Keywords
Summary

Keywords

1. Preliminary rulings — Jurisdiction of the Court — Extraction of the relevant points of Community law — Jurisdiction of the national courts — Establishment and evaluation of the facts — Application of provisions interpreted by the Court — (Art. 234 EC)

2. Approximation of laws — Procedures for the award of public works contracts — Directive 93/37 — Award of contracts — Variants submitted by tenderers — Obligation to set out in the contract documents the minimum specifications to be complied with — Scope — Reference to a provision of national legislation — Not permissible — (Council Directive 93/37, Art. 19)

3. Approximation of laws — Procedures for the award of public works contracts — Directive 93/37 — Award of contracts — Application of the criteria for the award of contracts only to variants properly taken into consideration by the contracting authority — (Council Directive 93/37, Arts 19 and 30)

Summary

1. Under Article 234 EC, which is based on a clear separation of functions between national courts and tribunals and the Court of Justice, the latter is empowered to rule on the interpretation or validity of Community provisions only on the basis of the facts which the national court or tribunal puts before it. However, it is for the national court or tribunal to apply the rules of Community law to a specific case. No such application is possible without a comprehensive appraisal of the facts of the case. The Court therefore has no jurisdiction to give a ruling on the facts in the main proceedings or to apply the rules of Community law which it has interpreted to national measures or situations, since those questions are matters for the exclusive jurisdiction of the national court or tribunal.

see para. 21

2. Article 19 of Directive 93/37 concerning the coordination of procedures for the award of public works contracts is to be interpreted as meaning that the obligation to set out the minimum specifications required by a contracting authority in order to take variants into consideration is not satisfied where the contract documents merely refer to a provision of national legislation requiring an alternative tender to ensure the performance of work which is qualitatively equivalent to that for which tenders are invited.

Tenderers may be deemed to be informed in the same way of the minimum specifications with which their variants must comply in order to be considered by the contracting authority only where those specifications are set out in the contract documents. This involves an obligation of transparency designed to ensure compliance with the principle of equal treatment of tenderers, which must be complied with in any procurement procedure governed by the Directive.

see paras 29-30, operative part 1

3. Article 30 of Directive 93/37 concerning the coordination of procedures for the award of public works contracts, which lays down the permissible criteria for the award of contracts, can apply only to variants which have been properly taken into consideration by the contracting authority in accordance with Article 19 of that directive. Variants may not, in that regard, be properly taken into consideration, even if they have not been declared inadmissible in the tender notice as provided for in the second paragraph of Article 19, where the contracting authority has failed to comply with the requirements laid down in that provision with respect to the statement of the minimum specifications with which those variants must comply.

see paras 31-34, operative part 2