Conclusions
OPINION OF ADVOCATE GENERAL
ALBER
delivered on 8 November 2001 (1)
Case C-470/99
Universale-Bau AG and Bietergemeinschaft
1. Hinterreger & Söhne Bauges.m.b.H
2. ÖSTU-STETTIN Hoch- und Tiefbau GmbH
v
Entsorgungsbetriebe Simmering GmbH
(Reference for a preliminary ruling from the Vergabekontrollsenat, Vienna)
((Public works contracts – Concept of contracting authority – Body governed by public law))
I ─ Introduction
1. In the course of a review of a restricted procedure for the award of a works contract, the Vergabekontrollsenat (Public-procurement
review body), Vienna, referred four questions concerning the interpretation of Council Directive 93/37/EEC of 14 June 1993
concerning the coordination of procedures for the award of public works contracts (hereinafter
Directive 93/37).
(2)
They concern the definitions of a contracting authority, in light particularly of a subsequent extension of the tasks of
the body concerned, the concept of a public-works contract, the provision of limitation periods for bringing an action and
whether the evaluation criteria must be stated in the invitation to tender.
II ─ Applicable law
1. Directive 93/37/EEC
2. Article 1 of Directive 93/37 defines
public works contract and
contracting authority as follows:
Article 1
For the purpose of this Directive:
(a) public works contracts are contracts for pecuniary interest concluded in writing between a contractor and a contracting authority as defined in
(b), which have as their object either the execution, or both the execution and design, of works related to one of the activities
referred to in Annex II or a work defined in (c) below, or the execution, by whatever means, of a work corresponding to the
requirements specified by the contracting authority;
(b) contracting authorities shall be the State, regional or local authorities, bodies governed by public law, associations formed by one or several of
such authorities or bodies governed by public law;
A
body governed by public law means any body:
─
established for the specific purpose of meeting needs in the general interest, not having an industrial or commercial character,
and
─
having legal personality, and
─
financed, for the most part, by the State, or regional or local authorities, or other bodies governed by public law, or subject
to management supervision by those bodies, or having an administrative, managerial or supervisory board, more than half of
whose members are appointed by the State, regional or local authorities or by other bodies governed by public law.
2. Directive 89/665/EEC
3. 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 (hereinafter
Directive 89/665)
(3)
provides:Article 1(1):The Member States shall take the measures necessary to ensure that, as regards contract award procedures falling within the
scope of Directives 71/305/EEC and 77/62/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 implementing that law.Article 2(7) and (8):
7. The Member States shall ensure that decisions taken by bodies responsible for review procedures can be effectively enforced.
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 measure
taken by the review body or any 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 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 judiciary
as regards the authority responsible 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. The independent
body shall take its decisions following a procedure in which both sides are heard, and these decisions shall, by means determined
by each Member State, be legally binding.
3. Wiener Landesvergabegesetz
4. The Wiener Landesvergabegesetz (Public-procurement law in the Land of Vienna, hereinafter
WLVergG),
(4)
in the applicable version for the purposes of the present review procedure, contains the following provisions which are of
particular significance in the consideration of the issue of the admissibility of the reference for a preliminary ruling,
regard being had to the question whether the referring Vergabekontrollsenat is a court or tribunal within the meaning of Article 234
EC.
5. Under Paragraph 94(2), the Vergabekontrollsenat is responsible at first and last instance for deciding applications for review.
Its decisions are not liable to be set aside or varied through administrative channels. Under subparagraph 3, the Allgemeines
Verwaltungsverfahrensgesetz (General Law on Administrative Procedure) and the Verwaltungsvollstreckungsgesetz (Law on Administrative
Enforcement) apply to the review procedure, unless otherwise provided for in the WLVergG.
6. Paragraph 95 of the WLVergG states:
(1) The Vergabekontrollsenat shall consist of seven members. The members shall be appointed by the
Land Government for a term of six years. Members shall be eligible for reappointment. Three members, who may also be experienced
officials of the Magistrat (municipal office) of the city of Vienna, shall be appointed after hearing the Gemeinderat (city
council), one each after a hearing before the Chamber of Commerce of Vienna, the Chamber of Workers and Employees for Vienna,
and the Chamber of Architects and Consulting Engineers for Vienna, Lower Austria and Burgenland. The President shall be a
member of the judiciary and shall be appointed after a hearing before the President of the Oberlandesgericht (Higher Regional
Court), Vienna. For each member a first, second and third substitute shall be appointed in the same manner. Substitutes, in
the order of their appointment, shall represent members in the event of their temporary indisposition or, on expiry of their
term of office pending the appointment of a new member. In the event of the departure of a member or a substitute, fresh appointments
shall be made without delay.
(2) Members and substitutes must possess special knowledge of public procurement, and in the case of members and substitutes appointed
after a hearing before the Gemeinderat that knowledge must be specifically in the economic and technical fields.
(3) A person shall cease to be a member of the Vergabekontrollsenat:
1. on his death;
2. on resignation;
3. if he ceases to be eligible for election to the Nationalrat (national council) (Nationalrats-Wahlordnung (Elections to the
National Council Order) 1992, Paragraph 41, BGBl. No 471, as amended by Federal Law BGBl. No 117/1996);
4. on expiry of his term of office;
5. in the case of the President and substitutes, on ceasing to be a member of the judiciary;
6. if he is removed by the Vergabekontrollsenat.
(3a) A member shall be removed from office by a decision of the Vergabekontrollsenat if he is permanently prevented from properly
performing his duties owing to physical or mental injury or is guilty of gross dereliction of duty. The decision shall be
made after hearing the member concerned. The member concerned shall not be entitled to vote.
(4) Members of the Vergabekontrollsenat shall be independent in the exercise of their office and shall not be bound by instructions.
(5) The members of the Vergabekontrollsenat shall be bound to secrecy under Article 20(3) of the B-VG (Bundesverfassungsgesetz,
Federal Constitutional Law).
(6) Meetings of the Vergabekontrollsenat shall be called by the President. Where a member has an interest or is temporarily unable
to carry out his duties, his substitute shall be called upon to sit. Members of the Vergabekontrollsenat shall not participate
in any decision relating to any procurement procedure concerning the award of a contract in the field of activity of the institution
(or, in the case of public servants in the municipal office of the city of Vienna, the department, division or office) to
which they belong. If serious grounds exist for doubting a member's impartiality, he must decline to sit and arrange to be
represented. Parties may reject members of the Vergabekontrollsenat on showing cause relating to impartiality. The Vergabekontrollsenat
shall decide any question relating to the alleged impartiality of a member or any applications for rejection, and the member
concerned shall not be entitled to vote thereon. The President shall cause the names of the members of the Vergabekontrollsenat
and the institution (or in the case of public servants in the city of Vienna, the department, division or office) to which
they belong to be published in the Amtsblatt der Stadt Wien (Official Journal of the City of Vienna) at the start of each
calendar year.
(7) Applications shall be decided in the order determined by the President. Orders shall be made in the presence of at least five
members by simple majority. Abstentions are not permissible. Sittings shall not be public. A minute shall be made of the proceedings
of the sitting. Notices shall be issued in writing. They shall include the names of the members of the Vergabekontrollsenat
who took part in the decision. The notice shall be signed by the President. Orders relating to the conduct of the procedure
may also be made by any member in accordance with the Rules of Procedure.
(8) The members of the Vergabekontrollsenat shall not be remunerated for their services. They shall be sworn into office by the
chief executive of the
Land .
(9) Members of the Vergabekontrollsenat shall be reimbursed for any necessary travelling expenses and compensated for their time,
for which a rate shall be fixed by the
Land Government.
(10) The Vergabekontrollsenat shall adopt its own Rules of Procedure.
(11) The Amt der Wiener Landesregierung (Office of the Government of the
Land of Vienna) shall, on a proposal from the Vergabekontrollsenat, place at its disposal the management staff required and, after
hearing the President of the Vergabekontrollsenat, the necessary premises. Officials who carry out management tasks shall,
in the course of their duties for the Vergabekontrollsenat, be bound only by instructions from the President and the rapporteur
for the time being. They may be removed from those duties only after the President has been heard.
