements for the review of public directive does not require review pro- contracts. Either a body of a judicial char- cedures before an independent body within acter is given jurisdiction or a body which the meaning of Article 2(8) of Directive is not of such a character is given jurisdic- 89/665 to be based solely on the sub- tion, in which case the decisions of that missions of the parties and that the possi- body must be capable of being the subject bility of that body including relevant cir- of judicial review or of review by another cumstances in the assessment ex proprio body which must satisfy the particular motu cannot therefore be ruled out as long requirements of the second subparagraph as they have the right to be heard. The of Article 2(8) of Directive 89/665. 10 As Austrian Government, referring in this the Bundesvergabeamt is to be regarded as regard to the observations it submitted in a body of a judicial character ('the first the Primetzhofer case, 9similarly takes the option'), this guarantee provision does not view that action taken ex proprio motu is apply. The Austrian Government's and the not inconsistent with the first part of the Commission's contention that action taken last sentence of Article 2(8) of the directive. ex proprio motu is not inconsistent with the first part of the last sentence of Article 2(8) of the directive is therefore irrelevant in this case. The question continues to be relevant, however, since the referring court also submits it in its capacity as a 'body of a judicial character'. Furthermore, the fact 35. In its observations, which focus par- that a ruling was delivered after a pro- ticularly on the consequences of action ex

cedure in which both sides were heard is B — Question lb one of the factors which the Court takes into account when determining whether the body concerned is a court or tribunal within the meaning of Article 234 EC. 38. By Question lb the Bundesvergabeamt seeks to establish whether Article 2(l)(c) of the directive, possibly in conjunction with other principles of Community law, pre- cludes a decision by the review body dismissing an application by a tenderer that is indirectly aimed at obtaining dam- ages where the contract award procedure was already unlawful on other grounds not 37. For the following reasons I take the cited by the tenderer. view that a procedure in which both sides are heard does not rule out action by the competent court ex proprio motu in an administrative procedure. A procedure in which both sides are heard means in fact that the parties can react to each other's 39. In the order for reference the Bundes- points of view before the body with juris- vergabeamt explains with regard to Ques- diction delivers a ruling and they must also tions la and lb that Paragraphs 113(3) and be able to react to any aspects which this 115(1) BVergG provide that, in a review body includes in the examination ex pro- procedure following the award of a prio motu. The directive also requires the contract, the Bundesvergabeamt must Member States to make provision for examine the decision of the contracting accessible, effective and appropriate pro- authority being contested by an applicant cedures. However, they are free to decide as to its lawfulness, but that the application what form they should take. They may is to be granted only if it is the unlawful therefore stipulate that a court may take decision being contested that has caused the into account ex proprio motu circum- contract not to be awarded to the best stances which are relevant to its assess- tenderer within the meaning of the law. ment. How far the Bundesvergabeamt is Therefore, if the contract award procedure obliged to include in its assessment ex is already tainted by fundamental illegality proprio motu all relevant circumstances, because of a separate (and possibly earlier) thus regardless of the submissions of the decision by the contracting authority and parties, is something that will be discussed the applicant has not contested that other in the context of the next question. It is my decision by the contracting authority in the view, therefore, that it is not inconsistent review procedure, an application for review with the directive for a court to take into cannot be granted. In that case, a tenderer account, of its own motion and indepen- who contests a decision by the contracting dently of the submissions of the parties authority that is demonstrated to be unlaw- during the review procedure, circumstances ful may not make a claim for damages relevant to the contract award procedure, because a separate decision by the con- provided that the intended aim of the tracting authority which has not been directive, in other words, effective legal challenged has already led to the con- protection, is guaranteed. clusion that the contract award procedure

