C-230/02

OPINION OF MR GEELHOED — CASE C-230/02

OPINION OF ADVOCATE GENERAL GEELHOED delivered on 16 October 2003 1

I — Introduction II — Legal background

A — Community law 1. In this case the Austrian Bundesver- gabeamt (Federal Public Procurement Office) has submitted for a preliminary ruling certain questions concerning the 3. Article 1(1) and (3) of Directive 89/665 interpretation of Council Directive provides: 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, 2as amended by Council Direc- tive 92/50/EEC of 18 June 1992 relating to '1. The Member States shall take the meas- the coordination of procedures for the ures necessary to ensure that, as regards award of public service contracts 3('Direc- contract award procedures falling within tive 89/665'). the scope of Directives 71/305/EEC, 77/62/EE, and 92/50/EEC, decisions taken by the contracting authorities may be reviewed effectively and, in particular, as rapidly as possible in accordance with the conditions set out in the following Articles and, in particular, Article 2(7) on the grounds that such decisions have infringed Community law in the field of public procurement or national rules implement- 2. These questions have arisen in a dispute ing that law. between Grossmann Air Service and the Republic of Austria.

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

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(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 7. Under Paragraph 113 of the BVergG, the tender, the contract documents or in Bundesvergabeamt is responsible on appli- any other document relating to the cation for carrying out a review procedure contract award procedure;'. (subparagraph 1). To preclude infringe-

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ments of this Federal Law and of the air in jet and propellor aircraft. Grossmann regulations implementing it, the Bundesver- Air Service subsequently submitted a bid. gabeamt is authorised until the time of the award to adopt interim measures and to set aside unlawful decisions of the contracting authority (subparagraph 2). After the award of the contract or the close of the contract award procedure, the Bundesver- g a b e a m t is c o m p e t e n t to d e t e r m i n e 10. However, on 3 April 1998 the contract whether, on grounds of infringement of award procedure was discontinued. On this law or of any regulations issued under 28 July 1998 bids were once again invited it, the contract has not been awarded to the for these transport services. Although best tenderer (subparagraph 3). Grossmann Air Service requested the rel- evant tender documents, it did not submit a further bid.

8. Paragraph 115(1) of the BVergG pro- vides that where a trader claims to have an 11. By letter of 8 October 1998 the Aus- interest in the conclusion of a contract trian Government informed Grossmann Air within the scope of this law, it may apply Service of its intention to award the for the contracting authority's decision in c o n t r a c t to Lauda Air Luftfahrt AG the c o n t r a c t a w a r d p r o c e d u r e to be ('Lauda Air'). This letter was received by reviewed on the ground of unlawfulness, Grossmann Air Service on 9 October 1998. provided that it has been or risks being The contract with Lauda was entered into harmed by the alleged infringement. on 29 October 1998.

Questions submitted for a preliminary 14. The Bundesvergabeamt took the view ruling that Grossmann Air Service had failed to demonstrate adequately its interest in respect of the totality of the contract. It did not have available to it the requisite larger types of aircraft and was therefore '(1) Is Article 1(3) of Council Directive unable to provide all the services requested. 89/665/EEC of 21 December 1989 on Moreover, it had not submitted a bid in the the coordination of the laws, regu- second invitation to tender. Furthermore, lations and administrative provisions once the contract had been awarded the relating to the application of review Bundesvergabeamt was no longer compet- procedures to the award of public ent to annul it. supply and public works contracts to be interpreted as meaning that the review procedure must be available to any undertaking which has submitted a bid, or applied to participate, in a public procurement procedure?

national law to prevent the contract requesting the B-VKK to take action and from being awarded to another bidder? thus to make the four-week period laid down in Paragraph 109(8) of the BVergG start to run or, in the event that such action were unsuccessful, to request that the Bundesvergabeamt adopt interim measures and set aside the decision concerning the award. Therefore, the national court con- (3) Is Article 1(3) of Council Directive siders that it is important to establish 89/665/EEC of 21 December 1989 on w h e t h e r the application requirements the coordination of the laws, regu- under Paragraph 115(1) of the BVergG, in lations and administrative provisions conjunction with Paragraph 109(1)(1), relating to the application of review 109(6) and 109(8) thereof, are, when inter- procedures to the award of public preted in the light of Article 1(3) of supply and public works contracts, in Directive 89/665, to be understood as c o n j u n c t i o n w i t h Article 2(1)(b) meaning that any bidder who wishes to be thereof, to be interpreted as meaning a w a r d e d a particular pending public that an undertaking must be afforded contract has an interest in the conclusion the opportunity in law to seek review of a contract falling within the scope of the of an award procedure regarded by it BVergG simply by virtue of that fact or that as unlawful or discriminatory even the fact that not all remedies available in where it is not capable of performing national law have been exhausted means the totality of the services for which that this interest has been lost. bids were invited and, for that reason, did not submit a bid in that award procedure.'

