Keywords
Summary

Keywords

1 Approximation of laws - Review procedures in relation to the award of public supply and public works contracts - Directive 89/665 - Bodies with jurisdiction to review procedures - Applicability of the conditions laid down in Article 2(8), second subparagraph, of Directive 89/665 - Conditions - `Courts or tribunals' - Not applicable

(Council Directive 89/665, Art. 2(8), second subpara.)

2 Approximation of laws - Procedures for the award of public service contracts - Directive 92/50 - Provision requiring Member States to establish bodies with jurisdiction to review procedures - Failure to transpose the Directive - Consequences - Whether possible for bodies with jurisdiction in relation to public supply and public works contracts also to hear appeals concerning public service contracts - Not axiomatic - National courts required to determine whether appeals are possible on the basis of the domestic law in force

(Council Directives 89/665, Art. 2(8), and 92/50, Art. 41)

3 Approximation of laws - Procedure for the award of public service contracts - Directive 92/50 - Scope - Engineering services, including planning, consultancy and studies relating to the running of a hospital - Covered - Falling within Category No 12 of Annex I A

(Council Directive 92/50, Annex I A)

4 Approximation of laws - Procedures for the award of public service contracts - Directive 92/50 - Direct effect

(Council Directive 92/50)

Summary

1 The conditions laid down in Article 2(8) of Council 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 do not apply to authorities whose composition and functioning are governed by rules such as those governing the Unabhängiger Verwaltungssenat für Kärnten (an independent administrative authority responsible for verifying the legality of administrative measures adopted by the Land of Carinthia), which displays all the characteristics required for it to be recognised as a court or tribunal within the meaning of Article 177 of the Treaty.

2 Neither Article 2(8) nor any other provisions 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 may be interpreted as meaning that, if Directive 92/50 relating to the coordination of procedures for the award of public service contracts has not been transposed by the end of the period prescribed for that purpose, the review bodies in the Member States - established under Article 2(8) of Directive 89/665 - with jurisdiction to review procedures for the award of public supply and public works contracts may also hear appeals concerning procedures for the award of public service contracts.

However, in order to observe the requirement that domestic law must be interpreted in conformity with Directive 92/50 and the requirement that the rights of individuals must be protected effectively, the national court must determine whether the relevant provisions of its domestic law allow recognition of a right for individuals to bring an appeal in relation to awards of public service contracts. The national court must determine in particular whether such a right of appeal may be exercised before the same bodies as those established to hear appeals concerning the award of public supply contracts and public works contracts.

3 Services relating to a number of engineering services, including planning, consultancy and studies for various medical facilities, and concerning tasks relating to the preparation and execution of projects for the construction of a paediatric clinic in a hospital and the corresponding medical facilities, fall within Category No 12 of Annex I A to Directive 92/50 relating to the coordination of procedures for the award of public service contracts.

4 The provisions of Titles I and II of Directive 92/50 may be relied upon directly by individuals before national courts. The provisions of Titles III to VI may also be relied upon by an individual before a national court if it is clear from an individual examination of their wording that they are unconditional and sufficiently clear and precise.

The detailed provisions of Titles III to VI of Directive 92/50 on the choice of award procedures and the rules applicable to competitions, common technical and advertising rules, and participation and selection and award criteria, are, subject to exceptions and qualifications which are apparent from their terms, unconditional and sufficiently clear and precise to be relied on by service providers before national courts.