Pre-litigation procedure
Paragraph 96.
(1) If a contractor considers that a decision taken by a contracting authority before the award of a contract infringes this Law
and he has been or risks being harmed thereby, he shall formally communicate in writing to the contracting authority a statement
of reasons and his intention to institute review proceedings.
(2) On receipt of the communication under subparagraph 1, the contracting authority shall either rectify the alleged infringement
without delay and inform the contractor thereof or communicate in writing to the complainant why the alleged infringement
does not exist.
Application for review
Paragraph 97.
(1) An application for review prior to the award of a contract shall be admissible only if the contractor has formally notified
the contracting authority of the alleged infringement and of his intention to apply for review (Paragraph 96(1)) and the contracting
authority has not informed him within two weeks that the infringement has been rectified.
(2) Review may be applied for by:
1. a contractor who claims a business interest in the conclusion of a supply, works, works concession or service contract or
a contract in the water, energy, transport or telecommunications sectors, in respect of a ground of nullity under Paragraph 101;
2. a tenderer who claims that the contract was not awarded to him in spite of the inapplicability of the grounds of elimination
within the meaning of Paragraph 47 and contrary to Paragraph 48(2).
(3) The application under subparagraph 2 shall contain:
1. the precise designation of the award procedure concerned and of the decision challenged;
2. the precise designation of the contracting authority;
3. a precise statement of the facts;
4. particulars of how the applicant risks being or already has been harmed;
5. the grounds on which the allegation of infringement is based;
6. a specific request for a declaration of nullity or amendment;
7. in cases under subparagraph 1, evidence that the contracting authority was notified in a pre-litigation procedure in accordance
with Paragraph 96 of the alleged infringement and of the intention to apply for review, and reference to the contracting authority's
failure to rectify the infringement within the specified time-limit.
(4) The review procedure does not have a suspensory effect on the contract award procedure to which it relates.
(5) The maximum penalty for abuse (Paragraph 35 of the AVG) which may be imposed in the review procedure shall be 1% of the estimated
value of the contract, not exceeding ATS 800 000.
Time-limits
Paragraph 98.Applications for review on the ground of the following alleged infringements shall be lodged with the Vergabekontrollsenat
within the following time-limits:
1. as regards applications which are refused, two weeks, and where Paragraph 52 applies, three days after notification of the
refusal;
(5)
2. as regards provisions in the notification by which contractors are invited to apply to take part in a restricted or negotiated
procedure or as regards provisions of the invitation to tender, two weeks, and where Paragraph 52 applies, one week before
expiry of the date for submitting applications or tenders;
3. as regards the award of a contract, two weeks after the publication of the award in the
Official Journal of the European Communities or, where the award is not published, six months after the award of the contract.
III ─ Facts
1. Main proceedings
7. In the Official Gazette of the City of Vienna, Entsorgungsbetriebe Simmering GesmbH (hereinafter
EBS) advertised its intention to award a works contract for the extension of the principal sewage plant in Vienna under a restricted
procedure.
(6)
The intention was to invite the five best-ranked candidates to submit tenders and to award the contract to the most economically
advantageous tender in accordance with the criteria set out in the invitation to tender. In the Explanatory Notes on Applications
to Take Part,
(7)
the following appeared under the heading,
Criteria for ranking applications to take part: For the ranking of the applications to take part, the technical operating capacity over the last five years of the candidate,
of each member of the consortium of contractors and of the sub-contractors indicated will be taken into account.The five highest ranked candidates shall be invited to submit a tender.The evaluation of the applications submitted shall be made according to a scoring procedure.
(8)
The following works shall be analysed in the following order:
1. Sewage treatment plants
2. Pre-stressed components
3. Large-scale foundations supported by columns in gravel
4. Oscillating pressure compaction
5. High pressure soil consolidationThe candidate shall identify reference projects completed within the last five years comparable to the tasks to be undertaken.Only such references as have been carried out by a candidate or a sub-contractor itself, as a leader of a consortium or as
the person within a consortium who is responsible for and who carries out the technical aspects shall be evaluated (pro formas
are included in the application to take part, point 3).
8. EBS lodged the details of the scoring procedure with a notary on 9 April 1999, that is to say before the first application
to take part was submitted. The applicants in the main proceedings, Universale Bau GmbH (hereinafter
Universale) and the Hinterreger and ÖSTU-STETTIN consortium (hereinafter
the consortium), were informed in the explanatory notes on applications to take part that they had been lodged with a notary. However, they
were not informed of the result of the scoring procedure, or of the evaluation criteria, before the expiry of the time-limit
for applications.
9. The applicants in the main proceedings gave notice of their interest in taking part in the restricted procedure. After EBS
notified them that they were not among the five best-ranked undertakings and would therefore not be invited to tender, they
challenged the procurement procedure before the referring Vergabekontrollsenat.
2. Legal nature and objects of EBS
10. EBS was established in 1976 by Wiener Allgemeine Beteiligungs- und Verwaltungsgesellschaft mbH and BIA Betriebsgesellschaft
für Industrieabfall- und Altölbeseitigung GmbH. Each of the two shareholders subscribed for half the share capital. According
to the findings of the referring Vergabekontrollsenat, Allgemeine Beteiligungs- und Verwaltungsgesellschaft mbH
was accountable to the City of Vienna. At the time of the invitation to tender, the shareholdings in EBS were as follows:
Wiener Holding AG ATS 11 075 000
City of Vienna ATS 160 425 000
Wiener Stadtwerke ATS 178 500 000
11. According to the findings of the Vergabekontrollsenat, the objects of EBS were initially the design, construction and management
of a special waste disposal and waste incineration facility. All its operations were carried out on a commercial basis and
in competition with other waste disposal businesses, such as operators of private refuse dumps. EBS alone bore the risk of
profit or loss. The deed of incorporation does not warrant any finding that EBS was to meet general-interest needs of a non-industrial
or non-commercial nature.
12. According to clause 10(2) of the relevant EBS' deed of incorporation of 12 September 1996, the Kontrollamt (Review Office)
of the City of Vienna is entitled to check both the current account for numerical accuracy, regularity, economy, profitability
and expediency and the annual accounts and the situation report including performance, records and other documents, to inspect
the business premises and facilities and to report on the result of that inspection to the competent bodies, the shareholders
and the City of Vienna.
3. Contracts with the City of Vienna
13. In 1985 EBS entered into a lease with the City of Vienna under which it took over management of the City of Vienna's principal
sewage plant with effect from 1 January 1986. Under this agreement, the City of Vienna paid a
reasonable and uniform remuneration to cover the costs of management of the principal sewage plant and of existing waste disposal
plants, together with a reasonable return on capital. According to the findings of the Vergabekontrollsenat, which are confirmed by the parties to the main proceedings, EBS does
not perform the task of sewage treatment with a view to profit. Rather, it is a public-service activity entrusted to EBS and
carried out on a break-even basis. Thus, EBS' activity in this area is not managed on an industrial or commercial basis. The
deed of incorporation was not amended when this task was transferred.
14. By a lease dated 8 July 1996, which replaced the 1985 agreement, the management of the City of Vienna's principal sewage plant
was again entrusted to EBS. In addition, EBS undertook to extend the sewage works relating to the project and otherwise to
enlarge the Vienna principal sewage plant and EBS' plants in its own name and on its own account (point I.2 of the contract).
The City of Vienna was to continue to supply the personnel necessary for the management of the principal sewage plant (point
I.3). The City of Vienna undertook to pay a
reasonable and uniform remuneration to ensure coverage by the business of its costs. All the expenses arising out of the extension
and operation of the plants including the sewage works relating to the project, less any sums received by EBS, shall ... be
reimbursed ... (point IV.1).
15. No specific requirements were laid down as regards the structure of the plant. However, EBS is required in points II and III
of the contract to ensure that the principal sewage plant operates in a specified way, though the City of Vienna does not
have any influence over the actual organisation of the building work.
16. It is clear from the planning notice that EBS applied for planning permission. The owner of the land on which the work is
to be executed is the City of Vienna. In a document of 8 September 1999, which was included as annex 8 to the order for reference,
EBS stated:
We will retain ownership of the sewage plant extension ... The sewage plant will be transferred in the event of termination
of the lease and management contract which have been concluded for an indefinite period between the City of Vienna and ourselves.
