«(Public procurement – Directive 89/665/EEC – Review procedures for the award of public contracts – Articles 1(3) and 2(1)(b) – Persons to whom review procedures must be available – Definition of interest in obtaining a public contract)»

1.. Approximation of laws – Review procedures concerning the award of public supply and public works contracts – Directive 89/665 – Member States under an obligation to provide for review procedures – Access to review procedures – Failure by an undertaking to participate in the contracts award procedure because of allegedly discriminatory specifications – Failure to seek a review of those specifications – Excluded from access to review procedures – Whether permissible (Council Directive 89/665, Arts 1(3) and 2(1)(b))

2.. Approximation of laws – Review procedures concerning the award of public supply and public works contracts – Directive 89/665 – Member States under an obligation to provide for review procedures – Access to review procedures – Interest in obtaining the contract lost because no application to a conciliation commission was made first – Not permissible (Council Directive 89/665, Art. 1(3))

JUDGMENT OF THE COURT (Sixth Chamber) 12 February 2004 (1)

((Public procurement – Directive 89/665/EEC – Review procedures for the award of public contracts – Articles 1(3) and 2(1)(b) – Persons to whom review procedures must be available – Definition of interest in obtaining a public contract))

In Case C-230/02,

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 Articles 1(3) and 2(1)(b) 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),

THE COURT (Sixth Chamber),,

composed of: V. Skouris, acting as President of the Sixth Chamber, C. Gulmann, J.N. Cunha Rodrigues, J.-P. Puissochet and R. Schintgen (Rapporteur), Judges,

Advocate General: L.A. Geelhoed,

after considering the written observations submitted on behalf of:

having regard to the Report for the Hearing,

after hearing the oral observations of Grossmann Air Service, Bedarfsluftfahrtunternehmen GmbH & Co. KG, represented by P. Schmautzer, of the Austrian Government, represented by M. Winkler, acting as Agent, and of the Commission, represented by J.C. Schieferer, acting as Agent, at the hearing on 10 September 2003,

after hearing the Opinion of the Advocate General at the sitting on 16 October 2003,

gives the following

Community legislation

...

National legislation

...

Failure to participate in the contract award procedure

Absence of proceedings against the invitation to tender

On those grounds,

THE COURT (Sixth Chamber),

in answer to the questions referred to it by the Bundesvergabeamt by order of 14 May 2002, hereby rules:

Skouris

Gulmann

Cunha Rodrigues

Puissochet

Schintgen

Delivered in open court in Luxembourg on 12 February 2004.

R. Grass

V. Skouris

Registrar

President