Keywords
Summary

Keywords

1. Preliminary rulings - Reference to the Court - National court or tribunal within the meaning of Article 234 EC - Definition - Body competent to hear appeals concerning the award of public contracts

(Art. 234 EC)

2. Approximation of laws - Review procedures relating to the award of public supply and public works contracts - Directives 89/665 and 92/50 - Withdrawal of an invitation to tender - Member States under an obligation to provide for review procedures - Limitation of the extent of the review of the legality of the decision - None - Determination of the time to be taken into consideration for assessing the legality of the decision - Jurisdiction of the national court - Limits

(Council Directives 89/665, Art. 1(1), and 92/50)

Summary

$$1. In order to determine whether a body making a reference for a preliminary ruling is a court or tribunal within the meaning of Article 234 EC, which is a question governed by Community law alone, the Court takes account of a number of factors, such as whether the body 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

Those criteria are satisfied by the Vergabekontrollsenat des Landes Wien (Public-Procurement Review Chamber of the Vienna Region), which is established by the Viennese law on public procurement as a body with jurisdiction to rule, applying rules of law, following an inter partes procedure, and by decision with binding force, on review proceedings concerning procedures for the award of contracts. Moreover, the provisions governing the composition and functioning of that body guarantee its permanence and independence.

( see paras 25-27 )

2. Article 1(1) 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, requires the decision of the contracting authority to withdraw the invitation to tender for a public service contract to be open to a review procedure, and to be capable of being annulled where appropriate, on the ground that it has infringed Community law on public contracts or national rules implementing that law.

That decision is subject to fundamental rules of Community law, and in particular to the principles laid down by the Treaty on the right of establishment and the freedom to provide services. It also falls within the rules laid down by Directive 89/665 in order to ensure compliance with the rules of Community law on public contracts.

In the context of such a review procedure, Directive 89/665, as amended by Directive 92/50, precludes national legislation from limiting review of the legality of the withdrawal of an invitation to tender to mere examination of whether it was arbitrary.

Determination of the time to be taken into consideration for assessing the legality of the decision by the contracting authority to withdraw an invitation to tender is a matter for national law, provided that the relevant national rules are not less favourable than those governing similar domestic actions and that they do not make it practically impossible or excessively difficult to exercise rights conferred by Community law.

( see paras 42, 48, 55, 64, 68, operative parts 1-3 )