In that case the City of Vienna shall be obliged to take over, inter alia, our sewage plant. It must pay us the current market
value of the sewage plant. According to the Vergabekontrollsenat, such a provision is compatible with Austrian law.
17. The Vergabekontrollsenat excludes any intention on the part of the City of Vienna to circumvent the rules concerning public
procurement by establishing EBS and transferring the management and extension of the sewage plant to EBS. EBS was established
as early as 1976, but it was not until 1986 that operation of the principal sewage plant was entrusted to it.
IV ─ Questions referred
18. The Vergabekontrollsenat has referred the following questions to the Court for a preliminary ruling:
1. Does a legal person constitute a
contracting authority within the meaning of Article 1(b) of Directive 93/37/EEC even if it was not established for the specific purpose of meeting
needs in the general interest, not having an industrial or commercial character, but now meets such needs?
2. If Entsorgungsbetriebe Simmering GesmbH is not a contracting authority, does the planned construction of the second biological
treatment phase of the principal sewage plant, Vienna, constitute the execution, by whatever means, of a work corresponding
to the requirements specified by the contracting authority, and thus a
public works contract within the meaning of Article 1(a), read in conjunction with Article 1(c), of Directive 93/37/EEC?
3. If Question 1 or Question 2 is answered in the affirmative, does Directive 89/665/EEC preclude a national provision which
fixes a time-limit for the review of an individual decision of the contracting authority so that on expiry of that time-limit
the decision can no longer be challenged in the course of the ongoing contract award procedure? Is it necessary for the persons
concerned to plead every defect, failure to do so entailing loss of their right to do so?
4. If Question 1 or Question 2 is answered in the affirmative, is it sufficient for the body inviting tenders to determine that
the applications will be evaluated according to a method lodged with a notary, or is it necessary for the evaluation criteria
already to have been communicated in the call for candidates
(9)
or the tender documents?
V ─ Submissions of the parties and opinion
1. Admissibility of the reference for a preliminary ruling
19. Admittedly, none of the parties to the proceedings expressed any doubt as to the admissibility of the reference for a preliminary
ruling. However, the Vergabekontrollsenat gave detailed reasons as to why it is entitled to make a reference and the Austrian
Government made submissions in that regard. Referring to a judgment of the Court concerning the Tiroler Vergabesenat (Procurement
Chamber for the Tyrol), both consider the reference for a preliminary ruling to be admissible. In that case, the Advocate
General was of the opinion that the reference for a preliminary ruling was inadmissible,
(10)
whereas the Court held the question referred to be admissible.
(11)
The Court has not yet decided whether the referring Wiener Vergabekontrollsenat is entitled to make a reference. The question
also arises in Case C-92/00. In his Opinion in that case, Advocate General Tizzano has by implication assumed that the Wiener
Vergabekontrollsenat is entitled to make a reference. However, he did not expressly state his view on that question. The judgment
in that case is still pending. It is therefore appropriate to express a view on this question in the present proceedings.
20. The Court has consistently held that whether a body making a reference is a court or tribunal within the meaning of Article 177
of the EC Treaty (now Article 234 EC) depends on whether it is established by law, whether it is permanent, whether its jurisdiction
is compulsory, whether its procedure is
inter partes , whether it applies rules of law and whether it is independent.
(12)
21. Under Paragraph 94(2) of the WLVergG, the Vergabekontrollsenat is the body responsible at first and last instance for reviewing
decisions by a contracting authority in a procurement procedure. Thus, its activity is established by law and its jurisdiction
is compulsory. It is also a permanent body. Decisions of contracting authorities are reviewed in accordance with the WLVergG
and, unless otherwise provided therein, under Paragraph 94(3) of the WLVergG, on the basis of the General Law on Administrative
Procedure and the Law on Administrative Enforcement. Paragraph 94(2) of the WLVergG guarantees the independence of the Vergabekontrollsenat
from the administration, by providing that its decisions are not liable to be varied or set aside through administrative channels.
Moreover, Paragraph 95(4) of the WLVergG guarantees that members must be able to exercise their office independently and free
from instructions. Subparagraph 6 makes provision in respect of partiality, a criterion on which the Court placed particular
emphasis in
Köllensperger and Atzwanger .
(13)
Under Paragraph 95(7), the Vergabekontrollsenat's notices are to be issued in writing. On the basis of these findings the
Vergabekontrollsenat may be presumed to satisfy the criteria in the case-law governing definition of a court or tribunal for
the purposes of Article 177 of the EC Treaty (now Article 234 EC). Accordingly, the reference for a preliminary ruling is
admissible.
2. The first question
22. By its first question, the Vergabekontrollsenat asks whether a body which, whilst not established for the specific purpose
of performing general-interest tasks, of a non-industrial and non-commercial nature, subsequently takes on and from then actually
performs such a task, is to be regarded as a body governed by public law within the meaning of Article 1(b) of Directive 93/37.
(a) Submissions of the parties
23. Universale, the consortium and the Austrian Government are of the view that EBS is a contracting authority for the purposes
of the Directive. That issue is determined by the tasks actually performed by the body at the time of the invitation to tender
and the award of the contract, rather than by the terms of its deed of incorporation. In support of its view, the consortium
relies on existing case-law, from which it appeared that this term was to be interpreted functionally. The consortium and
the Austrian Government do not relate the criterion
established for the specific purpose to the time of establishment, but submit that subsequent changes actually made should be taken into account. This could be
satisfied either by a change to the previous determination of objects or by making provision for the inclusion of an additional
object. Otherwise, Directive 93/37 might easily be circumvented by assigning needs in the general interest not to a body having
legal personality newly established to that end but to an existing body which previously served other purposes. The consortium
suggests that the criterion should be read as
intended by the owners to fulfil the specific purpose.
24. Conversely, EBS and the Commission are of the view that EBS is not a contracting authority for the purposes of the Directive.
In the first place, EBS points out that it was established in 1976 in order to perform the task of incinerating specific waste
on a commercial basis. It had to bear the associated economic risk. Only 10 years after it had been established was the general-interest
task of sewage disposal transferred to EBS, which it carried out on a break-even basis. However, it had not been established
for that purpose. Under the terms of Article 1 of the Directive and of existing case-law, the question whether it was a body
governed by public law for the purposes of Directive 93/37 depended on the date of its establishment. The fact that subsequently
it began to meet needs in the general interest did not change its status, since it also continued to meet commercial needs.
The wording of the Directive precluded the interpretation of the concept of a contracting authority suggested by the applicants
in the main proceedings. At most, it would be consistent with that wording to interpret it in such a way as to be regard that
body as a contracting authority only to the extent that it performed general-interest tasks, not tasks to meet commercial
needs. Thus, EBS suggests a distinction based on the task performed by the body in a given case. The Commission further points
out that the alteration of the company's objects was effected neither by an alteration of the objects of the company as stated
in the deed of incorporation nor by a statutory provision.
25. Like the consortium, the Netherlands Government points to the functional interpretation it considers to have been given to
the concept of a contracting authority in the case-law. On this approach, it reaches the conclusion that a body governed by
private law which performs general-interest tasks, though it was not established for that specific purpose, is to be regarded
as a contracting authority for the purposes of Directive 93/37. However, like the Commission, it requires this fact to be
capable of objective verification. It points out that the wording of Article 1(b), subparagraph 2 of Directive 93/37 does
not refer to the legal basis of the tasks performed by the body concerned. In the present case, it cannot be objectively ascertained
that EBS performs tasks in the general interest, of a non-industrial or non-commercial nature. Rather, there was an agreement
with the City of Vienna (contracting authority) to carry out a public contract or there was a grant of a concession. On this
analysis, it must in any event be examined whether the procurement procedure was the appropriate type of procedure.
(b) Opinion
26. The first question concerns the definition of a body governed by public law under Article 1(b) of Directive 93/37. All the
parties to the proceedings agree that EBS, as a GmbH (limited liability company), has legal personality and that the City
of Vienna, a regional or local authority, has majority control of it.
