«(Public works contracts – Rules for participating – Group of contractors submitting a tender – Change in the composition of the group – Prohibition laid down in the contract documents – Compatibility with Community law – Review procedures)»

1.. Approximation of laws – Procedures for the award of public works contracts – Directive 93/37 – Award of contracts – Groups of tenderers – National rules prohibiting a change in the composition of the group after submission of tenders – Whether permissible (Council Directive 93/37)

2.. Approximation of laws – Review procedures relating to the award of public supply and public works contracts – Directive 89/665 – Member States under an obligation to provide for review procedures – Groups of tenderers – Availability of review procedures (Council Directive 89/665)

JUDGMENT OF THE COURT (Sixth Chamber) 23 January 2003 (1)

((Public works contracts – Rules for participating – Group of contractors submitting a tender – Change in the composition of the group – Prohibition laid down in the contract documents – Compatibility with Community law – Review procedures))

In Case C-57/01,

REFERENCE to the Court under Article 234 EC by the Diikitiko Efetio Athinon (Greece) 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 93/37/EEC of 14 June 1993 concerning the coordination of procedures for the award of public works contracts (OJ 1993 L 199, p. 54),

THE COURT (Sixth Chamber),,

composed of: C. Gulmann, acting for the President of the Sixth Chamber, V. Skouris, F. Macken, N. Colneric and J.N. Cunha Rodrigues (Rapporteur), Judges,

Advocate General: C. Stix-Hackl,

after considering the written observations submitted on behalf of:

having regard to the Report for the Hearing,

after hearing the oral observations of Makedoniko Metro and Mikhaniki AE, represented by G. Karydis and A. Pliakos, of the Greek Government, represented by V. Kyriazopoulos, and of the Commission, represented by M. Nolin and M. Konstantinidis, acting as Agents, at the hearing on 6 June 2002,

after hearing the Opinion of the Advocate General at the sitting on 11 July 2002,

gives the following

Community law

.

National law

Observations submitted to the Court

Findings of the Court

1.whether Directive 93/37 precludes national rules prohibiting a change in the composition of a group of contractors taking part in a procedure for the award of a public-works contract which occurs after submission of tenders, and

1.Directive 93/37 does not preclude national rules which prohibit a change in the composition of a consortium taking part in a procedure for the award of a public works contract or a public works concession which occurs after submission of tenders; and

On those grounds,

THE COURT (Sixth Chamber),

in answer to the question referred to it by the Diikitiko Efetio Athinon by order of 26 October 2000, hereby rules:

Gulmann

Skouris

Macken

Colneric

Cunha Rodrigues

Delivered in open court in Luxembourg on 23 January 2003.

R. Grass

J.-P. Puissochet

Registrar

President of the Sixth Chamber