Keywords
Summary

Keywords

1. Approximation of laws — Procedures for the award of public works contracts — Directive 93/37 — Award of contracts — Groups of tenderers — National rules prohibiting a change in the composition of the group after submission of tenders — Whether permissible — (Council Directive 93/37)

2. Approximation of laws — Review procedures relating to the award of public supply and public works contracts — Directive 89/665 — Member States under an obligation to provide for review procedures — Groups of tenderers — Availability of review procedures — (Council Directive 89/665)

Summary

1. Directive 93/37 concerning the coordination of procedures for the award of public works contracts does not preclude national rules which prohibit a change in the composition of a consortium taking part in a procedure for the award of a public works contract or a public works concession which occurs after submission of tenders.

Rules about the composition of such consortia are a matter for the Member States, since Article 21 of the directive, the only provision dealing with groups of contractors, is confined, first, to stating that tenders may be submitted by such groups and, second, to preventing them from being required to assume a specific legal form before the contract has been awarded to the group selected, and contains no provision about the composition of such groups.

see paras 60-61, 63, operative part 1

2. Article 1(1) of Directive 89/665 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 Directive 92/50 relating to the coordination of procedures for the award of public service contracts, requires Member States to take the measures necessary to ensure that, as regards contract award procedures falling within the scope of the relevant Community directives, decisions taken by the contracting authorities may be reviewed effectively and as rapidly as possible on the grounds that such decisions have infringed Community law in the field of public procurement or national rules implementing that law.

Member States are also required, under Article 1(3), to ensure that the review procedures are available at least to any person having or having had an interest in obtaining a particular public supply or public works contract and who has been or risks being harmed by an alleged infringement.

In that regard, a consortium must be able to avail itself of the review procedures provided for by Directive 89/665, in so far as a decision of a contracting authority adversely affects the rights conferred on the consortium by Community law in the context of a procedure for the award of a public contract.

see paras 64-65, 73, operative part 2