27. The only matter in dispute is whether EBS also satisfies the third criterion of the statutory definition, that is to say whether
EBS was established for the specific purpose of performing general-interest tasks, of a non-industrial and non-commercial
nature. The parties to the proceedings all agree that in managing the principal sewage plant EBS actually performs a general-interest
task. In view of the judgment in
BFI Holding , in which the collection and treatment of domestic refuse was regarded as a task performed in the general interest,
(14)
one is compelled to agree. Since the costs incurred by EBS in this connection are reimbursed by the City of Vienna and to
that extent EBS does not bear any cost risk, the task performed is non-commercial in nature,
(15)
and the referring Vergabekontrollsenat is also proceeding on that basis.
28. However, what is disputed is the extent to which EBS can be regarded as
established for the specific purpose of performing general-interest tasks of a non-industrial and non-commercial nature. According to the findings of the referring
Vergabekontrollsenat, EBS was established in 1976 to dispose of special waste on a commercial basis. In its original version,
the deed of incorporation did not contain any indication that EBS was intended to be established for the purpose of performing
general-interest tasks, of a non-industrial and non-commercial nature. Therefore, if reliance is placed solely on the deed
of incorporation in force when EBS was established, EBS does not satisfy the conditions laid down in regard to a body governed
by public law under Directive 93/37.
29. EBS only took on the management of the sewage plant in 1986. However, this extension of its business activity was not accompanied
by any alteration to the objects clause in the deed of incorporation of EBS. Even subsequently, in particular in 1996 when
EBS reached agreement with the City of Vienna for an extension to the sewage plant, concerning which the main proceedings
arose, the objects clause in the deed of incorporation was not altered. Thus, if reliance were to be placed solely on the
deed of incorporation as being determinative of the question raised here, EBS could not be regarded as a contracting authority
for the purposes of Directive 93/37.
30. However, in light of the fact that EBS has in actual fact performed general-interest tasks, of a non-industrial and non-commercial
nature, since 1986, the conclusion reached on the basis of an analysis of the deed of incorporation appears to be dubious.
The applicants in the main proceedings and the Austrian Government therefore rely on a
functional approach to the concept of a public body and suggest that the subsequent change in the scope of EBS' activities be taken
into account and that, irrespective of its deed of incorporation EBS be regarded as a body governed by public law.
31. The criterion of establishment for the specific purpose of performing general-interest tasks has hitherto been considered
by the Court in two cases in particular: Case C-44/96
Mannesmann , concerning the Austrian State printing office, and Case C-360/96
BFI Holding . In its judgment in Case C-44/96, the Court relied on the document founding the State printing office, the Bundesgesetz über
die Österreichische Staatsdruckerei (Federal Law on the Austrian State Printing Office). However, in addition to this analysis
of the legal foundations of the State printing office, the Court also took account of the actual circumstances, namely that
the State printing office subsequently assumed responsibility for other tasks of an industrial or commercial nature. In this
respect it held that provided that it continued to perform the tasks which it was specifically obliged to perform, a body
did not lose its status as one governed by public law by carrying out other activities.
(16)
In Case C-360/96, the Court, developing this case-law, held that the fact that meeting needs in the general interest constituted
only a relatively small proportion of the activities the entity pursued was also irrelevant, provided that it continued to
attend to such needs.
(17)
32. On the basis of an analysis of this case-law two points immediately arise. First, under this case-law the focus is not only
on the time of establishment, but also on the subsequent evolution of the entity. Second, not only legal but also factual
changes in the tasks performed must be taken into account. Consequently, it is immaterial that the original 1976 deed of incorporation
did not contain any provision under which EBS was established for the specific purpose of performing general-interest tasks.
The time of establishment is not decisive: subsequent developments must also be taken into account. Even the fact that EBS'
deed of incorporation was not subsequently amended does not preclude EBS from being classified, none the less, as a body governed
by public law. In classifying EBS, the subsequent, actual commencement of the management and extension of the sewage plant
must be taken into account.
33. Nor, on the basis of the judgments cited, does the fact that EBS continues to dispose of special waste on a commercial basis
in addition to managing the sewage plant preclude its being classified as a body governed by public law for the purposes of
Directive 93/37. EBS can at the same time perform tasks on a commercial basis and general-interest tasks of a non-industrial
and non-commercial nature. EBS need not even perform predominantly general-interest tasks. The proportion of non-commercial
activities to commercial activities is irrelevant to the classification of the body.
(18)
34. Furthermore, the Court has held that classification as a body governed by public law extends to all the activities carried
out by it.
(19)
That case-law should be upheld. There must be legal certainty concerning the classification of the body concerned. It would
be inconsistent with this requirement for the classification to depend on the task performed in each case. Therefore, the
submission made by EBS in the alternative, namely that it should be regarded as a contracting authority only in regard to
the management of the sewage plant, is to be rejected as incompatible with the case-law.
35. However, it must be pointed out that Case C-44/96, in contrast to the present case, concerned an undertaking which, it was
not disputed, had initially been established for the specific purpose of meeting needs in the general interest of a non-industrial
and non-commercial nature. Only subsequently did it start to carry out activities on a commercial basis. In the case of EBS
it was exactly the opposite. It was established for industrial and commercial purposes and only subsequently assumed tasks
in the general interest, of a non-industrial and non-commercial nature. For that reason, it must be examined whether an undertaking
can also subsequently acquire the status of a contracting authority.
36. First, the wording of Article 1(b) of Directive 93/37 militates against that possibility. It expressly requires that the body
concerned must have been established for the specific purpose of meeting needs in the general interest. Thus, the material
date is the date of establishment, or the matter must at least be determined by the deed of incorporation. However, it is
not disputed that EBS was not established for the specific purpose of managing the city sewage plant; nor was that object
in any way subsequently inserted into the company's statutes, at the time when EBS actually assumed this task.
37. In this regard, one cannot but concur with the view expressed by the Netherlands Government that on the wording of Article 1(b)
of Directive 93/37 the legal analysis is not confined to the body's deed of incorporation. The purpose for which a body has
been established can be deduced from other sources as well.
(20)
38. As the Netherlands Government and the Commission submit, all that is required is that it may be objectively ascertained that
the body exists for the specific purpose of meeting needs in the general interest of a non-industrial and non-commercial nature.
Therefore, it is not a requirement that the body was established for that specific purpose since subsequent developments have
to be taken into account.
39. General-interest tasks were transferred to EBS by the conclusion of the contract with the City of Vienna. A contract is an
objective fact which is just as clearly discernible to an objective bystander as a deed of incorporation or a statute. Therefore,
there does not appear to be any reason why this contract, or, to be exact, the two contracts concluded between EBS and the
City of Vienna in 1986 and 1996, should not be taken into account for the purpose of determining the objects of EBS. For,
as stated, the wording of Article 1(b) of Directive 93/37 does not confine the analysis to the body's deed of incorporation.
On that interpretation of the wording of Article 1(b) of Directive 93/37, EBS could be said to be a body governed by public
law within the meaning of that provision.
40. That the answer should not be determined solely by the deed of incorporation is also borne out by the following consideration.
The application of the provisions concerning public procurement cannot be made to depend on instruments governed by company
law, such as a deed of incorporation. Whether as a matter of company law it accurately reflects the company's purpose at the
time of establishment or whether, as the case may be, it has been adapted to circumstances which have in actual fact changed,
is purely a problem of company law. The interpretation of the public procurement provisions cannot depend on a matter of company
law such as that. Otherwise, the application of those provisions would be at the discretion of the shareholders. For that
reason, it is not only the deed of incorporation or the company statutes in force on incorporation which are to be taken into
account in classifying the body, but also all objectively ascertainable circumstances, which can include a contract such as
that concluded between EBS and the City of Vienna.
41. By way of interim conclusion it may be stated that the analysis of the wording of Article 1(b) of Directive 93/37 does not
provide an unambiguous answer to the question raised.
42. Nor, moreover, do the scheme of Article 1 of Directive 93/37 and of the Directive as a whole provide any further guidance
as regards the answer to the question raised in the present case.
