Keywords
Summary

Keywords

1. Approximation of laws — Review procedures in respect of the award of public supply and public works contracts — Directive 89/665 — Contracting authorities — Body governed by public law — Definition — National legislation excluding commercial companies under public control — Not permissible — (Council Directives 89/665, Art. (1)(1)(b), 92/50, Art. 1(b), second subpara., 93/36, Art. 1(b), second subpara., and 93/37, Art. 1(b), second subpara.)

2. Approximation of laws — Review procedures in respect of the award of public supply and public works contracts — Directive 89/665 — Reviewable decisions — National legislation which, with certain exceptions, excludes procedural acts — Whether permissible — Criteria — (Council Directive 89/665, Art. 1)

3. Approximation of laws — Review procedures in respect of the award of public supply and public works contracts — Directive 89/665 — Interim measures — Requirement that proceedings on the merits be brought beforehand — Not permissible — (Council Directive 89/665, Art. 2(1)(a))

Summary

1. National legislation that automatically excludes commercial companies under public control from the scoperatione personae 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 is not a correct transposition of the term "contracting authority" appearing in Article 1(1)(b) of that directive, as defined in Article 1(b) of Directives 92/50 relating to the coordination of procedures for the award of public service contracts, 93/36 coordinating procedures for the award of public supply contracts and 93/37 concerning the coordination of procedures for the award of public works contracts.

Since the scope ratione personae of Directive 89/665 is bound to coincide with that of those directives, it is necessary to refer to the definition of that term and, more particularly, to that of "body governed by public law" used in the second subparagraph of Article 1(b) of those directives.

An entity's private law status does not constitute a criterion for precluding it from being classified as a contracting authority within the meaning of that article, since the application of those directives to an entity which fulfils the three cumulative conditions set out therein, according to which it must be a body established for the specific purpose of meeting needs in the general interest, not having an industrial or commercial character, which has legal personality and is closely dependent on the State, regional or local authorities or other bodies governed by public law, cannot be excluded solely on the basis of the fact that, under the national law to which it is subject, its legal form and rules which govern it fall within the scope of private law.

see paras 50-52, 55-57, 60

2. National rules providing that procedural acts are not open to administrative appeal or administrative appeal proceedings unless they decide, directly or indirectly, the substance of the case, make it impossible to continue the procedure or to put up a defence, or cause irreparable harm to legitimate rights or interests, provide adequate judicial protection within the meaning 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. That directive seeks to ensure that adequate procedures exist in all the Member States to permit the setting aside of decisions taken by contracting authorities in infringement of Community law on the award of public contracts or of national rules transposing that law, and also the compensating of persons names by such an infringement, and the review procedures to which it refers must be conducted effectively and as rapidly as possible and must be available to any person having or having had an interest in obtaining a particular public contract and who has been or risks being harmed by an alleged infringement.

see paras 77-80

3. Under Article 2(1)(a) 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, the Member States are under a duty to empower their review bodies to take, independently of any prior action, any interim measures, including measures to suspend or to ensure the suspension of the procedure for the award of the public contract in question.

In that regard, national legislation which, as a general rule, requires proceedings on the merits to be brought beforehand as a condition for the adoption of an interim measure against a decision of a contracting authority, cannot be regarded as a system of interim judicial protection which is adequate to remedy effectively any infringements that might have been committed by the contracting authorities and therefore as consistent with the requirements of Directive 89/665.

see paras 98-100, 102, operative part 1