Keywords
Summary

Keywords

Approximation of laws — Review procedures relating to the award of public supply and public works contracts — Directive 89/665 — Member States under an obligation to provide for review procedures — Access to review procedures — Interest in obtaining the contract lost because no application to a conciliation commission was made first — Not permissible — (Council Directive 89/665, Art. 1(3))

Summary

The fact that Article 1(3) of Directive 89/665 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts, as amended by Directive 92/50 relating to the coordination of procedures for the award of public service contracts, expressly allows Member States to determine the detailed rules according to which they must make the review procedures provided for by that directive 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 none the less does not authorise them to give the term "interest in obtaining a public contract" an interpretation which may limit the effectiveness of that directive.

That provision therefore precludes an undertaking which has participated in a public procurement procedure from being regarded as having lost its interest in obtaining that contract on the ground that, before bringing a review procedure under that directive, it failed to apply to a conciliation commission.

First, prior application to such a conciliation commission inevitably has the effect of delaying the introduction of the review procedures and, second, a mere conciliation commission has none of the powers which Directive 89/665 requires Member States to grant the bodies responsible for carrying out those review procedures, so that referral to it does not ensure the effective application of the Community directives on public procurement.

see paras 32-35, operative part