43. The history of the provision suggests that EBS is to be regarded as a body governed by public law. The statutory definition
in Article 1(b) of Directive 93/37 was inserted on the initiative of the European Parliament. In its proposal, the Commission
had merely referred to
legal persons instead of bodies governed by public law.
(21)
In order to ensure that the scope of the Directive concerning works contracts was as comprehensive as possible, the Parliament
introduced the concept of
organ governed by public law,
(22)
which was subsequently changed to
body. The inclusion of the statutory definition was intended to replace the registers required to be established under Article 1(b)
of Directive 71/305/EEC determining the list of contracting authorities. Its purpose was to ensure that no gaps were left
in the application of the Directive.
(23)
The scope of the Directive was intended also to extend to works contracts performed by third parties and financed, wholly
or partly, directly or indirectly, by public funds.
(24)
44. As EBS itself concedes, the costs of extending the sewage plant are reimbursed to EBS directly by the City of Vienna under
point IV.2 of the contract of 8 July 1996. In light of the purpose pursued by the legislature in formulating the statutory
definition, that is to say to make all projects financed out of public funds subject to the laws on public procurement, it
is therefore appropriate to regard EBS as a body governed by public law within the meaning of Article 1 of Directive 93/37.
45. This result also accords with the purpose of Directive 93/37. According to its second recital, Directive 93/37 pursues the
objective of attaining freedom of establishment at the same time as freedom to provide services in the field of public works
contracts. The Directive is intended to counter the risk of preference being accorded to national tenderers or candidates
in the award of contracts, thus assisting in the creation of an internal market for works contracts. The decisive factor in
examining the criteria determining whether a body is governed by public law is whether there is a risk that the body will
allow its decisions on contract awards to be guided by considerations other than economic ones.
(25)
If so, attainment of freedom of establishment and freedom to provide services is jeopardised, which justifies the application
of the Directives on public procurement.
(26)
Ultimately, the question thus arises as to whether the body bears the economic risk of its activity.
(27)
If it does, attainment of freedom of establishment and free movement of services is not jeopardised, if it does not, that
is a reason for applying the directives on public procurement and thereby protecting the fundamental freedoms.
46. Under the 1996 agreement with the City of Vienna, EBS does not bear the financial risk of the management of the sewage plant
or of the agreed extension. Admittedly, EBS is to undertake the latter in its own name and on its own account (point I.2 of
the contract of 8 July 1996). However, under point IV.1 of the contract
all of the expenses arising out of the construction and management of the plants including the sewage works related to the
project, less any sums received by EBS, ... shall be reimbursed ... by means of the remuneration to be paid by the City of Vienna. Because the City of Vienna finances the extension works in
this way, there is a risk that EBS will allow its decision on the award of works contracts to be guided by factors other than
economic ones. To that extent there is a requirement to protect freedom of establishment and freedom to provide services by
means of the application of Directive 93/37.
47. It may be inferred from the meaning and purpose of the Directive that the situation of establishment for industrial or commercial
purposes and subsequent commencement of activities of a non-industrial or non-commercial nature cannot be treated differently
from the decided cases of
Mannesmann and
BFI Holding , in which the body concerned met needs in the general interest which were of a non-industrial or non-commercial nature from
the time it commenced business, and the performance of tasks on a commercial basis came only later. For the time at which
a danger to the fundamental freedoms arises is a matter of secondary importance. All that matters is the existence of a danger
to those freedoms.
48. This approach is supported principally by the consideration that it is only in this way that it is generally possible to counter
the risk of circumvention of the provisions on public procurement. If the question depended on which needs are met first,
it would be easy to circumvent the application of the provisions on public procurement by entrusting a body first with needs
of a non-industrial or non-commercial nature and only subsequently with needs not having an industrial or commercial character.
It is a matter of countering any such circumvention, if it is endeavoured to give practical effect (
effet utile ) to the provisions on public procurement. Otherwise, the Directive would be devoid of purpose.
49. Admittedly, in the order for reference the referring court expressly rejected any intention on the part of the City of Vienna
in the present case to circumvent the rules. However, the interpretation of Article 1 of Directive 93/37 cannot depend on
whether on the facts giving rise to the order for reference a risk of circumvention actually subsists. In preliminary reference
proceedings, the Court decides on the interpretation of Community law that has significance beyond the individual case.
50. On the basis of the foregoing considerations it must be stated that actually taking over the performance of general-interest
tasks, on the basis of objectively ascertainable circumstances such as the conclusion of a contract, may be assimilated to
its establishment for that specific purpose. Therefore, it is proposed that the reply to the first question should be as follows:A legal person constitutes a
contracting authority within the meaning of Article 1(b) of Directive 93/37 even if it was not established for the specific purpose of meeting
needs in the general interest, but which later actually meets such needs, provided that the assumption of such tasks is founded
on objectively ascertainable circumstances.
3. The second question
51. By its second question, the referring court asks whether the planned extension to the sewage plant is a public works contract.
It raised this question only in the event that EBS could not be categorised as a body governed by public law for the purposes
of Directive 93/37. However, since this question has already been answered affirmatively, consideration is given to the second
question only in the alternative, in the event that the Court does not adopt the reply proposed in this connection to the
first question and does not regard EBS as a body governed by public law within the meaning of Article 1(b) of Directive 93/37.
(a) Submissions of the parties
52. The consortium and the Austrian Government take the view that it is a public works contract. This was borne out first by the
fact that the contract is for the construction of a municipal sewage plant on land belonging to the municipality. Moreover,
if the lease is terminated the municipality would be required to take over the plant. The construction was undertaken according
to requirements specified by the contracting authority (the City of Vienna) in so far as the extension of the sewage plant
served to meet a need in the general interest, the City of Vienna having an interest in ensuring that that need was met. Furthermore,
a specific mode of operation is prescribed for the sewage plant, the new construction having to be integrated with the existing
plant.
53. By contrast, EBS is of the view that the contract at issue is not a public works contract. The extension works were to be
awarded by EBS in its own name and on its own account. Moreover, the City of Vienna did not have any influence on the actual
organisation of the extension works or on the procurement procedure itself. The decision as to the technical and structural
execution of the works for the sewage plant was to be taken by EBS alone. Finally, it points out that the costs of the extension
were to be reimbursed only indirectly, according to the agreements applicable generally to the operation of the sewage plant.
54. Nor does the Commission consider that EBS awards a public works contract. In the present case, there could at most be a contract
between the City of Vienna and EBS. However, the Commission is of the opinion that the sewage treatment taken over by EBS,
in the context of which the extension to the sewage plant must be viewed, is a contract for services and not a works contract,
and for that reason suggests that the second question should be answered in the negative.
55. The Netherlands Government merely formulates general views. The decisive criterion for deciding the question whether the contract
is a public works contract is whether the contracting authority has specified particular requirements and that the works must
become the property of the contracting authority. Furthermore, in order to be a public works contract, a contract must be
carried out on the basis of a specific award by a contracting authority.
(b) Opinion
56. According to the statutory definition in Article 1(a) of Directive 93/37,
public works contracts are
contracts for pecuniary interest concluded in writing between a contractor and a contracting authority as defined in (b),
which have as their object either the execution, or both the execution and design, of works related to one of the activities
referred to in Annex II or a work defined in (c) below, or the execution, by whatever means, of a work corresponding to the
requirements specified by the contracting authority. For the purposes of the question referred, EBS should be presumed to be a contractor within the meaning of this provision
and ─ contrary to the submissions on the first question ─ not a contracting authority. The relevant written contract is the
contract with the City of Vienna, a regional or local authority and thus a contracting authority under Article 1(b) of Directive
93/37. Under that contract EBS assumed the obligation in 1996 to extend the sewage plant leased and managed by it. Under point
IV of the agreement, the City of Vienna is obliged to pay EBS reasonable and uniform remuneration for the operation of the
plant and to refund the costs arising out of the extension, and therefore the contract is for valuable consideration.
57. The question referred seeks to ascertain to what extent the contract at issue has as its object
... the execution, by whatever means, of a work corresponding to the requirements specified by the contracting authority .... The parties to the main proceedings dispute both whether the object of the contract is the execution of a work and whether
the execution of the work corresponds to requirements specified by the City of Vienna.