2 1 . In view of the recent case-law of the Court the first two questions need not be dealt with in any great detail. These ques- tions essentially seek to ascertain whether a 19. Against that background, the question trader having or having had an interest in arises as to whether review procedures obtaining a contract for the purposes of within the meaning of Article 1(3) of Article 1(3) of Directive 89/665 may there- Directive 89/665 are also available to a fore avail himself of the review procedures trader where it applies to the review body provided for in that directive to have a because of specifications which it considers decision concerning an award declared to be discriminatory within the meaning of unlawful, even though not all the remedies Article 2(1)(b) of Directive 89/665 and available under national law have been claims that it has been or risks being exhausted, in order to prevent the contract harmed as a result, even though it is unable being awarded to a third party. to provide the service in the form set out in the invitation to tender and therefore did not submit a bid in that contract award procedure.

22. These question were raised recently inter alia in Hackermüller 4 and more particularly in Fritsch and Others. 5

Procedure before the Court 23. Both cases raised the question whether any trader who wishes to be considered for the award of a public contract may institute

20. The order for reference was lodged at 4 — Case C-249/01 Hackermüller and BIG v WED [2003] ECR I-6319. the Registry of the Court on 20 June 2002. 5 — Case C-410/01 Fritsch and Others v Asfinag [2003] ECR Written observations were submitted by I-6413.

25. In the abovementioned cases the can- didates participated in the contract award procedure. It is evident from the order for reference that this is not so in the present case. However, I concur with the Commis- sion's view that participation in the award procedure is in principle a precondition for demonstrating an interest in obtaining a 2 4 . The second question is answered contract and possible harm caused by the explicitly in Fritsch. This case also raised allegedly unlawful award. It is difficult for the question whether the national legis- a person who has not participated in the lature can make a tenderer's interest in award procedure to maintain that he has an obtaining a specific contract, and therefore interest in challenging an allegedly unlaw- its right to institute the review procedures ful decision concerning an award. established by that directive, subject to the condition that it has beforehand applied to a conciliation commission such as the B-VKK. The Court's answer to this ques- tion was in the negative. It held that such a condition is contrary to the directive's objective of speed and effectiveness. How- ever, it acknowledged that Article 1(3) of Directive 89/665 expressly allows Member States to determine the detailed rules according to which they must make the review procedures available to any person 26. The third question, however, relates to having or having had an interest in obtain- a somewhat different situation. In that case ing a particular public contract and who it does not make sense for potential candi- has been or risks being harmed by an dates to tender for a contract because the alleged infringement, but that did not mean specifications for the services to be pro- that they may give the term 'interest in vided are laid down in such a way that they obtaining a public contract' an interpre- are unable to satisfy them from the outset. tation which may limit the effectiveness of The question is then whether, in such a that directive. That is the case where a situation, the opportunity must be left open

28. However, such a remedy would have little practical value if it were not open to undertakings which had been excluded from participating in the contract award procedure from the outset by the relevant discriminatory specifications. Furthermore, 30. Finally, I further note that the interest in such a situation it may be excessive to of legal certainty requires that this oppor- ask that the effort to bid be made and the tunity to apply for review be used at the associated costs be incurred merely in order earliest possible stage. The lodgement of an to retain the right to apply for review of application for review after the contract has been awarded should be regarded as belated. However, this is a matter for the 6 — Case C-92/00 HI v Stadt Wien [2002] ECR I-5553. national court.

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V — Conclusion

31. In the light of the foregoing, I would recommend that the Court answer the questions submitted as follows:

— Article 1(3) 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, 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, is to be interpreted as meaning that the review procedure referred to in the directive is open to any person who has submitted a bid or participated in the contract award procedure.