«(Public procurement – Directive 89/665/EEC – Review procedures concerning the award of public contracts – Article 1(3) – Persons to whom review procedures must be available)»

1.. 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 – Access to review procedures limited to persons who have been or risk being harmed by the alleged infringements – Whether permissible (Council Directive 89/665, Art. 1(3))

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 – Tenderer whose bid should have been eliminated before the selection – Access to review procedures refused because the tenderer neither has been nor risks being harmed – Not permissible (Council Directive 89/665, Art. 1(3))

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

((Public contracts – Directive 89/665/EEC – Review procedures concerning the award of public contracts – Article 1(3) – Persons to whom review procedures must be available))

In Case C-249/01,

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 Article 1(3) 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: J.-P. Puissochet, President of the Chamber, R. Schintgen (Rapporteur), V.Skouris, F. Macken and J.N. Cunha Rodrigues, Judges,

Advocate General: J. Mischo,

after considering the written observations submitted on behalf of:

having regard to the Report for the Hearing,

after hearing the oral observations of Mr Hackermüller, the Austrian Government and the Commission at the hearing on 16 January 2003,

after hearing the Opinion of the Advocate General at the sitting on 25 February 2003,

gives the following

Community provisions

...

National legislation

On those grounds,

THE COURT (Sixth Chamber),

in answer to the questions referred to it by the Bundesvergabeamt by order of 25 June 2001, hereby rules:

Puissochet

Schintgen

Skouris

Macken

Cunha Rodrigues

Delivered in open court in Luxembourg on 19 June 2003.

R. Grass

J.-P. Puissochet

Registrar

President of the Sixth Chamber