58. The Commission has doubts as to whether the contract is for the execution of a work and considers rather that it is a contract
for services. In that connection it should be stated that under point I.2 of the contract, EBS is obliged to extend the City
of Vienna's principal sewage plant. Under point II.1, it is also obliged to treat all waste water, to dispose of the resulting
sludge and to dispose of all the special waste delivered by the City of Vienna. Under Annex I A, category 16, of Directive
92/50,
(28)
sewage and refuse disposal services are services for the purposes of Article 8 of Directive 92/50, for which there is a special
procurement procedure. In regard to the obligations on EBS under point II.1, the 1996 agreement is not a contract for works.
59. It is therefore questionable whether, conversely, the obligation in point I.2 to extend the existing plant can be regarded
as a works contract for the purposes of Directive 93/37. Admittedly, this obligation involves the execution of works. However,
its execution would have to be in accordance with the requirements laid down by the City of Vienna. That is borne out by the
fact that the extension is specified at least by reference to its function. The plant is required to be capable of treating
all incoming waste water at the rate of up to 18 cubic metres per second (point II.1). In favour of the proposition that the
agreement is for the execution of works corresponding to requirements specified by the City of Vienna, it may also be observed
that it concerns the extension of a main municipal sewage plant, that is to say a facility for whose operation the City of
Vienna is ultimately responsible as a matter of public-health provision. This responsibility is reflected in the assumption
of responsibility for costs (point IV), the provision of the necessary personnel (point I.3) and in the obligation on the
district to purchase the property on termination of the lease (see EBS' declaration of 8 September 1996, cited in the order
for reference).
60. However, the 1996 agreement provides for only one aspect of the way in which the extended plant must function, namely by prescribing
a capacity of 18 cubic metres per second. However, the agreement does not contain any provisions as to the actual construction,
in particular as regards technical and structural execution. Whether this is sufficient for there to be the execution of works
corresponding to the requirements specified by the contracting authority is not free from doubt. Moreover, the contracts for
the requisite works are awarded by EBS in its own name and on its own account (point I.2 of the agreement). It is not apparent
that the City of Vienna is in any way involved in the formulation of the detailed specifications or in the award of the individual
contracts. That means that it is not able to make the general capacity requirement any more specific at a subsequent stage
of the award procedure. In Case C-331/92, both the Advocate General in his Opinion and the Court in its judgment emphasised
that for there to be a works contract, the works to be executed must be specified in detail.
(29)
However, the 1996 agreement does not contain any description of works to be executed, but states only the result to be achieved.
It follows that the agreement cannot be held to be a public-works contract.
61. For the sake of completeness, it must also be noted that even if one were to regard the specification of the purposes of the
works to be sufficient, there would be yet another point to examine. As established above, the 1996 agreement also contains
elements of a contract for services. According to the 16th recital of Directive 92/50, it follows from Directive 71/305/EEC,
... that for a contract to be a public works contract, its object must be the achievement of a work; whereas, in so far as
these works are incidental rather than the object of the contract, they do not justify treating the contract as a public works
contract. Under the terms of Case C-331/92 the referring court would therefore have to consider whether any obligation to execute a
work is predominant in relation to the agreed obligation to supply services.
(30)
62. Without anticipating the judgment of the national court, one can hardly imagine, on the basis of the circumstances of the
present case as described, that the execution of work would be held to predominate. Instead, the agreement is the continuation
of 10 years' cooperation, and the agreed works, if at all, are the adaptation of existing capacity to changed circumstances.
Primarily, it must therefore involve the continuance of responsibility for sewage and waste water disposal which, as already
explained above, constitutes a service.
63. In light of the foregoing, it is submitted in the alternative that the second question should be answered as follows:A contractual provision which describes the work only by reference to the function to be fulfilled and at the same time is
the continuation of an existing contract for services is not a public works contract within the meaning of Article 1(a) of
Directive 93/37.
4. The third question
64. By its third question the Vergabekontrollsenat seeks to ascertain whether the limitation periods of two weeks provided for
in Paragraph 98 of the WLVergG are compatible with Council Directive 89/665 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.
(31)
(a) Submissions of the parties
65. Universale and the consortium regard the time-limits for bringing proceedings provided for in the WLVergG as too short. According
to Universale, foreign tenderers are usually unable to adhere to these time-limits. On the one hand, that defeats the objective
of ensuring that public contracts are awarded without discrimination and, on the other, frustrates the objective of giving
undertakings access to a large common market while strengthening the competitiveness of European undertakings. As evidence
of the correctness of its view of the law it points to the fact that the time-limit has in the meantime been extended to four
weeks. As a matter of fact, it again emphasises that it was in a position to notice the mistake in the conditions in the invitation
to tender only when studying the evaluation of the application documents after EBS had already rejected it and after the two-week
time-limit had expired. The consortium adds that in the short period for bringing proceedings candidates are not in a position
to analyse the contracting authority's reasons for elimination and expose those which are without substance. Furthermore,
the obligation in Paragraphs 96 and 97 of the WLVergG to give the contracting authority prior notice of a challenge means
that the two-week time-limit for bringing proceedings, which runs from the date of notification of the rejection, has already
expired by the time the contracting authority to whom notice has been given replies to the candidate.
66. In contrast, EBS points to the discretion granted to the Member States by Directive 89/665. The Community legislature required
only that decisions taken by awarding departments could be reviewed as rapidly as possible (Article 1(1)), that the review
procedures had to be available to any person who had an interest in a contract and who risked being harmed by the alleged
infringement (Article 1(3)), that Member States could require prior notice to be given to the contracting authority (Article 1(3))
and finally that interim measures had to be available, unlawful decisions set aside and damages awarded to tenderers who were
harmed (Article 2(1)). In EBS' view, short time-limits correspond to the objective in the fifth recital to the Directive of
not causing disproportionate delay to the performance of public contracts. However, national procedural rules cannot render
the enforcement of Community law impossible in practice. Finally, EBS points out that a time-limit of two weeks for bringing
proceedings against State acts is in general usual and, as evidence thereof, refers to Paragraph 63(5) of the General Law
on Administrative Procedure, under which every challenge to a decision by an authority must be made within two weeks, as well
as to Paragraph 403(3) of the EO,
(32)
under which interim measures granted by civil courts are to be challenged within two weeks.
67. The Austrian and Netherlands Governments, as well as the Commission, point out first that Directive 89/665 itself does not
fix any time-limits, but merely lays down minimum requirements. The Member States have a discretion as regards fixing time-limits
for bringing proceedings. However, all three emphasise that the Directive requires that effective legal protection be provided.
Moreover, the Austrian Government observes that time-limits for bringing proceedings have the effect of speeding up the procedure
and of reducing the risk of any abusive resort to legal action. Both correspond to the objectives of Directive 89/665. The
Commission also submits that the legal protection must not be less favourable than for similar actions concerning national
law only.
(b) Opinion
68. As regards the time-limit fixed by the WLVergG for challenging provisions contained in a public contract notice, it should
first of all be observed that Directive 89/665 merely lays down minimum requirements as to the legal protection to be secured.
It contains no provisions either as to the period within which specific acts may be challenged or as to whether or not national
implementing measures may contain limitation provisions.
69. In the context of actions for repayment of charges paid unduly, the Court has held that, in the absence of Community rules,
it is for the Member States to lay down the procedural rules under which citizens of the Union can exercise the rights conferred
on them by Community law. However, such procedural rules must not be less favourable than those in respect of similar rights
conferred by national law (principle of equivalence) and must not render virtually impossible the exercise of rights conferred
by Community law (principle of effectiveness).
(33)
In this context, the Court has also held that it is essentially compatible, in the interests of legal certainty, with the
principle of effectiveness to lay down reasonable limitation periods for bringing proceedings. Such time-limits are not liable
to render virtually impossible or excessively difficult the exercise of rights conferred by Community law.
(34)
In the absence of Community rules on limitation periods, no objection can be raised under the case-law cited to the enactment
in the WLVergG of time-limits for bringing proceedings. In that connection, the national legislature has a margin of discretion.
