«(Public procurement – Directive 89/665/EEC – Review procedures concerning the award of public contracts – Power of the body responsible for review procedures to consider infringements of its own motion – Directive 93/36/EEC – Procedures for the award of public supply contracts – Selection criteria – Award criteria)»

1.. Approximation of laws – Review procedures in respect of the award of public supply and public works contracts – Directive 89/665 – Power of the body responsible for review procedures to consider of its own motion any unlawfulness of a decision awarding a contract – Whether permissible – Power to dismiss an application by reason of the unlawfulness raised of its own motion – Excluded (Council Directive 89/665)

2.. Approximation of laws – Procedures for the award of public supply contracts – Directive 93/36 – Award of contracts – Award criteria – Account taken of a list of principal deliveries effected previously – Not permissible (Council Directive 93/36, Arts 23(1) and 26(1))

3.. Approximation of laws – Procedures for the award of public supply contracts – Directive 93/36 – Award of contracts – Award criteria – Requirement that the product which is the subject of the tenders should be available for inspection by the contracting authority within a radius of a specific number of kilometres – Not permissible (Council Directive 93/36, Arts 23(1) and 26(1))

JUDGMENT OF THE COURT (Sixth Chamber) 19 June 2003 (1)

((Public contracts – Directive 89/665/EEC – Review procedures concerning the award of public contracts – Power of the body responsible for review procedures to consider infringements of its own motion – Directive 93/36/EEC – Procedures for the award of public supply contracts – Selection criteria – Award criteria))

In Case C-315/01,

REFERENCE to the Court under Article 234 EC by the Bundesvergabeamt (Austria) for a preliminary ruling in the proceedings pending before that court between

and

on the interpretation of Council Directive 89/665/EEC of 21 December 1989 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 (OJ 1989 L 395, p. 33), as amended by Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts (OJ 1992 L 209, p. 1), and of Council Directive 93/36/EEC of 14 June 1993 coordinating procedures for the award of public supply contracts (OJ 1993 L 199, p. 1),

THE COURT (Sixth Chamber),,

composed of: J.-P. Puissochet, President of the Chamber, R. Schintgen (Rapporteur), V. Skouris, F. Macken and J.N. Cunha Rodrigues, Judges,

Advocate General: L.A. Geelhoed,

after considering the written observations submitted on behalf of:

having regard to the report of the Judge-Rapporteur,

after hearing the Opinion of the Advocate General at the sitting on 10 October 2002,

gives the following

Community provisions

Directive 89/665

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...

Furthermore, except where a decision must be set aside prior to the award of damages, a Member State may provide that, after the conclusion of a contract following its award, the powers of the body responsible for the review procedures shall be limited to awarding damages to any person harmed by an infringement....

The members of such an independent body shall be appointed and leave office under the same conditions as members of the judiciary as regards the authority responsible for their appointment, their period of office and their removal. At least the President of this independent body shall have the same legal and professional qualifications as members of the judiciary. The independent body shall take its decisions following a procedure in which both sides are heard, and these decisions shall, by means determined by each Member State, be legally binding.

Directive 93/36

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....

....

National legislation

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....

...

.

On those grounds,

THE COURT (Sixth Chamber),

in answer to the questions referred to it by the Bundesvergabeamt by order of 11 July 2001, hereby rules:

Puissochet

Schintgen

Skouris

Macken

Cunha Rodrígues

Delivered in open court in Luxembourg on 19 June 2003.

R. Grass

J.-P. Puissochet

Registrar

President of the Sixth Chamber