concerned is unlawful. In such a case, the done properly, the contract award pro- applicant will not have been 'harmed' by cedure ought really to have been cancelled the contested infringement within the because the award criterion concerning a meaning of Article 2(1)(c) of Directive list of references is not permissible under 89/665, because the harm, for example either European or Austrian procurement wasted tender costs, will already have been law. GAT adds that the proceedings it has caused by an (earlier) infringement by the brought do not concern this criterion. In contracting authority. the Bundesvergabeamt's view the con- sequence is, however, that GAT is not entitled to damages. According to GAT, such legal practice, with the Bundesver- gabeamt finding ex proprio motu that the procedure is unlawful, may be admissible if it occurs before the contract is awarded. In that event, a fresh invitation to tender from 40. GAT takes the view that the judicial which the inadmissible criteria have been practice of the Bundesvergabeamt, as removed can be issued. The tenderer is not referred to above, is inconsistent with the then harmed since he is able to compete effective legal protection required by Com- again. After the contract has been awarded, munity procurement law. GAT refers in on the other hand, reparation is not poss- this context to the judgment of the Bun- ible. Furthermore, tenderers have evaluated desverfassungsgericht which comes to the their legal position solely on the basis of conclusion on the basis of the Court's what really happened in this specific case. It case-law that the right to seek a review is on this, according to GAT, that the pursuant to Article 1(3) of Directive 89/665 review procedure should therefore be must be interpreted broadly and that this based. right is enjoyed by anyone who has shown his interest in the award by submitting a tender. GAT explains that the Bundesverf- assungsgericht concluded in that judgment that, in view of the extensive legal pro- tection enjoyed by candidates and ten- derers, it is doubtful that the Bundesver- gabeamt's position that a review requested by a tenderer cannot succeed because the contract award procedure concerned is 42. GAT maintains that the Bundesver- already tainted on another ground is com- gabeamt's legal practice in fact shifts the patible with Community law. responsibility for a legally correct contract award procedure to the tenderers, whereas the contracting authority escapes all blame if the procedure is unlawful. It is not for the tenderer to bring to light all, or all poten- tial, infringements during a contract award procedure. The right to seek a review is, after all, linked to his subjective rights, 41. To illustrate this, GAT points out that, especially if he is harmed, or risks being in the main action, the Bundesvergabeamt harmed, by an infringement of the appli- put forward its view that, if things had been cable law.

43. Both the Commission and the Austrian a substantively legitimate application might Government propose that this question be seen as a denial of justice. On the other should be answered in the affirmative. hand, the Austrian Government believes The Commission states that Article 1(3) that, as the directive does not contain any of Directive 89/665 requires the review explicit rules on this aspect, it can also be procedures to be available to any person argued that the question should be who has or has had an interest in the award answered solely by reference to national of the contract and who has been or risks law. being harmed by an alleged infringement. As regards the scope of the procedures for reviewing decisions of contracting auth- orities, the Commission refers to the Opinion of Advocate General Tizzano in Case C-92/00. 11The considerations set out in that Opinion apply, according to the Commission, not only to procedures directed against a decision of the contract- ing authority but also to actions for dam- ages under Article 2(1)(c), especially as the directive does not provide for the possibil- 45. The Court has recalled on several ity of restricting an action for damages. occasions that the aim of Directive 89/665 is to reinforce existing arrangements at both national and Community level for ensuring effective application of Commu- nity directives on the award of public contracts. For this reason, Article 1(1) of the directive requires the Member States to ensure that reviews can be conducted effec- tively and rapidly. The aim is thus to 44. The Austrian Government points out provide for the possibility of reviewing that an answer in the negative would mean decisions taken by the contracting auth- that, even if it were well founded, an appeal orities, without any restriction as regards against the decision of the contracting the nature and content of those decisions. 12 authority would have to be dismissed The scope of the directive thus precludes because the harm suffered by the interested any interpretation and application that party had been caused by other irregular- would result in the direct or indirect ities in the contract award procedure not restriction of the options open to tenderers cited by him. An applicant in a contract to seek a review. This, to my mind, is also award procedure would therefore be forced true of actions for damages. Article 1(3) of systematically to expose all irregularities in the directive provides that the review pro- the procedure in order to assert his right. cedures (including actions for damages) This view might be inconsistent with Direc- must be available to any person who has tive 89/665, which requires effective action or has had an interest in the award of a to be taken against any infringement certain public contract and who has been alleged by the applicant. The dismissal of or risks being harmed by an alleged

48. The referring court's aim in putting this question is to establish whether Directive 93/36 precludes a list of references relating to the products offered by the tenderers 46. The practice described by the referring from being regarded as an award criterion. court means that tenderers harmed by an infringement for which the contracting authority is responsible cannot claim dam- ages. A tenderer who believes that he has wrongly been denied a contract need not, after all, be aware that, at the stage when 49. It is clear from the order for reference the tenderers were being selected, an that the contracting authority awards unlawful criterion had already been points for such lists without considering applied, quite apart from the fact that he the relevant customers' experience of the himself satisfied this unlawful criterion and product. A further requirement is that the therefore suffered no disadvantage because lists concern customers in the geographical of it. If he had been excluded at that stage area comprising the part of the Alps within because of an unlawful criterion, he could the European Union, an aspect partly have acted at that stage. covered by the next question. The issue here is whether a list of this kind may play a part in the assessment of the award, rather than being a qualitative selection criterion.