70. However, the Directive specifies inter alia the following objectives to be achieved by implementation and whose realisation
must not be defeated by the enactment of limitation provisions. Decisions of contracting authorities must be able to be reviewed
effectively and as rapidly as possible (Article 1(1)); the Member States may provide that the contracting authority must be
notified in advance of the intention to seek review (Article 1(3)); the national legislature must ensure the availability
of interim measures and enable unlawful decisions to be set aside and damages to be awarded (Article 2(1)).
71. However, effective legal protection for the purposes of Directive 89/665 is guaranteed only if the time-limits do not render
impossible enforcement of the legal protection granted. For that reason, the time-limits must not be so short as to prevent
tenderers and candidates from exercising their rights. In view of the fact that Article 1(1) of Directive 89/665 requires
a contracting authority's decisions to be reviewed as rapidly as possible, a time-limit of two weeks as provided for in the
WLVergG appears not to be unreasonable. In particular, it should in principle be possible for foreign candidates to comply
with it and to allow the candidates concerned time to clarify whether their rights have been infringed. The enactment of limitation
periods in the procedural rules also promotes legal certainty. Candidates in whose favour a decision has been taken should
be entitled to rely on the unchanged continuance of their legal position.
72. The extent to which this legal protection is equivalent to the legal protection granted for the enforcement of legal rights
conferred by national provisions and the extent to which it follows that the principle of equivalence is complied with remains
a question for the national court within the framework of its analysis of national law. The order for reference is silent
in that regard. A priori, however, the submissions of the parties to the proceedings, in particular the time-limits under
the General Law on Administrative Procedure referred to by EBS for bringing proceedings, indicate that there are no doubts.
In undertaking its examination, the referring court must also consider whether the challenge may be lodged only by recorded
delivery or, for example, by fax or by e-mail as well. The required form has consequences as regards the period of the time-limit
allowed.
73. As regards the consortium's complaint, that the obligation in Paragraphs 96 and 97 of the WLVergG to notify the contracting
authority in advance results in expiry of the period for bringing an action under Paragraph 98 of the WLVergG by the time
the contracting authority replies to the candidate, it must be pointed out that the time-limits can hardly ever overlap. Paragraphs 96
and 97 of the WLVergG concern a time-limit prior to the award of the contract, whereas the time-limits in Paragraph 98(1)
and (3) of the WLVergG refer to time-limits after the award of the contract. Nor, in relation to the time-limit in subparagraph
2 of that provision, is there ever likely to be a conflict. Admittedly, this provision is concerned with a period prior to
expiry of the application period and thus also prior to the award of the contract. The time-limit provided for in Paragraph 98
relates to challenges to conditions in the public notice. On the other hand, the time-limit provided for in Paragraph 96 of
the WLVergG concerns
a decision taken by a contracting authority before the award of a contract. Whether conditions in the public notice can also constitute such a
decision is a question to be decided by the referring Vergabekontrollsenat by reference to national law. Only if this question is
answered affirmatively could there be overlaps resulting in a problem as regards the effectiveness of the legal protection
ensured. However, that is not a necessary inference from the wording of the provisions of the WLVergG.
74. Therefore, it is proposed that the third question should be answered as follows: Directive 89/665 does not preclude a national
provision which fixes a time-limit for the review of an individual decision of the contracting authority in such a way that,
on expiry of that time-limit, the decision can no longer be challenged in the course of the ongoing contract award procedure,
provided that it is ensured that the legal protection afforded is not less favourable than for comparable rights conferred
by national law and the exercise of the rights conferred by Directive 89/665 is not rendered impossible in practice. In that
connection, every defect in the procedure must be pleaded by the persons concerned, subject to loss of the right to object
in the event of failure to do so.
5. The fourth question
75. The Vergabekontrollsenat's fourth question concerns the content of the contract notice to be published by the contracting
authority. It concerns whether and to what extent the evaluation criteria by reference to which the candidates to be invited
to tender are selected must be stated in the contract notice or in the tender documents.
(a) Submissions of the parties
76. As regards the scoring procedure, Universale and the consortium complain of an infringement of the principle of transparency
and intelligibility. Universale believes that the weight attached to the individual selection criteria listed must be clearly
stated in the invitation to tender so as to preclude arbitary decisions. For that reason, not only the order of importance
of the criteria but also their relative weight, and thus an objectively intelligible evaluation scheme, must be indicated
in the prior information or in the tender documents. This is not guaranteed where the evaluation scheme is lodged with a notary.
77. In the final analysis, the Netherlands Government shares that view. Applications must be evaluated transparently and objectively.
Therefore, candidates must be able to find out in advance how and against what criteria the candidates will be evaluated.
78. In contrast, EBS points to Article 30(2) of Directive 93/37. This provides only that the award criteria are to be indicated
and, where possible, though not necessarily, in order of the importance attributed to them. Nor is it possible to infer a
requirement for complete transparency from primary Community law. Therefore, lodgement of the evaluation yardsticks with a
notary is unobjectionable.
79. The Austrian Government and the Commission also point out that Directive 93/37 does not contain any detailed provisions concerning
the evaluation of applications to take part within the framework of the public prospecting of candidates in a restricted procedure.
The Austrian Government relies on Article 22 of Directive 93/37, which makes no provision as to the procedure for selecting
candidates. On general principles, the procedure chosen must be objective and non-discriminatory. However, there is no obligation
to advertise in advance in the tender documents the evaluation scheme for selecting the candidates to be invited to tender.
The Commission points out that under Article 11(6) of the Directive, only specified documents may be requested. The selection
must be based on these documents.
(b) Opinion
80. As regards the fourth question, it may first be observed that Directive 93/37 does not make any express provision concerning
the extent to which the evaluation procedure adopted by the contracting authority is to be explained in detail in the notice
of a restricted procedure or in the tender documents.
81. However, in a number of places the Directive contains statements concerning the publication of selection criteria. Under Article 7(2),
a negotiated procedure may be carried out only if the candidates have been selected in accordance with published qualitative
criteria. From this it follows that the qualitative criteria are to be advertised, but not that the mechanism to be applied
in evaluating the individual criteria must also be advertised.
82. Article 11(6) states what information contracting authorities may request from candidates. As the Commission rightly inferred,
the criteria which may be applied in selecting candidates may be discerned from this. However, this does not say whether the
candidates must be told of the system applied in evaluating the individual details.
83. Article 13(2) specifies the minimum information to be included in the invitation to tender in a restricted procedure. Under
subparagraph 2(e), this also includes the criteria for the award of the contract. However, nor does this provision require
publication of the evaluation system on which the contracting authority bases its selection.
84. Articles 18 and 22 provide that the candidates invited to tender in a restricted procedure are to be selected on the basis
of the information given by the candidates relating to the contractor's position and on the basis of the information and formalities
necessary for the evaluation of the minimum economic and technical requirements to be fulfilled by him. However, nor do these
provisions say anything concerning the evaluation of the individual criteria.
85. Finally, Article 30(2) of the Directive requires that where the award is to be made to the most economically advantageous
tender all the award criteria to be used are to be stated in the contract documents or in the contract notice.
Where possible, they are to be stated in order of importance. Admittedly, it can be inferred from this that all the criteria on which the
selection is to be based must be advertised. However, even Article 30 merely requires that the criteria on the basis of which
the award is made should be indicated. Furthermore, the wording of the provision itself contains the qualification that
where possible, this must be done in order of importance. It may be supposed that this means that the contracting authority is in principle
under a duty to state the criteria in the order of the importance attached to them. The wording of the provision does not
necessarily require such an interpretation. However, it accords with the purpose of Directive 93/37 to make the award of public
works contracts more transparent (see the 10th to 12th recitals of the Directive). However, even this interpretation does
not achieve the aim sought by the applicants in the main proceedings. For once the contracting authority gives equal weight
to two criteria, the order in which they appear no longer corresponds to the weight attached to them. Moreover,
order cannot be equated to
details of a scoring procedure. Therefore, even a strict observance of Article 30(2) does not require the details of the
scoring procedure applied by EBS to be indicated. Thus, it must be stated that the abovementioned provisions of Directive 93/37 do not support
the legal argument of the plaintiffs in the main proceedings.
