Keywords
Summary

Keywords

1 Preliminary rulings - Reference to the Court - National court or tribunal within the meaning of Article 177 of the Treaty - Definition - Body competent to hear appeals concerning the award of public contracts

(EC Treaty, Art. 177)

2 Approximation of laws - Procedures for the award of public service contracts - Directive 92/50 - Provision requiring Member States to set up appeal bodies - Non-transposition - Consequences - Power of appeal bodies having competence in relation to procedures for the award of public works contracts and public supply contracts to hear appeals relating to procedures for the award of public service contracts as well - Not a necessary consequence - Obligation for the national courts to determine whether the national law in force provides a possibility of appeal

(Council Directive 92/50, Art. 41)

Summary

3 In order to determine whether a body making a reference to the Court of Justice is a court or tribunal for the purposes of Article 177 of the Treaty, which is a question governed by Community law alone, a number of factors must be taken into account, 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. The German Federal Public Procurement Awards Supervisory Board, which is established by law as the only body competent to determine, upon application of rules of law and after hearing the parties, whether lower review bodies have committed an infringement of the provisions applicable to procedures for the award of public contracts, whose decisions are binding and which carries out its task independently and under its own responsibility, satisfies those criteria.

4 It does not follow from Article 41 of Directive 92/50, relating to the coordination of procedures for the award of public service contracts, which requires Member States to ensure that decisions taken by contract-awarding authorities can be reviewed effectively, that, where the directive has not been transposed by the end of the period laid down for that purpose, the appeal bodies of the Member States having competence in relation to procedures for the award of public works contracts and public supply contracts may also hear appeals relating to procedures for the award of public service contracts. However, in order to observe the requirement that domestic law must be interpreted in conformity with the directive 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. In this regard, the national court may be required in particular to determine 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.