47. It would be inconsistent with the pur- 50. In essence, both the Commission and pose of Community law in this field if an the Austrian Government observe that this examination carried out by the Bundesver- is in the nature of a selection criterion gabeamt ex proprio motu were to preclude rather than an award criterion and that it is reliance on an unlawful act committed inconsistent with the structure of Directive towards a tenderer as a ground for bringing 93/36 for a list of references relating to the

product offered by the tenderer not to be advantageous tender. 14 It is evident from assessed in the context of the tenderer's the order for reference that the list of suitability but to be taken into account in references is regarded as an award cri- the assessment of the award. terion. As both the Commission and the Austrian Government have said, a list of references to which a certain number of points is awarded without account being taken of the experience of earlier contract- ing authorities appearing on the list is undoubtedly suitable as a qualitative selec- tion criterion, but not as an award cri- terion. I share that view. The list of references here in question may say some- thing about the tenderer's experience and technical expertise, but a list of this kind is not suitable for determining the most advantageous offer. Such a list of references does not, after all, give any indication at all 51. Hitherto the Court has made a very of the services provided, the running costs clear distinction between selection criteria or other criteria capable of determining ('choice of tenderers') and award criteria which tender will ultimately prove to be ('choice of tenders'). 13 These are separate economically the most advantageous for arrangements forming part of a contract the contracting authority. award procedure, and they are subject to separate rules. The tenderer is chosen by reference to his financial and economic standing and technical capacity. The refer- ences or evidence that may be furnished to demonstrate tenderers' standing and capac- ity are specified in Articles 22, 23 and 24 of Directive 93/36, although the list is not exhaustive. Technical capacity may be demonstrated, according to Article 23 of the directive, by a list of the principal deliveries. For the award of the contract, selection can be based either on the lowest 52. The above comments lead to the con- price or on criteria identifying the econ- clusion that the possibility of submitting a omically most advantageous tender. list of this kind as an award criterion is Article 26(1 )(b) of Directive 93/36 gives a incompatible with Article 26 of Directive number of examples of criteria. Although 93/36. I would add, unnecessarily no this is not an exhaustive list and the doubt, that it is not apparent from the contracting authority is free to opt for order for reference what kind of references other criteria, that choice is restricted to the tenderers concerned were required to criteria identifying the economically most submit as evidence of their technical capac- ity. The fact that this requirement cannot

be an award criterion does not in itself already apparent that the contracting auth- mean that it was inappropriate as a selec- ority may apply only award criteria to tion criterion for the tenderer. determine the economically most advan- tageous tender and that the use of a list of references is not suitable for this purpose. This is undoubtedly also true where it is required that such references from cus- tomers be restricted to references from the geographical area comprising the part of the Alps within the European Union. Leav- D — Question 3 ing aside the question whether the list should be described as an award criterion or as a qualitative selection criterion, it is discriminatory in either case. As the Aus- trian Government has also pointed out, it is 53. This question follows naturally from equally possible to make comparisons with the previous one. Strictly speaking, it does experience in other mountainous areas not need to be answered since it has been where the climate and topology are similar. referred only in the event that Questions la A tenderer may not therefore gain the and l b are answered in the negative. From necessary points because many of his clients the assessment of the previous question it is are located in the Alpine area of Switzer- clear that the use of a list providing no land or, say, the French Pyrenees. It might information that is decisive for the assess- be objected that this still applies regardless ment of the economic advantages of the of whether tenderers are Austrian nationals tender cannot serve as an award criterion. or nationals of one of the EU or EEA In the following I shall therefore focus on countries or a country with which an the question whether taking account only international agreement has been con- of references from the geographical area cluded. In practice, however, a requirement comprising the part of the Alps within the that the list of customers relate only to the European Union is compatible with Com- geographical area comprising the part of munity law. the Alps within the European Union, and thus de facto to the Alps situated in Austria and the relatively small parts of the Alps located in Italy and France, results in undertakings established in Austria being de facto in a privileged position. 54. According to the Commission, it may be discriminatory to take into account only references from the geographical area com- prising the part of the Alps within the European Union. The Austrian Govern- ment is also inclined to this view.