86. Nor is it possible to derive support for Universale's and the consortium's legal argument from the Directive's purpose of
attaining freedom of establishment and freedom of movement for persons in respect of public works contracts (see the second
recital). For this objective is intended to be achieved by the advertisement of the individual works contracts to be awarded.
The fourth question does not concern the advertisement of a works contract for the purpose of giving domestic and foreign
undertakings the same opportunity to submit their applications. Instead, it goes beyond that and concerns an insight into
the evaluation scheme which the contracting authority intends to use when selecting candidates.
87. The procedure followed by EBS, namely to state in the contract notice the criteria for the ordering of the applications to
participate (technical capacity and award to the most economically advantageous tender), as well as the statement in the tender
documents that the bids submitted by the candidates would be evaluated according to a method lodged with a notary, precludes
the possibility that national candidates are better placed than candidates from other Member States. The award criteria are
known to all the candidates but not the details of the scoring procedure. In this way, the attainment of the objective of
the transparency requirement in Directive 93/37 is secured. The text in force provides no warrant for more extensive requirements
as regards publication of the evaluation procedure.
88. The restricted obligation here proposed of advertising the applicable award criteria, where possible, in the order of importance
attached to them is not only consistent with the wording of Directive 93/37. It also meets the concern of determining the
best tenderer in the course of a tender procedure. If the method of award is advertised in advance then it must be expected that
candidates will base their tenders on it and provide evidence of their capability particularly as regards the points given
a heavier weighting. Only in this way can they obtain admission to the category of those subsequently invited to submit a
tender. However, tailoring the application to the selection method in this way creates a risk that the contracting authority
may obtain a distorted impression of the candidates from the documents submitted. Yet the purpose of this part of the procedure
is to give the contracting authority a comprehensive picture of the candidates' technical capability. This is best done if
the candidates give as comprehensive a picture of themselves as possible, admittedly on the basis of the award criteria indicated,
but without knowing the selection method, that is to say the details of the evaluation.
89. It is important to emphasise that under Article 8(3) of Directive 93/37 the contracting authority is obliged to draw up a
written report. It includes the reasons for selecting a candidate and the reasons for rejecting the other candidates. That
ensures the reviewability by the courts of the contracting authority's decision, and thus also the previously unpublished
evaluation criteria. The solution here suggested takes into account the various interests of the participants in the selection
procedure. It prevents any possible discrimination, does not impose any requirements in regard to transparency on the procurement
procedure that are not justified by either the wording of the Directive or the general principles of Community law and are
thus excessive, and ensures reviewability by the courts.
90. Accordingly, it is proposed that the fourth question should be answered as follows: It is sufficient for the purposes of Directive
93/37 for the body inviting tenders to determine that the applications will be evaluated according to a method lodged with
a notary. The details of the weighting of the selection criteria need not be published either in the contract notice or in
the tender documents, but must be capable of being reviewed by the courts.
VI ─ Conclusion
91. For the foregoing reasons, it is proposed that the questions referred by the Vergabekontrollsenat Wien should be answered
as follows:
(1) A legal person constitutes a
contracting authority within the meaning of Article 1(b) of Directive 93/37/EEC even if it was not established for the specific purpose of meeting
needs in the general interest, but which subsequently meets such needs, provided that the assumption of such tasks is founded
on objectively ascertainable circumstances.
(2) A contractual provision which describes the work only by reference to the function to be fulfilled and at the same time is
the continuation of an existing contract for services is not a public works contract within the meaning of Article 1(a) of
Directive 93/37.
(3) Directive 89/665/EEC does not preclude a national provision which fixes a time-limit for the review of an individual decision
of the contracting authority in such a way that, on expiry of that time-limit, the decision can no longer be challenged in
the course of the ongoing contract award procedure, provided that it is ensured that the legal protection afforded is not
less favourable than for comparable rights conferred by national law and the exercise of the rights conferred by Directive
89/665 is not rendered impossible in practice. In that connection every defect in the procedure must be pleaded by the persons
concerned, subject to loss of the right to object in the event of failure to do so.
(4) It is sufficient for the purposes of Directive 93/37 for the body inviting tenders to determine that the applications will
be evaluated according to a method lodged with a notary. The details of the weighting of the selection criteria need not be
published either in the contract notice or in the tender documents, but must be capable of being reviewed by the courts.
- 1 –
- Original language: German.
- 2 –
- OJ 1993 L 199, p. 54.
- 3 –
- OJ 1989 L 395, p. 33.
- 4 –
- LGBl. No 36/1995; as amended, LGBl. No 30/1999.
- 5 –
- Paragraph 52 of the WLVergG applies to cases in which specified time-limits are shortened for reasons of urgency. This is
not the case here.
- 6 –
- Under Article 1(f) of Directive 93/37, restricted procedures are procedures
whereby only those contractors invited by the contracting authority may submit tenders.
- 7 –
- Annex 3 to the order for reference, p. 7.
- 8 –
- Scoring procedure usually means according to the number of points scored.
- 9 –
- In the terminology of Directive 93/37,
contract notice.
- 10 –
- Opinion of Advocate General Saggio in Case C-103/97
Köllensperger and Atzwanger [1999] ECR I-553, paragraphs 25 to 30.
- 11 –
- Case C-103/97
Köllensperger and Atzwanger [1999] ECR I-551, paragraphs 22 to 25.
- 12 –
- See
Köllensperger and Atzwanger (cited above, footnote 11), paragraph 17, with further references; Case C-54/96
Dorsch Consult [1997] ECR I-4961, paragraph 23.
- 13 –
- . Köllensperger and Atzwanger (cited above, footnote 11), paragraph 22.
- 14 –
- Case C-360/96
BFI Holding [1998] ECR I-6821.
- 15 –
- On this criterion, see my Opinion in Joined Cases C-223/99 and C-260/99
Agorà and Excelsior [2001] ECR I-3605, paragraphs 57 et seq.
- 16 –
- Paragraphs 25 and 26.
- 17 –
- . BFI Holding (cited above, footnote 14), paragraph 55.
- 18 –
- . BFI Holding (cited above, footnote 14), paragraph 56.
- 19 –
- Case C-44/96
Mannesmann Anlagenbau Austria and Others [1998] ECR I-73, paragraph 32.
- 20 –
- . BFI Holding (cited above, footnote 14), paragraph 62.
- 21 –
- Proposal for a Council Directive amending Directive 71/305/EEC concerning the coordination of procedures for the award of
public works contracts, COM(86) 679 final of 23 December 1986, pp. 6 and 22.
- 22 –
- Fourth Proposed Amendment, report of the Committee on Economic and Monetary Affairs and Industrial Policy, Documents of the
Sittings of the European Parliament, 1988/89, document A2-37/88, p. 6 and Reasons, p. 31.
- 23 –
- See the report cited, Reasons, p. 31.
- 24 –
- See the explanation given by the rapporteur Mr Beumer in the sitting of the European Parliament of 17 May 1988, Proceedings
of the European Parliament, 17 May 1988, No 2-365, p. 83.
- 25 –
- Case C-237/99
Commission v
France [2001] ECR I-939, paragraph 42; Case C-380/98
University of Cambridge [2000] ECR I-8035, paragraph 17.
- 26 –
- Case C-237/99
Commission v
France (cited above, footnote 25), paragraph 41; Case C-380/98
University of Cambridge (cited above, footnote 25), paragraph 16.
- 27 –
- See the Opinion in Joined Cases
Agorà and Excelsior (cited above, footnote 15), paragraph 71.
- 28 –
- Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts
(OJ 1992 L 209, p. 1).
- 29 –
- Case C-331/92
Gestión Hotelera Internacional [1994] ECR I-1329, paragraph 24, and Opinion, paragraph 41.
- 30 –
- . Gestión Hotelera Internacional (cited above, footnote 29), paragraph 28.
- 31 –
- Cited above, footnote 3.
- 32 –
- EO stands for Exekutionsordnung (Execution Regulations). However, the provision cited does not contain a time-limit.
- 33 –
- Case C-231/96
Edis [1998] ECR I-4951, paragraph 34.
- 34 –
- . Edis (cited above, footnote 33), paragraph 35.
