Keywords
Summary

Keywords

1. Approximation of laws — Procedures for the award of public works contracts — Directive 93/37 — Contracting authorities — Body governed by public law — Definition — Body which was not established to satisfy specific needs in the general interest not having an industrial or commercial character, but in the meantime satisfying such needs — Covered — (Council Directive 93/37, Art. 1(b), second subpara.)

2. Approximation of laws — Review procedures relating to the award of public supply and public works contracts — Directive 89/665 — Time-limit for contesting decisions of contracting authorities and for raising any allegedly unlawful measures — Whether permissible — (Council Directive 89/665)

3. Approximation of laws — Procedures for the award of public works contracts — Directive 93/37 — Restricted procedure — Rules laid down in advance for weighting the criteria for selecting the candidates invited to tender — Publication required — (Council Directive 93/37)

Summary

1. The first indent of the second subparagraph of Article 1(b) of Directive 93/37 concerning the coordination of procedures for the award of public works contracts provides that a "body governed by public law" means a body established for the specific purpose of meeting needs in the general interest, not having an industrial or commercial character. For the purposes of deciding whether a body satisfies that condition, it is necessary to consider the activities which it actually carries on.

It follows that a body which was not established to satisfy specific needs in the general interest not having an industrial or commercial character, but which has subsequently taken responsibility for such needs, which it has since satisfied, fulfils that condition provided that the assumption of responsibility for the satisfaction of those needs can be established objectively.

see paras 56, 63, operative part 1

2. 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, does not preclude national legislation which provides that any application for review of a contracting authority's decision must be commenced within a time-limit laid down to that effect and that any irregularity in the award procedure relied upon in support of such application must be raised within the same period, if it is not to be out of time, with the result that, when that period has passed, it is no longer possible to challenge such a decision or to raise such an irregularity, provided that the time-limit in question is reasonable.

First, the full implementation of the objective sought by Directive 89/665 would be undermined if candidates and tenderers were allowed to invoke, at any stage of the award procedure, infringement of the rules of public procurement, thus obliging the contracting authority to restart the entire procedure in order to correct such infringements. Second, the setting of reasonable limitation periods for bringing proceedings must be regarded as satisfying, in principle, the requirement of effectiveness under Directive 89/665, since it is an application of the fundamental principle of legal certainty.

see paras 75-76, operative part 2

3. Directive 93/37 concerning the coordination of procedures for the award of public works contracts is to be interpreted as meaning that where, in the context of a restricted procedure, the contracting authority has laid down in advance the rules for weighting the criteria for selecting the candidates who will be invited to tender, it is obliged to state them in the contract notice or tender documents.

Such an interpretation is the only one which is apt to guarantee an appropriate level of transparency and, therefore, compliance with the principle of equal treatment in the procedures for awarding contracts to which that directive applies.

see paras 99-100, operative part 3