being limited on the basis of geographical vided. As a rule, it consists of certificates, standards and that a criterion of this kind is photographs and samples. Only in excep- therefore by its nature discriminatory with tional cases does the BVergG permit the respect to potential applicants unable to product itself to be inspected, for example satisfy this geographical criterion. where it is of a complex nature (Paragraph 60(2) BvergG). It also follows from this provision that the inspection requirement may not be so worded that the reference object must be located near the contracting authority. Such a requirement would be inconsistent with the purpose of European procurement law because it would restrict E — Question 4 the opportunities for manufacturers and suppliers from other Member States to participate in tender procedures. Con- sequently, Paragraph 60(2) BveregG pro- vides that an on-the-spot inspection may be 57. This question concerns the award cri- carried out either by the contracting auth- terion according to which a favourable ority itself or by an authorised body acting assessment is possible only if the subject of on its behalf in the tenderer's country of the invitation to tender can be inspected origin. According to the BVergG, where the within a 300 kilometre radius of the complexity of the product to be supplied authority issuing the invitation to tender. necessitates a personal inspection, a con- The Commission has commented in this tracting authority must accept all products regard that, according to Article 23(1)(d) of in Europe as a reference to assess technical Directive 93/36, the contracting authority capacity. GAT also explains that there is no may require samples, descriptions and/or analogous provision for the assessment of photographs of the products to be supplied the economically most advantageous as proof of their suitability. The require- tender. None the less, the view prevailing ment that there be an opportunity for an in Austria was that, to enable the economi- inspection within a 300 kilometre radius is cally most advantageous tender to be therefore a selection criterion. Austria too assessed, the tender documents may pro- has argued that this is a selection criterion vide for an opportunity to inspect the and not an award criterion. A criterion of product or for similar evidence to be this kind is, moreover, discriminatory, produced if the specific features of the according to the Austrian Government, object concerned require. GAT argues that because it favours participants near the there is no reason to make a distinction contracting authority, meaning, as a rule, according to whether the opportunity for participants from the Member State con- an inspection forms part of a selection cerned or participants established very criterion or an award criterion. A contract- close to the border. ing authority's power to require an inspec- tion near to where it was established amounted to hidden discrimination, since it was a requirement which only Austrian undertakings could as a rule satisfy. It would be different only if the products 58. GAT has observed in this connection concerned were mass-produced or small in that Paragraph 60 BVergG indicates how size, as the forwarding of a sample would evidence of technical capacity can be pro-

61. The premiss is that there has been an 59. As discussed in the answers to the infringement and that this infringement previous questions, the only award criteria consists in the adoption of an unlawful that may be considered are those which award criterion. The question then is might help to determine 'the economically whether the tenderer is entitled to damages most favourable tender'. I fail to see how only if it can actually be proved that, but the criterion Opportunity for an inspection for this unlawful award criterion, he would within a 300 kilometre radius' might con- have been the best tenderer. tribute to this. It is thus a selection rather than an award criterion. Even then, how- ever, it is inadmissible because a 300 kilometre radius imposes a real restriction. It is, after all, to the advantage of tenderers whose customers and/or establishment are located near the contracting authority and 62. To clarify this question, the requesting so usually have the same nationality as the court has stated that Community law does contracting authority. It is therefore dis- not expressly state under what conditions it criminatory in terms of the country of must be held that a tenderer has actually origin of the goods and/or services con- been harmed by an infringement of the law cerned and the nationality of the supplier. committed by the contracting authority. It This aside, I do not see any need to restrict points out that it will often be difficult in the possibility of an on-the-spot inspection practice to prove what the tenderer's tender of the object to a 300 kilometre radius of would have been but for the unlawful the authority issuing the invitation to criterion. On the other hand, it is in tender. As GAT has also indicated, other practice easier to carry out an investigation options are possible if an on-the-spot into infringements during contract award inspection is required. procedures if it is assumed that tenderers

66. On that hypothesis, which amounts to ruling out any compensation for the costs 64. There being no such provision in the incurred in vain by a tenderer through directive, this aspect is governed, according participating in an irregular contract award to the Court's settled case-law, 17 by procedure, potential applicants may be national law, with due regard for the deterred from participating in such pro- cedures. I consider this to be inconsistent with the aim of the procurement directives 15 — Council Directive 92/13/EEC of 25 February 1992 coor- and with the purpose of Directive 891665, dinating the laws, regulations and administrative provi- sions relating to the application of Community rules on the the very objective of which is to increase procurement procedures of entities operating in the water, energy, transport and telecommunications sectors (011992 the opportunities for reviewing infringe- L 76, p. 14). ments of these procurement directives. I 16 — See Article 2(7) of Directive 92/13. 17 — See the recent judgment in Case C-62/00 Marks & Spencer conclude from this that Article 2(1)(c) of [2002] ECR I-6325 and the case-law referred to therein. the directive cannot be interpreted so

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narrowly as to give a tenderer the right to governed by national law, the application damages only if he can prove that, but for of that law must not result in the exercise of the unlawful award criterion, he would the rights granted by the system of Com- have won the contract. Although the scale munity law becoming de facto impossible of the entitlement to damages is in principle or at least seriously restricted.

(3) A reference criterion whereby only the number of references is counted and no substantive examination is made of contracting authorities' experiences of the product is not an award criterion within the meaning of Article 26 of Directive 93/36. The consideration only of references from the geographical area comprising the part of the Alps within the European Union constitutes, moreover, discrimination prohibited by the Treaty on the ground of the origin of the goods or services concerned.

(4) A criterion under which applicants are considered only if the subject of the invitation to tender can be inspected within a 300 kilometre radius of the authority issuing the invitation to tender is not an award criterion. The criterion is, moreover, inadmissible because it is discriminatory.

(5) It does not follow from Article 2(1)(c) of Directive 89/665 that an entitlement to damages exists only if the tenderer can actually prove that, but for the unlawful award criterion, he would have been the best tenderer.

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